[Cite as Larson v. Larson, 2011-Ohio-6013.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




SCOTT W. LARSON,

        PETITIONER-APPELLEE,                          CASE NO. 13-11-25

        v.

DIANA L. LARSON,                                      OPINION

        RESPONDENT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Domestic Relations Division
                           Trial Court No. 11 DR 0219

                      Judgment Reversed and Cause Remanded

                         Date of Decision: November 21, 2011




APPEARANCES:

        Richard A. Kahler for Appellant

        Dean Henry for Appellee
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PRESTON, J.

       {¶1} Respondent-appellant, Diana L. Larson (hereinafter “Diana”), appeals

the Seneca County Court of Common Pleas’ judgment granting petitioner-

appellee, Scott W. Larson (hereinafter “Scott”), a civil protection order pursuant to

R.C. 3113.31. For the reasons that follow, we reverse.

       {¶2} On July 26, 2011, Scott filed a petition for a civil protection order

pursuant to R.C. 3113.31 against his former wife, Diana, with the Seneca County

Court of Common Pleas. (Doc. No. 2). On that same day, the magistrate issued an

ex parte civil protection order, using Form No. 10.01-H. (Doc. No. 4). The ex

parte order was signed by the trial court judge that same day. (Id.).

       {¶3} A full hearing on the petition was scheduled for August 1, 2011, but,

on July 27, 2011, Diana moved for a continuance of the hearing. (Id.); (Doc. No.

6). On July 29, 2011, the magistrate granted the continuance and rescheduled the

full hearing for August 5, 2011. (Doc. No. 8). The full hearing was held on

August 5, 2011 and a further hearing was held on August 16, 2011 before the

magistrate. (Doc. No. 12).

       {¶4} On August 16, 2011, the magistrate granted the petition for a civil

protection order, using Form No. 10.01-I. (Doc. No. 15). The trial court judge

signed the order that same day. (Id.). The order was filed on August 17, 2011, and



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it gave notice to the parties that the same constituted a final, appealable order.

(Id.).

         {¶5} On August 22, 2011, Diana filed a motion requesting that the

magistrate prepare a magistrate’s decision pursuant to Civ.R. 53 and further

requesting that the magistrate issue findings of fact and conclusions of law. (Doc.

No. 16). On August 24, 2011, the magistrate denied the motion. (Doc. No. 18).

         {¶6} On September 2, 2011, Diana filed a notice of appeal. (Doc. No. 19).

Diana now appeals raising one assignment of error for our review.

                             ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN GRANTING JUDGMENT
         OF ORDER OF PROTECTION WITHOUT A PREFATORY
         MAGISTRATE’S DECISION, CONTRARY TO THE TRIAL
         COURT’S ORDER OF REFERENCE AND RULE 53 OF THE
         OHIO RULES OF CIVIL PROCEDURE.

         {¶7} In her sole assignment of error, Diana argues that the trial court erred

by granting the domestic civil protection order without having the magistrate first

issue a “magistrate’s decision” under Civ.R. 53. Diana further argues that the trial

court erred by denying her motion for findings of fact and conclusions of law and,

thereby, effectively denying her right to file objections.

         {¶8} Since this case requires the interpretation of a civil rule, it presents a

question of law we review de novo. Wedemeyer v. U.S.S. F.D.R. (CV-42) Reunion

Assoc., 3d Dist. No. 1-09-57, 2010-Ohio-1502, ¶9, citation omitted. De novo

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review is independent and without deference to the trial court’s determination.

Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 2006-Ohio-6704, 864 N.E.2d 682,

¶61; In re J.L., 176 Ohio App.3d 186, 2008-Ohio-1488, 891 N.E.2d 778, ¶33.

       {¶9} Sup.R. 10.01(C) provides:

       In every case in which the domestic relations division of a court
       of common pleas issues or approves an ex parte civil protection
       order, a full hearing civil protection order, or a consent
       agreement pursuant to section 3113.31 of the Revised Code, the
       court shall use, as applicable, forms that are substantially similar
       to “Forms 10.01-H through 10.01-J.”

(Emphasis added). Civ.R. 53(D)(3)(a)(i), on the other hand, provides that “a

magistrate shall prepare a magistrate’s decision respecting any matter referred

under Civ.R. 53(D)(1).” Concerning the form of a magistrate’s decision, Civ.R.

53(D)(3)(a)(iii) provides:

       A magistrate’s decision shall be in writing, identified as a
       magistrate’s decision in the caption, signed by the magistrate,
       filed with the clerk, and served by the clerk on all parties or
       their attorneys no later than three days after the decision is filed.
       A magistrate’s decision shall indicate conspicuously that a party
       shall not assign as error on appeal the court’s adoption of any
       factual finding or legal conclusion, whether or not specifically
       designated as a finding of fact or conclusion of law under Civ.R.
       53(D)(3)(a)(ii), unless the party timely and specifically objects to
       that factual finding or legal conclusion as required by Civ.R.
       53(D)(3)(b).

(Emphasis added). Concerning the specificity of a magistrate decision, Civ.R.

53(D)(3)(a)(ii) provides, in relevant part:


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       * * * a magistrate’s decision may be general unless findings of
       fact and conclusions of law are timely requested by a party or
       otherwise required by law. A request for findings of fact and
       conclusions of law shall be made before the entry of a
       magistrate’s decision or within seven days after the filing of a
       magistrate’s decision.

(Emphasis added).

       {¶10} On April 13, 2011, the Seneca County Court of Common Pleas filed

an Order of Reference, pursuant to Civ.R. 53(D)(1)(a), authorizing Magistrate

Kenneth C. Clason “[t]o hear all domestic relations cases, including but not

limited to * * * civil protection orders[.]” (Order No. 11 MS 0175, § (I)(6)(c)).

“R.C. 3113.31(G) explains that the Ohio Rules of Civil Procedure apply to

proceedings for civil protection orders. Consequently, these proceedings may be

heard by a magistrate as provided by Civ.R. 53.” Tabatabai v. Tabatabai, 9th Dist.

No. 08CA0049-M, 2009-Ohio-3139, ¶10 (emphasis added).               Diana does not

dispute the magistrate’s authority to hear petitions for civil protection orders; but

rather, Diana argues that the magistrate must still proceed under Civ.R. 53,

regardless of the forms promulgated under Sup.R. 10.01. Therefore, the issue

presented in this case concerns the intersection of Civ.R. 53, governing

magistrates generally, and Sup.R. 10.01(C), requiring the domestic relations

divisions of the courts of common pleas to use “forms that are substantially similar

to ‘Forms 10.01-H through 10.01-J’” when issuing or approving civil protection


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orders. Specifically, the issue presented here is whether a magistrate’s use of

Form 10.01-I as written complies with Civ.R. 53. We conclude that it does not.

      {¶11} As the Court of Appeals for the Ninth District has recognized, Form

10.01-I contemplates magistrates hearing domestic civil protection petitions “by

providing space for the signature of a magistrate and, immediately to the right of

the magistrate’s signature line, a second signature line for the judge beneath the

phrase ‘APPROVED AND ADOPTED.’” Tabatabai, 2009-Ohio-3139, at ¶10.

However, Form 10.01-I lacks a designated space in the case caption to note that

the decision was a “magistrate’s decision,” and, more importantly, Form 10.01-I

lacks any warning to the parties of the consequences of failing to file objections—

both necessary items under Civ.R. 53(D)(3)(a)(iii). Since Form 10.01-I fails to

meet these Civ.R. 53 requirements, a magistrate issuing a domestic civil protection

order under R.C. 3113.31 may not simply use Form 10.01-I as written.

      {¶12} Sup.R. 10.01(C) was drafted in such a way to avoid this procedural

problem, because it does not require the domestic relations division to use the

exact forms found in 10.01-H to 10.01-J, but rather, “forms that are substantially

similar to ‘Forms 10.01-H through 10.01-J.’” (Emphasis added). See Tabatabai,

2009-Ohio-3139, at ¶36 (Whitmore, J., dissenting).          Consequently, Sup.R.

10.01(C) permits magistrates to modify Form 10.01-I to comply with Civ.R. 53

when he/she issues a civil protection order. The only caveat is that the modified

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form be “substantially similar” to Form 10.01-I. See id. Therefore, a magistrate

could comply with both Sup.R. 10.01(C) and Civ.R. 53 simply by adding the

necessary Civ.R. 53(D)(3)(a)(iii) language to Forms 10.01-H through 10.01-J

when issuing their decisions.

       {¶13} As noted above, we find no conflict between Civ.R. 53 and Sup.R.

10.01(C); however, to the extent that Civ.R. 53 and Sup.R. 10.01(C) can be read to

conflict, Civ.R. 53 prevails. As the Court in State v. Gettys noted:

       * * * whereas rules of procedure adopted by the Supreme Court
       require submission to the legislature, rules of superintendence
       are not so submitted and, hence, are of a different category.
       They are not the equivalent of rules of procedure and have no
       force equivalent to a statute. They are purely internal
       housekeeping rules which are of concern to the judges of the
       several courts but create no rights in individual defendants.

(1976), 49 Ohio App.2d 241, 243, 360 N.E.2d 735.            Likewise, the Court in

Krupansky v. Pascual stated “[t]he Superintendence Rules are applicable only so

long as they are not in conflict with statute or other governing Supreme Court

rules.” (1985), 27 Ohio App.3d 90, 92, 499 N.E.2d 899 (emphasis added), citing

Berger v. Berger (1981), 3 Ohio App.3d 125, 443 N.E.2d 1375.

       {¶14} The magistrate sub judice issued his decision using Form 10.01-I as

written. By doing so, the magistrate failed to comply with Civ.R. 53(D)(3)(a)(iii)

because Form 10.01-I as written: (1) fails to designate that the decision was a

“magistrate’s decision” in the case caption; and (2) fails to give the parties notice

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of the consequences of their failure to object within fourteen days. If a magistrate

fails to provide the parties with notice of the requirement to file objections, the

aggrieved parties, at a minimum, are relieved from Civ.R. 53(D)(3)(b)(iv)’s

waiver rule and are permitted to raise their arguments for the first time on appeal.

Chibinda v. Depositors Ins., 12th Dist. No. CA2010-09-254, 2011-Ohio-2597,

¶37, citing D.A.N. Joint Venture III, L.P. v. Armstrong, 11th Dist. No. 2006–L–

089, 2007-Ohio-898, ¶¶22-23 and Ulrich v. Mercedes–Benz USA, L.L.C., 9th Dist.

No. 23550, 2007-Ohio-5034, ¶15. Diana did not raise any arguments on appeal

except the magistrate’s failure to abide by Civ.R. 53, as discussed above, and the

magistrate’s failure to issue findings of fact and conclusions of law. Since Diana’s

argument on appeal is procedural, we believe the appropriate remedy here is to

reverse the trial court’s decision so Diana can file objections to the magistrate’s

decision. See OSI Funding Corp. v. Huth, 5th Dist. No. 06AP120068, 2007-Ohio-

5292, ¶¶19-29.

       {¶15} A reversal in this case is further warranted since the magistrate

refused to issue findings of fact and conclusions of law upon Diana’s timely

request for the same.    Civ.R. 53(D)(3)(a)(ii) requires that a party requesting

findings of fact and conclusions of law request the same within seven (7) days of

the magistrate’s decision being filed. The magistrate’s decision was filed on

August 17, 2011. (Doc. No. 15). Diana filed a motion requesting findings of fact

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and conclusions of law on August 22, 2011, just five (5) days later. (Doc. No. 16).

Despite her timely request, the trial court denied the motion. (Doc. No. 18).

       {¶16} “The purpose of separate conclusions of law and facts is to enable a

reviewing court to determine the existence of assigned error.” Kimbel v. Clark, 9th

Dist. No. Civ.A. 22647, 2005-Ohio-6741, ¶8, citing Orlow v. Vilas (1971), 28

Ohio App.2d 57, 59, 274 N.E.2d 783. “If a request for findings of fact and

conclusions of law is made, a magistrate must include findings of fact and

conclusions of law in its decision, or file an amended decision incorporating them

if the magistrate’s decision has already been filed.” Burke v. Brown, 4th Dist. No.

01CA731, 2002-Ohio-6164, ¶21, citing In re Chapman (Apr. 21, 1997), 12th Dist.

No. CA96-07-127. A magistrate’s failure to issue findings of fact and conclusions

of law when timely requested can constitute reversible error. Clark, 2005-Ohio-

6741, at ¶8. See, also, In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173,

492 N.E.2d 146 (The trial court has a mandatory duty under Civ.R. 52 to issue

findings of fact and conclusions of law upon request timely made.); Werden v.

Crawford (1982), 70 Ohio St.2d 122, 124, 435 N.E.2d 424 (same). However, a

magistrate’s failure to issue findings of fact and conclusions of law upon timely

request does not constitute reversible error when the magistrate’s decision

substantially complies with Civ.R. 53(D)(3)(a)(ii). See Truex v. Truex, 179 Ohio

App.3d 188, 2008-Ohio-5690, 901 N.E.2d 259, ¶27, citing Strah v. Lake Cty.

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Humane Soc. (1993), 90 Ohio App.3d 822, 836, 631 N.E.2d 165 (analyzing a trial

court’s failure to issue findings of fact and conclusions of law under analogous

Civ.R. 52).       A magistrate’s decision substantially complies with Civ.R.

53(D)(3)(a)(ii) when the contents of the decision, considered together with other

parts of the record, form an adequate basis upon which to decide the narrow legal

issues presented. See id., citing Crawford, 70 Ohio St.2d at 124 (substantial

compliance under Civ.R. 52) and Abney v. W. Res. Mut. Cas. Co. (1991), 76 Ohio

App.3d 424, 431, 602 N.E.2d 348 (same).

         {¶17} Under “findings of fact” on the magistrate’s decision (Form 10.01-I),

the magistrate sub judice wrote, “SUFFICIENT EVIDENCE EXISTS TO

GRANT A CIVIL PROTECTION ORDER.” (Doc. No. 15). Aside from the fact

that this statement is not a “finding of fact” but a “conclusion of law,” we cannot

conclude that this statement, together with the available trial record, provides an

adequate basis for appeal; and therefore, the magistrate did not substantially

comply with Civ.R. 53(D)(3)(a)(ii) in this case. Consequently, we conclude that

the magistrate’s failure to provide Diana with findings of fact and conclusions of

law upon her timely request under Civ.R. 53(D)(3)(a)(ii) constitutes reversible

error.

         {¶18} Since the trial court approved and adopted a magistrate’s decision

that failed to comply with Civ.R. 53(D)(3)(a)(iii), and the magistrate erroneously

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denied respondent-appellant’s timely filed motion for finding of facts and

conclusions of law, we reverse the trial court’s decision.

       {¶19} Diana’s assignment of error is, therefore, sustained.

       {¶20} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for the magistrate to issue findings of fact and conclusions of law so

respondent-appellant can file objections to the magistrate’s decision.

                                                             Judgment Reversed and
                                                                  Cause Remanded

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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