Losey v. Diersing , 2013 Ohio 1108 ( 2013 )

[Cite as Losey v. Diersing, 2013-Ohio-1108.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
RAYMOND LOSEY, :
Petitioner-Appellee, : CASE NO. CA2012-06-048
: OPINION
- vs - 3/25/2013
:
LEIGH DIERSING, :
Respondent-Appellant. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2010-CVH-1342
Raymond Losey, 562 Williamsburg Court, Cincinnati, Ohio 45244, petitioner-appellee, pro se
Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for respondent-appellant
HENDRICKSON, P.J.
{¶ 1} Respondent-appellant, Leigh Diersing, appeals a decision of the Clermont
County Court of Common Pleas overruling her objections to a magistrate's decision finding
her in contempt of a civil stalking protection order. For the reasons outlined below, we affirm
the decision of the trial court.
{¶ 2} On June 29, 2010, petitioner-appellee, Raymond Losey, filed a petition for a
civil stalking protection order against appellant. On June 30, 2010, a magistrate conducted
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an ex parte hearing on the petition, and on July 7, 2010, the magistrate issued a temporary
ex parte civil protection order against appellant. The magistrate then scheduled a full hearing
on appellee's petition for July 13, 2010. On July 15, 2010, the magistrate issued a
permanent civil stalking protection order, effective for five years. The protection order
prohibited appellant from entering appellee's place of business, and also ordered her to
remain 500 feet away from appellee, his children, and his wife.
{¶ 3} On April 15, 2011, appellee filed a letter with the court, alleging that appellant
had violated the terms and conditions of the protection order. A show cause hearing was
held on May 16, 2011, and both parties appeared at the hearing. On May 20, 2011, the
magistrate found that appellant had violated the terms of the protection order by entering
appellee's place of business. Accordingly, the magistrate found appellant in contempt, and
sentenced her to serve three days in jail and to pay a $250 fine. However, the magistrate
suspended appellant's sentence, pending any further findings of contempt.
{¶ 4} On January 5, 2012, appellee filed a second letter with the court, alleging that
appellant had once again violated the protection order. A hearing was set for February 13,
2012. After the hearing, the magistrate found appellant to be in contempt for a second time.
Thus, the magistrate reimposed the suspended three-day jail sentence and $250 fine, and
imposed an additional $250 fine and three days in jail.
{¶ 5} On February 23, 2012, appellant filed objections to the magistrate's decision
and requested oral argument. The trial court subsequently overruled appellant's objections
without a hearing, and affirmed the magistrate's decision.
{¶ 6} Appellant timely appeals, raising three assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW WHEN IT
FAILED TO GRANT TO RESPONDENT THE OPPORTUNITY TO MAKE ORAL
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ARGUMENT ON HER OBJECTIONS TO THE MAGISTRATE'S DECISION.
{¶ 9} Appellant first claims that the trial court erred in denying her request for oral
argument on her objections to the magistrate's decision.
{¶ 10} Appellant argues that, without a hearing on her objections, she was "robbed" of
the opportunity to request community service in lieu of prison, so that she could be treated for
bi-polar disorder. However, appellant clearly admits that her attorney had planned on making
this argument prior to the requested hearing. Thus, we do not see why appellant could not
have included this argument in her written objections to the court, or why she was prevented
from filing a separate request to perform community service to satisfy her sentence. See
Civ.R. 53(D)(3)(b).
{¶ 11} We further fail to see how the trial court abused its discretion in refusing to hear
additional evidence on appellant's objections, as she cannot demonstrate that she was
unable to present such evidence to the magistrate during the February 13, 2012 show cause
hearing. Pursuant to Civ.R. 53(D)(4)(d),
If one or more objections to a magistrate's decision are timely
filed, the court shall rule on those objections. * * * Before so
ruling, the court may hear additional evidence but may refuse to
do so unless the objecting party demonstrates that the party
could not, with reasonable diligence, have produced that
evidence for consideration by the magistrate.
{¶ 12} Here, there is no evidence that appellant could not, with reasonable diligence,
have presented evidence of her bi-polar disorder for the magistrate's consideration, given
that she had previously testified during the first show cause hearing in May 2011 that she
suffered from mental health issues that required therapy. Appellant has not shown that the
mental health issues she suffered in May 2011 differed from those that she developed
immediately after she filed her objections in February 2012. Thus, the trial court did not
abuse its discretion in refusing to consider appellant's additional evidence, during oral
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argument or otherwise. Barber v. Barber, 7th Dist. No. 05 CO 46, 2006-Ohio-4956, ¶ 26 ("[a]
claimed reservation of the right to add more objections at oral argument does not comply with
Civ.R. 53"). Accordingly, we reject appellant's first argument.
{¶ 13} Appellant also contends that the trial court's failure to grant her request for oral
argument constituted an abuse of discretion. Again, we disagree.
{¶ 14} Civ.R. 53(D)(4)(d) does not require the trial court to hold a hearing prior to ruling
on a party's objections to a magistrate's decision. Instead, it only requires that the court "rule
on those objections." Id. Appellant does not cite any authority to support her position to the
contrary. Further, the trial court's analysis indicates that appellant's objections were not so
complex as to warrant a hearing for additional clarification.
{¶ 15} In closing, we find that the trial court fully complied with Civ.R. 53(D)(4)(d),
when it issued a detailed decision replete with analysis, rationale, and a basis for overruling
each of appellant's objections.
{¶ 16} Appellant's first assignment of error is overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRED AS A MATTER OF FACT AND OF LAW WHEN IT
FAILED TO DISMISS ITS JURISDICTION OVER THE CASE WHEN IT HELD THE
SECOND HEARING FOLLOWING THE FIRST EX-PARTE HEARING MORE THAN TEN
DAYS AFTER THE FIRST EX-PARTE ORDER.
{¶ 19} Appellant next argues that the trial court lacked jurisdiction over her case,
because the magistrate failed to hold a full hearing on the civil protection order within the
statutory time limits of R.C. 2903.214.
{¶ 20} R.C. 2903.214(D)(2)(a) states, in part:
If the court, after an ex parte hearing, issues a protection order
described in division (E) of this section, the court shall schedule
a full hearing for a date that is within ten court days after the ex
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parte hearing. The court shall give the respondent notice of, and
an opportunity to be heard at, the full hearing. The court shall
hold the full hearing on the date scheduled under this division
unless the court grants a continuance of the hearing in
accordance with this division.
{¶ 21} Here, the magistrate held an ex parte hearing on appellee's petition for a civil
protection order on June 30, 2010, but did not conduct a full hearing on the petition until July
13, 2010. Because more than ten days passed between the ex parte hearing and the full
hearing, appellant contends that the court lacked jurisdiction to proceed with the case.
{¶ 22} Upon review, we find that appellant has waived this argument, because she
failed to object to the full hearing date prior to this appeal. There is nothing in R.C. 2903.214
that suggests that the failure to hold a full hearing within ten days of the ex parte hearing
divests the trial court of jurisdiction to proceed, and therefore, objections to the time
requirement may be waived. Compare Civ.R. 12(H)(3) ("[w]henever it appears by suggestion
of the parties or otherwise that the court lacks jurisdiction on the subject matter, the court
shall dismiss the action"). Because the time to object to nonjurisdictional defects stemming
from the full hearing before the magistrate has passed, appellant has waived this argument
on appeal. Hamilton v. Ebbing, 12th Dist. No. CA2011-01-001, 2012-Ohio-2250, fn. 3 ("[i]t is
well-established that a party cannot raise new issues or legal theories for the first time on
appeal").
{¶ 23} Appellant also argues that her stalking conviction is void ab initio as a result of
the magistrate's failure to comply with the time limits of R.C. 2903.214(D)(2)(a). However, for
the reasons stated above, we conclude that appellant has waived this argument, as well.
See also R.C. 2903.214(D)(2)(a)(iv).
{¶ 24} Appellant's second assignment of error is overruled.
{¶ 25} Assignment of Error No. 3:
{¶ 26} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
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AFFIRMING THE MAGISTRATE'S DECISION ON CONTEMPT.
{¶ 27} In her final assignment of error, appellant contends that the trial court erred in
upholding the magistrate's finding of contempt.
{¶ 28} Appellant first claims that the trial court's decision was against the manifest
weight of the evidence, as the court "glibly" rendered its decision "without bothering to give
[appellant] a chance to explain herself." However, this does not explain how appellant's
behavior did not rise to the level of contempt. Moreover, as we previously discussed,
appellant had ample opportunity to explain herself when she appeared before the magistrate.
{¶ 29} Appellant also argues that the trial court abused its discretion in affirming the
magistrate's decision.
{¶ 30} Civil contempt must be established by clear and convincing evidence.
Underwood v. O'Hara, 12th Dist. No. CA99-03-057, 2000 WL 313493, * 1 (Mar. 27, 2000),
citing Brown v. Executive 200, Inc., 64 Ohio St. 2d 250 (1980). An appellate court will not
reverse a trial court's ruling on civil contempt absent an abuse of discretion. Ossai-Charles v.
Charles, 12th Dist. Nos. CA2010-12-129, CA2011-01-007, 2011-Ohio-3766, ¶ 31. More than
a mistake of law or judgment, an abuse of discretion implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219
(1983).
{¶ 31} Upon review, we find that the trial court's findings were fully supported by the
record. During the contempt hearing, appellee testified that since September 2011, appellant
had engaged in an ongoing pattern of "trolling" areas that appellee frequented, and that he
would see appellant up to ten times per day. Appellee also described numerous instances of
appellant's threatening conduct, including a time when appellant followed appellee and his
family in her car, verbally assaulted appellee, watched him from a parking lot while he picked
up his wife from work, and made vulgar hand gestures toward appellee while driving.
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Although appellant testified that she had legitimate excuses for her behavior, and stated that
the majority of their encounters were simply happenstance, the lower court was in the best
position to weigh the evidence. See, e.g., Cavaleri v. Cavaleri, 8th Dist. No. 68209, 1995 WL
396336, * 3 (July 6, 1995) (regarding contempt, "[d]eference must be shown to the trial
court's judgment and the findings of fact on which it rests").
{¶ 32} On the strength of this record, we hold that the finding of contempt was based
upon clear and convincing evidence, and that the trial court did not abuse its discretion in
upholding the magistrate's decision.
{¶ 33} Appellant's third assignment of error is overruled.
{¶ 34} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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