Saqr v. Naji

• Decision Date: 11 October 2017
• Docket Number: APPEAL NO. C-160850
• Parties: AMEERA SAQR, Petitioner-Appellee, v. SELIM NAJI, Respondent-Appellant.
• Court: Ohio Court of Appeals

2017 Ohio 8142

AMEERA SAQR, Petitioner-Appellee, v. SELIM NAJI, Respondent-Appellant.

APPEAL NO. C-160850

COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

October 11, 2017

TRIAL NO. DV1600130

OPINION.

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division

Judgment Appealed From Is: Affirmed

Cathy Cook, for Petitioner-Appellee,

Selim Naji, pro se.

ZAYAS, Judge.

{¶1} Respondent-appellant Selim Naji appeals the trial court's denial of his motion to terminate a domestic violence civil protection order ("CPO"). Because we hold that there was no error in the trial court's decision, we affirm its judgment.

Background

{¶2} On February 11, 2016, petitioner-appellee Ameera Saqr filed a petition for a CPO against Naji, her then-husband. Saqr sought the CPO following an incident of alleged domestic violence that occurred at the couple's home on February 10, 2016. Saqr also requested protection for the couple's three children. The same day that Saqr filed her petition, the magistrate entered an ex parte CPO against Naji that prevented him from contacting Saqr and the children. The magistrate ordered a full hearing on the CPO, which took place on March 2, 2016. At the full hearing, Saqr played several recordings she had taken with her phone during verbal altercations with Naji. The parties spoke a mixture of English and Arabic in these recordings, and an interpreter translated the Arabic portions.

{¶3} The magistrate issued a "full hearing" CPO on April 11, 2016. The order stated that it would be effective until February 11, 2017, and included extensive factual findings. The CPO also stated that "[t]he parties' minor children are made protected persons under this order."

{¶4} On April 21, 2016, Naji filed objections to the magistrate's decision. On July 21, 2016, Naji filed a supplement to his objections that challenged several of the magistrate's factual findings and argued that the children should not have been made protected parties under the CPO. The trial court held a hearing on Naji's objections the same day.

{¶5} On August 5, 2016, the trial court issued an entry on Naji's objections. In pertinent part, the entry stated: "The Court finds it is against the manifest weight of the evidence to name the minor children * * * as protected persons. * * * The DVCPO with regard to [Saqr] remains in full force and effect." On August 22, 2016, the trial court entered a new "full hearing" CPO that contained exactly the same factual findings as the April 11, 2016 CPO, except that one sentence was struck through: "The parties' minor children are made protected persons under this order." The CPO continued to state that it was effective until February 11, 2017, and indicated that it was final and appealable.

{¶6} On August 12, 2016, Naji filed a motion to terminate the CPO. The motion stated, in pertinent part, that "the civil protection order should be terminated due to the Petitioner committing fraud upon the court by playing editted [sic] versions of audio of alleged domestic violence events."

{¶7} On August 25, 2016, the magistrate held a hearing on Naji's motion. Naji argued that the interpreter at the March 2, 2016 hearing had "made a lot of mistake [sic]." Saqr's counsel objected, and the magistrate told Naji, "Now, wait a minute. Those—those are things that you should have raised objections to at the time." Naji also wanted to introduce recordings to demonstrate the discrepancies between what he believed the parties were saying, and what the interpreter believed the parties were saying. The magistrate ordered Naji to transcribe what he believed the content of the recordings to be, and to provide the recordings and his transcripts to Saqr's counsel for review.

{¶8} Later in the hearing, Naji asked the magistrate what he would do if he found out that he had made a decision based on a "fake document." The magistrate responded,

Well, for one thing, if I ruled on that document, and it was improper, the ball—it literally is not in my court. The ball is in your court to file an appeal to that. * * * [I]f you were not satisfied with what the judge did in terms of your objections and if he didn't rule on the things properly that you brought up to him, then we have the Court of Appeals. * * * Now if it—if it's something that you didn't bring up on objections, but now you're attacking it collaterally, I don't think that you can do that, because it is what is known as res judicata.

The magistrate informed Naji that he was still within the 30-day window to file a notice of appeal from the trial court's entry on the objections.

{¶9} Naji then asserted that the recordings played during the March 2, 2016 hearing had been "edited and changed" by Saqr. The magistrate responded, "The issues you're raising, Mr. Naji, those are things that are more properly before the Court of Appeals * * *. And I strongly recommend that * * * if you do want to appeal this, that you do so in a timely fashion, because the law only gives you so much time to do it, okay?" The magistrate continued the hearing on Naji's motion until September 16, 2016. Despite the magistrate's warnings, Naji did not appeal the trial court's entry on the objections.

{¶10} When the hearing continued, Naji again contended that Saqr had edited portions from the audio recordings played at the March 2, 2016 hearing. The magistrate told Naji that he had failed to show the relevance of this claim "in terms of * * * what relief you're seeking," i.e., the termination of the CPO:

Assuming for a moment * * * that she * * * edit[ed] out important parts[,] * * * [o]f what use are any of these recordings in support of * * * your motion[]? * * * I'm getting the distinct impression, Mr.Naji, that you're trying to get a second bite at the apple on the underlying facts having to do with * * * the civil protection order against you. * * * All of this should have been presented to [the trial court] on objections. * * * [N]one of that is—certainly is not admissible now, because I've already issued the decision. You've already [filed objections to] it. The judge has issued his ruling.

Naji then stated that he wanted counsel, and the magistrate continued the proceedings until October 3, 2016, so that Naji could obtain counsel.

{¶11} Naji arrived on October 3 without counsel. The magistrate gave him the opportunity to introduce evidence on his motion to terminate the CPO. Ultimately, the magistrate did not allow most of Naji's exhibits into evidence, either because Naji had failed to comply with the magistrate's earlier order that he timely provide the recordings and transcripts to Saqr's counsel, or because Naji was attempting to challenge findings of fact that the trial court had adopted over Naji's objections in its August 22 CPO. The magistrate then interviewed Saqr regarding the statutory factors for considering a motion to terminate a CPO. Saqr stated that she did not consent to the CPO being terminated; that Naji had thus far complied with the terms and conditions of the CPO; that February 10, 2016, was the last incident of alleged abuse; and that she feared that without the CPO, "[h]e'll terrorize me." The magistrate denied Naji's motion.

{¶12} On October 4, 2016, the trial court issued a judgment entry on Naji's motion. The entry, made on Sup.R. Form 10.01-L, stated that the CPO remained in full force and effect. It also did not set a new date for the CPO to terminate, leaving February 11, 2017, as the date of termination. It was stamped "final, appealable order," and contained no notice that Naji needed to file objections prior to filing anappeal. Naji filed no objections with the trial court, but filed a notice of appeal on November 2, 2016.

Assignments of Error

{¶13} Naji asserts two assignments of error. His first is that the trial court erred in denying his motion to terminate the CPO; his second is that the trial court erred by denying him relief from judgment.

Naji's Failure to File Objections Does Not Forfeit His Appeal

{¶14} Naji did not file objections to the magistrate's denial of his motion to terminate the CPO, which calls our attention to a recent revision to the Rules of Civil Procedure.

{¶15} Prior to July 1, 2012, Civ.R. 65.1, which governs the procedures for CPOs, did not exist, and the other Civil Rules governed these procedures. Specifically, Civ.R. 53(D)(3)(a)(iii) provided, then as now, that "[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 * * * unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b)." Civ.R. 53(D)(3)(b)(iv) further provided that "[e]xcept for a claim of plain error, a party shall not assign as error on appeal the 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)."

{¶16} The forms used by the courts of common pleas to issue CPOs,¹ and for decisions on motions to modify or terminate them,² do not contain the language thatCiv.R. 53(D)(3)(a)(iii) requires.³ See, e.g., Larson v. Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013, ¶ 11-14. However, Sup.R. 10.01 directs the domestic relations divisions of the courts of common pleas to use forms "substantially similar" to these forms. Courts faced with this dilemma prior to July 1, 2012, held that "if the magistrate fails to provide the parties with the notice pursuant to Civ.R. 53(D)(3)(a)(iii), a party may raise their arguments for the first time on appeal." Calzo v. Lynch, 5th Dist. Richland No. 11CA45, 2012-Ohio-1353, ¶ 36. See Larson at ¶ 14.

{¶17} This issue became moot once Civ.R. 65.1 came into effect, because that rule originally did not require a party to file objections to a magistrate's decision on a CPO before the party could appeal such a decision, and therefore no...