2021 Ohio 928
Ohio Ct. App.2021Background
- J.J. filed for a domestic-violence civil protection order (R.C. 3113.31) on April 16, 2020; the trial court granted an ex parte order that, among other things, instructed Kilgore to turn over all deadly weapons and prohibited him from possessing any deadly weapon while the order was in effect.
- The first full hearing was scheduled for May 27, 2020 but was continued to July 28, 2020 because of the COVID-19 emergency and related tolling authorities.
- On July 28, 2020, Kilgore and J.J. appeared and signed a court-approved consent domestic violence protection order; the filed consent order retained a prohibition on possessing deadly weapons but did not include the specific turnover instruction from the ex parte order.
- Kilgore appealed, raising six assignments of error: improper reliance on hearsay/ex parte order, improper scheduling and continuance, alleged coercion/denial of hearing leading to signing the consent order, and that the court wrongly characterized the consent order as not constituting a finding of domestic violence.
- The court held that the ex parte order was not a final appealable order and was superseded by the consent order; the continuance was permissible given COVID-19 tolling and emergency orders; Kilgore signed the consent order and failed to provide a transcript to challenge alleged trial-court statements, so regularity of proceedings is presumed.
Issues
| Issue | Plaintiff's Argument (J.J.) | Defendant's Argument (Kilgore) | Held |
|---|---|---|---|
| 1. Validity of ex parte order / admissibility of hearsay | Ex parte order was proper to protect petitioner pending a full hearing | Ex parte order improperly relied on hearsay and should be invalidated | Ex parte orders are not final or appealable; the consent order superseded it, so any challenge is moot |
| 2. Scheduling / continuance of full hearing | Scheduling/continuance was proper given statutory rules and pandemic tolling | Scheduling first hearing for May 27 and continuing to July 28 violated issuance/continuance requirements | Court did not abuse discretion; continuance was reasonable under COVID-19 emergency and tolling authorities |
| 3. Validity of consent order / compliance with continuance order | Consent order resolved the petition and was properly approved by the court | Consent order did not comply with the May 20 scheduling order and was procured by coercion/threats of further continuance | Kilgore signed the consent order; absent transcript, appellate court presumes regularity and enforces the signed consent agreement |
| 4. Effect of consent order on findings and weapon provisions | Consent order is a court-approved agreement intended to stop domestic violence (implying domestic-violence findings); it prohibits weapons possession | Trial court said consent means no finding of domestic violence and (allegedly) promised return of firearms if boxes unchecked | Court held describing it as a court-approved agreement was correct; consent implies domestic-violence remedial purpose and the order expressly prohibits possessing deadly weapons while active; Kilgore offered no record to rebut these points |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (standard for abuse of discretion review)
- Morgan v. Eads, 104 Ohio St.3d 142 (2004) (appellate review limited to trial record)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980) (when portions of transcript are omitted, reviewing court presumes regularity)
- In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme Court & Use of Technology, 158 Ohio St.3d 1447 (2020) (Supreme Court order tolling time requirements during COVID-19 emergency)