[Cite as Besman v. Leventhal, 2017-Ohio-464.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 104414



                                 SHERRI H. BESMAN
                                                      PETITIONER-APPELLEE

                                                vs.

                         MITCHELL W. LEVENTHAL
                                                      RESPONDENT-APPELLANT




                                          JUDGMENT:
                                           DISMISSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                 Domestic Relations Division
                                   Case No. DV-14-352429

        BEFORE: Stewart, J., Kilbane, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: February 9, 2017
ATTORNEYS FOR APPELLANT

William T. Wuliger
Amy Wuliger
Wuliger & Wuliger
2003 St. Clair Avenue
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Joseph G. Stafford
Hannah R. Pasku
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114
MELODY J. STEWART, J.:

       {¶1} In June 2014, a magistrate issued an ex parte temporary domestic violence

civil protection order against respondent-appellant Mitchell Leventhal and in favor of

petitioner-appellee Sherri Besman. In June 2015, after conducting trial on the matter, a

magistrate found that Leventhal was in contempt of the June 2014 temporary ex parte

order and issued a full domestic violence civil protection order (“CPO”). Leventhal filed

objections to the magistrate’s contempt order, but did not file objections to the order of

protection. Instead, he asked the court to issue findings of fact and conclusions of law.

When the court denied that request as inapplicable to civil protection order proceedings,

Leventhal filed a motion for a new trial and/or relief from judgment. The court denied

the motions. Leventhal appeals.

       {¶2} Besman has filed a motion to dismiss the appeal from the protection order as

untimely under App.R. 4(A), which requires a notice of appeal to be filed within 30 days

after entry of the final order. She maintains that the summary nature of civil protection

orders under Civ.R. 65.1 is such that Leventhal’s post-judgment motions for findings of

fact and conclusions of law and for a new trial and/or relief from judgment do not toll the

running of the time to file an appeal.
       {¶3} App.R. 4(A)(1) states that “a party who wishes to appeal from an order that is

final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of

that entry.” The failure to file a timely notice of appeal is “a jurisdictional defect.” In

re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 17, citing State ex rel.

Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d 713 (1988).

       {¶4} Civil protection orders are governed by Civ.R. 65.1. Croone v. Arif, 8th

Dist. Cuyahoga No. 101103, 2014-Ohio-5546, ¶ 12. Civ.R. 65.1 was enacted, in part, to

expedite the process for obtaining ruling on matters related to protection orders.

Schneider v. Razek, 2015-Ohio-410, 28 N.E.3d 59, ¶ 30 (8th Dist.). As such, it “uniquely

applies to the special statutory proceeding set forth in R.C. 3113.31, which provides the

requirements for the entry of a CPO against adults for the protection of victims of

domestic violence.”      Heimann v. Heekin, 1st Dist. Hamilton No. C-130613,

2014-Ohio-4276, ¶ 5.
       {¶5} Leventhal argues that nothing in the text of Civ.R. 65.1 prohibits a party from

filing a motion requesting findings of fact and conclusions of law. This is not true.

Civ.R. 65.1(A) states that the rule “supersede[s] and make[s] inapplicable in such

proceedings the provisions of any other rules of civil procedure to the extent that such

application is inconsistent with the provisions of this rule.” (Emphasis added.) For this

reason, it has been held that the rule “does not provide for a request for findings of fact

and conclusions of law (see Civ.R. 53(D)(3)(a)(ii)), suggesting a more streamlined

proceeding for protection orders.”     Insa v. Insa, 2d Dist. Montgomery No. 26909,

2016-Ohio-7425, ¶ 27. In other words, it would be inconsistent with Civ.R. 65.1 to

allow a request for findings of fact and conclusions of law because it would delay the

proceedings.

       {¶6} Leventhal maintains that a post-judgment motion for findings of fact and

conclusions of law would not be inconsistent with Civ.R. 65.1 because the primary focus

of the rule is to avoid delay in the enforcement of a protection order and the motion

would not affect the immediate enforceability of a protection order. While avoiding

delay in the enforcement of a protection order may be a consequence of the rule, we abide

by precedent stating that the rule is intended to “expedite” the process for obtaining

rulings on matters related to protection orders. Schneider, supra, at ¶ 29.
       {¶7} Even if Civ.R. 65.1 did permit a request for findings of fact and conclusions

of law, the record shows that the court issued findings of fact when issuing the protection

order. The court used Form 10.01-G, consistent with Sup.R. 10.01(D). That rule states

that “[e]very ex parte civil protection order, full hearing civil protection order, and

consent agreement that the domestic relations division of a court of common pleas issues

or approves pursuant to section 3113.31 of the Revised Code shall include a cover sheet

that is substantially similar to ‘Form 10.01-G.’”

       {¶8} Form 10.01-G contains a paragraph beginning with the words “The Court

hereby makes the following findings of fact[.]” When the court issued the protective

order, it made the following findings of fact:

       Petitioner was sworn and gave testimony that supports finding that
       Respondent committed domestic violence as defined in O.R.C. §3113.31
       and that the Petitioner is in danger of Domestic [sic] violence. Her
       testimony is found to be credible. Sgt. Lesner and Matthew Besman are
       found to be credible. Dr. Horowitz testimony was minimal. Respondent
       was obstreperous throughout the trial and his testimony is found to be both
       evasive and self-serving.

       The Court further finds by a preponderance of the evidence: 1) that the
       Petitioner or Petitioner’s family or household members are in danger of or
       have been a victim of domestic violence or sexually oriented offenses as
       defined in R.C. 3113.31(A) committed by Respondent; and 2) the following
       orders are equitable, fair, and necessary to protect the persons named in this
       Order from domestic violence.
       {¶9} Admittedly, the court’s findings of fact were not comprehensive. But they

did not have to be. By stating whose testimony it found to be more credible, the court

established as fact the evidence offered by Besman and her witnesses.             This was

adequate to fulfill the purpose of separately stated findings of fact and conclusions of law

to enable a reviewing court to determine the existence of assigned error. Northpoint

Props. v. Charter One Bank, 8th Dist. Cuyahoga No. 94020, 2011-Ohio-2512, ¶ 47.

       {¶10} With findings of fact and conclusions of law having already been issued,

Leventhal’s subsequent motion for findings of fact and conclusions of law was

superfluous. And being superfluous, the motion did not toll the running of the time for

appeal. See J. & F. Harig Co. v. Cincinnati, 61 Ohio App. 314, 320, 22 N.E.2d 540 (1st

Dist.1938).

       {¶11} Leventhal also filed a motion for a new trial and/or motion for relief from

judgment. He claims that the time it took the court to rule on those motions tolled the

running of the time to appeal consistent with App.R. 4(B)(2)(b), which states that when

certain post-judgment motions like a Civ.R. 59 motion for a new trial are filed in civil or

juvenile proceedings, “the time for filing a notice of appeal from the judgment or final

order in question begins to run as to all parties when the trial court enters an order

resolving the last of these post-judgment filings.”
      {¶12} At the outset, we reject any assertion that a Civ.R. 60(B) motion for relief

from judgment tolls the running of the time for an appeal. “[T]he time for filing a notice

of appeal from a judgment is not tolled by either the filing of a Civ.R. 60(B) motion for

relief from judgment or a motion to reconsider.” Colley v. Bazell, 64 Ohio St.2d 243, 245,

416 N.E.2d 605 (1980).

      {¶13} Although App.R. 4(B)(2)(b) does mention that a Civ.R. 59 motion for a new

trial is a post-judgment motion of the type that can toll the running of the time for an

appeal, we nonetheless find that this type of motion is inapplicable to Civ.R. 65.1

proceedings. For a post-judgment motion to toll the running of the time to appeal, the

motion must be “timely and appropriate.” App.R. 4(B)(2). Leventhal’s motion for a

new trial was inappropriate in the context of a Civ.R. 65.1 protection order proceeding

because it would not expedite the process.

      {¶14} In addition to being inappropriate under the circumstances, Leventhal’s

motion was superfluous. The type of objections available to Leventhal under Civ.R.

65.1(F)(3)(d) were identical to the grounds that could be asserted in a Civ.R. 59 motion

for a new trial.   Had the court sustained Leventhal’s objections to the magistrate’s

decision, he would have obtained the same type of relief available to him under Civ.R. 59.
       {¶15} In fact, Leventhal’s motion for a new trial raised the same claims of error

that the court rejected when overruling the objections to the magistrate’s decision.

Leventhal’s objections were premised on his assertion that the contempt motions were

improperly referred to the magistrate; that the contempt order was issued in violation of

his constitutional and statutory rights to due process; that the magistrate prejudged the

issues by basing her decision on evidence presented before the motion was even pending;

and there was insufficient evidence to support a contempt finding. The motion for a new

trial contained the same arguments: that the contempt motions were not properly referred

to the magistrate; that “referral to this Magistrate was improper based upon biases she

expressed beginning on the first day of the hearing on the civil protection order”; and that

Leventhal had been denied his constitutional and statutory protections. The motion for a

new trial was redundant to the objections to the magistrate’s decision, so it did not toll the

running of the time for filing an appeal. We therefore grant Besman’s motion to dismiss

the appeal from the civil protection order.

       {¶16} Besman also argues that the appeal on the contempt order is untimely. The

contempt citation and the civil protection order were issued by the magistrate and adopted

by the court on June 4, 2015. Leventhal appealed from the June 4, 2015 contempt

citation on July 15, 2015. With the notice of appeal having been filed more than 30 days

after the judgment, we dismissed the appeal as untimely. Besman v. Leventhal, 8th Dist.

Cuyahoga No. 103268 (Aug. 7, 2015), Motion No. 487921.
      {¶17} The dismissal of the first appeal means that the issue of whether the appeal

from the contempt order is timely becomes res judicata. Leventhal acknowledges the

prior dismissal in Appeal No. 103268, but argues that his motion for a new trial was

pending and should have tolled the running of the time for appeal. That argument should

have been raised in a motion to reconsider the dismissal of the appeal under authority of

App.R. 26(A)(1) or by further appeal to the Ohio Supreme Court. By failing to seek

further review of the dismissal of the appeal from the contempt citation, our

determination that the appeal was untimely became res judicata.

      {¶18} Appeal dismissed.

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

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

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
