Martin v. Martin
2013 Ohio 5703
Ohio Ct. App.2013Background
- Heather Martin filed a petition and, on June 13, 2012, the parties entered a six-month consent civil protection order (CPO) effective until Dec. 13, 2012.
- On Nov. 20, 2012, Heather (pro se) filed a "motion to extend" the consent CPO and a hearing was set for Dec. 3; certified mail service attempts were returned unclaimed.
- Hearing was continued to Dec. 12 to allow service; service remained imperfect and the trial court issued an ex parte temporary CPO on Dec. 12 effective until Dec. 19, 2012, and scheduled a full hearing for Dec. 19.
- At the Dec. 19 proceeding the court continued the full hearing to Feb. 5, 2013, and ordered the Dec. 12 ex parte CPO remain in effect; the record shows appellant was personally served on Dec. 17.
- A full hearing occurred on Feb. 5, 2013 (appellant absent but represented by counsel); the court entered a five-year final CPO (renewal) giving appellee exclusive possession of the residence.
- Appellant appealed, challenging the court’s authority to issue the Dec. 12 ex parte CPO, the Dec. 19 continuance (extending the ex parte order), and the Feb. 5 hearing and five-year final CPO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Authority to issue Dec. 12 ex parte CPO | Martin sought to avoid lapse; alleged immediate danger (threats) justified temporary ex parte relief | Phillip argued court lacked authority to issue ex parte after entry of prior consent CPO without service/hearing | Court: Overruled — R.C. 3113.31(D)(1) permits ex parte temporary orders for immediate danger; renewing a CPO requires same procedures as original, and an ex parte temporary order was authorized here |
| 2. Authority to continue full hearing to Feb. 5 and keep ex parte order in effect | Martin argued continuance was needed (good cause) to avoid lapse and to await resolution of related criminal proceedings | Phillip argued continuance was improper and long (≈2 months) and that he had not been served when continuance was ordered | Court: Overruled — R.C. 3113.31(D)(2)(a) permits continuance for "other good cause;" record showed criminal case warranted continuance and appellant was served before the Dec. 19 order |
| 3. Authority to hold Feb. 5 hearing and enter five-year final CPO after prior order expired | Martin contended she sought renewal (not mere extension) and full hearing was held; final five-year order is authorized after full hearing | Phillip contended statute does not permit extension/renewal after original order expired and court lacked authority | Court: Overruled — Court construed the proceeding as a renewal; R.C. 3113.31(E)(3)(c) allows renewal following same procedures as original and a full hearing was held before entering the five-year order |
Key Cases Cited
- Felton v. Felton, 79 Ohio St.3d 34 (Ohio 1997) (statute criminalizes domestic violence and authorizes protection orders tailored to the situation)
- Fleckner v. Fleckner, 177 Ohio App.3d 706 (10th Dist. 2008) (threats of violence can establish domestic violence where they create reasonable fear)
- Woolum v. Woolum, 131 Ohio App.3d 818 (12th Dist. 1999) (renewal of protection orders proceeds in same manner as original issuance)