2013 Ohio 3451
Ohio Ct. App.2013Background
- Appellee Hayberg (Tuscarawas County resident) obtained an ex parte civil stalking protection order (CPO) against appellant Tamburello (Cuyahoga County resident) after alleged threats; a full hearing resulted in a five-year CPO.
- Tamburello did not appear at the full hearing; later the trial court found him in contempt for sending threatening emails and continued contact.
- Tamburello repeatedly moved to terminate or dismiss the CPO, arguing loss of employment, inability to obtain insurance licenses, and serious health conditions that require insurance.
- The magistrate and trial court denied motions to terminate the CPO and denied relief on contempt claims against Hayberg; the trial court adopted the magistrate’s decisions.
- Tamburello filed an emergency motion (Jan. 18, 2013) asking immediate termination of the CPO; the trial court denied it (Jan. 28, 2013). Tamburello appealed pro se; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Hayberg) | Defendant's Argument (Tamburello) | Held |
|---|---|---|---|
| Jurisdiction to issue/modify CPO | Tuscarawas Court has jurisdiction because the protected person (Hayberg) resides there | Cuyahoga resident (Tamburello) argued Tuscarawas lacked jurisdiction since he and the acts were in Cuyahoga | Court: Tuscarawas has jurisdiction under R.C. for proceedings where protected person resides; jurisdiction valid |
| Judicial bias | N/A (no claim of bias by Hayberg) | Magistrate and judge biased because Tamburello is non-resident | Court: Bias claims against a common pleas judge must be pursued under R.C. 2701.03 before the Ohio Chief Justice; no such procedure followed; no reversible bias |
| Whether CPO should be terminated for changed circumstances | CPO should remain due to prior threats, contempt findings, and continued contact | Emergency termination sought due to lost income, inability to obtain insurance licenses, and serious health needs; alleged inability to harm Hayberg physically | Court: Review for abuse of discretion; no material change shown to warrant termination; denial affirmed |
| Eighth Amendment / ADA claims | N/A | CPO amounts to cruel and unusual punishment; violations of ADA due to Tamburello’s medical conditions | Court: Arguments unsupported by legal authority or record citations; appellant failed to develop or cite law — claims overruled |
Key Cases Cited
- Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158 (10th Dist. 1983) (purpose of accelerated calendar: brief, conclusionary decisions)
- State v. Hooks, 92 Ohio St.3d 83 (Ohio 2001) (appellate courts cannot add facts outside trial record)
- State v. Ishmail, 54 Ohio St.2d 402 (Ohio 1978) (same limitation on adding factual assertions on appeal)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard requires decision be unreasonable, arbitrary, or unconscionable)
- North v. Beightler, 112 Ohio St.3d 122 (Ohio 2006) (brief assertions of new factual material cannot enlarge the record)