C.W. v. J.S.C.W. v. J.S.
Rendered on June 9, 2022
On brief: O‘Keefe Family Law, and Bobbie Corley O‘Keefe, for appellee. Argued: Bobbie Corley O‘Keefe.
On brief: The Nigh Law Group, LLC, and Courtney A. Zollars.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch
KLATT, J.
{¶ 1} Respondent-appellant, J.S., appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch, granting the petition for a domestic violence civil protection order (“DVCPO“) filed by petitioner-appellee, C.W. For the following reasons, we affirm.
{¶ 2} At the time of the events giving rise to this appeal, appellant and appellee resided together with their five-year-old son. The parties had never married or obtained court orders allocating parental rights and responsibilities for their son.
{¶ 3} Appellee filed a petition for a DVCPO on March 22, 2021, alleging that appellant assaulted her on March 15, 2021. In the petition, appellee listed a previous
{¶ 4} In an addendum to the petition, appellee claimed that appellant “became irate” when she requested that he move his car to allow her to exit their driveway. (Addendum to Petition.) Appellant pulled a chair out from under appellee, causing her to fall to the floor. Due to “past escalations,” appellee began recording the incident on her cell phone. Id. Appellant tackled appellee and removed the cell phone from her hand. He then chased and screamed at their son. When appellee attempted to intervene, appellant choked her and pushed her to the floor. Appellee escaped with her son through a window and called the police. While appellee was on the phone, appellant said, “Bring the cops[,] I‘ll shoot them all.” Id. Appellant then brought a large gun and a bag of ammunition into the living room. The police arrived and told appellant to leave. Appellee and her son stayed in a hotel from March 15 to March 19, 2021, when they returned home. Appellant came to the house the next day; appellee called the police. Appellee asserted that “I fear for my life.” Id.
{¶ 5} Appellee requested an ex parte DVCPO, which the trial court granted the same day. The trial court scheduled a “full hearing” on the matter for March 29, 2021. (Ex Parte DVCPO at 5.)
{¶ 6} Following several continuances occasioned by unsuccessful service on appellant, the trial court conducted a full evidentiary hearing on the petition on May 7, 2021. Both parties appeared pro se. At the outset, the trial court noted that appellant had only recently been served with the ex parte DVCPO.1 When asked if he had sufficient time to review the order, appellant stated that he had “some opportunity to review” it. (May 7, 2021 Tr. at 4.) Thereafter, the trial court asked appellant if he wished to speak to an attorney prior to the commencement of testimony. Appellant responded, “I don‘t think that‘s necessary at this point.” Id. at 4-5. The trial court cautioned appellant that once the hearing began, there would be no opportunity to reconsider this decision. Appellant indicated that he understood.
{¶ 7} Appellant then stated, “my main concern here today is that I have not seen my son in a month and a half.” Id. at 5. The trial court informed appellant that the hearing concerned only the DVCPO, not visitation with his son. Appellant signified that he
{¶ 8} Under direct questioning by the trial court, appellee testified that she and appellant owned and lived in a home together with their son until March 2020 when appellant “signed off on the mortgage.” Id. at 7. According to appellee, appellant did not immediately leave the residence; rather, he was “removed” from the home in May 2020. Id. Appellee did not elaborate on the circumstances surrounding appellant‘s removal.
{¶ 9} In response to questioning by the trial court, appellee asserted that there had been other “incidents of violence” between the parties. Id. Specifically, in 2019, appellee pursued domestic violence charges against appellant; however, appellant called her from jail and persuaded her to drop the charges.
{¶ 10} Appellee averred that she filed the present petition for a DVCPO following an incident at her home on March 15, 2021. According to appellee, appellant was there to assist with their son. When appellee asked appellant to move his car, “[t]he situation became violent and he ended up choking me twice, pulling a chair out from under me and threatening me with a semi-automatic weapon.” Id. at 8.
{¶ 11} When asked how she got away from appellant, appellee testified that appellant momentarily released her after he had “pinned” her down in the hallway. Id. at 10. At that point, she locked herself and her son in the spare room and exited through the window. When she went back inside the house to retrieve her son‘s coat and shoes, she saw appellant with a gun—an “AR or AK“—in his hand. Id. at 11. Appellant also had his “gun bag with the ammo in it.” Id. As he had in the past, appellant threatened to shoot appellee. Because she did not have her car keys and appellant was parked behind her in the driveway, she sat in her car and called the police.
{¶ 12} When questioned about the gun, appellee asserted that appellant stored it in the spare room. According to appellee, “[e]very time we would argue, he would decide to bring it out and threaten to shoot me and the cops. That‘s what he did that day as well.” Id. at 8.
{¶ 13} At the conclusion of appellee‘s direct testimony, the trial court asked appellant if he wished to question appellee. Appellant replied, “I have a lot of questions. I don‘t know where to start.” Id. at 13. Appellant then said he wanted to “state something
{¶ 14} At appellant‘s request, the trial court permitted him to “give a statement.” Id. at 14. To that end, appellant testified that he and appellee lived together with their son until he moved out in March 2020. However, because appellee wanted to “try things again,” he moved back into the house in August 2020. Id.
{¶ 15} Appellant further testified that the night before the March 15, 2021 incident, appellant returned home from work and parked his car behind appellee‘s vehicle in the driveway. On the morning of March 15, 2021, appellee woke appellant by punching him in the face and screaming at him to move his car out of the driveway. Thereafter, appellant decided to go to the shooting range to “blow off some steam.” Id. at 16. Appellant kept his gun in a box and did not remove it in preparation for his trip to the shooting range. He loaded ammunition into a magazine, which he kept separate from the gun. As appellant loaded the ammunition, appellee “freaked out” and “jump[ed] out of the window” because she thought he was going to point the gun at her. Id. at 15. Appellant testified that he was “never aggressive” toward appellee and “never pointed a weapon” at her. Id. at 15, 16-17.
{¶ 16} After appellant testified, the trial court asked appellee to respond. Appellee denied striking appellant in the face. She reiterated her testimony that appellant took her cell phone while she was recording the incident. Appellee averred that both she and her son could recount the entire event for the court if necessary. After this statement, appellant and appellee exchanged heated words about the incident:
[Appellant]: Did he watch you hit me?
[Appellee]: He watched you hit me and choke me.
[Appellant]: I did not hit you.
[Appellee]: So if he doesn‘t punch then it‘s not a hit.
[Appellant]: I didn‘t put my hands on you.
Id. at 17-18.
{¶ 18} Thereafter, the trial court stated, “I believe that [appellee] has testified credibly here today that at least two domestic violence incidents did occur.” Id. at 20. The court indicated that it would grant the DVCPO for a term of five years and warned appellant not to contact appellee. The court then advised appellant that if he wished to have parenting time with his child, he would have to file a motion requesting court orders to that effect.
{¶ 19} Thereafter, the trial court granted appellant‘s request to “make a statement.” Id. at 20. To that end, appellant averred:
I‘m not sure why * * * this is going on now when she has attacked me many, many times, and I have never tried to come at her like this.
She stole $7,000 of our tax returns. It was mine. She stole it, and then threw all my stuff out of the house. That‘s why she is getting a protection order, because she thinks that I‘m going to attack her or something, which is just made up in her own head. I‘m really not a dangerous person.
Id.
{¶ 20} After the court interjected “Okay,” appellant attempted to continue his statement; however, he averred only “I have no desire” before the court interjected:
I believe that [appellee] has testified credibly here today that at least two domestic violence incidents did occur. Strangulation in the state of Ohio is a felony.
[Appellee] has testified that you strangled her. She has testified that she had to crawl outside the window, go lock herself in her car; that she felt threatened by you pulling the weapons out.
Id. at 20-21.
{¶ 21} After a brief discussion about the duration of the DVCPO and logistics related to visitation with his son, appellant averred that appellee “has also strangled me and hit me and everything.” Id. at 21. The court noted that appellant had never filed for a DVCPO as
{¶ 22} Following this exchange, the court and parties held a discussion off the record. After the hearing resumed, appellant reiterated that he did not strangle appellee. The court then advised appellant of the parameters of the DVCPO and that he had seven days to retrieve his property from the parties’ home.
{¶ 23} The court issued the DVCPO on May 7, 2021, for a term of five years.
{¶ 24} Appellant timely appeals, assigning the following error:
The trial court erred when they failed to afford the appellant a full hearing, therefore denying him his right to due process and the opportunity to be heard.
{¶ 25} In his sole assignment of error, appellant argues the trial court denied his due process rights by failing to afford him the opportunity to be heard at a “full hearing.” Specifically, appellant asserts the trial court interrupted his testimony, did not allow him to call witnesses on his behalf, issued a decision on the DVCPO prior to the completion of his testimony, and did not permit him to cross-examine appellee. Appellant maintains the trial court‘s actions deprived him of the right to present a complete defense to the allegations in the petition.
{¶ 26} Here, appellee sought a DVCPO pursuant to
{¶ 27} If a petitioner files a petition under
{¶ 28} In general, the decision to grant or deny a DVCPO pursuant to
{¶ 29} In D.M.W., we noted that although the term “full hearing” is not defined in
{¶ 30} In support of his assignment of error, appellant cites Tarini v. Tarini, 10th Dist. No. 12AP-336, 2012-Ohio-6165; Houseman v. Houseman, 4th Dist. No. 831, 1981 Ohio App. LEXIS 13378; Felton v. Felton, 79 Ohio St.3d 34 (1997); and Spigos v. Spigos, 10th Dist. No. 03AP-682, 2004-Ohio-757.
{¶ 31} In Tarini, the petitioner sought a CPO against his brother. During counsel‘s direct examination of the petitioner, the trial court announced that because the petitioner had met his threshold showing for a CPO, the court was halting counsel‘s direct
{¶ 32} In Houseman, the nephew of an elderly woman filed an application seeking appointment as her guardian. At the probate court hearing, the nephew presented two physicians who testified to the aunt‘s condition. The aunt sought to introduce the testimony of friends and neighbors as lay witnesses on her behalf; however, the trial court refused to allow that testimony. The court entered an order declaring her incompetent by reason of advanced age and mental and physical infirmities and appointing her nephew as her guardian. On appeal, the aunt contended that the trial court‘s refusal to allow the lay witness testimony violated her due process rights. The court of appeals agreed, noting that “[o]ne of the fundamental due process rights is the right to present witnesses in one‘s behalf,” id. at *4, citing Grieb v. Dept. of Liquor Control, 153 Ohio St. 77 (1950), and that ” ‘[l]itigants are entitled to a fair and impartial trial, and in order to have this their witnesses should be permitted to testify, under the rules of the court, within the proper bounds of judicial discretion, and under the law governing testimony of witnesses.’ ” Id., quoting Fessenden v. Fessenden, 32 Ohio App. 16 (9th Dist.1928). The court found that the trial court had “abused its discretion and abridged [the aunt‘s] constitutional rights to due process of law by excluding testimony of her lay witnesses.” Id. at *9. In contrast, in the present case, appellant never indicated that he would present witnesses to testify on his behalf.
{¶ 34} The court of appeals held that because the parties’ decree of dissolution included a provision prohibiting each party from harassing or interfering with the other party, a DVCPO issued pursuant to
{¶ 35} In Spigos, 10th Dist. No. 03AP-682, 2004-Ohio-757, counsel for the DVCPO petitioner informed the trial court at the outset of the hearing that the petitioner had two professional witnesses en route to court. During the petitioner‘s direct testimony, the trial court abruptly requested to speak with counsel off the record. The court subsequently entered judgment against the petitioner on the basis that the petitioner had failed to prove her case. On appeal, the petitioner argued that she was not afforded a “full hearing” under
{¶ 36} Although the legal issues raised in Spigos are somewhat similar to those raised by appellant in the instant case, Spigos is distinguishable. We note that in the present case, both parties appeared pro se. Appellant twice declined the opportunity for a continuance to obtain counsel. Although appellant was free to do so, it is axiomatic that one who acts as his own attorney does so at his own peril. Ohio case law continues to hold that “pro se litigants are expected to possess knowledge of the law and legal procedures and, accordingly, are held to the same standard as litigants who have legal representation.” JPMorgan Chase Bank, N.A. v. Cloyes, 10th Dist. No. 20AP-107, 2021-Ohio-3316, ¶ 9, citing In re Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 43, 2013-Ohio-5478, ¶ 22. (Further citation omitted.) “Pro se litigants can neither expect nor demand special treatment, but instead must be treated the same as litigants represented by counsel.” Id., citing Cox v. Dayton Pub. Schools Bd. of Edn., 147 Ohio St.3d 298, 2016-Ohio-5505, ¶ 6.
{¶ 37} Moreover, appellant‘s arguments are without merit. Appellant complains that he was not afforded an opportunity to cross-examine appellee; however, the record belies this assertion. After appellee presented her case-in-chief, the trial court asked appellant if he wished to question appellee. Appellant replied that he wanted to make a statement; however, the statement he made did not involve any issue related to the DVCPO. The trial court again asked appellant if he had any questions for appellee. Appellant responded in the negative. Contrary to appellant‘s contention, the trial court provided him the opportunity to cross-examine appellee; however, he chose not to do so.
{¶ 38} Appellant‘s claim that the trial court granted the DVCPO prior to the completion of his testimony is also belied by the record. The trial court permitted both parties to testify regarding the events at issue. During his initial testimony, appellant averred that appellee initiated the incident by striking him in the face and screaming at him. In response, he decided to “blow off some steam” at the shooting range; accordingly, he retrieved his gun (which he never removed from the box he kept it in) and ammunition. (May 7, 2021 Tr. at 16.) He testified that he was never aggressive with appellee and never pointed his gun at her. After the trial court sought a response from appellee, the parties engaged in a heated discussion regarding the incident, during which appellant again denied
{¶ 39} Further, what appellant refers to as the trial court‘s interruptions more accurately reflect the trial court‘s efforts at redirecting and refocusing appellant‘s testimony to the relevant issues. Appellant repeatedly raised issues related to visitation with his son; the trial court advised appellant that issues related to parental rights and responsibilities were not the subject of the DVCPO hearing and redirected appellant‘s testimony to the matter at issue. To the extent appellant cites to that portion of the hearing where the trial court appears to cut off his statement that began “I have no desire,” we note that this occurred well after appellant had already presented his version of the incident. Id. Furthermore, there is no indication in the record that appellant requested permission to continue his statement. In addition, appellant does not allege what he would have stated had the trial court permitted him to continue his statement or how he was prejudiced by the trial court‘s action.
{¶ 40} To the extent appellant argues that he was denied due process by the trial court‘s failure to inquire if he had additional evidence to present or if he wished to make a closing argument, we note that appellant cites no case law requiring the trial court to make such inquiries. Moreover, appellant fails to allege what additional evidence he would have presented or what additional arguments he would have made if provided the opportunity to do so.
{¶ 41} Finally, as to appellant‘s complaint that the trial court did not allow him to call witnesses, there is no indication in the record that appellant ever indicated that he intended to call witnesses to testify on his behalf.
{¶ 43} Here, the trial court allowed appellant, who appeared pro se by choice, to present his own testimony and arguments in support of his position and did not preclude him from cross-examining appellee or offering additional evidence through witness testimony. Under the circumstances presented herein, we conclude that appellant was afforded a “full hearing” within the meaning of
{¶ 44} Having overruled appellant‘s sole assignment of error, we affirm the order of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch, issuing a DVCPO to appellee.
Judgment affirmed.
DORRIAN and MENTEL, JJ., concur.