Tabatabai v. TabatabaiTabatabai v. Tabatabai
Dated: June 29, 2009
BELFANCE, Judge.
{¶1} Margarita Tabatabai petitioned the Medina County Court of Common Pleas, Domestic Relations Division, for a civil protection order restraining her husband, Vahid Tabatabai. A magistrate granted an ex parte protection order, then granted the five-year protection order after a hearing that lasted two days. The trial court adopted and approved the magistrate’s decision on the same day. Mr. Tabatabai objected to the magistrate’s evaluation of the evidence, but the trial court overruled his objections, “affirmed” the magistrate’s decision, and ordered the civil protection order to “remain in full force and effect.”
{¶2} Mr. Tabatabai appealed, arguing that the trial court erred by: (1) failing to conduct an independent review of the proceedings before the magistrate; and (2) affirming the magistrate’s decision although it was against the manifest weight of the evidence. This Court affirms because the trial court independently reviewed the matters before the magistrate and did
FACTS
{¶3} Mr. and Mrs. Tabatabai married in 2002 after a six-year romantic relationship. They had no children as a result of their marriage, but Mrs. Tabatabai has an adult son and Mr. Tabatabai an adult daughter. Mr. and Mrs. Tabatabai enjoyed a high standard of living, but their lifestyle took a downturn when Mr. Tabatabai lost his employment as an executive. The couple lived in Anaheim, California, before moving to Medina County, where they owned a diner. On October 25, 2007, Mrs. Tabatabai moved from the marital residence with the help of her son, Luis Valencia. She and Mr. Valencia removed certain items of personal property from the home, including several automatic weapons that Mr. Valencia removed from a gun safe and surrendered to the Medina County Sheriff. On the same date, Mrs. Tabatabai requested an ex parte protection order, citing recent threats of violence by Mr. Tabatabai and his access to an extensive cache of firearms.
JURISDICTION
{¶4} Before this Court considers Mr. Tabatabai’s assignments of error, we must address, sua sponte, the matter of our jurisdiction to review his appeal. See Whitaker-Merrell Co. v. Geupal Constr. Co. (1972), 29 Ohio St.2d 184, 186. Section 3(B)(2), Article IV of the Ohio Constitution grants courts of appeals jurisdiction to review judgments and final orders. With respect to matters referred to a magistrate pursuant to
{¶5} Recently, this Court has applied its decision in Harkai to civil protection orders, and has concluded that form orders signed by both the magistrate and the trial court judge do not conform to the jurisdictional requirements set forth therein. See, e.g., Mills v. Mills, 9th Dist. No. 24063, 2008-Ohio-3774. In Mills, we considered another civil protection order that was signed by the magistrate and the trial court judge before objections were filed. We observed that the trial court judge’s signature “not[ed] merely approval and adoption, rather than a full reiteration of the orders therein.” Id. at ¶3. We also noted, with respect to the trial court’s ruling on the objections that followed, that “[t]he trial court did not reiterate any orders regarding the issuance of the CPO.” Id. at ¶5. This Court concluded that because the trial court “failed to enter its own judgment granting the CPO,” we lacked jurisdiction over the appeal. Id. at ¶8. We have followed this reasoning in several cases since Mills was decided. See Harig v. Hall, 9th Dist. No. 24170, 2008-Ohio-5705; Stano v. Stano, 9th Dist. No. 08CA0029-M, 2008-Ohio-5527; DiDomenico v. DiDomenico, 9th Dist. No. 07CA0126-M, 2008-Ohio-5305; Kelly v. Kelly, 9th Dist. No. 07CA009256, 2008-Ohio-3884. This case, however, provides us with an opportunity to revisit this aspect of our jurisdiction.
{¶6}
{¶7} This case concerns a particular type of order that is unique to
“On December 9, 1994, Am. Sub. H.B. No. 335 became effective, which made significant changes to Ohio’s domestic violence laws. Section 4 of Am. Sub. H.B. No. 335, states as follows:
“‘The General Assembly hereby requests the Supreme Court, in consultation with the Department of Human Services, to prescribe a form that is to be filed by a petitioner seeking a civil protection order under section 3113.31 of the Revised Code and that makes reference to all the forms of relief that a court is authorized to grant under division (E) of section 3113.31 of the Revised Code, as amended by this act, contains space for the petitioner to request any of those forms of relief, and includes instructions for completing the form so that a petitioner may file the form without the assistance of an attorney.’
“The Supreme Court, in consultation with its Domestic Violence Task Force, developed Forms 10.01-C and 10.01-D in response to the General Assembly’s request in Am. Sub. H.B. No. 335.
“During its eighteen months of study, the Supreme Court’s Domestic Violence Task Force determined that pro se victims of domestic violence often do not have access to the forms necessary to obtain a civil protection order pursuant to section 3113.31 of the Revised Code. The Task Force also found that due to the variety
of protection order forms used by Ohio courts, it can be difficult for law enforcement officers to recognize valid protection orders and understand the pertinent provisions of such orders. Further, the Task Force discovered that misconceptions exist in regard to the penalties for violating protection orders.”
{¶8} Form 10.01-I, authorized by Rule 10.01, is the Order of Protection recommended by the Supreme Court of Ohio. It consists of four pages, on which the court of common pleas must fill in all appropriate blanks and check all boxes that apply to the petition at hand. These options reflect the restrictions that may be imposed by the court of common pleas pursuant to
{¶9} The form contains three notice components: (1) notice to the respondent of the consequences of violating the order; (2) notice to the petitioner that the terms of the order can only be changed by order of the court; and (3) notice to law enforcement agencies that the terms of the protection order must be enforced. In this respect, use of the form adopted by the Supreme Court of Ohio is especially significant because the concise, uniform nature of the document enables agencies that receive notice to verify the validity and terms of a civil protection order efficiently and to act in furtherance of the order without unnecessary delay or confusion.
{¶10}
{¶11} We conclude that a civil protection order that is entered on Form 10.01-I, or such other form approved by the Supreme Court of Ohio, and signed by a magistrate and a judge is, pursuant to
{¶12} Although we are mindful that stare decisis constrains the decisions of this Court, we conclude that Mills, 2008-Ohio-3774, and the cases that followed must be overruled. As explained above, our prior decisions “def[y] practical workability” by placing trial courts in the unenviable quandary of rejecting a form prescribed by the Supreme Court of Ohio in order to
THE CIVIL PROTECTION ORDER
{¶13} Mr. Tabatabai’s first assignment of error is that the trial court failed to conduct an independent review of the subject matter of his objections. He has argued, specifically, that the trial court incorrectly deferred to the magistrate’s evaluations of credibility and applied “an appellate review standard” in evaluating his objection.
{¶14}
{¶15} There is no indication in this case that the trial court fell short in its obligation to conduct an independent review of Mr. Tabatabai’s objection. To the contrary, the trial court’s decision demonstrates a thorough review of the transcripts that were provided by Mr. Tabatabai
{¶16} Mr. Tabatabai’s second assignment of error is that the trial court erred by overruling his objection to the magistrate’s decision. Mr. Tabatabai has argued that the conclusion that Mrs. Tabatabai faced fear of imminent, serious physical harm was not supported by competent, credible evidence, which was also the substance of his objection to the trial court.
{¶17} This Court reviews a trial court’s action with respect to a magistrate’s decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. No. 24150, 2008-Ohio-5232, at ¶9. Under this standard, we must determine whether the trial court’s decision was arbitrary, unreasonable, or unconscionable – not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶18} In so doing, we consider the trial court’s action with reference to the nature of the underlying matter. See, e.g., In re J.A. and K.A. 9th Dist. No. 24332, 2009-Ohio-589 (considering a trial court’s determination that a magistrate properly evaluated evidence under a clear and convincing burden of proof); Wimmer Family Trust v. FirstEnergy, 9th Dist. No. 08CA009392, 2008-Ohio-6870 (reviewing a trial court’s action on a motion for a preliminary injunction referred to a magistrate); Quintile v. Quintile, 9th Dist. No. 08CA0015-M, 2008-Ohio-5657 (considering a trial court’s determination of objections to a magistrate’s decision regarding
{¶19} In order for a civil protection order to issue, “the trial court must find that petitioner has shown by a preponderance of the evidence that petitioner or petitioner’s family or household members are in danger of domestic violence.” Felton v. Felton (1997), 79 Ohio St.3d 34, paragraph two of the syllabus. Domestic violence, as defined by
{¶20} Mrs. Tabatabai alleged that she was in danger of domestic violence based on two incidents. With respect to the first incident, she alleged that Mr. Tabatabai attempted to cause physical harm to her and threatened to kill her and himself when she tried to leave him on a previous occasion. With respect to the second incident, she alleged that Mr. Tabatabai threatened her life by telephone on the day that she did leave the marriage. Mrs. Tabatabai and her son, Luis Valencia, testified during the ex parte hearing and the full hearing conducted before the magistrate. Mr. Tabatabai and his daughter, Roya Tabatabai, testified during the full hearing, as well as Theodore Chagaris, an acquaintance of the Tabatabais.
{¶22} After granting a temporary ex parte protection order, the magistrate conducted a full hearing on Mrs. Tabatabai’s petition on November 5, 2007. Mrs. Tabatabai testified in more detail during this hearing about her ten-year relationship with Mr. Tabatabai and recent incidents of alleged domestic violence. According to Mrs. Tabatabai, the violence spanned the course of her relationship with her husband. Mrs. Tabatabai testified that her husband “never beat” her, but characterized their relationship as violent “every day.” She specifically noted Mr. Tabatabai’s quick temper, noting that he would “start cussing and screaming for every little thing that happens that is not his way.” Mrs. Tabatabai noted several examples.
“I was leaving the house with just what I have on and a little suitcase. I got in the car. When I was going downstairs, he saw me, so I run to the car, and he went to the back of the car. It is a van, a minivan. He opened the back of the car and went inside. That’s when he got in the car and pulled me to the steering wheel and the gun and said if I leave, he’s going to kill me.”
During the full hearing, however, Mrs. Tabatabai also testified that Mr. Tabatabai held a gun to her head during this incident.
{¶24} Mrs. Tabatabai also testified more specifically about the events of October 25, 2007, the day that she moved from the marital residence with her son’s assistance. According to her testimony, she and Mr. Valencia removed a significant amount of personal property from the residence, then contacted Roya Tabatabai and asked her to come home. Once she arrived, Mrs. Tabatabai asked her for the keys to her vehicle, which she and Mr. Valencia then took with them as well. Mrs. Tabatabai testified that shortly thereafter, she received a threatening telephone call from Roya Tabatabai followed by a serious of calls from an undisclosed number. Mrs. Tabatabai recognized the voice of the caller, who claimed to be a law enforcement officer, as that of her husband.
{¶25} Mrs. Tabatabai mentioned one additional concern: the presence of at least thirty-five firearms in a safe in the marital residence. She testified that she had a key to the safe in which the firearms were stored and that she and Mr. Valencia removed several weapons on the
{¶26} Mrs. Tabatabai’s son, Luis Valencia, also testified during the full hearing on the petition. He reiterated his testimony from the ex parte hearing regarding previous incidents of violence on the part of Mr. Tabatabai, and elaborated on one incident that occurred, as he recalled, in July 2005:
“Mr. Tabatabai was yelling at my mother, and she was crying uncontrollably. He grabbed her by the arm, pushed her down towards his mouth, and said something to her in the ear, pushed her back away, and my mother kept crying uncontrollably. When I saw my mother, again, the fingerprints on her arm were visible. He had bruised her.”
Mr. Valencia testified that Mr. Tabatabai threatened his mother “on numerous occasions,” explaining that “[e]specially after he drinks, it just gets out of hand. He gets into so many rages, you have to kind of walk on eggshells when you’re around him.” He testified that Mrs. Tabatabai had never told him that her husband pulled a gun on her, recalling that instead, she mentioned that he had pushed her head toward the steering wheel in her van during the same incident. Mr. Valencia acknowledged that he chose not to become involved in the situation until October 2007 because it was “none of [his] business” and he had “too much to lose.”
{¶27} Much of Mr. Valencia’s testimony related to Mrs. Tabatabai’s allegations regarding Mr. Tabatabai’s collection of firearms. Mr. Valencia, who had served in the Marine Corps, testified that he recognized several of the weapons in the Tabatabais’ gun safe as fully automatic weapons and suspected that they could not be possessed legally in Ohio. Among those weapons, according to Mr. Valencia, were an Uzi and an AK-47. Mr. Valencia testified that he
{¶28} Mr. Tabatabai and his daughter Roya testified in opposition to Mrs. Tabatabai’s petition. Mr. Tabatabai denied Mrs. Tabatabai’s and Mr. Valencia’s testimony regarding incidents of domestic violence in its entirety. According to Mr. Tabatabai’s testimony, there were no incidents of violent behavior on his part during the couple’s ten-year relationship. He specifically denied harming his wife’s dog, testifying instead that “[t]hat dog was my baby.” He also denied that Mrs. Tabatabai tried to leave the marriage earlier in 2007, and denied threatening her on October 25, 2007, by phone. With respect to the weapons, Mr. Tabatabai testified that Mrs. Tabatabai shared his interest in firearms; that all of the weapons in the marital home were purchased legally; and that some of the guns were purchased with his wife.
{¶29} The testimony of Roya Tabatabai and Theodore Chagaris supported Mr. Tabatabai’s version of events. Both denied any knowledge of violence between Mr. and Mrs. Tabatabai. Roya, who was also named as a respondent in Mrs. Tabatabai’s petition, characterized her relationship with her step-mother as “pretty good.” She also testified about the events of October 25, 2007, claiming that Mrs. Tabatabai took the keys to her car and left her behind without access to the marital residence. According to Roya’s testimony, she called the police from her cellular phone.
{¶30} There are significant contradictions in the parties’ testimony, as might be expected in a matter of this nature. This Court is mindful that our review of the record, while thorough, is necessarily limited by our inability to view the demeanor of the witnesses. This is particularly significant in a case such as this, in which the trial court was compelled to admonish the witnesses and the gallery for inappropriate but unrecorded gestures and comments during the
CONCLUSION
{¶31} The trial did not fail to conduct an independent review of the magistrate’s decision, nor did it abuse its discretion in overruling Mr. Tabatabai’s objections. Mr. Tabatabai’s assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
CONCURS
WHITMORE, J.
DISSENTS, SAYING:
{¶32} Since 2000, this Court has consistently applied the holdings of Harkai v. Scherba Industries, Inc. (2000), 136 Ohio App.3d 211, to orders in cases that were referred to a magistrate pursuant to
{¶33} In Harkai, this Court concluded that we did not have jurisdiction to consider an appeal from a trial court order that “affirmed” a magistrate’s decision and overruled objections, but did not enter judgment in the case. Id. at 213. We also noted that, because the objections were filed before the trial court judge acted on the magistrate’s decision, there had never been an order by the judge that determined the controversy. Id. Our analysis started from the premise that this Court’s jurisdiction is limited to “judgments or final orders.” Id. at 214. Although we observed that “[f]or the purposes of determining our jurisdiction *** ‘judgment’ and ‘final order’
“The courts have similarly described a ‘judgment’: ‘A judgment is the final determination of a court of competent jurisdiction upon matters submitted to it.’ State ex rel. Curran v. Brookes (1943), 142 Ohio St. 107, paragraph two of the syllabus. ‘A final judgment is one which determines the merits of the case and makes an end to it.’ Id. at 110.” Harkai, 136 Ohio App.3d at 214.
This Court emphasized that a judgment must terminate the controversy at hand by setting forth a statement of the relief granted by the trial court. Id. at 215. Having defined a judgment, this Court then considered the interplay between
“Although the judge entirely agrees with the decision of the magistrate, the judge must still separately enter his or her own judgment setting forth the outcome of the dispute and the remedy provided. The judge is not permitted to conclude the case by simply referring to the magistrate’s decision, even though it may appear more expedient to do so.” (Internal citations omitted.) Id.
It is for that reason that in Mills v. Mills, 9th Dist. No. 24063, 2008-Ohio-3774, and the cases that followed, this Court concluded that we lacked jurisdiction when a trial court fails to separately enter judgment granting a civil protection order.
{¶34} I cannot agree with the majority’s departure from precedent in this case. In Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, the Supreme Court of Ohio cautioned that prior decisions should only be overruled “with great solemnity and with the assurance that the newly chosen course for the law is a significant improvement[.]” Id. at ¶1.
“A prior decision of the Supreme Court may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.” Id. at paragraph one of the syllabus.
See, also, Moody v. Coshocton Cty., 9th Dist. No. 05CA0059, 2006-Ohio-3751 (Moore, J., dissenting).
{¶35} Under the first prong of the Galatis standard, this Court is not justified in overruling Mills and the cases that followed because those cases were correctly decided and there has been no change in circumstances that requires a new course of action.
{¶37} The majority approach invites further confusion regarding this Court’s jurisdiction as exceptions carved out on a piecemeal basis become the rule. On the basis of stare decisis, and because I continue to believe that Harkai correctly sets forth the requirements of our jurisdiction, I respectfully dissent.
APPEARANCES:
GINO PULITO, Attorney at Law, for Appellant.
JAMES B. PALMQUIST, Attorney at Law, for Appellee.