Insa v. Insa
2016 Ohio 7425
| Ohio Ct. App. | 2016Background
- Petitioner Michal Insa filed for a domestic-violence civil protection order in April 2015 seeking protection for herself and the parties’ 4‑year‑old daughter, alleging past physical abuse and sexual abuse by respondent Mahamadou Insa. An ex parte temporary protection order granted temporary custody to Michal and limited respondent’s visitation.
- A two‑day magistrate hearing was held (witnesses: petitioner, child’s treating psychologist Antoinette Cordell, Detective Elizabeth Alley from CARE House, and respondent). Medical exam neither confirmed nor ruled out abuse; CARE House and MCCS investigations resulted in inconsistencies and MCCS found allegations unsubstantiated; prosecutor declined charges.
- Magistrate found respondent credible, dismissed the petition, and vacated the ex parte order. The trial court adopted the magistrate decision; petitioner’s counsel filed objections under Civ.R. 65.1 within 14 days of adoption. Petitioner died before appeal; substitution of appellant occurred for child’s interests.
- Appellant raised four assignments: (1) trial court should have conducted an in‑camera interview of the child under R.C. 3109.04(B)(1); (2) the court abused discretion by refusing to reopen the proceedings for newly discovered evidence concerning possible abduction (Civ.R. 59(A)(8)); (3) the dismissal was against the weight of the evidence; (4) trial court erred in overruling objections as untimely under Civ.R. 53 when Civ.R. 65.1 governed.
- Appellate court held objections timely under Civ.R. 65.1 and therefore reviewed the merits. It affirmed dismissal: no statutory duty to conduct in‑camera interview in protection‑order proceedings; denial of new‑trial reopening was not an abuse of discretion; magistrate’s credibility findings and consideration of lack of corroboration were not against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether the court was required to conduct an in‑camera interview of the child under R.C. 3109.04(B)(1) | R.C. 3109.04(A) applies because a protection order can temporarily allocate parental rights; thus the court "shall" interview child on request | Protection‑order statute (R.C. 3113.31) governs; R.C. 3109.04’s in‑camera requirement applies to custody proceedings/final allocations, not temporary protection orders | Court: R.C. 3109.04 in‑camera requirement does not apply to protection‑order proceedings; no due‑process violation where child was not called and counsel elected not to present child testimony |
| 2) Whether the court abused discretion by refusing to reopen for newly discovered evidence (passport request/abduction fear) under Civ.R. 59(A)(8) | New evidence (post‑hearing passport request) showed imminent risk of abduction; merits warranted reopening | Abduction fear not pleaded in petition; passport request after petitioner’s death unlikely to change outcome; Civ.R. 59 relief requires evidence that would probably change result | Court: No abuse of discretion. Abduction theory was speculative and not shown to probably change result; petition did not plead abduction |
| 3) Whether dismissal and vacatur of ex parte order were against the manifest weight of the evidence | Appellant: preponderance established sexual abuse via child statements and psychologist’s observations; lack of charges is not dispositive | Respondent: investigations found inconsistencies; medical exam non‑confirmatory; respondent credible at hearing | Court: Affirmed. Magistrate reasonably weighed credibility and lack of corroboration; competent, credible evidence supported dismissal |
| 4) Whether trial court erred by overruling objections as untimely under Civ.R. 53 when Civ.R. 65.1 governs | Objections timely under Civ.R. 65.1(F)(3)(d)(i) (14 days after adoption); Civ.R. 53 inapplicable | Trial court treated objections as untimely under Civ.R. 53 and noted procedural defects | Court: Objections were timely under Civ.R. 65.1; trial court erred procedurally but error was harmless because appellate review of merits reached same result |
Key Cases Cited
- State ex rel. Thompson v. Spon, 83 Ohio St.3d 551 (Ohio 1998) (statutory interpretation requires examining statute as whole rather than isolated phrases)
- State v. Wilson, 77 Ohio St.3d 334 (Ohio 1997) (court must consider statute text in context)
- Tabler v. Meyers, 173 Ohio App.3d 657 (Ohio Ct. App. 2007) (protection orders are temporary and not equivalent to custody decrees)
- In re A.G., 139 Ohio St.3d 572 (Ohio 2014) (child’s interests may be represented by parent; exclusion or nonappearance of child does not automatically violate due process)