Elmurr v. MakdessiElmurr v. Makdessi
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 18, 2019
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A. Cruz, for appellant.
Paris & Paris, John T. Paris, for appellee.
RAYMOND C. HEADEN, J.:
{¶ 1} Plaintiff-appellant Malvina Elmurr Makdessi (“Elmurr“) appeals from the lower court‘s granting of a domestic violence civil protection order against defendant-appellee Joseph Makdessi (“Makdessi“) that did not include the parties’ infant daughter as a protected person. For the reasons that follow, we reverse.
{¶ 2} Elmurr arrived in the United States from her native Lebanon in December 2015 on a 90-day fiancée visa. She and Makdessi were married on February 6, 2016. In August 2016, Elmurr became a lawful permanent resident.
{¶ 3} On November 18, 2016, Elmurr gave birth to a daughter. Shortly after their daughter‘s birth, Elmurr called police to their house following an altercation between the parties.
{¶ 4} On February 21, 2017, Elmurr was served with divorce papers from Makdessi. Divorce proceedings between the parties are ongoing. On February 23, 2017, another incident occurred in which, according to Elmurr, Makdessi wanted to take the baby from her. Elmurr alleged that Makdessi pulled her out of the apartment by her hair and attempted to grab the baby from her and from Elmurr‘s mother.
{¶ 5} Elmurr subsequently sought a protection order. She requested that the trial court issue a domestic violence civil protection order against Makdessi for the protection of herself and her minor child for a term of five years, the maximum permissible time for the duration of a protection order under
{¶ 6} A full hearing before a magistrate was held, taking place over three separate dates: September 1, 2017; January 3, 2018; and January 19, 2018. Both
{¶ 7} The testimony of both parties makes clear that their marriage was fraught from its outset. Initially, Makdessi‘s mother lived with the couple. This created tension between the parties, and eventually, at Elmurr‘s urging, the couple moved into their own apartment. Subsequently, Elmurr‘s mother moved into the couple‘s apartment.
{¶ 8} At the hearing, Elmurr testified that, over the course of their marriage, Makdessi had been physically violent and threatening towards her, engaging in hair pulling, pushing her, rapping on her head with his knuckles, and drunkenly forcing her to engage in sexual intercourse. Elmurr testified that as a result of her fear of Makdessi, she began sleeping in a room with her mother and daughter, separate from Makdessi, and would lock herself inside the room to avoid him. Elmurr also testified that Makdessi would hold their daughter incorrectly and left the child unattended outside in the winter for approximately thirty minutes at a time.
{¶ 9} Following the hearing, the magistrate issued a domestic violence civil protection order, listing Elmurr as a protected person, to remain in effect until September 26, 2018. The magistrate made the following findings of fact:
Petitioner‘s testimony is found to be essentially credible with respect to the incidents involving herself and Respondent. Respondent‘s testimony is found to be less than credible. Officer Willner‘s testimony is found to be essentially credible but somewhat biased in favor of his friend, the Respondent. Petitioner‘s testimony is sufficient to support
a finding that Respondent committed domestic violence as defined in O.R.C. 3113.31 and that the Petitioner is in danger of domestic violence. The Court further finds that there was insufficient credible evidence presented that warranted the parties’ minor child be protected.
{¶ 10} On February 14, 2018, Elmurr filed preliminary objections to the magistrate‘s decision. On April 9, 2018, Elmurr filed supplemental objections to the magistrate‘s decision.
{¶ 11} On May 15, 2018, the trial court overruled Elmurr‘s objections and adopted the magistrate‘s decision. The trial court reiterated that absent credible evidence, the minor child would not be listed as a protected person. Further, the court stated:
Furthermore, the Court notes there is a pending Motion to Modify Temporary Parental Rights (Pre-Decree) #409440 in the divorce proceedings (Case No.: DR 17 365747) filed by Plaintiff/Father.
The Court has jurisdiction to modify parental rights and responsibilities and visitation orders in the divorce proceedings and all issues regarding the parties’ minor child are under the jurisdiction of Case No.: DR 17 365747.
{¶ 12} Elmurr now appeals, presenting two assignments of error for our review.
Law and Analysis
{¶ 13} In her first assignment of error, Elmurr argues that the trial court erred and abused its discretion in failing to include the parties’ minor child as a protected person on the protection order. In her second assignment of error, she argues that the trial court abused its discretion in ordering that the terms of the protection order be effective until September 26, 2018. Elmurr continues to seek a
{¶ 14}
{¶ 15} Because courts are expressly authorized to “craft protection orders that are tailored to the particular circumstances,” challenges to the scope of a protection order are reviewed for abuse of discretion. M.D. v. M.D., 8th Dist. Cuyahoga Nos. 106581 and 106758, 2018-Ohio-4218, ¶ 45, citing Allan, quoting Reynolds v. White, 8th Dist. Cuyahoga No. 74506, 1999 Ohio App. LEXIS 4454 (Sept. 23, 1999). “An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the abuse of discretion standard, a reviewing court may not
{¶ 16} Because both assignments of error challenge the scope of the protection order, we review both for abuse of discretion. We turn first to Elmurr‘s second assignment of error, in which she challenges the duration of the protection order.
{¶ 17}
{¶ 19} Generally, an appeal from an expired domestic violence civil protection is moot unless the appellant can demonstrate legal collateral consequences. Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 14. Here, Elmurr‘s challenge to the protection order is in part based on its duration; the expiration date of the order was less than five months after its adoption by the trial court. Where an order may have expired during the pendency of an appeal by a petitioner challenging the duration of the order, the appeal is not moot. A case becomes moot when parties “‘lack a legally cognizable interest in the outcome.‘” Id., quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Because the thrust of Elmurr‘s argument is that she has an ongoing interest in enjoying the benefits of a domestic violence civil protection order, we find an actual legal controversy overcoming any alleged mootness of this appeal.
{¶ 21} The lower court found that Elmurr had presented credible evidence that Makdessi had committed domestic violence as defined in
{¶ 22} We turn next to Elmurr‘s first assignment of error, in which she argues that the trial court abused its discretion in failing to include her infant daughter as a protected person on the protection order.
{¶ 23}
{¶ 24} Here, the trial court found sufficient credible evidence that Makdessi had engaged in acts of domestic violence against Elmurr. This finding was made solely on the basis of Elmurr‘s testimony, which included multiple accounts of physical violence against her within close proximity of their daughter. At the time of the hearings in this case, the child was an infant, and Elmurr was still breastfeeding her. Further, Elmurr testified that she feared for her daughter‘s safety and welfare, and she believed that Makdessi was using their daughter as a weapon against her. Even if Elmurr‘s testimony did not contain credible evidence that Makdessi had engaged in acts of domestic violence directly against their daughter, the testimony was sufficient to conclude that Makdessi had repeatedly created a substantial risk to his daughter‘s health and safety, in accord with
{¶ 25} For the foregoing reasons, we sustain Elmurr‘s assignments of error and remand to the trial court for proceedings consistent with this opinion.
{¶ 26} Judgment reversed and remanded to the trial court for proceedings consistent with this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
RAYMOND C. HEADEN, JUDGE
PATRICIA ANN BLACKMON, P.J., and ANITA LASTER MAYS, J., CONCUR