[Cite as M.W. v. D.M., 2018-Ohio-392.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                     No. 105758




                                           M.W.

                                                   PETITIONER-APPELLEE

                                             vs.

                                           D.M.
                                                   RESPONDENT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-16-870105

        BEFORE: S. Gallagher, P.J., Blackmon, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 1, 2018
FOR APPELLANT

D.M., pro se
2 Bell Lane
Burlington Township, New Jersey 08016


ATTORNEY FOR APPELLEE

Ellen S. Mandell
25700 Science Park Drive, Suite 160
Beachwood, Ohio 44122-7317
SEAN C. GALLAGHER, P.J.:

       {¶1} Respondent-appellant, representing himself pro se, appeals a civil stalking

protection order that is effective until 2022. We affirm.

       {¶2} Petitioner-appellee sought a protection order to preclude the respondent from

contacting her. In support of the allegations, numerous emails were provided in which

petitioner expressly asked respondent to refrain from further contact with her.

Respondent believed petitioner to be his biological daughter and attempted to establish a

relationship that petitioner, now an adult, does not desire.       Respondent continually

contacted petitioner, becoming increasingly hostile and, in addition, sought medical

testing to determine paternity. In one of the emails sent to petitioner, respondent went so

far as to reference a biblical verse, which if considered in the literal sense, stated that

death is the penalty for failing to honor a parent. In light of the unwanted, persistent, and

increasingly hostile contact, the petitioner alleged that respondent’s actions caused her

mental distress.

       {¶3} The action proceeded before a magistrate, who found in favor of the

petitioner at a full hearing. Respondent failed to appear at the full hearing and did not

file objections to the magistrate’s decision. The trial court entered the full protection

order, and this timely appeal followed.

       {¶4} At the outset, we must highlight a procedural change that affects the scope of

appellate review. The proceedings below are governed by Civ.R. 65.1. Schneider v.

Razek, 2015-Ohio-410, 28 N.E.3d 591, ¶ 29 (8th Dist.). Civ.R. 65.1(G) was amended
effective July 1, 2016, and provides that any order entered by the court under Civ.R.

65.1(F)(3)(c) or (e) is a final appealable order. We, therefore, have jurisdiction over this

appeal. However, a party must timely file objections to a magistrate’s decision under

Civ.R. 65.1(F)(3)(d) before filing an appeal. Civ.R. 65.1(G). The filing of objections

tolls the time to appeal. Id.

       {¶5} Respondent did not file objections to the magistrate’s decision.               In

considering this situation, there is a split of authority with respect to the effect of such a

failure. At least one district has held that an appellate court lacks jurisdiction over the

appeal. J.S. v. D.E., 7th Dist. Mahoning No. 17 MA 0032, 2017-Ohio-7507, ¶ 21; K.U.

v. M.S., 7th Dist. Mahoning No. 16 MA 0165, 2017-Ohio-8029, ¶ 18. Another has held

that Civ.R. 65.1(G) does not create a jurisdictional bar. Saqr v. Naji, 1st Dist. Hamilton

No. C-160850, 2017-Ohio-8142, ¶ 19.

       {¶6} “An appellate court has a duty to sua sponte examine any deficiencies in its

jurisdiction.” Jones v. Carpenter, 2017-Ohio-440, 84 N.E.3d 259, ¶ 6 (10th Dist.),

quoting Leonard v. Huntington Bancshares, Inc., 10th Dist. Franklin No. 13AP-843,

2014-Ohio-2421, ¶ 8. Civ.R. 65.1(G) specifically defines any order granting a protection

order after a full hearing as a final appealable one. Thus, we have jurisdiction over the

final order entered in this case.

       {¶7} We acknowledge that the requirement to file objections to the magistrate’s

decision under Civ.R. 65.1(F)(3)(d) is mandatory — any party wishing to object to the

legal conclusions or wishing to demonstrate that the credible evidence is insufficient
bears the burden of demonstrating such in timely filed objections. The failure to comply

with Civ.R. 65.1(G), however, is not jurisdictional. The rule provides to the contrary.

Thus, any prevailing party must at the least timely raise the procedural defect. In this

case, petitioner has not challenged the scope of our review based on respondent’s failure

to file objections to the magistrate’s decision. Any procedural error has been forfeited,

and we need not address this issue beyond determining that we possess jurisdiction to

entertain the appeal.

       {¶8} In his first and third assignments of error, respondent claims that the trial

court was without subject-matter jurisdiction because there was no allegation establishing

that the petitioner resided in Cuyahoga County.

       {¶9} “When a petitioner seeks a civil protection order from a common pleas court

in a county in which he does not reside, the court lacks subject matter jurisdiction over the

case.” Vilk v. DiNardo, 8th Dist. Cuyahoga No. 103755, 2016-Ohio-5245, ¶ 12, citing

Reynolds v. Whitney, 10th Dist. Franklin No. 03AP-1048, 2004-Ohio-1628, ¶ 8; R.C.

2903.214(A)(1). “A judgment rendered by a court lacking subject matter jurisdiction is

void ab initio.” Id., citing Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988),

paragraph three of the syllabus.      There is no requirement, however, to include an

allegation establishing subject-matter jurisdiction in a pleading.

       {¶10} Petitioner filed the petition using an address that was not her home

residence. As reflected in the form documents, petitioner listed a “safe address” to shield

her current address from the respondent. Using a “safe address” does not divest the trial
court of subject-matter jurisdiction so long as the petitioner can establish a statutory basis

for invoking the jurisdiction when called upon.

       {¶11} Invoking the jurisdiction of a court “‘depends on the state of things at the

time of the action brought.’” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 25, quoting Mollan v. Torrance, 22 U.S.

537, 539, 6 L.Ed. 154 (1824). Importantly, there is a legal distinction between the state

of things at the time the action is brought and the allegations advanced in the pleading —

a “demonstration that the original allegations were false will defeat jurisdiction.” Id.,

quoting Rockwell Internatl. Corp. v. United States, 549 U.S. 457, 473, 127 S.Ct. 1397,

167 L.Ed.2d 190 (2007).       A trial court, “is not confined to the allegations of the

complaint when considering the issue of subject-matter jurisdiction and may consider

affidavits and testimony for that purpose.” Everbank v. Vanarnhem, 3d Dist. Union No.

14-13-02, 2013-Ohio-3872, ¶ 33, citing Southgate Dev. Corp. v. Columbia Gas Transm.

Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph one of the syllabus. Thus,

the failure to allege facts in support of subject-matter jurisdiction is not fatal. Once

challenged, however, the basis for subject-matter jurisdiction must be supported with

evidence.

       {¶12} There is a territorial limitation with respect to civil stalking protection orders

commenced under R.C. 2903.214(A)(1).            In order to commence an action in the

Cuyahoga County Court of Common Pleas, the petitioner must reside in Cuyahoga

County. It is undisputed that petitioner resided within the territorial limits of the trial
court at the time the petition was filed, as established during petitioner’s testimony at the

full hearing and in an affidavit she filed in response to respondent’s motion to dismiss.

That evidence satisfied the prerequisite under R.C. 2903.214(A)(1).1 The first and third

assignments of error are overruled.

        {¶13} In the second and sixth assignments of error, respondent claims that the

petitioner failed to satisfy the long-arm statute for the purpose of establishing personal

jurisdiction because the electronic communications he sent to the petitioner were not

sufficient to establish his connection with Ohio.

        {¶14} Under R.C. 2307.382(A)(3), a court may exercise personal jurisdiction over

a party who causes tortious injury by an act or omission in Ohio. It has been recognized

that the existence of telephonic and electronic communications that originate from

out-of-state respondents to in-state petitioners satisfies Ohio’s long-arm statute for the

purpose of protection orders as long as the content of the communications forms the basis

of the alleged tortious conduct. Burnett v. Burnett, 6th Dist. Sandusky No. S-10-050,

2012-Ohio-2673, ¶ 21.

        {¶15}    In this case, petitioner’s allegations stem from the electronic

communications attached to the petition and introduced during the full hearing. Thus,

the petition was entirely based on the content of the electronic communications


        1
          Although courts have considered R.C. 2903.214(A)(1) under subject-matter jurisdiction
review, even if we considered this as a matter of the court’s territorial jurisdiction, a plaintiff is not
required to allege a basis for involving the court’s territorial jurisdiction. Wilson v. Riders Gear,
Ltd., 5th Dist. Licking No. 2004 CA 00119, 2005-Ohio-2844, ¶ 11.
respondent sent to petitioner in Ohio.      Petitioner established a basis for exercising

personal jurisdiction over respondent under R.C. 2307.382(A)(3). The second and sixth

assignments of error are overruled.

       {¶16} In the fourth assignment of error, respondent claims the trial court erred in

providing a 41-day period to conduct written discovery.         In his motion to dismiss,

respondent threatened that “unless the action is dismissed, respondent shall seek through

discovery petitioner’s medical health records and diagnosis history and treatment for any

preexisting and/or current psychological disorders related to her adoption and ‘crack

baby’ status.”

       {¶17} Civ.R. 65.1(D) permits a short period of discovery, to be completed before

the time set for the full hearing and under the terms and conditions deemed by the court

necessary to assuring the safety of the petitioner. Respondent has not demonstrated the

trial court abused its discretion in limiting the scope of discovery given the nature of the

action, much less has he provided any support for the proposition that a respondent is

entitled to the petitioner’s complete medical records upon filing a petition for a civil

stalking protection order.     App.R. 16(A)(7).      The fourth assignment of error is

overruled.

       {¶18} In the fifth assignment of error, respondent claims the trial court erred in

denying his motion to continue the full hearing. The motion was filed the day before the

hearing and after the trial court had already continued the matter for well over a month to

permit discovery. According to the respondent, a continuance was necessary in order to
permit the trial court to reconsider the jurisdictional arguments previously rejected by the

court. In light of our conclusion that the trial court possessed subject-matter jurisdiction

and that the court’s personal jurisdiction under the long-arm statute was established, we

overrule the fifth assignment of error.

       {¶19} In the seventh through tenth assignments of error, respondent challenges the

weight of the evidence offered in support of the civil stalking protection petition.

Respondent contends that the petitioner “conducted herself in an irrational, controlling,

selfish, mean-spirited, disrespectful, and narcissistic manner since she was first contacted

by” respondent, and therefore, the petitioner failed to demonstrate that a protection order

was warranted under R.C. 2903.214. Respondent is essentially asking this court to

review his version of the events that transpired and reject petitioner’s characterization

introduced through her testimony at the full hearing. Respondent did not appear at the

full hearing and did not challenge the petitioner’s credibility or introduce evidence in

support of any defense to the civil stalking protection order.

       {¶20}   “In civil cases, a reviewing court will not reverse a judgment if that

judgment is supported by some competent, credible evidence going to all elements of the

claim.” Odita v. Phillips, 10th Dist. Franklin No. 09AP-1172, 2010-Ohio-4321, ¶ 35,

citing Coffman v. Mansfield Corr. Inst., 10th Dist. Franklin No. 09AP-447,

2009-Ohio-5859. “For a civil stalking protection order to issue, the trial court must find

that the petitioner has shown by a preponderance of the evidence the respondent

committed an act against the petitioner that would constitute menacing by stalking under
R.C. 2903.211.” Vega v. Tomas, 8th Dist. Cuyahoga No. 104647, 2017-Ohio-298, ¶ 10,

citing Lewis v. Jacobs, 2d Dist. Montgomery No. 25566, 2013-Ohio-3461, ¶ 9.

Menacing by stalking is defined in part, under R.C. 2903.211(A)(1) as engaging in a

“pattern of conduct” that causes mental distress to another person. Id. The legislature

defined “pattern of conduct” to include

      two or more actions or incidents closely related in time, whether or not

      there has been a prior conviction based on any of those actions or incidents

      or the posting of messages, use of intentionally written or verbal graphic

      gestures, or receipt of information or data through the use of any form of

      written communication or an electronic method of remotely transferring

      information, including, but not limited to, a computer, computer network,

      computer program, computer system, or telecommunications device, may

      constitute a “pattern of conduct.”

Id. at ¶ 14, quoting R.C. 2903.211(D)(1).

      {¶21} In this case, the magistrate concluded that petitioner established her claim

based on, but not limited to, (1) the numerous, unwelcomed electronic communications

with petitioner that became “increasingly more angry and threatening” when petitioner

decided not to respond; (2) respondent’s sending of a video relating to the Orlando

shooting that had no discernable connection to the petitioner; and (3) respondent’s

reference to a bible verse providing that one must “honor your mother and father and

anyone who curses their father or mother is to be put to death.” According to the
magistrate, petitioner credibly demonstrated that respondent had actually caused her to

suffer mental distress through the repeated, unwelcomed electronic contact that took on a

hostile tone. The trial court adopted that decision without objection. Thus, there is

competent, credible evidence that respondent engaged in a pattern of conduct constituting

menacing by stalking.

       {¶22} The civil stalking protection order is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
