[Cite as Rathburn v. Watson , 2020-Ohio-5213.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

CHRISTINA RATHBURN Plaintiff-Appellant

v. GINA WATSON Defendant-Appellee : : : : : : : : : : Appellate Case No. 28700

Trial Court Case No. 2019-CV-6045 (Civil Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 6th day of November, 2020.

. . . . . . . . . . . CHRISTINA RATHBURN, 3514 Mesmer Avenue, Dayton, Ohio 45410 Plaintiff-Appellant, Pro Se GINA WATSON, 1654 Huffman Avenue, Dayton, Ohio 45403 Defendant-Appellee, Pro Se

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Appellant-petitioner, Christina Rathburn, appeals pro se from a judgment of the Montgomery County Court of Common Pleas, which denied her p etition for a civil stalking protection order (“CSPO”) against appellee-respondent, Gina Watson. For the reasons outlined below, the judgm ent of the trial court will be affirmed.

Facts and Course of Proceedings {¶ 2} On December 19, 2019, Rathburn filed a petition for a CSPO agai nst Watson. The petition included a request for an emergency protection ord er. Following an ex parte hearing, the trial court magistrate denied Rathburn’s request f or an emergency protection order and scheduled the matter for a full evidentiary hearing. {¶ 3} On January 7, 2020, both parties appeared and testified at the full evidentiary hearing. Following the hearing, the trial court made the follo wing findings of fact: [Rathburn] and [Watson] were former friends. The acrimony between the parties stems from the purchase of a van that [Rath burn] claims to have bought for [Watson] and [Watson] claims was gift ed to her by [Rathburn]. [Rathburn] states that on December 18, 2019, sh e was taking the trash out when [Watson] drove by and yelled out the window, “I’m going to kill you!” On December 12, 2019, [Rathburn] states th at [Watson] drove by and said, “Dumb bitch, I’m gonna kill you and your kid s!” Prior to this, [Watson] sent certified mail to [Rathburn’s] home but [Ra thburn]

refused it. [Watson] denies threatening [Rathburn] and denies driving by he r home. [Watson] blocked [Rathburn] from [Watson’s] Facebook pag e and-3- [Rathburn] created a new page in order to reach [Watson]. [Wat son] also approached the parties’ children’s school about [Rathburn] hara ssing [Watson] and now the parties must enter through different doors when dropping off their children. Judgment Entry, p. 3-4. {¶ 4} Based on the aforementioned findings of fact, the magistrate is sued a decision denying Rathburn’s petition for a CSPO on grounds that Rathburn had failed to establish the statutory requirements for obtaining a CSPO under R.C. 2903.211(A). Specifically, the magistrate found that Rathburn had failed to establish that Watson engaged in a pattern of conduct, i.e., two or more incidents, t hat would cause Rathburn to reasonably fear physical harm. The magistrate’s decision wa s subsequently adopted by the trial court judge. {¶ 5} Rathburn now appeals from the trial court’s judgment adopting t he magistrate’s decision, and she raises one assignment of error f or review.

Assignment of Error {¶ 6} Under her sole assignment of error, Rathburn claims that she wa s denied a fair hearing on her petition for a CSPO because she was not giv en the opportunity to call any witnesses or to admit any of her unspecified documentary ev idence. Rathburn also claims that her testimony was, by itself, sufficient to obtain a CSPO because it satisfied all the requirements under R.C 2903.211(A). Therefore, accordi ng to Rathburn, the trial court erred in denying her petition for a CSPO. {¶ 7} As a preliminary matter, we note that both parties are proceedi ng pro se in-4- this appeal. “Litigants who choose to proceed pro se are presu med to know the law and correct procedure, and are held to the same standards as other litigants.” (Citation omitted.) Yocum v. Means , 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20. Unfortunately, we find that Rathburn failed to observe several procedural rules that affect this court’s ability to review her claims.

(1) Rathburn Failed to File Objections to the Trial Court’s Adoption of the Magistrate’s Decision {¶ 8} “Pursuant to Civ.R. 65.1(G), a trial court’s decision to adopt a magistrate’s decision that grants or denies a [CSPO] is a final, appealable order.” Florenz v. Omalley , 2020-Ohio-4487, __ N.E.3d __ ¶ 8 (2d Dist.). “However, as of J uly 1, 2016, the rule requires a party to file timely objections to the trial court’s order prior to filing an appeal.”

Id ., citing Civ.R. 65.1(G). “Written objections must be filed wi thin 14 days of the filing of

the trial court’s order.” Id. , citing Civ.R. 65.1(F)(3)(d)(i). “[A] party may not challenge the protection order on appeal if objections were not filed.” (Citation omitted.) Id . at ¶ 10. {¶ 9} Here, the record reflects that Rathburn failed to file objectio ns to the trial court’s adoption of the magistrate’s decision denying her petit ion for a CSPO. In the absence of timely objections, Rathburn may not challenge the tr ial court’s decision on appeal. See id . at ¶ 11.

(2) Rathburn Failed to File a Transcript of the Trial Court Proceedings {¶ 10} Even if we were to consider Rathburn’s arguments on appeal, we would-5- nevertheless find no basis to reverse the order denying Rathbur n’s petition for a CSPO, because Rathburn failed to provide a transcript of the full evi dentiary hearing before the magistrate as required by Civ.R. 65.1(F)(3)(d)(iv). See also App.R. 9(B). “In the absence of a written transcript of the hearing, we have no reco rd of the evidence presented to the magistrate, and we cannot speculate what testi mony was given at that hearing.” Florenz at ¶ 15, citing Williams v. Foster , 2d Dist. Montgomery No. 28416, 2019-Ohio-4601, ¶ 10 and Miller v. Tye , 2d Dist. Montgomery No. 26277, 2015-Ohio-199, ¶ 9. {¶ 11} Under these circumstances, we cannot say that the trial court’s decision to deny the CSPO was erroneous. See Williamson v. Caldwell , 2d Dist. Montgomery No. 27621, 2018-Ohio-311, ¶ 10. “Rather, we must presume that the evidence supported the magistrate’s findings.” Florenz at ¶ 15, citing Kahler v. Eytcheson , 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 34. Without a transcrip t, we also cannot determine whether Rathburn was unjustly prevented from admittin g her witness testimony and documentary evidence. Therefore, we must “presume the vali dity of the lower court’s proceedings, and affirm.” Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

(3) Rathburn Improperly Raised a New Argument in her Reply Brief {¶ 12} Rathburn filed a reply brief that raised a new argument claimin g that her trial counsel performed deficiently at the evidentiary hearing by fai ling to call her witnesses and by failing to submit her documentary evidence. Appellants, however, are not permitted to raise new arguments in a reply brief. Ameritech Publishing, Inc. v. Griffin ,-6- 2d Dist. Clark No. 2009-CA-18, 2009-Ohio-5602, ¶ 13. “Reply br iefs are merely intended to be an opportunity to reply to the brief of the appe llee.” (Citation omitted.)

Id . Therefore, this court generally does not consider arguments that are raised for the first time in a reply brief. See Hoskins v. Simones , 173 Ohio App.3d 186, 2007-Ohio4084, 877 N.E.2d 1008, ¶ 38 (2d Dist.); Griffin at ¶ 13. {¶ 13} Nevertheless, even if it were appropriate for this court to con sider Rathburn’s new argument, which we construe as an ineffective as sistance of counsel claim, the argument fails because a petition for a CSPO is civi l in nature, not criminal.

Luttrell v. Younce , 2d Dist. Miami No. 09-CA-45, 2011-Ohio-4458, ¶ 29, citing In re D.L. , 189 Ohio App.3d 154, 2010-Ohio-1888, 937 N.E.2d 1042, ¶ 20 (6th Dist.). Since proceedings involving the determination of whether to grant a C SPO are civil, there is no attendant right to counsel. Id .; Zawrotuk v. Zawrotuk , 7th Dist. Mahoning No. 14 MA 13, 2014-Ohio-5225, ¶ 49; Kohus v. Daly , 12th Dist. Clermont No. CA2015-05-042, 2016- Ohio-73, ¶ 14. Consequently, Rathburn was not entitled to coun sel as a matter of right at the full hearing on her petition for a CSPO. See Luttrell at ¶ 30. “Where there is no right to counsel, there can be no reversal based upon allegatio ns of ineffective assistance

of counsel.” In re Guardianship of Florkey, 4th Dist. Highland No. 07CA22, 2008-Ohio4994, ¶ 20, citing Perkins v. Breeding , 10th Dist. Franklin No. 94APE11-1605, 1995 WL 390928, *3 (June 29, 1995). {¶ 14} For all the foregoing reasons, Rathburn’s sole assignment of er ror is

overruled.

Conclusion-7- {¶ 15} Having overruled Rathburn’s assignment of error, the judgment o f the trial

court is affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and FROELICH, J., concur.

Copies sent to:

Christina Rathburn Gina Watson Hon. Steven K. Dankof