[Cite as Losey v. Diersing, 2013-Ohio-1108.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

RAYMOND LOSEY, : 

 Petitioner-Appellee, : CASE NO. CA2012-06-048 

 

 : O P I N I O N

 - vs - 3/25/2013 

 : 

LEIGH DIERSING, : 

 Respondent-Appellant. : 

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2010-CVH-1342 

Raymond Losey, 562 Williamsburg Court, Cincinnati, Ohio 45244, petitioner-appellee, pro se 

Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for respondent-appellant 

 HENDRICKSON, P.J. 

{¶ 1} Respondent-appellant, Leigh Diersing, appeals a decision of the Clermont 

County Court of Common Pleas overruling her objections to a magistrate's decision finding 

her in contempt of a civil stalking protection order. For the reasons outlined below, we affirm 

the decision of the trial court. 

{¶ 2} On June 29, 2010, petitioner-appellee, Raymond Losey, filed a petition for a 

civil stalking protection order against appellant. On June 30, 2010, a magistrate conducted 
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an ex parte hearing on the petition, and on July 7, 2010, the magistrate issued a temporary 

ex parte civil protection order against appellant. The magistrate then scheduled a full hearing 

on appellee's petition for July 13, 2010. On July 15, 2010, the magistrate issued a 

permanent civil stalking protection order, effective for five years. The protection order 

prohibited appellant from entering appellee's place of business, and also ordered her to 

remain 500 feet away from appellee, his children, and his wife. 

{¶ 3} On April 15, 2011, appellee filed a letter with the court, alleging that appellant 

had violated the terms and conditions of the protection order. A show cause hearing was 

held on May 16, 2011, and both parties appeared at the hearing. On May 20, 2011, the 

magistrate found that appellant had violated the terms of the protection order by entering 

appellee's place of business. Accordingly, the magistrate found appellant in contempt, and 

sentenced her to serve three days in jail and to pay a $250 fine. However, the magistrate 

suspended appellant's sentence, pending any further findings of contempt. 

{¶ 4} On January 5, 2012, appellee filed a second letter with the court, alleging that 

appellant had once again violated the protection order. A hearing was set for February 13, 

2012. After the hearing, the magistrate found appellant to be in contempt for a second time. 

Thus, the magistrate reimposed the suspended three-day jail sentence and $250 fine, and 

imposed an additional $250 fine and three days in jail. 

{¶ 5} On February 23, 2012, appellant filed objections to the magistrate's decision 

and requested oral argument. The trial court subsequently overruled appellant's objections 

without a hearing, and affirmed the magistrate's decision. 

{¶ 6} Appellant timely appeals, raising three assignments of error. 

{¶ 7} Assignment of Error No. 1: 

{¶ 8} THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW WHEN IT 

FAILED TO GRANT TO RESPONDENT THE OPPORTUNITY TO MAKE ORAL 
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ARGUMENT ON HER OBJECTIONS TO THE MAGISTRATE'S DECISION. 

{¶ 9} Appellant first claims that the trial court erred in denying her request for oral 

argument on her objections to the magistrate's decision. 

{¶ 10} Appellant argues that, without a hearing on her objections, she was "robbed" of 

the opportunity to request community service in lieu of prison, so that she could be treated for 

bi-polar disorder. However, appellant clearly admits that her attorney had planned on making 

this argument prior to the requested hearing. Thus, we do not see why appellant could not 

have included this argument in her written objections to the court, or why she was prevented 

from filing a separate request to perform community service to satisfy her sentence. See 

Civ.R. 53(D)(3)(b). 

{¶ 11} We further fail to see how the trial court abused its discretion in refusing to hear 

additional evidence on appellant's objections, as she cannot demonstrate that she was 

unable to present such evidence to the magistrate during the February 13, 2012 show cause 

hearing. Pursuant to Civ.R. 53(D)(4)(d), 

If one or more objections to a magistrate's decision are timely 

filed, the court shall rule on those objections. * * * Before so 

ruling, the court may hear additional evidence but may refuse to 

do so unless the objecting party demonstrates that the party 

could not, with reasonable diligence, have produced that 

evidence for consideration by the magistrate. 

{¶ 12} Here, there is no evidence that appellant could not, with reasonable diligence, 

have presented evidence of her bi-polar disorder for the magistrate's consideration, given 

that she had previously testified during the first show cause hearing in May 2011 that she 

suffered from mental health issues that required therapy. Appellant has not shown that the 

mental health issues she suffered in May 2011 differed from those that she developed 

immediately after she filed her objections in February 2012. Thus, the trial court did not 

abuse its discretion in refusing to consider appellant's additional evidence, during oral 
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argument or otherwise. Barber v. Barber, 7th Dist. No. 05 CO 46, 2006-Ohio-4956, ¶ 26 ("[a] 

claimed reservation of the right to add more objections at oral argument does not comply with 

Civ.R. 53"). Accordingly, we reject appellant's first argument. 

{¶ 13} Appellant also contends that the trial court's failure to grant her request for oral 

argument constituted an abuse of discretion. Again, we disagree. 

{¶ 14} Civ.R. 53(D)(4)(d) does not require the trial court to hold a hearing prior to ruling 

on a party's objections to a magistrate's decision. Instead, it only requires that the court "rule 

on those objections." Id. Appellant does not cite any authority to support her position to the 

contrary. Further, the trial court's analysis indicates that appellant's objections were not so 

complex as to warrant a hearing for additional clarification. 

{¶ 15} In closing, we find that the trial court fully complied with Civ.R. 53(D)(4)(d), 

when it issued a detailed decision replete with analysis, rationale, and a basis for overruling 

each of appellant's objections. 

{¶ 16} Appellant's first assignment of error is overruled. 

{¶ 17} Assignment of Error No. 2: 

{¶ 18} THE TRIAL COURT ERRED AS A MATTER OF FACT AND OF LAW WHEN IT 

FAILED TO DISMISS ITS JURISDICTION OVER THE CASE WHEN IT HELD THE 

SECOND HEARING FOLLOWING THE FIRST EX-PARTE HEARING MORE THAN TEN 

DAYS AFTER THE FIRST EX-PARTE ORDER. 

{¶ 19} Appellant next argues that the trial court lacked jurisdiction over her case, 

because the magistrate failed to hold a full hearing on the civil protection order within the 

statutory time limits of R.C. 2903.214. 

{¶ 20} R.C. 2903.214(D)(2)(a) states, in part: 

If the court, after an ex parte hearing, issues a protection order 

described in division (E) of this section, the court shall schedule 

a full hearing for a date that is within ten court days after the ex 
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parte hearing. The court shall give the respondent notice of, and 

an opportunity to be heard at, the full hearing. The court shall 

hold the full hearing on the date scheduled under this division 

unless the court grants a continuance of the hearing in 

accordance with this division. 

{¶ 21} Here, the magistrate held an ex parte hearing on appellee's petition for a civil 

protection order on June 30, 2010, but did not conduct a full hearing on the petition until July 

13, 2010. Because more than ten days passed between the ex parte hearing and the full 

hearing, appellant contends that the court lacked jurisdiction to proceed with the case. 

{¶ 22} Upon review, we find that appellant has waived this argument, because she 

failed to object to the full hearing date prior to this appeal. There is nothing in R.C. 2903.214 

that suggests that the failure to hold a full hearing within ten days of the ex parte hearing 

divests the trial court of jurisdiction to proceed, and therefore, objections to the time 

requirement may be waived. Compare Civ.R. 12(H)(3) ("[w]henever it appears by suggestion 

of the parties or otherwise that the court lacks jurisdiction on the subject matter, the court 

shall dismiss the action"). Because the time to object to nonjurisdictional defects stemming 

from the full hearing before the magistrate has passed, appellant has waived this argument 

on appeal. Hamilton v. Ebbing, 12th Dist. No. CA2011-01-001, 2012-Ohio-2250, fn. 3 ("[i]t is 

well-established that a party cannot raise new issues or legal theories for the first time on 

appeal").

{¶ 23} Appellant also argues that her stalking conviction is void ab initio as a result of 

the magistrate's failure to comply with the time limits of R.C. 2903.214(D)(2)(a). However, for 

the reasons stated above, we conclude that appellant has waived this argument, as well. 

See also R.C. 2903.214(D)(2)(a)(iv). 

{¶ 24} Appellant's second assignment of error is overruled. 

{¶ 25} Assignment of Error No. 3: 

{¶ 26} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN 
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AFFIRMING THE MAGISTRATE'S DECISION ON CONTEMPT. 

{¶ 27} In her final assignment of error, appellant contends that the trial court erred in 

upholding the magistrate's finding of contempt. 

{¶ 28} Appellant first claims that the trial court's decision was against the manifest 

weight of the evidence, as the court "glibly" rendered its decision "without bothering to give 

[appellant] a chance to explain herself." However, this does not explain how appellant's 

behavior did not rise to the level of contempt. Moreover, as we previously discussed, 

appellant had ample opportunity to explain herself when she appeared before the magistrate. 

{¶ 29} Appellant also argues that the trial court abused its discretion in affirming the 

magistrate's decision. 

{¶ 30} Civil contempt must be established by clear and convincing evidence. 

Underwood v. O'Hara, 12th Dist. No. CA99-03-057, 2000 WL 313493, * 1 (Mar. 27, 2000), 

citing Brown v. Executive 200, Inc., 64 Ohio St.2d 250 (1980). An appellate court will not 

reverse a trial court's ruling on civil contempt absent an abuse of discretion. Ossai-Charles v. 

Charles, 12th Dist. Nos. CA2010-12-129, CA2011-01-007, 2011-Ohio-3766, ¶ 31. More than 

a mistake of law or judgment, an abuse of discretion implies that the court's attitude is 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). 

{¶ 31} Upon review, we find that the trial court's findings were fully supported by the 

record. During the contempt hearing, appellee testified that since September 2011, appellant 

had engaged in an ongoing pattern of "trolling" areas that appellee frequented, and that he 

would see appellant up to ten times per day. Appellee also described numerous instances of 

appellant's threatening conduct, including a time when appellant followed appellee and his 

family in her car, verbally assaulted appellee, watched him from a parking lot while he picked 

up his wife from work, and made vulgar hand gestures toward appellee while driving. 
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Although appellant testified that she had legitimate excuses for her behavior, and stated that 

the majority of their encounters were simply happenstance, the lower court was in the best 

position to weigh the evidence. See, e.g., Cavaleri v. Cavaleri, 8th Dist. No. 68209, 1995 WL 

396336, * 3 (July 6, 1995) (regarding contempt, "[d]eference must be shown to the trial 

court's judgment and the findings of fact on which it rests"). 

{¶ 32} On the strength of this record, we hold that the finding of contempt was based 

upon clear and convincing evidence, and that the trial court did not abuse its discretion in 

upholding the magistrate's decision. 

{¶ 33} Appellant's third assignment of error is overruled. 

{¶ 34} Judgment affirmed. 

PIPER and M. POWELL, JJ., concur.