Heather M. Martin, Petitioner-Appellee, v. Phillip J. Martin, Respondent-Appellant.
No. 13AP-171
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 24, 2013
[Cite as Martin v. Martin, 2013-Ohio-5703.]
(C.P.C. No. 12DV-06-883) (REGULAR CALENDAR)
Rendered on December 24, 2013
Capital University Family Advocacy Clinic, and Lorie McCaughan, for appellee.
Tyack, Blackmore, Liston & Nigh Co., L.P.A., and Thomas M. Tyack, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
DORRIAN, J.
{1} Respondent-appellant, Phillip J. Martin (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, granting a domestic violence civil protection order sought by petitioner-appellee, Heather M. Martin (“appellee“). Because we conclude that the trial court had authority to enter the civil protection order, we affirm.
{2} On June 13, 2012, after appellee filed a petition for a domestic violence civil protection order, appellant and appellee entered into a domestic violence civil protection order by consent (the “consent CPO“). Under its terms, the consent CPO was effective for six months, until December 13, 2012. On November 20, 2012, appellee, acting pro se, filed
{3} On December 3, 2012, appellee filed a motion for continuance of the hearing, asserting that the continuance was needed to perfect service on appellant. The trial court granted the continuance, scheduling the hearing for December 12, 2012. On December 12, 2012, service still had not been perfected. The trial court issued an ex parte domestic violence civil protection order that was effective until December 19, 2012 (the “December 12 ex parte CPO“). The court also scheduled a full hearing for December 19, 2012. At the December 19 hearing, the trial court issued an order and entry continuing the full hearing until February 5, 2013, and ordering that the December 12 ex parte CPO would remain in effect until that hearing (the “December 19 continuance order“). Appellant‘s counsel appeared at the December 19 hearing and asserted that the trial court lacked jurisdiction to issue the December 19 continuance order.1
{4} The trial court conducted a full hearing on appellee‘s motion on February 5, 2013. Appellee appeared and testified at the hearing. Appellant did not appear but was represented by counsel. At the close of that hearing, the trial court issued a domestic violence civil protection order containing the same terms as the consent CPO, including granting appellee exclusive possession of a specified residence (the “final CPO“). The final CPO is effective for five years, until February 5, 2018.
{5} Appellant appeals from the trial court‘s order, assigning three errors for this court‘s review:
I. THE TRIAL COURT DOES NOT HAVE THE ABILITY, AFTER THE FILING OF A FINAL ENTRY IN AN ACTION PURSUANT TO
§3113.31 OF THE OHIO REVISED CODE , TO GRANT, WITHOUT SERVICE AND WITHOUT HEARING, AN EX PARTE PROTECTIVE ORDER[.]II. THE TRIAL COURT DOES NOT HAVE AUTHORITY, AFTER A CONSENT AGREEMENT ON A PROTECTIVE ORDER HAS BEEN FILED, TO EXTEND AN EX PARTE ORDER GRANTED AFTER THE CONCLUSION OF A CASE FOR A PERIOD OF 48 DAYS WITHOUT CONDUCTING AN EVIDENTIARY HEARING WHEREIN THE RESPONDENT HAS NOT BEEN SERVED WITH THE ORIGINAL MOTION
TO EXTEND THE AGREED ENTRY AND AFTER THE EXPIRATION OF THE ORIGINAL ORDER HAS ALREADY OCCURRED[.] III. THE TRIAL COURT ERRED IN CONDUCTING A HEARING ON THE PETITIONER‘S MOTION TO EXTEND THE ORIGINAL AGREED[-]UPON ORDER FOR A PERIOD OF 5 YEARS WHERE THE RESPONDENT HAD NOT BEEN SERVED AND THE HEARING WAS CONDUCTED MORE THAN A MONTH AND A HALF AFTER THE UNDERLYING ORDER HAD EXPIRED AND AS A PART THEREOF ERRED IN GRANTING THE PETITIONER EXCLUSIVE POSSESSION OF THE MARITAL RESIDENCE FOR A PERIOD OF 5 YEARS WHEN THE COURT WAS MADE AWARE THAT THE RESPONDENT HAD BEEN GRANTED CUSTODY OF THE PARTIES’ MINOR CHILD IN A DIVORCE CASE ALSO PENDING IN THAT COURT[.]
{6} Generally, this court has held that “[t]he decision whether to grant a civil protection order lies within the sound discretion of the trial court.” Daughtry v. Daughtry, 10th Dist. No. 11AP-59, 2011-Ohio-4210, ¶ 5, citing Parrish v. Parrish, 95 Ohio St.3d 1201, 2002-Ohio-1623. In this case, however, appellant challenges the trial court‘s authority to issue the December 12 ex parte CPO and the December 19 continuance order, as well as the court‘s authority to conduct the February 5, 2013 hearing. Based on these challenges, this appeal requires analysis of
{7} “The General Assembly enacted the domestic violence statutes specifically to criminalize those activities commonly known as domestic violence and to authorize a court to issue protection orders designed to ensure the safety and protection of a complainant in a domestic violence case.” Felton v. Felton, 79 Ohio St.3d 34, 37 (1997). Accordingly,
{8} A trial court may modify or terminate a civil protection order or consent agreement, and the statute provides that the petitioner or the respondent may bring a motion for modification or termination.
{9} In this case, appellee filed a motion to extend the consent CPO on November 20, 2012, approximately three weeks before it was set to expire. Although
{10} On December 3, 2012, the trial court granted a motion for continuance of the hearing date until December 12, 2012, to permit appellee to perfect service on appellant. As of December 12, service still had not been perfected on appellant, and the consent CPO was set to expire the following day. This factual context is important when considering the actions of the trial court challenged in this appeal.
{11} In his first assignment of error, appellant asserts that the trial court lacked authority to issue the December 12 ex parte CPO. As explained above, as of December 12, appellant had not been served with appellee‘s motion to extend, and the consent CPO would expire the following day. Under these circumstances, it is clear that appellee‘s motion to extend the consent CPO effectively became a motion to renew the soon-to-expire consent CPO. The civil domestic violence statute states that “[a]ny protection order issued or consent agreement approved pursuant to this section may be renewed in the same manner as the original order or agreement was issued or approved.”
{12} When a petitioner seeks an ex parte civil protection order, the trial court may, for good cause shown, enter any temporary order necessary to protect the petitioner.
{13} “Immediate and present danger of domestic violence * * * constitutes good cause” for issuing a temporary ex parte civil protection order.
{14} In his first assignment of error, appellant does not challenge the sufficiency of the evidence supporting the December 12 ex parte CPO but, rather, challenges the trial court‘s authority to issue that order; accordingly, we will assume for purposes of analysis that the claims in appellee‘s motion to extend were sufficient to demonstrate immediate and present danger of domestic violence.
{15} Accordingly, we overrule appellant‘s first assignment of error.
{16} In his second assignment of error, appellant argues that the trial court lacked authority to issue the December 19 continuance order, which continued the matter for a hearing on February 5, 2013 and ordered that the December 12 ex parte CPO would remain in effect until the hearing date. Under the civil domestic violence statute, when a trial court issues an ex parte temporary civil protection order, it is required to schedule a full hearing within seven court days after the ex parte hearing.
{17} In this case, the trial court cited “other good cause” under
{18} Appellant argues generally that the pending criminal charge did not constitute good cause for a two-month continuance but fails to explain specifically why this could not constitute good cause. Appellant also argues that there was no good cause for the December 19 continuance order because he had not been served with the motion to extend or December 12 ex parte CPO. Contrary to appellant‘s assertion, however, the record indicates that appellee filed an order to serve the motion and December 12 ex parte
{19} Accordingly, we overrule appellant‘s second assignment of error.
{20} In appellant‘s third assignment of error, he argues that the trial court lacked authority to conduct the February 5, 2013 hearing. Appellant argues that, because the consent CPO expired two months prior to the hearing, the trial court lacked authority to conduct a hearing on appellee‘s motion to extend. Appellant claims there is no statutory authorization for extension of a civil protection order after its expiration.
{21} The civil domestic violence statute does not explicitly provide for extension of an expired civil protection order; however, as explained above, it authorizes a trial court to renew a civil protection order, subject to the same procedural requirements that apply to the issuance of an original order. See
{22} Although the trial court used the terms “extend” and “extension” in issuing its verbal decision at the February 5, 2013 hearing, it is clear that the final CPO was a renewal, not an extension, of the consent CPO. By the time of the February 5, 2013 hearing, the consent CPO had expired under its own terms. Moreover, at the hearing, the court referred to its prior actions in December 2012 as having “essentially granted a new order under the same case number [and] the exact same terms as the parties’ voluntary consent agreement.” (Tr. 8.) Finally, the final CPO was effective for five years, the maximum period permitted under the statute.
{23} Finally, we note that appellant‘s third assignment of error also asserts that the trial court also “erred in granting the petition or exclusive possession of the marital residence for a period of 5 years when the court was made aware that the respondent had been granted custody of the parties’ minor child in a divorce case that was also pending in that court.” (Appellant‘s Brief, 13.) However, appellant‘s brief contains no argument related to this portion of the third assignment of error. Under
{24} Accordingly, we overrule appellant‘s third assignment of error.
{25} For the foregoing reasons, we overrule appellant‘s three assignments of error and affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
O‘GRADY and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).