S.D. v. S.L.S.D. v. S.L.
Thomas P. Goodwin, for appellant.
Adam Banks, for appellee.
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DECISION AND JUDGMENT
MAYLE, J.
{¶ 1} Pеtitioner-appellant, S.D., appeals the January 3, 2023 judgment of the Wood County Court of Common Pleas, Domestic Relations Division, dismissing an ex parte domestic violence civil protection order to which respondent-appellee, S.L., was subject. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} On November 12, 2020, S.L. was charged with domestic violence and child endangering in Perrysburg Municipal Court case Nos. 2001220A and B.1 On July
{¶ 3} In the meantime, S.D. was charged on July 6, 2021, in Wood County case No. 2021CR0342, with trespassing in a habitation; S.L. was the victim in that case. S.D. requested a continuance of the July 9, 2021 hearing. S.L.‘s attorney entered an appearance and also sought a continuance of the July 9, 2021 hearing. The trial court reset the hearing for August 31, 2021.
{¶ 4} On August 16, 2021, S.L. was charged with violating a protection order in Perrysburg Municipal Court case No. 2100872, and on August 26, 2021, he was charged with violating a protection order and menacing by stalking in Ottawa County case No. 2022CR0273. Counsel entered an appearance for S.D. in the DVCPO action on August 26, 2021. On September 1, 2021—the day after the DVCPO hearing was scheduled to take place—S.D. sought a continuance “until such time that the companion criminal cases have been resolved.” She argued that as a “victim” under Marsy‘s Law, she had the right to refuse to be interviewed, deposed, or subject to discovery requests until the criminal charges against S.L. were resolved. S.L. did not oppose her motion.
{¶ 5} Over the next ten months, several more unopposed requests for extensions were sought and granted:
- December 20, 2021: S.D. moved to extend the ex parte DVCPO;
- December 27, 2021: The trial court issued a new ex parte DVCPO, effective until June 1, 2022, and set the matter for a full hearing on February 8, 2022. No new ex parte hearing took place;
- February 9, 2022: The trial court set the matter for a Zoom heаring on March 22, 2022;
- March 29, 2022: The trial court set the matter for a Zoom hearing on April 22, 2022;
- June 1, 2022: S.D. moved to extend the ex parte DVCPO;
- June 3, 2022: The trial court issued a new ex parte DVCPO, effective until September 1, 2022. No new ex parte hearing took place.
{¶ 6} On June 15, 2022, S.L. moved to amend the ex parte DVCPO to allow him to visit with his daughter. Approximately three weeks later, on July 7, 2022, S.L. was again charged with violating a protection order in Wood County case No. 2022CR0273. On August 2, 2022, the trial court sеt the present matter for a phone conference to take place on September 1, 2022. On September 2, 2022, it issued a new ex parte DVCPO, effective until October 15, 2022, and scheduled the matter for a full hearing on October 11, 2022. This ex parte DVCPO did not provide for protection of St.L. and made no reference to an ex parte hearing having been held.
{¶ 7} On September 28, 2022, S.D. moved to modify the September 2, 2022 еx parte DVCPO to include St.L. among the protected parties. In a separate pleading filed the same day, she moved to continue the hearing and extend the ex parte DVCPO “until such time that the companion criminal cases have been resolved,” again citing Marsy‘s Law. This time, on October 5, 2022, S.L. filed a response opposing the motion and moved to dismiss the action.
arguing that the order was inconsistent with the court‘s prior orders, and S.L. moved to dismiss the ex parte DVCPO. A week later, S.D. moved to renew the ex parte DVCPO.
{¶ 9} In a judgment journalized оn January 3, 2023, the trial court denied S.D.‘s motion to set aside the October 6, 2022 magistrate‘s decision and dismissed the ex parte DVCPO. It found (1) S.D. filed the action under
{¶ 10} S.D. appealed. She assigns the following errors for our review:
- The Wood County Court of Commons Pleas, Domestic Relations Division (“Trial Court“) erred in finding the Petitioner-Appellant‘s, (“Appellant“) rights as a victim of domestic violence per
R.C 2919.25A does not provide good caused for granting neitherR.C. 3113.31 Motions
- for Continuance of Hearing nor
R.C. 3113.31 Motions to Continue Ex Parte Order when Appellant cites Article, I, Section 10a, Ohio Constitution (“Marsy‘s Law“), as good cause in support of either Motion. - The Trial Court erred in issuing The Order denying Appellаnt‘s September 28, 2022, Motion for Continuance of Hearing, Motion to Continue Ex Parte Order, and Memorandum in Support (“The Motion“), as Motions for Continuance of Hearing and Motions to Extend Ex Parte Domestic Violence Civil Protections Orders (“Motion to Extend Ex Parte CPO“) were previously granted on the same grounds in the same case before the same court.
II. Law and Analysis
{¶ 11} In her first assignment of error, S.D. argues that because charges arе pending against S.L. in a related criminal case in which she is the victim, the
{¶ 12} In her second assignment of error, S.D. argues that the trial court‘s decision denying a сontinuance is at odds with (1) its prior orders granting continuances, and (2) its decision in DiMasso v. DiMasso, Wood County case No. 2021-DV-0130 (Feb. 11,
2022) (continuing full hearing and extending ex parte DVCPO until resolution of related criminal case).
{¶ 13} Under
{¶ 14} Under the following circumstances, a trial court “may” grant a continuance of the full hearing required under
for other good cause.
A. A trial court may, but is not required, to find that Marsy‘s Law constitutes “good cause” for continuing a full hearing.
{¶ 15} In her first assignment of error, S.D. argues that “Marsy‘s Law constitutes ‘good cause,‘” under
{¶ 16}
{¶ 17} Preceding the passage of Marsy‘s Law as a constitutional amendment, some Ohio courts found that pending criminal chargеs against a respondent may constitute good cause for granting a petitioner‘s request to continue a full hearing on a DVCPO. See, e.g., Martin v. Martin, 10th Dist. Franklin No. 13AP-171, 2013-Ohio-5703, ¶ 18 (finding that appellant “failed to demonstrate that the court abused its discretion in concluding that the pending criminal charges constituted good cause for granting a continuance“).
{¶ 18} These pre-Marsy‘s Law cases make clear that a trial court may, in its discretion, find that pending criminal charges against the respondent constitutes good cause for continuing a full hearing. S.D. insists that the passage of Marsy‘s Law now obligates a trial court to find good cause when a victim requests a continuance of a full hearing pending resolution of criminal proceedings. At oral argument, counsel for S.D.
clarified that she asks us to find that there exists a bright-line rule requiring the trial court to find good cause under these circumstances.2 We decline to do so.
{¶ 19} First, Marsy‘s Law permits a victim to refuse only an “interview,” “deposition,” or “other discovery request.” It does not permit a victim to refuse to testify at a court proceeding. Although no Ohio case has directly addressed this issue, the Arizona Court of Appeals has recognized that its Victims’ Bill of Rights,
not present a conflict between
{¶ 20} Also, Ohio‘s Marsy‘s Law amendment passed in 2017—nearly six years ago. In that time, the Ohio Legislature has amended
{¶ 21} Rather, we conclude that a trial court may find that pending criminal charges against the respondent constitutes good cause for continuing a full hearing on a petition for a DVCPO, but we decline to find that Marsy‘s Law mandates a finding of good cause and requires the court to
{¶ 22} An abuse of discretion connotes that the trial court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An unreasonable decision is one that lacks sound reasoning to support the decision. Hageman v. Bryan City Schools, 10th Dist. Franklin No. 17AP-742, 2019-Ohio-223, ¶ 13. “An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard.” Id., quoting Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-Ohio-3567, 2008 WL 2779511, ¶ 11. And an unconscionable decision is one “that affronts the sense of justice, decency, or reasonableness.” Id.
{¶ 23} S.D. first obtained the ex parte DVCPO on July 1, 2021. After 15 months, a full hearing still had not occurred, despite the fact that the statute contemplated that a hearing would take place within ten days of the ex parte DVCPO. In Wirtz, 7th Dist. Mahoning No. 99-CA-57, 2000 WL 1486652, the court found that the trial court did not abuse its discretion in refusing respondent‘s request to continue the full hearing until after his criminal trial, particularly because to do so could send the matter on a “course of delay,” while “resolution of the civil protection order would be left lingering.” Id. at * 3. Certainly, there have beеn many delays in the present matter and resolution of the DVCPO has been left lingering, interfering with S.L.‘s right to a full hearing. We, therefore, find no abuse of discretion in the trial court‘s finding that good cause did not exist here to further delay the full hearing.
{¶ 24} S.D. points us to DiMasso, Wood County case No. 2021 DV 0130 (Feb. 11, 2022), where a different trial judge granted a motion for continuance by the petitioner on the basis of Marsy‘s Law. There the petitioner complained that if the matter proceeded to a full hearing before the criminal charges were resolved, she would be required to testify and be subject to cross-examination by respondent‘s counsel, providing respondent with
“more discovery in the criminal proceeding than he would normally be entitled and in violation of
{¶ 25} First, the delay in DiMasso does not appear to have been as significant as the delay in the present case. Second, in granting discretion to a trial court, it is inevitable that two trial judges may disagree as to what does or does not constitute “good cause“: this does not necessarily render either decision an “abuse of discretion.” See, e.g., Davis v. Sam‘s Club, 8th Dist. Cuyahoga No. 69647, 1996 WL 517637, *5 (Sеpt. 12, 1996) (declining to find abuse of discretion despite the fact that appellate court or another trial judge may have reached different conclusions); Waterford Tower Condominium Assn. v. TransAmerica Real Estate Group, 10th Dist. Franklin No. 05AP-593, 2006-Ohio-508, ¶ 19 (explaining that different conclusions reached by two trial court judges after exercising discretion “does not compel the finding that either judge committed an abuse of discretion“). Third, the trial court‘s rationale in DiMasso was not tested in the court of appeals, so the trial judge in the present case was not required to reach the same conclusion as the trial judge in DiMasso. Finally, we believe that the trial court, in accepting the petitioner‘s rationale, may have overlooked the fact that
refuse an “interview,” “deposition,” or “discovery request” made by the accused or his represеntative.
{¶ 26} This does raise one more issue worth noting. Specifically, while Marsy‘s Law does not insulate S.D. from testifying in court, it does excuse her from responding to discovery requests from S.L. while the criminal matter remains pending. As a matter of course,
{¶ 27} Finally, although not specifically assigned as error, S.D. also argues that “immediate and present danger of domestic violence alone is good cause for issuance and extension of an ex parte CPO pursuant to
respondent is or was in a dating relationship constitutes good cause” for entering a temporary ex parte DVCPO—it does not provide a basis for continuing a full hearing.
{¶ 28} We find S.D.‘s first assignment of error not well-taken.
B. The trial court‘s prior decisions granting continuances did not obligate it to grant a continuance here.
{¶ 29} In her second assignment of error, S.D. claims that the trial court erred in denying her motions for continuance and to extend the ex parte DVCPO because it had granted previous motions. The trial court addressed this in its judgment. It explained that the previous requests were granted “in the absence of objection by the Respondent.” S.L. objected to S.D.‘s most recent motion. This is certainly a valid rationale for reaching a different outcome on S.D.‘s most recent motion. And in any event, it is within the direction of the trial court whether to grant or deny a request for continuance. Adamski, 6th Dist. Lucas No. L-21-1067, 2022-Ohio-32, at ¶ 48. The trial court was not obligated to grant additional requests for continuances merely because it granted previous requests, particularly where those previous requests were unopposed. S.D. has not demonstrated that the trial court abused its discretion here.
{¶ 30} We find S.D.‘s second assignment of error not well-taken.
III. Conclusion
{¶ 31} A trial court may find that pending criminal charges against the respondent constitutes good cause under
continue a full hearing on a petition for a DVCPO, but we decline to find that Marsy‘s Law mandates a finding of good cause and requires the court to grant a continuance. The trial court did not abuse its discrеtion in denying S.D.‘s motions to continue the full hearing and to
{¶ 32} It was within the trial court‘s discretion whether to grant a continuance under
{¶ 33} We affirm the January 3, 2023 judgment of the Wood County Court of Common Pleas, Domestic Relations Division. S.D. is ordered to pay the costs of this judgment under
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Christine E. Mayle, J.
JUDGE
Charles E. Sulek, J.
CONCUR.
JUDGE
Gene A. Zmuda, J.
CONCURS AND WRITES SEPARATELY.
JUDGE
S.D. v. S.L.
WD-23-006
ZMUDA, J.
{¶ 34} I concur with the majority‘s well-reasoned analysis that the protection of a victim‘s rights, as described under Ohio‘s Marsy‘s law, does not establish a bright-line rule mandating the continuance of the hearing required under
{¶ 35} Neither S.D.‘s September 28, 2022 motion for continuance nor her October 11, 2022 motion to set aside the magistrates order argues that protection of her rights constitutes “good cause” for continuance of the hearing as described in
{¶ 36} I concur in the remainder of the majority‘s analysis and conclusions.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.