M.W. v. D.M.M.W. v. D.M.
D.M., pro se
2 Bell Lane
Burlington Township, New Jersey 08016
ATTORNEY FOR APPELLEE
Ellen S. Mandell
25700 Science Park Drive, Suite 160
Beachwood, Ohio 44122-7317
{¶1} Respondent-appellant, representing himself pro se, appeals a civil stalking protection order that is effective until 2022. We affirm.
{¶2} Petitioner-appellee sought a protection order to preclude the respondent from contacting her. In support of the allegations, numerous emails were provided in which petitioner expressly asked respondent to refrain from further contact with her. Respondent believed petitioner to be his biological daughter and attempted to establish a relationship that petitioner, now an adult, does not desire. Respondent continually contacted petitioner, becoming increasingly hostile and, in addition, sought medical testing to determine paternity. In one of the emails sent to petitioner, respondent went so far as to reference a biblical verse, which if considered in the literal sense, stated that death is the penalty for failing to honor a parent. In light of the unwanted, persistent, and increasingly hostile contact, the petitioner alleged that respondent‘s actions caused her mental distress.
{¶3} The action proceeded before a magistrate, who found in favor of the petitioner at a full hearing. Respondent failed to appear at the full hearing and did not file objections to the magistrate‘s decision. The trial court entered the full protection order, and this timely appeal followed.
{¶4} At the outset, we must highlight a procedural change that affects the scope of appellate review. The proceedings below are governed by
{¶5} Respondent did not file objections to the magistrate‘s decision. In considering this situation, there is a split of authority with respect to the effect of such a failure. At least one district has held that an appellate court lacks jurisdiction over the appeal. J.S. v. D.E., 7th Dist. Mahoning No. 17 MA 0032, 2017-Ohio-7507, ¶ 21; K.U. v. M.S., 7th Dist. Mahoning No. 16 MA 0165, 2017-Ohio-8029, ¶ 18. Another has held that
{¶6} “An appellate court has a duty to sua sponte examine any deficiencies in its jurisdiction.” Jones v. Carpenter, 2017-Ohio-440, 84 N.E.3d 259, ¶ 6 (10th Dist.), quoting Leonard v. Huntington Bancshares, Inc., 10th Dist. Franklin No. 13AP-843, 2014-Ohio-2421, ¶ 8.
{¶7} We acknowledge that the requirement to file objections to the magistrate‘s decision under
{¶8} In his first and third assignments of error, respondent claims that the trial court was without subject-matter jurisdiction because there was no allegation establishing that the petitioner resided in Cuyahoga County.
{¶9} “When a petitioner seeks a civil protection order from a common pleas court in a county in which he does not reside, the court lacks subject matter jurisdiction over the case.” Vilk v. DiNardo, 8th Dist. Cuyahoga No. 103755, 2016-Ohio-5245, ¶ 12, citing Reynolds v. Whitney, 10th Dist. Franklin No. 03AP-1048, 2004-Ohio-1628, ¶ 8;
{¶10} Petitioner filed the petition using an address that was not her home residence. As reflected in the form documents, petitioner listed a “safe address” to shield her current address from the respondent. Using a “safe address” does not divest the trial
{¶11} Invoking the jurisdiction of a court “‘depends on the state of things at the time of the action brought.‘” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 25, quoting Mollan v. Torrance, 22 U.S. 537, 539, 6 L.Ed. 154 (1824). Importantly, there is a legal distinction between the state of things at the time the action is brought and the allegations advanced in the pleading — a “demonstration that the original allegations were false will defeat jurisdiction.” Id., quoting Rockwell Internatl. Corp. v. United States, 549 U.S. 457, 473, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). A trial court, “is not confined to the allegations of the complaint when considering the issue of subject-matter jurisdiction and may consider affidavits and testimony for that purpose.” Everbank v. Vanarnhem, 3d Dist. Union No. 14-13-02, 2013-Ohio-3872, ¶ 33, citing Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph one of the syllabus. Thus, the failure to allege facts in support of subject-matter jurisdiction is not fatal. Once challenged, however, the basis for subject-matter jurisdiction must be supported with evidence.
{¶12} There is a territorial limitation with respect to civil stalking protection orders commenced under
{¶13} In the second and sixth assignments of error, respondent claims that the petitioner failed to satisfy the long-arm statute for the purpose of establishing personal jurisdiction because the electronic communications he sent to the petitioner were not sufficient to establish his connection with Ohio.
{¶14} Under
{¶15} In this case, petitioner‘s allegations stem from the electronic communications attached to the petition and introduced during the full hearing. Thus, the petition was entirely based on the content of the electronic communications
{¶16} In the fourth assignment of error, respondent claims the trial court erred in providing a 41-day period to conduct written discovery. In his motion to dismiss, respondent threatened that “unless the action is dismissed, respondent shall seek through discovery petitioner‘s medical health records and diagnosis history and treatment for any preexisting and/or current psychological disorders related to her adoption and ‘crack baby’ status.”
{¶17}
{¶18} In the fifth assignment of error, respondent claims the trial court erred in denying his motion to continue the full hearing. The motion was filed the day before the hearing and after the trial court had already continued the matter for well over a month to permit discovery. According to the respondent, a continuance was necessary in order to
{¶19} In the seventh through tenth assignments of error, respondent challenges the weight of the evidence offered in support of the civil stalking protection petition. Respondent contends that the petitioner “conducted herself in an irrational, controlling, selfish, mean-spirited, disrespectful, and narcissistic manner since she was first contacted by” respondent, and therefore, the petitioner failed to demonstrate that a protection order was warranted under
{¶20} “In civil cases, a reviewing court will not reverse a judgment if that judgment is supported by some competent, credible evidence going to all elements of the claim.” Odita v. Phillips, 10th Dist. Franklin No. 09AP-1172, 2010-Ohio-4321, ¶ 35, citing Coffman v. Mansfield Corr. Inst., 10th Dist. Franklin No. 09AP-447, 2009-Ohio-5859. “For a civil stalking protection order to issue, the trial court must find that the petitioner has shown by a preponderance of the evidence the respondent committed an act against the petitioner that would constitute menacing by stalking under
two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents or the posting of messages, use of intentionally written or verbal graphic gestures, or receipt of information or data through the use of any form of written communication or an electronic method of remotely transferring information, including, but not limited to, a computer, computer network, computer program, computer system, or telecommunications device, may constitute a “pattern of conduct.”
Id. at ¶ 14, quoting
{¶21} In this case, the magistrate concluded that petitioner established her claim based on, but not limited to, (1) the numerous, unwelcomed electronic communications with petitioner that became “increasingly more angry and threatening” when petitioner decided not to respond; (2) respondent‘s sending of a video relating to the Orlando shooting that had no discernable connection to the petitioner; and (3) respondent‘s reference to a bible verse providing that one must “honor your mother and father and anyone who curses their father or mother is to be put to death.” According to the
{¶22} The civil stalking protection order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and FRANK D. CELEBREZZE, JR., J., CONCUR