Thomas v. Thomas

Mar 31, 1988
87AP-154
Versions:44 Ohio App. 3d 6
540 N.E.2d 745
1988 Ohio App. LEXIS 1216

Lead Opinion

Bowman, J.

Appellant has appealed from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, which sustained a motion to dismiss a petition for a civil protection order pursuant to R.C. 3113.31 and sets forth the following assignment of error:

“The Court erred in denying a Civil Protection Order, Final Judgment Entry on the sole and exclusive basis that there was a divorce action pending.”

The trial court made the following findings of fact and conclusions of law:

“1. The parties were married on May 8, 1976 and have one child, to-wit: Kimberly Mae Thomas, born January 29, 1978.
“2. Sometime in early January, 1987 respondent Carl E. Thomas filed suit for divorce known as Case No. 87DR-01-49.
“3. The defendant Clara M. Thomas was served with said ‍​​​​​​​​‌​​​​‌‌‌​‌​‌​​​​​​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍divorce action sometime prior to January 16, 1987.
“4. On January 16, 1987, the petitioner Clara M. Thomas filed her petition for Ex Parte Temporary Order and for a Protection Order.
“5. An Ex Parte Temporary Protection Order was granted on January 16, 1987.
“6. Hearing was scheduled before the court on January 23, 1987 to determine whether to grant the final Civil Protection Order sought by the petitioner.
“7. The Civil Protеction Order was denied on the sole and exclusive basis that there was a prior divorce action taken.
“8. No testimony was taken at the hearing.”

The purpose of a civil protection order issued pursuant to R.C. 3113.31 is to provide a petitioner or other household member with protection from domestic violence (R.C. 3113.31 [D] and [E]) and allows for the following relief: an order directing the respondent to refrain from abusing the family or household members; grant possession of the residence or household to the petitioner or other family or household member to the exclusion of respondent; require the respondent to support the petitioner or family or ‍​​​​​​​​‌​​​​‌‌‌​‌​‌​​​​​​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍household member; provide for temporary custody or tеmporary visitation in regards to minor children; require the respondent and/or petitioner to seek counseling; require the rеspondent to refrain from entering the residence, school, business or place of employment of the petitionеr; or other relief the court considers necessary.

Further, R.C. 3113.31(G) provides:

“Any proceeding under this section shall be conducted in accordance with the Rules of Civil Procedure, except that an order under this section may be obtained with or without bond. The remediеs and procedures provided in this section are in addition to, and not in lieu of, any other available civil or criminal remedies.” (Emphasis added.)

Appellee argues that to allow a party to a divorce or dissolution to file for a civil protection оrder pursuant to R.C. 3113.31 will circumvent the provisions of Civ. R. 75. This court disagrees.

A comparison of R.C. 3113.31 and Civ. R. 75 shows that while the relief available under both provisions is somewhat similar, it is directed to a different purpose. The purpose of a civil protection order issued pursuant to R.C. 3113.31 is to provide protection from domestic violence and, incidental to that relief, to provide for support and shelter; the relief is available to a broader range of petitioners; the scope of relief is broader; there is no residency requirement; and a violation of a civil protection order can form the basis of a criminal offense, R.C. 2919.27. Civ. R. 75, while providing for financial support and custody, does so only incidentally ‍​​​​​​​​‌​​​​‌‌‌​‌​‌​​​​​​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍to a divorce or dissolution and is available only to parties to the action.

The statutory criterion to determine whether or not to grant a civil protection order pursuant to R.C. 3113.31 is the existence or threatened existеnce of domestic violence. While the court may consider whether there is a pending action for divorce or dissolution, and whether a request has been made or an order granted pursuant to Civ. R. 75, the mere filing of an action for divorce is nоt a basis on which to deny a civil protection order. Thus, the trial court abused its discretion in refusing to grant a civil protectiоn order to petitioner solely for the reason that a divorce had been filed by one of the parties.

The judgment of the trial court is reversed and the cause is remanded.

Judgment reversed and cause remanded.

Strausbaugh, J., concurs. Whiteside, P.J., concurs in part and dissents in part.



Dissenting Opinion

Whiteside, P.J.,

concurring in part and dissenting in part. Although I concur in the judgment of reversal, my rеasons for doing so and the resultant remand proceedings in the trial court vary from those expressed by the majority.

First, as to relief sought, pursuant to R.C. 3113.31(E)(1)(d) or (e), the trial court acted within its discretion to refuse relief ‍​​​​​​​​‌​​​​‌‌‌​‌​‌​​​​​​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍herein because of the pendency of the divorce proсeedings since R.C. 3113.31(E)(3) expressly provides that any relief granted pursuant to those subsections “shall terminate no later than sixty days after the filing of an action for divorce, dissolution, or separate maintenance by the petitioner or respondеnt.” This clearly vests discretion in the trial court to determine how long after the filing of divorce proceedings relief under R.C. 3113.31(E)(1)(d) or (e) should be available, rather than having the issue determined in the divorce proceedings. Thus, it was within the discretion of the trial cоurt to find that the order issued pursuant to R.C. 3113.31(E) (l)(d) or (e) shall terminate upon service of the divorce summons. Since this had occurred hеrein, discretion arguably exists to terminate the order immediately and, thus, not to issue it. This case must be remanded to the trial court to exercise its discretion.

As to the remainder of the possible relief under R.C. 3113.31, the statute does not preclude relief even though a divorce action is pending or is subsequently filed. However, this does not, as the majority seems to suggest, require that the same issue be litigated in two different proceedings (one a divorce proceeding and the other under R.C. 3113.31).

The real issue before us is not one of jurisdiction, but rather, one of аbatement. Contrary to the suggestion in the majority opinion, the trial court has jurisdiction to grant in the divorce action the identical relief sought in the instant proceeding (with the possible exception of an order that respondent seek counsеling). The availability of such relief in the divorce ‍​​​​​​​​‌​​​​‌‌‌​‌​‌​​​​​​‌​‌‌​‌​‌​‌​‌‌​​​‌​‌‌‌‌‍proceedings vests authority in the trial court to deny R.C. 3113.31 relief where the partiеs are litigating, or could litigate, the same issue in the divorce proceedings. Ordinarily, it is appropriate to avoid multiplе litigation where one action can encompass and determine all rights and controversies between the partiеs. There is no reason not to apply that principle here. At the very least, the trial court should consolidate the proceedings even if the majority view be correct.