[Cite as T.H. v. Villoni , 2020-Ohio-3767.]

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

T. H. Appellee

v. VINCENT VILLONI Appellant C.A. No. 18CA0090-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 18CIV0682

DECISION AND JOURNAL ENTRY Dated: July 20, 2020

SCHAFER, Judge. {¶1} Respondent-Appellant, Vincent Vill oni, appeals the judgment ent ry of the Medina County Court of Common Pleas adop ting the magistrate’s decision granting a protection order. For the reasons that follow, this Court affirms.

I. {¶2} On July 6, 2018, Petitioner-Appe llee, T.H., filed a petition fo r a civil stalking protection order pursuant t o R.C. 2903.214. T.H. sought relief for himself and his adult son, with an order of protection from Respondent-Appellant, Vincent Villo ni. The trial court issued an ex parte protection order that day, and set the matter for a full hearing on July 24, 2018. {¶3} T.H. appeared at the hearing along with his son. Mr. Villoni a ppeared with his wife. Following the hearing, the magistrate found that Mr. Vil loni repeatedly traveled on to the parcel of property where T.H.’s home was located and confronted T.H. and his family members. The magistrate found that these e vents culminated in a confront ation on July 3, 2018, during which,2

Mr. Villoni left the property where his home was located and vi olently confronted T.H.’s son on an adjoining parcel of property. The magistrate also indicated that “criminal trespass charges are pending.” The magistrate found, b y a preponderance of the evid ence, that Mr. Villoni knowingly engaged in a pattern of conduct that caused T.H. to believe tha t Mr. Villoni “would cause physical harm, or that Mr. Villoni has cau sed mental distress to [the pe titioners,]” and that the protection order was equitable, fair, and necessary. Accordingly, on Augu st 2, 2018, the magistrate issued, and the trial court judge adopted that same day, an order prote cting T.H. and his son from Mr. Villoni through July 6, 2020. {¶4} Mr. Villoni filed “objection pa pers” on August 16, 2018, statin g that he objected to the magistrate’s ruling on the CPO. Mr. Villoni indicated that he would order transcripts to supplement the record and to further support his objection to t he magistrate’s decision. On September 19, 2018, the trial cour t issued a judgment entry rul ing on Mr. Villoni’s objection. The

trial court found tha t Mr. Villoni did not make a specific obje ction in his filing. The trial court

noted that Mr. Villoni did not i ndicate whether he believed the re was an error of law or other defect evident on the face of the order, nor did he allege any manner in which the credible evidence of the record was insufficient to support the granting of the prot ection order. Further, the trial court found that thirty-four days passe d since Mr. Villoni filed his objection, but no transcript of the proceedings had been filed. The refore, the trial court found t hat Mr. Villoni failed to meet his burden in presenting an objecti on pursuant to Civ.R. 65.1(F). The trial court, having reviewed the magistrate’s decision, overruled Mr. Villoni’s “objections in f ull and, again, adopt[ed] said decision in its entirety, includi ng the findings of fact and co nclusions of law set forth therein.” {¶5} Thereafter, Mr. Villoni filed a “motion to reconsider the dismi ssal of the objection.” The motion indicated that Mr. Villoni had recently retained cou nsel and, although he ordered the3

transcripts, he did not know the transcripts needed to be filed . Mr. Villoni also asserted that “[t]here are errors in the findings granting the [c]ivil [p]rot ection [o]rder to be found in the transcripts after a proper review of the transcripts can be acc omplished by counsel[.]” Mr. Villoni also filed a separate motion requesting leave to file an object ion within twenty days, and filed the transcript of the hearing at that time. The trial court denied Mr. V illoni’s motion to reconsider and, having already overruled t he objection, denied the motion for leave to supplement. {¶6} Mr. Villoni timely appealed the trial court’s adoption of the p rotection order and raised one assignment of error for our review. T.H. did not fi le a merit brief i n this matter. Thus, we may accept the Mr. Villoni's statements of the facts and iss ues as correct and reverse the judgment if his merit brief reas onably appears to sustain such action. App.R. 18(C).

II. Assignment of Error Competent credible evidence was not presented to support the tr ial court findings and conclusions that [Mr. Villoni] engaged in menacing by stalking as a basis for granting the civil stalking protection order. {¶7} In his sole assignment of error, Mr. Villoni contends that fact ual findings were not supported by competent credible evidence, a nd the trial court e rred by concluding that an order of protection should be granted. Wit hin this single assignment oferror, Mr. Villoni raises two subissues. First, Mr. Villoni questions whether the court erred w hen it granted the civil stalking protection order against him and appears to contend that the tr ial court’s decision was against the manifest weight of the eviden ce. Second, Mr. Villoni questions whether the evidence presented was sufficient to prove the essen tial elements of the civil sta lking protection order. {¶8} Because Mr. Villoni attempts to challenge both the sufficiency and the manifest weight of the evidence in a single assignment of error, we paus e to recognize that, “a review of the4

sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations.” State v. Vicente-Colon , 9th Dist. Lorain No. 09CA009705, 2010- Ohio-6242, ¶ 18. Accordingly, it is not appropriate to combine a sufficiency argument and a manifest weight argument within a single assignment of error. Id . at ¶ 20. See Loc.R. 7(B)(7) (“Each assignment of error shall be separately discussed * * *. ”); App.R. 12(A)(2) (This Court “may disregard an assignment of error presented for review if t he party raising it fails to * * * argue the assignment separately in the brief, as required under App.R. 16(A)”). However, our review of Mr. Villoni’s assignme nt of error is hindered by more fundamental issues. {¶9} Civ.R. 65.1 applies to proceedings pursuant to R.C. 2903.214 fo r stalking civil protection orders. Civ.R.65.1(F) (3)(d) specifies the procedure s for a party to file objections to a trial “court’s adoption, modifica tion, or rejection of a magist rate’s denial or granting of a protection order after a full hearing[.]” Relevant to the pres ent appeal, a party may file written objections within fourteen days of the trial court’s filing of the order granting the protection order. Civ.R.65.1(F)(3)(d)(i). A party filing objections “has the bur den of showing that an error of law or other defect is evident on the face of the order, or that th e credible evidence of record is insufficient to support the granting * * * of the protection or der, or that the magistrate abused the magistrate’s discretion in including or failing to include spec ific terms in the protection order.” Civ.R.65.1(F)(3)(d)(iii). Objections “based upon evidence of r ecord shall be supported by a transcript of all the evidence submitted to the magistrate or a n affidavit of that evidence if a transcript is not available.” C iv.R.65.1(F)(3)(d)(iv). “The o bjecting party shall file the transcript or affidavit with the court within thirty days after filing obj ections unless the court extends the time in writing for preparation of the transcript or other good cause.” Id . Further, if the objections are timely filed, “prior to the date on which a transcript is p repared, the party may seek leave of5

court to supplement the objections.” Id . “[A] party must timely file objections to [an order adopting a magistrate’s grantin g of a protection under] this ru le prior to filing an appeal[.]” Civ. R. 65.1(G). {¶10} On the fourteenth day after the trial court adopted the magistr ate’s decision in this matter, Mr. Villoni filed “objection papers.” While Mr. Villon i indicated a general objection to the protection order, his filing did not state the nature of hi s objection. As noted above, Mr. Villoni had the burden to show the error of law, defect, or lack of cre dible evidence to support the granting of the protection order. See Civ.R.65.1(F)(3)(d)(iii). When th e trial court ruled on the o bjections— more than thirty days after Mr. Villoni filed them—Mr. Villoni had not filed a transcript or affidavit regarding the evidence, nor had he sought leave to su pplement his objections. Civ.R. 65.1(F)(3)(d)(iv). Consequently, th e trial court concluded tha t he had not met his burden with respect to his objection, and adhe red to its decision to adopt the magistrate’s decision granting the protection order. {¶11} Although Mr. Villoni subsequently filed the transcript of the h earing and requested the trial court reconsider its decision to overrule his objecti on, the trial court de nied the request. Mr. Villoni did not challenge the trial court’s denial of his r equest on appeal. Still, throughout his merit brief, Mr. Villoni references the transcript, which was n ot in the record for the trial court to consider when it ruled on Mr. Villoni’s objections. Assuming t hat Mr. Villoni intended to challenge the weight or sufficiency of the evidence in his obje ctions before the trial court as required prior to appeal by Civ.R . 65.1(G), he failed to do so in the manner prescribed by Civ.R. 65.1(F)(3)(d)(iii) and (iv). {¶12} Even if this Court were able to reach the merits of Mr. Villoni ’s arguments raised for the first time on appeal, our review would be inhibited bec ause his arguments are based entirely6

on the transcript of the record that was not timely filed or av ailable for the trial court’s

consideration below. See Post v. Leopardi , 11th Dist. Trumbull No. 2019-T-0061, 2020-Ohio2890 ¶ 24; see J.S. v. D.L. , 8th Dist. No. 106509, 2018-Ohio-4775, ¶ 10-11 (“[I]n applying the analogous transcript requirement found in Civ.R. 53(D)(3)(b)(ii i),” appellate courts have held that if the transcript is later submitted, “it may not be considered because the appellate court’s review

is limited to the evidence befo re the trial court.” We see no reason why the rule would not apply with equal force to [a respondent]’s analogous duty under Civ.R . 65.1(F)(3)(d)(iv) to provide the

trial court with the transcript of the proceedings in support o f his objections * * *.”). “‘A reviewing court cannot add matter to the record before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter.’” Post at ¶ 24, quoting State v. Ishmail , 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. Becau se this Court cannot consider the transcript, Mr. Villoni cannot d emonstrate error with respect t o factual findings. Consequently, we must presume the regularity of the proceedings below and acc ept that the facts were correctly interpreted. See Bayview Loan Servicing, L.L.C. v. Likely , 9th Dist. Summit No. 28466, 2017- Ohio-7693, ¶ 12. {¶13} Therefore, Mr. Villoni’s assi gnment of error is overruled.

III. {¶14} Mr. Villoni’s assignment of error is overruled. The judgment o f the Medina County

Court of Common Pl eas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.7

We order that a special mandate issue out of this Court, direc ting 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 constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: PAUL GRANT, Attorney a t Law, for Appellant. T. H., pro se, Appellee.