2019 Ohio 1437
Ohio Ct. App.2019Background
- Petitioner Malvina Elmurr (aka Makdessi) sought a domestic-violence civil protection order (CPO) against her husband, Joseph Makdessi, after multiple incidents of alleged physical abuse beginning during their marriage and following the birth of their infant daughter in Nov. 2016.
- Ex parte CPO initially listed Elmurr and the minor child as protected persons; after full hearing, the magistrate issued a CPO protecting Elmurr but declined to list the infant child as a protected person.
- The magistrate and trial court found Elmurr’s testimony credible as to domestic violence against her, but concluded there was insufficient credible evidence to warrant protecting the minor child.
- The trial court adopted the magistrate’s decision and set the CPO to expire on Sept. 26, 2018 (less than five years requested by Elmurr), noting ongoing divorce/custody proceedings.
- Elmurr appealed, arguing (1) the court abused its discretion by not including the infant as a protected person and (2) the court abused its discretion by limiting the CPO’s duration to Sept. 26, 2018.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the infant child should be included as a protected person on the CPO | Elmurr: testimony shows child was endangered by proximity to repeated domestic violence and by respondent’s conduct; child should be protected | Makdessi: insufficient credible evidence of abuse/endangerment to the child; custody/parenting issues belong in divorce case | Court: Abuse of discretion to omit the infant; Elmurr’s testimony showed a substantial risk to the child and child must be listed as protected |
| Whether the CPO duration (expiration Sept. 26, 2018) was proper | Elmurr: court abused discretion by limiting duration to a date unsupported by record; requested statutory maximum (5 years) | Makdessi: trial court cited pending divorce/custody proceedings as reason to limit/coordinate orders | Court: Duration was arbitrary and unsupported by evidence; limiting to Sept. 26, 2018 was abuse of discretion; judgment reversed and remanded for proceedings consistent with opinion |
Key Cases Cited
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (trial court credibility findings entitled to deference)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse of discretion standard defined)
- Berk v. Matthews, 53 Ohio St.3d 161 (appellate court may not substitute its judgment for trial court on discretionary matters)
- Felton v. Felton, 79 Ohio St.3d 34 (policy supporting extension of protection orders even after divorce)
- Cyran v. Cyran, 152 Ohio St.3d 484 (mootness principle for expired CPOs and legal collateral consequences)