[Cite as Swartz v. Swartz, 2011-Ohio-6685.]


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

JESSE F. SWARTZ, V                                    C.A. No.     11CA0057-M

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JANE A. SWARTZ                                        COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellee                                      CASE No.   11DV0067

                                 DECISION AND JOURNAL ENTRY

Dated: December 27, 2011



        WHITMORE, Judge.

        {¶1}     Respondent-Appellant, Jesse F. Swartz, V (“Son”), appeals from the judgment of

the Medina County Court of Common Pleas, Domestic Relations Division. This Court affirms.

                                                I

        {¶2}     On March 22, 2011, Petitioner-Appellee, Jane A. Swartz (“Mother”), petitioned

the Medina County Court of Common Pleas, Domestic Relations Division, for a civil protection

order (“CPO”) restraining Son. Mother alleged that Son’s history of violence toward his father,

Jesse F. Swartz, IV (“Husband”), Son’s history of mental illness, and other threatening behavior

put her and Husband in fear of physical harm. A magistrate granted an ex parte protection order.

The matter came on for hearing before the magistrate on April 4, 2011. Following that hearing,

on April 6, 2011, the magistrate granted a five-year protection order. The trial court adopted and

approved the magistrate’s decision on the same day.
                                                2


       {¶3}   Son now appeals and raises three assignments of error for our review. As will be

discussed further below, Son has failed to raise these issues through objections to the

magistrate’s decision.   He also failed to provide a transcript, or suitable substitute, of the

proceedings before the magistrate. Consequently, his arguments may not be raised for the first

time on appeal, and this Court is precluded from addressing them.

                                                II

                               Assignment of Error Number One

       “A MEETING BETWEEN OPPOSING COUNSEL AND THE MAGISTRATE
       TOOK PLACE WITHOUT THE PRESENCE OF JESSE F. SWARTZ, V ON
       APRIL 4TH, 2011[.]”

                               Assignment of Error Number Two

       “RULING WAS INCORRECT AS NO VIOLENCE OR THREAT OF
       IMMINENT VIOLENCE OCCURRED DURING THE MARCH 18TH, 2011
       VISIT TO APPELLEE’S HOME[.]”

                              Assignment of Error Number Three

       “JESSE F. SWARTZ, V REQUESTED VIA LETTER TO THE MAGISTRATE
       THAT MEDIATION OCCUR AND WAS DENIED.”

       {¶4}   In his three assignments of error, Son challenges certain procedural aspects of the

proceedings before the magistrate. He also challenges the trial court’s adoption and approval of

the magistrate’s findings and ruling and contends that the CPO should be reversed because there

was no showing that he posed a threat of “imminent serious physical harm” as required by law.

Furthermore, in his brief, he states that he “seeks *** to respond to testimony offered on April

4th, 2011 as he proceeded without counsel[.]”

       {¶5}   Initially, we note that with respect to pro se litigants, this Court has held as

follows:

       “[P]ro se litigants should be granted reasonable leeway such that their motions
       and pleadings should be liberally construed so as to decide the issues on the
                                                  3


       merits, as opposed to technicalities. However, a pro se litigant is presumed to
       have knowledge of the law and correct legal procedures so that [he] remains
       subject to the same rules and procedures to which represented litigants are bound.
       [He] is not given greater rights than represented parties, and must bear the
       consequences of [his] mistakes. This Court, therefore, must hold [pro se
       appellants] to the same standard as any represented party.” (Internal citations
       omitted.) King v. Akron Metro. Hous. Auth., 9th Dist. No. 25664, 2011-Ohio-
       2884, at ¶7, quoting Sherlock v. Myers, 9th Dist. No. 22071, 2004-Ohio-5178, at
       ¶3.

       {¶6}    In order for a civil protection order to issue, “the trial court must find that

petitioner has shown by a preponderance of the evidence that petitioner or petitioner’s family or

household members are in danger of domestic violence.” Felton v. Felton (1997), 79 Ohio St.3d

34, paragraph two of the syllabus. “Domestic violence,” as defined by R.C. 3113.31(A)(1),

includes, in pertinent part, “(a) [a]ttempting to cause or recklessly causing bodily injury;” and

“(b) [p]lacing another person by the threat of force in fear of imminent serious physical harm[.]”

       {¶7}    “Rule 53(D)(3)(b)(iv) provides that, except for a claim of plain error, a party

forfeits the right to assign error on appeal with respect to the trial court’s adoption of any factual

finding or legal conclusion ‘unless the party has objected to that finding or conclusion as

required by Civ.R. 53(D)(3)(b).’” Ilg. v. Ilg, 9th Dist. No. 23987, 2008-Ohio-6792, at ¶6,

quoting Civ.R. 53(D)(3)(b)(iv). The record demonstrates that Son did not object to any of the

magistrate’s findings or its conclusion that Son violated R.C. 3113.31. In failing to do so, Son

has forfeited his arguments. Moreover, he has not argued plain error on appeal. Because Son

has forfeited his challenge to the findings and conclusion at issue and has not argued plain error,

this Court will not address his arguments.

       {¶8}    Moreover, even if son had alleged plain error, this Court is deprived of the ability

to review the trial court’s adoption and affirmance of the magistrate’s findings and conclusions

because Son failed to include a transcript of the relevant magistrate hearing, or suitable
                                                 4


substitute, with the lower court. Civ.R. 53(D)(3)(b)(iii) provides that “[a]n objection to a factual

finding, whether or not specifically designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii),

shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that

finding or an affidavit of that evidence if a transcript is not available.” The duty to provide a

transcript or affidavit to the trial court rests with the person objecting to the magistrate’s

decision. Weitzel v. Way, 9th Dist. No. 21539, 2003-Ohio-6822, at ¶17.

       {¶9}    Therefore, as this Court has previously stated regarding this issue:

       “Due to the fact that [Son] failed to provide the trial court with a transcript of the
       hearing***, this Court does not know what evidence, if any, [Son] produced to
       support his allegations and claims. Accordingly, this Court concludes that the
       trial court did not err in adopting and affirming the magistrate’s findings. Boggs v.
       Boggs (1997), 118 Ohio App.3d 293, 301. ‘Furthermore, without an adequate
       record, a court of appeals must presume [the] regularity of the [trial] court’s
       judgment based on the [magistrate’s] report and recommendations.’ Ferrone v.
       Kovack, 9th Dist. No. 3279-M, 2002-Ohio-3625, at ¶8.” Saipin v. Coy, 9th Dist.
       No. 21800, 2004-Ohio-2670, at ¶11.

       {¶10} Consequently, even if Son had complied with App.R. 9(B) or App.R. 9(C) and

filed a transcript of the magistrate’s proceedings or a statement of the evidence with this Court,

we would, nevertheless, be precluded from reviewing the transcript due to Son’s failure to file a

transcript with the trial court. Savage v. Savage, 11th Dist. No. Nos. 2004-L-024 & 2004-L-

040, 2004-Ohio-6341, at ¶33-35.

                                                III

       {¶11} Accordingly, based on the foregoing, the trial court did not err in adopting and

approving the magistrate’s decision to grant the CPO. Son’s assignments of error are overruled.

The judgment of the Medina County Court of Common Pleas, Domestic Relations Division, is

affirmed.

                                                                                Judgment affirmed.
                                                 5




       There were reasonable grounds for this appeal.

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

Pleas, County of Medina, 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(E). 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 Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
DICKINSON, J.
CONCUR


APPEARANCES:

JESSE F. SWARTZ, V, pro se, Appellant.

MICHAEL A. CRETELLA, Attorney at Law, for Appellee.
