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J.S. v. D.E.

Court of Appeals of Ohio, Seventh District, Mahoning

August 28, 2017

J.S., PETITIONER-APPELLEE,
v.
D.E., RESPONDENT-APPELLANT.

         Civil Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 16 CV 3475

          For Petitioner-Appellee J.S., pro-se.

          For Respondent-Appellant D.E., pro-se.

          JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite.

          OPINION

          ROBB, J.

         {¶1} Respondent-Appellant D.E. appeals the decision of the Mahoning County Common Pleas Court adopting the magistrate's decision granting a civil stalking protection order to Petitioner J.S. with D.B. listed as an additional person protected by the order. Appellant argues the court erred in granting the protection order, claiming Petitioner was not a family or household member of the additional person protected by the order. However, Appellant's untimely and general objection failed to carry the burden imposed by the rule, and no transcript was ordered to clarify the relationship between Petitioner and the additional protected person. In any event, Civ.R. 65.1(G) requires a party to file timely objections to the trial court's adoption of the magistrate's granting of the protection order prior to filing an appeal. As Appellant failed to file timely objections as required by the rule, this appeal is dismissed.

         STATEMENT OF THE CASE

         {¶2} On December 30, 2016, Petitioner filed a petition for a civil stalking protection order against Appellant. On the required petition form, he named himself "on behalf of Deometric Brown" as the petitioner. In describing the conduct at issue, the petition alleged: "Resident's girlfriend is trying to feed the patient that is ordered not to have food by mouth. [Appellant] feeds this patient without regard to his personal safety." An ex parte hearing was held on January 3, 2017, and an ex parte civil stalking protection order was issued by the magistrate against Appellant the same day. Appellant was personally served with the ex parte protection order and appeared for the hearing before the magistrate on January 19, 2017.

         {¶3} The magistrate granted the civil stalking protection order after the full hearing, and upon the trial court's adoption of the order, it was filed on January 20, 2017. Under the heading of persons protected by the order, the space for the petitioner contained Petitioner's name and the space for "Petitioner's Family or Household Members" contained, "[D.B.] (as resident of medical care facility)." Appellant was ordered to stay at least 500 feet away from Petitioner and all other protected persons named in the order, effective until March 1, 2018. The court checked the box finding, "1) the Respondent has knowingly engaged in a pattern of conduct that caused Petitioner to believe that the Respondent will cause physical harm or cause or has caused mental distress; and 2) the following orders are equitable, fair, and necessary to protect the persons named in this Order from stalking offenses."

         {¶4} The clerk noted service of the protection order in the docket on Tuesday, January 24, 2017. Thus, service was noted in the docket within three weekdays. See Civ.R. 6(A) (weekends not included); Civ.R. 58(B) (clerk to note service in docket within three days); Civ.R. 65.1(C)(3) (service in accordance with Civ.R. 5(B), which includes service being complete upon mailing). On February 14, 2017, Appellant filed a letter, which spoke of various items she did not wish to waive[1] and which voiced a general objection to the protection order without specifying any grounds. On February 24, 2017, the trial court overruled the objection as untimely filed.

         {¶5} In the meantime, on February 17, 2017, Appellant filed a notice of appeal from the January 20, 2017 civil stalking protection order. Appellant filed her brief pro se.

         ARGUMENT

         {¶6} Appellant's sole argument on appeal revolves around the following claim: "the trial court erred by granting this protection order to petitioner on behalf of Third Party who is not related to him nor is a member of his household." Appellant notes a magistrate's granting of a protection order after a full hearing shall comply with statutory requirements relating to such orders. See Civ.R. 65.1(F)(3)(c)(i). The civil stalking protection order was issued under R.C. 2903.214, which cites R.C. 3113.31 for the definition of family or household member. See R.C. 2903.214(A)(3).

         {¶7} Pursuant to R.C. 2903.214(C)(1), the petition shall contain an allegation the respondent engaged in a violation of R.C. 2903.211 against the person to be protected. R.C. 2903.211 is the statute defining menacing by stalking. For instance, "No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person." R.C. 2903.211 (A)(1). The menacing by stalking statute defines family or household member as:

(a) Any of the following who is residing or has resided with the person against whom the act prohibited in division (A)(1) of this section is committed:
(i) A spouse, a person living as a spouse, or a former spouse of the person;
(ii) A parent, a foster parent, or a child of the person, or another person related by consanguinity or ...

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