[Cite as J.J. v. J.A., 2013-Ohio-5729.]


STATE OF OHIO                      )                     IN THE COURT OF APPEALS
                                   )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

J. J.                                                    C.A. No.      26909

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
J. A.                                                    COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellant                                        CASE No.   DR 2012 09 2711

                                  DECISION AND JOURNAL ENTRY

Dated: December 26, 2013



        BELFANCE, Judge.

        {¶1}     J.A. appeals from the order of the Summit County Court of Common Pleas,

Domestic Relations Division, adopting the magistrate’s decision to grant J.J. a civil protection

order against J.A.        For the reasons set forth below, we reverse and remand for further

proceedings.

                                                  I.

        {¶2}     On September 12, 2012, J.J filed a petition for a Domestic Violence Civil

Protection Order pursuant to R.C. 3113.31.             A temporary protection order was issued on

September 13, 2012, and a hearing was set for September 24, 2012, before a magistrate.

        {¶3}     At that hearing, J.J. testified and presented evidence in support of her petition for

a protection order. During J.A.’s cross-examination of J.J., the magistrate told J.A.’s counsel,

“You have fourteen minutes.” The magistrate later told J.A.’s counsel that he had seven minutes

and, when he completed his cross-examination, five minutes remaining. After J.A.’s counsel
                                                  2


completed his cross-examination of J.J., he moved to dismiss the petition, which the magistrate

indicated that she would take under advisement. The magistrate then indicated that the hearing

was over, saying “I did start this like a little after ten. I want to say 10:30, 10:45, and I gave it

more than enough time. It’s now 12:00. * * * This is it. It just needs to be over with.” J.A.’s

counsel informed the magistrate that he wanted to put J.A. on the stand and call additional

witnesses, but the magistrate told him, “Well[,] * * * in that particular instance a motion should

have been filed to request more time. Whenever we set these down it’s only ever for an hour

unless there’s a motion for more time.” J.A.’s counsel orally moved for more time, and the

magistrate denied the motion.

       {¶4}    The magistrate issued a civil protection order, which was adopted by the trial

court. J.A. filed several objections to the order, one of which was that his due process rights had

been violated since he had not been permitted to put forth any evidence.            The trial court

overruled his objections, reasoning that the hearing was only scheduled for an hour, that the

hearing lasted more than an hour, and that J.A.’s arguments and cross-examination of J.J. had

taken up more than half of the pages in the transcript. The trial court also stated that “[f]ull

evidentiary hearings on civil protection orders are scheduled for one hour unless either party

requests additional time before the hearing.”

       {¶5}    J.A. has appealed, raising one assignment of error for our review.

                                                II.

                                   ASSIGNMENT OF ERROR

       APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO DUE
       PROCESS OF LAW WHERE THE TRIAL COURT DID NOT PROVIDE THE
       APPELLANT WITH A FAIR AND FULL OPPORTUNITY TO RESPOND TO
       THE APPELLEE’S CLAIMS AND WHERE THE TRIAL COURT SET
       ARBITRARY TIME CONSTRAINTS ON THE CIVIL PROTECTION ORDER
       HEARING WITHOUT ANY PRIOR NOTIFICATION TO THE PARTIES, IN
                                                3


       VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION
       SIXTEEN OF THE OHIO CONSTITUTION.

       {¶6}    J.A. argues that his right to due process was violated because he was not

permitted to present evidence. We agree.

       {¶7}    Because this case arose after July 1, 2012, it is governed by the provisions of

newly-adopted Civ.R. 65.1. “According to Civ.R. 65.1(F)(3), civil protection petitions may be

referred to a magistrate for determination, but civil protection orders are not ‘magistrate’s

order[s]’ as contemplated by Civ.R. 53(D) and are not subject to the requirements of Civ.R. 53

related to magistrate’s orders.” R.C. v. J.G., 9th Dist. Medina No. 12CA0081-M, 2013-Ohio-

4265, ¶ 5. The trial court’s review is limited, and a protection order is a final, appealable order

that may be fully reviewed on appeal with or without objections being filed in the trial court. Id.

Generally, we review a trial court’s decision concerning objections from a magistrate’s decision

or order for an abuse of discretion. Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-

Ohio-3788, ¶ 5. “In so doing, we consider the trial court’s action with reference to the nature of

the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-

Ohio-3139, ¶ 18.

       {¶8}    J.A. argues that the manner in which the magistrate conducted the evidentiary

hearing violated his right to due process. He points to the lack of prior notice regarding the

existence of a limitation on the length of the hearing and the fact that he was unable to put on

evidence in his defense. “An essential principle of due process is that a deprivation of life,

liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of

the case.” (Internal quotations and citations omitted.) Cleveland Bd. of Edn. v. Loudermill, 470

U.S. 532, 542 (1985). “It is equally fundamental that the right to notice and an opportunity to be
                                                  4


heard must be granted at a meaningful time and in a meaningful manner.” (Internal quotations

and citations omitted.) Fuentes v. Shevin, 407 U.S. 67, 80 (1972). The right to a hearing

includes the right to present evidence. See Gonzales v. United States, 348 U.S. 407, 414 (1955),

fn. 5.

         {¶9}   “It is well settled that a trial court has broad discretion to control the proceedings

to enable it to exercise its jurisdiction in an orderly and efficient manner.” Loewen v. Newsome,

9th Dist. Summit Nos. 25559, 25579, 2012-Ohio-566, ¶ 15, citing State ex rel. Butler v. Demis,

66 Ohio St.2d 123, 128-129 (1981). “Nonetheless, the proceedings must be managed in a

manner that fulfills the court’s duty to promote the accuracy and fairness of the hearing.”

Loewen at ¶ 15. While it may be the custom of the Summit County Court of Common Pleas,

Domestic Relations Division, to schedule civil protection order hearings for only one hour, it is

unreasonable to expect the parties to request extra time absent prior notice that the hearing is

limited in that manner, and no such notice was given in this case. Instead, the notice of the

hearing merely indicated the time and the place that the hearing would start, giving no indication

that the hearing would only last one hour. Nor does there appear to be a local rule that would

have alerted J.A. to the standard time limitation for a civil protection order hearing.1 See Loc.R.

15 of the Court of Common Pleas of Summit County, Domestic Relations Division.

         {¶10} Ultimately, the issue in this case is balance, namely balancing the trial court’s

ability to maintain and control its docket with a party’s right to due process. Courts have

recognized that permitting one party to present its case while denying the other party that same

right fails to achieve this balance. See Loewen, at ¶ 20-22; In re T.H., 192 Ohio App.3d 201,

2011-Ohio-248, ¶ 38-42 (2d Dist.); Cohen v. Cohen, 5th Dist. Fairfield No. 99CA52, 2001 WL

         1
           This Court’s research has not uncovered any such rule, and neither the magistrate nor
the trial court cite any such rule for support in their decisions.
                                                   5


61081, *2 (Jan. 22, 2001) (allotment of two and a half days for Father to present his case for

custody while given Mother only half a day violated her right to due process). This is especially

true when, as in this case, the party had no prior warning that the hearing would be of limited

duration. See Loewen at ¶ 20 (ending hearing without warning); In re T.H. at ¶ 41 (informing

Father at the beginning of the second day of the hearing that he had 1 hour and 15 minutes to

complete his case). In rendering its decision, the trial court observed that J.A. was given the

opportunity to cross-examine J.J. However, the problem here is that J.A.’s counsel was not

aware from the outset that he was operating under a one-hour time restriction for the entire case.

Furthermore, while the opportunity to cross-examine witnesses is an important aspect of due

process, it is not a direct substitute for the opportunity to present evidence.

       {¶11} J.A. did not have notice that the hearing would be of a limited duration. He was

deprived of an opportunity to present his case once J.J. rested. Thus, under the facts of this case,

it was unreasonable for the magistrate and the trial court to refuse to grant J.A. additional time to

present his case, and, therefore, his right to due process was violated. See Loudermill, 470 U.S.

at 542; Fuentes, 407 U.S. at 80; Gonzales, 348 U.S. at 414, fn. 5

       {¶12} Accordingly, J.A.’s assignment of error is sustained.

                                                III.

       {¶13} In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division, and remand for further proceedings consistent

with this decision.

                                                                                   Judgment reversed,
                                                                                  and cause remanded.



       There were reasonable grounds for this appeal.
                                                 6


        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

        Costs taxed to Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

J. J., pro se, Appellee.
