Gough v. TrinerGough v. Triner
OPINION
{¶ 1} This timely appeаl comes for consideration upon the record in the trial court and the parties’ briefs. Petitioner-Appellant, Virginia Gough, appeals the decision of the Columbiana County Court of Common Pleas that granted Respondent-Appellee‘s, Robert Triner‘s, motion to dismiss Gough‘s petition for a domestic violence civil protection order (DVCPO). The trial court concluded that applying the statute providing for DVCPO‘s,
{¶ 2} At issue is the application of the Defense of Marriage Amendment to issues other than same-sex, polygamous, or bigamоus marriage. After examining the language of the Amendment, the nature of the legal status of marriage, and the status conferred by
Facts
{¶ 3} On January 19, 2005, Gough filed a petition for a DVCPO against Triner, in which she alleged that Triner threatened to kill her in January 2005 and had performed various acts of violence against her “in the past.” Gough further alleged that she and Triner were either cohabitating now or had cоhabitated within five years prior to the alleged act of domestic violence. On January 27, 2005 the trial court issued an ex parte order of protection and set the matter for a full hearing the same day.
{¶ 4} Triner moved to dismiss the petition, arguing that it would be unconstitutional to enforce a DVCPO against him. Gough filed a brief opposing the motion and each party later filed supplemental briefs. Furthermore, Gough moved for an evidentiary hearing in order to submit testimony about Triner‘s actions “in the past.”
{¶ 5} A magistrate addressed both Gough‘s motion for an еvidentiary hearing and Triner‘s motion to dismiss. It concluded that an evidentiary hearing was unnecessary to determine Triner‘s motion since the parties both agreed that they had cohabited as defined by Ohio law. It then granted Triner‘s motion to dismiss, concluding that enforcing a DVCPO against him would violate a recent amendment to the Ohio Constitution.
{¶ 6} Gough objected to the magistrate‘s decision arguing both that the magistrate erroneously denied the request for the evidentiary hearing and that the recent constitutional amendment did not affect the court‘s ability to еnforce a domestic violence civil protection order against Triner.
{¶ 7} The trial court overruled Gough‘s objections and adopted the magistrate‘s decision. It concluded that the DVCPO requested would create or recognize a legal status apprоximating the design, quality, significance, or effect of marriage since Gough and Triner were unmarried cohabitants, so it was unconstitutional. Accordingly, it dismissed Gough‘s petition.
{¶ 8} After the matter was appealed, we allowed the Action Ohio Coalition of Battered Women, the Ohio Domestic Violence Network, and the Ohio NOW Education and Legal Fund to file a joint amici curiae brief.
Applying Defense of Marriage Amendment to DVCPO‘s
{¶ 9} In her first of two assignments of error, Gough argues:
{¶ 10} “The trial court erred in declaring
{¶ 11} The issue of whether Article XV, Section 11 applies to any area of the law other than same-sex, polygamous, or bigamous marriages has been the subject of much litigation recently. For instance, the Second District has held that it is unconstitutional to convict an unmarried cohabitant of domestic violence since doing so would create a legal status approximating the design, quality, significance, or effect of marriаge. State v. Ward, 2nd Dist. No. 2005-CA-75, 2006-Ohio-1407. Other appellate districts have disagreed. Cleveland v. Voies, 8th Dist. No. 86317, 2006-Ohio-0815; State v. Nixon, 9th Dist. No. 22667, 2006-Ohio-0072; State v. Newell, 5th Dist. No. 2004CA00264, 2005-Ohio-2848; State v. Carswell, 12th Dist. No. 2005-04-047, 2005-Ohio-6547. We could not directly deal with this issue in the past due to the lack of evidence necessary to challenge whether a statute is unconstitutional as applied to a particular set of facts. State v. McCaslin, 7th Dist. No. 05 CO 44, 2006-Ohio-0891; State v. Rexroad, 7th Dist. Nos. 05 CO 36, 05 CO 52, 2005-Ohio-6790. This case provides us with the opportunity to decide this issue.
{¶ 12} The issues raised in this case require us to interpret both the recent constitutional amendment and
{¶ 13} “The first step in determining the meaning of a constitutional provision is to look at the language of the provision itself.” State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 520, 1994-Ohio-0496. Accordingly, this court must “consider the common and ordinary meaning of the terms contained within our Constitution in order to interpret them properly.” State ex rel. Lake Cty. Bd. of Commrs., v. Zupancic (1991), 62 Ohio St.3d 297, 300, citing Cleveland Tel. Co. v. Cleveland (1918), 98 Ohio St. 358, 368-369. “Words used in the Constitution that are not defined therein must be taken in their usual, normal, or customary meaning.” State ex rel. Taft v. Franklin Cty. Court of Common Pleas, 81 Ohio St.3d 480, 481, 1998-Ohio-0333.
{¶ 14} When a court construes a constitutional amendment, it must presume that those adopting the amendment had in mind existing constitutional or statutory provisions and their judicial construction, touching the subject dealt with in the amendment. American Woodenware Mfg. Co. v. Schorling (1917), 96 Ohio St. 305, syllabus; State ex rel. Engle v. Industrial Commission (1944), 142 Ohio St. 425, 432. Constitutional amendments do not repeal existing statutes unless the repugnancy between the two is clear and the two are so contrary to each other that they cannot be reconciled. State ex rel. Evans v. Dudley (1853), 1 Ohio St. 437, 441. This “repeal by implication” is not favored. Id.
{¶ 15} If the meaning of a constitutional provision is clear on its face, courts will not look beyond the provision in an attempt to divine what the drafters intended it to mean. Sheward at 520. However, when the meaning of a constitutional provision cannot bе ascertained by its plain language, a court may look to the purpose of the provision to determine its meaning. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, at ¶ 14. In order to determine an ambiguous provision‘s purpose, courts can look to the history of the time when it was passed; the attending circumstances at the time of adoption; the cause, occasion or necessity for the provision; the imperfections to be removed or the mischief sought to be avoided; and the remedy intended to be afforded. Cleveland v. Board of Tax Appeals (1950), 153 Ohio St. 97, 103. When divining a constitutional provision‘s purpose, сourts cannot rely on the imprecise speeches of individual drafters to ignore the plain language of a constitutional provision. Sheward at 522. But the views of an amendment‘s proponents should be given more weight than those of its opponents since an amendment‘s oрponents usually overstate its reach in their zeal to defeat it. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades Council (1988) 485 U.S. 568, 584-585. Courts should be wary of looking at this history before they conclude the constitutional provision is ambiguous. Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 40, 2001-Ohio-0236.
{¶ 16} The Defense of Marriage Amendment provides:
{¶ 17} “Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”
{¶ 18} The first sentence of the Amendment clearly and unambiguously prohibits same-sex, polygamous, and bigamous marriages and has no effect on the issues involved in this case. In contrast, the language used in the Amendment‘s second sentence is broader. It prоhibits the legal recognition of any legal status between unmarried people which approximates the design, qualities, significance or effect of marriage. We must determine whether
{¶ 19} Outside those courts which have been dealing with this issue, no Ohio court has tried to prеcisely define the phrase “legal status.” However, the word status has a clear definition as it is commonly used. Carswell at ¶ 17. In it‘s common usage, the word “status” means “the condition of a person or thing in the eyes of the law.” Merriam-Webster‘s Collegiate Dictionary (10th Ed. 1998), 1149; see also Black‘s Lаw Dictionary (8th Ed. 2004), 1447 (“A person‘s legal condition“). Thus, when determining whether the domestic violence laws create or recognize a “legal status,” we must determine whether it creates or recognizes a condition in the eyes of the law.
{¶ 20} Pursuant to
{¶ 21} The Revised Code does not define “cohabitation,” but the Ohio Supreme Court has held that the essential elements of cohabitation for the рurposes of
{¶ 22}
{¶ 23} After reviewing these statutes and the caselaw, we conclude that
{¶ 24} “`Marriage’ is a status created by operation of law.” Langer v. Langer (1997), 123 Ohio App.3d 348, 353. It is a civil contract, of a peculiar character and subject to peculiar principles, which is designed “to perpetuate family groups within the larger social entitles [sic] of which each marital unit is a part.” Vrabel v. Vrabel (1983), 9 Ohio App.3d 263, 269; Coleman v. Coleman (1972), 32 Ohio St.2d 155, 161. Marriage “`involves a personal union of those participating in it of a character unknown to any other human relation.‘” In re Soeder‘s Estate (1966), 7 Ohio App.2d 271, 290, quoting Parke v. Parke (1920), 25 Haw. 397.
{¶ 25} The law recognizes the special nature of marriage in many ways. For instance, only married couplеs have the right to a dower interest,
{¶ 26} In the eyes of the law, marriage is a special status which confers many rights and benefits upon the parties to a marriage.
{¶ 27} This conclusion is supported by various rules of constitutional construction. For instance, the Amendment did not explicitly state that it would do more than prohibit same-sex, polygamоus, and bigamous marriages. Since repeal by implication is not favored and any tension between the two can be reconciled by the interpretation described above, courts should not interpret the Amendment in such a way as to invalidate the statute. Dudley at 441. Similarly, the Amendment‘s proponents consistently stated that they did not believe that the Amendment would affect anything other than same-sex, polygamous, and bigamous marriages. Edward J. DeBartolo Corp. at 584-585.
{¶ 28} The trial court erred when it dismissed Gough‘s petition for a DVCPO. Gough‘s first assignment of error is meritorious.
{¶ 29} In her second assignment of error, Gough argues:
{¶ 30} “The trial court erred in dismissing Plaintiff-Appellant‘s petition for a civil protection order prior to a hearing on the merits.”
{¶ 31} Because we have concluded that the trial court erred in dismissing Gough‘s petition for a DVCPO, it does not matter whether the trial court held a hearing prior to taking that action. Aсcordingly, our resolution of Gough‘s first assignment of error has rendered this assignment of error moot.
Conclusion
{¶ 32} In conclusion, the trial court erred when it found that
Donofrio, P.J., conc