[Cite as Chance v. Chance, 2021-Ohio-1919.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
HOLLIE CHANCE JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 21-COA-003 JIM CHANCE
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas, Domestic Relations Division, Case No. 19-CPO-005
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 2, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
HOLLIE CHANCE SCOTT G. OXLEY 901 Virginia Avenue Scott G. Oxley Co., LPA Ashland, Ohio 44805 325 N. Main Street – Suite #204 Springboro, Ohio 45066 Ashland County, Case No. 21-COA-003 2
Hoffman, P.J. {¶1} Respondent-appellant Jim Chance appeals the January 6, 2021 Judgment
Entry entered by the Ashland County Court of Common Pleas, Domestic Relations
Division, which overruled his objections to the magistrate’s October 8, 2020 judgment
entry denying his motion to amend and/or terminate the May 8, 2019 civil stalking
protection order(“CSPO”) against him, and approved and adopted said decision as order
of the court. Petitioner-appellee is Hollie Chance.1
STATEMENT OF THE FACTS AND CASE
{¶2} Appellee was married to Jeremy Chance, Appellant’s son. Their marriage
was terminated by dissolution on December 14, 2018. A shared parenting plan relative
to their two children (Appellant’s grandchildren) was incorporated into the decree.
Following Appellee and Jeremy Chance’s separation and throughout the dissolution
proceedings, Appellant began harassing Appellee, posting disparaging comments about
Appellee and her boyfriend on social media, aggressively approaching Appellee’s sister
whom Appellant mistook for Appellee, and making threats on social media he would
disclose negative information about Appellee to her children.
{¶3} Appellee filed a petition for a CSPO against Appellant on January 4, 2019.
After several continuances, the magistrate conducted a full hearing on April 12, 2019.
The magistrate granted a 30-month CSPO on May 8, 2019, which the trial court adopted
on the same day. Appellant did not file objections to the magistrate’s decision. Appellant
did, however, appeal to this Court, which was dismissed based upon Appellant’s failure
to file objections in the trial court.
1 Appellee has not filed a brief in this Appeal. Ashland County, Case No. 21-COA-003 3
{¶4} On July 9, 2020, Appellant filed a motion to amend and/or terminate the
CSPO. Therein, Appellant argued “[s]ubstantial changes in the situation have occurred
over the course of the past fifteen (15) months which [Appellant] believes are the basis to
either modify * * * or terminate the CPO.” July 9, 2020 Motion to Amend and/or Terminate
CPO at 2. The magistrate conducted a hearing on August 27, 2020.
{¶5} The evidence adduced at the hearing revealed the following.
{¶6} Appellant was convicted of telephone harassment and violating a protection
order in the Ashland Municipal Court on May 29, 2019. Appellant was placed in an
extensive probation program after receiving jail time, the majority of which was
suspended. Appellant’s probation was terminated on July 31, 2020. Appellant completed
counseling and no longer engaged on social media. Appellant acknowledged the sole
reason he was seeking a termination of the CSPO was to maintain his relationship with
his grandchildren and to be able to attend their events unrestricted. Appellant indicated
he was able to see his grandchildren two or three times/month during Jeremy Chance’s
parenting time.
{¶7} Appellee still had anxiety about Appellant’s actions and was always looking
out for his automobile. Appellee had not sought medical or psychological treatment for
her anxiety, but remained weary of him based upon conversations she had with one of
her children after the child had visited Appellant. She conceded she had no evidence
Appellant had attempted to contact her since the issuance of the CSPO. Appellee did not
object to Appellant maintaining a relationship with his grandchildren and was willing to
facilitate such a relationship as long as she was not present. Appellee had not received Ashland County, Case No. 21-COA-003 4
notice of Appellant’s probation termination hearing, and when she learned his probation
had, in fact, been terminated, her anxiety level increased.
{¶8} Via Decision filed October 8, 2020, the magistrate denied Appellant’s
motion. The magistrate found, while “there has been some change of circumstances
relating to [Appellant] in that he is no longer on probation and has obeyed the civil
protection order thus far * * * compliance with the order thus far, and [Appellant’s] efforts
to address his coping issues through counseling * * * is insufficient to show that it would
be equitable to either terminate or modify the civil protection order given [Appellee’s]
anxiety level toward [Appellant] and her opposition to any modification or termination.”
Magistrate’s October 8, 2020 Decision at 4-5.
{¶9} Appellant filed objections and, after the filing of the transcript, supplemental
objections to the Magistrate’s Decision. Via Judgment Entry filed January 6, 2021, the
trial court overruled Appellant’s objections, agreeing with the findings of the magistrate.
The trial court noted it would “not consider [Appellant’s] objections as they may related to
the underlying findings within the May 8, 2019 civil protection order. That order is res
judicata and now the law of the case.” January 6, 2021 Judgment Entry at 3.
{¶10} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
THE TRIAL COURT ERRED BY FINDING IN FAVOR OF
PLAINTIFF/APPELLEE AND AGAINST DEFENDANT/APPELLANT ON
DENYING APPELLANT’S MOTION TO AMEND AND/OR TERMINATE
THE CIVIL PROTECTION ORDER. Ashland County, Case No. 21-COA-003 5
{¶11} A trial court may modify or vacate a civil stalking protection order if the
movant shows the original circumstances have materially changed and it is no longer
equitable for the order to continue. Prostejovsky v. Prostejovsky, 5th Dist. No. 06–COA–
033, 2007–Ohio–5743.
{¶12} Because a trial court has discretion to modify or terminate a protection
order, our review of a court's denial of a motion to modify a protection order is limited to
whether the trial court abused that discretion. Hayberg v. Tamburello, 5th Dist.
Tuscarawas No. 2013 AP 02 0011, 2013-Ohio-3451, ¶ 25, citing Jones v. Rose, 4th Dist.
Hocking No. 09CA7, 2009-Ohio-4347. “An abuse of discretion connotes more than an
error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). When applying the abuse of discretion standard, a reviewing court may not
substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161,
169, 559 N.E. 2d 1301 (1990).
{¶13} Except for approximately one-half dozen paragraphs, Appellant’s Brief to
this Court attacks the trial court’s issuance of the underlying CSPO on May 8, 2019. Any
challenge to the underlying CSPO could have been and, in fact, was raised on direct
appeal. H.C. v. J.C., 5th Dist. Ashland No.
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[Cite as Chance v. Chance, 2021-Ohio-1919.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
HOLLIE CHANCE JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 21-COA-003 JIM CHANCE
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas, Domestic Relations Division, Case No. 19-CPO-005
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 2, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
HOLLIE CHANCE SCOTT G. OXLEY 901 Virginia Avenue Scott G. Oxley Co., LPA Ashland, Ohio 44805 325 N. Main Street – Suite #204 Springboro, Ohio 45066 Ashland County, Case No. 21-COA-003 2
Hoffman, P.J. {¶1} Respondent-appellant Jim Chance appeals the January 6, 2021 Judgment
Entry entered by the Ashland County Court of Common Pleas, Domestic Relations
Division, which overruled his objections to the magistrate’s October 8, 2020 judgment
entry denying his motion to amend and/or terminate the May 8, 2019 civil stalking
protection order(“CSPO”) against him, and approved and adopted said decision as order
of the court. Petitioner-appellee is Hollie Chance.1
STATEMENT OF THE FACTS AND CASE
{¶2} Appellee was married to Jeremy Chance, Appellant’s son. Their marriage
was terminated by dissolution on December 14, 2018. A shared parenting plan relative
to their two children (Appellant’s grandchildren) was incorporated into the decree.
Following Appellee and Jeremy Chance’s separation and throughout the dissolution
proceedings, Appellant began harassing Appellee, posting disparaging comments about
Appellee and her boyfriend on social media, aggressively approaching Appellee’s sister
whom Appellant mistook for Appellee, and making threats on social media he would
disclose negative information about Appellee to her children.
{¶3} Appellee filed a petition for a CSPO against Appellant on January 4, 2019.
After several continuances, the magistrate conducted a full hearing on April 12, 2019.
The magistrate granted a 30-month CSPO on May 8, 2019, which the trial court adopted
on the same day. Appellant did not file objections to the magistrate’s decision. Appellant
did, however, appeal to this Court, which was dismissed based upon Appellant’s failure
to file objections in the trial court.
1 Appellee has not filed a brief in this Appeal. Ashland County, Case No. 21-COA-003 3
{¶4} On July 9, 2020, Appellant filed a motion to amend and/or terminate the
CSPO. Therein, Appellant argued “[s]ubstantial changes in the situation have occurred
over the course of the past fifteen (15) months which [Appellant] believes are the basis to
either modify * * * or terminate the CPO.” July 9, 2020 Motion to Amend and/or Terminate
CPO at 2. The magistrate conducted a hearing on August 27, 2020.
{¶5} The evidence adduced at the hearing revealed the following.
{¶6} Appellant was convicted of telephone harassment and violating a protection
order in the Ashland Municipal Court on May 29, 2019. Appellant was placed in an
extensive probation program after receiving jail time, the majority of which was
suspended. Appellant’s probation was terminated on July 31, 2020. Appellant completed
counseling and no longer engaged on social media. Appellant acknowledged the sole
reason he was seeking a termination of the CSPO was to maintain his relationship with
his grandchildren and to be able to attend their events unrestricted. Appellant indicated
he was able to see his grandchildren two or three times/month during Jeremy Chance’s
parenting time.
{¶7} Appellee still had anxiety about Appellant’s actions and was always looking
out for his automobile. Appellee had not sought medical or psychological treatment for
her anxiety, but remained weary of him based upon conversations she had with one of
her children after the child had visited Appellant. She conceded she had no evidence
Appellant had attempted to contact her since the issuance of the CSPO. Appellee did not
object to Appellant maintaining a relationship with his grandchildren and was willing to
facilitate such a relationship as long as she was not present. Appellee had not received Ashland County, Case No. 21-COA-003 4
notice of Appellant’s probation termination hearing, and when she learned his probation
had, in fact, been terminated, her anxiety level increased.
{¶8} Via Decision filed October 8, 2020, the magistrate denied Appellant’s
motion. The magistrate found, while “there has been some change of circumstances
relating to [Appellant] in that he is no longer on probation and has obeyed the civil
protection order thus far * * * compliance with the order thus far, and [Appellant’s] efforts
to address his coping issues through counseling * * * is insufficient to show that it would
be equitable to either terminate or modify the civil protection order given [Appellee’s]
anxiety level toward [Appellant] and her opposition to any modification or termination.”
Magistrate’s October 8, 2020 Decision at 4-5.
{¶9} Appellant filed objections and, after the filing of the transcript, supplemental
objections to the Magistrate’s Decision. Via Judgment Entry filed January 6, 2021, the
trial court overruled Appellant’s objections, agreeing with the findings of the magistrate.
The trial court noted it would “not consider [Appellant’s] objections as they may related to
the underlying findings within the May 8, 2019 civil protection order. That order is res
judicata and now the law of the case.” January 6, 2021 Judgment Entry at 3.
{¶10} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
THE TRIAL COURT ERRED BY FINDING IN FAVOR OF
PLAINTIFF/APPELLEE AND AGAINST DEFENDANT/APPELLANT ON
DENYING APPELLANT’S MOTION TO AMEND AND/OR TERMINATE
THE CIVIL PROTECTION ORDER. Ashland County, Case No. 21-COA-003 5
{¶11} A trial court may modify or vacate a civil stalking protection order if the
movant shows the original circumstances have materially changed and it is no longer
equitable for the order to continue. Prostejovsky v. Prostejovsky, 5th Dist. No. 06–COA–
033, 2007–Ohio–5743.
{¶12} Because a trial court has discretion to modify or terminate a protection
order, our review of a court's denial of a motion to modify a protection order is limited to
whether the trial court abused that discretion. Hayberg v. Tamburello, 5th Dist.
Tuscarawas No. 2013 AP 02 0011, 2013-Ohio-3451, ¶ 25, citing Jones v. Rose, 4th Dist.
Hocking No. 09CA7, 2009-Ohio-4347. “An abuse of discretion connotes more than an
error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). When applying the abuse of discretion standard, a reviewing court may not
substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161,
169, 559 N.E. 2d 1301 (1990).
{¶13} Except for approximately one-half dozen paragraphs, Appellant’s Brief to
this Court attacks the trial court’s issuance of the underlying CSPO on May 8, 2019. Any
challenge to the underlying CSPO could have been and, in fact, was raised on direct
appeal. H.C. v. J.C., 5th Dist. Ashland No. 19-COA-023, 2020-Ohio-1227. The fact
Appellant’s direct appeal was dismissed on procedural grounds does not give him a
second bite at the apple. Accordingly, we find any arguments relative to the propriety of
the CSPO are barred by res judicata.
{¶14} With respect to the trial court’s denial of his motion to modify and/or
terminate, Appellant asserts the evidence presented during the hearing on the motion Ashland County, Case No. 21-COA-003 6
establishes there have been material changes in circumstances which support
modification or termination of the CSPO. Appellant notes there has been no contact
between Appellee and him. Appellee is no longer in a relationship with her boyfriend,
which was a significant basis for the issuance of the CSPO. Appellee no longer works in
Ashland. Appellee goes out in public and participates in social events. Appellee wants
Appellant to have a relationship with his grandchildren. Appellant adds he completed an
extensive probation program and counseling, he was terminated from probation 40
months early, and he has not had any contact with Appellee.
{¶15} In overruling Appellant’s objections to the magistrate’s decision, the trial
court concurred “with the [magistrate’s] finding that there has been some change of
circumstances relating to [Appellant] in that he is no longer on probation * * * and has
obeyed the civil protection order thus far.” January 6, 2021 Judgment Entry at 3. The
trial court found, however, Appellant’s compliance with the CSPO and his efforts to
address his issues through counseling was “insufficient to show that it would be equitable
to either terminate or modify” the CSPO. Id. at 4.
{¶16} Appellant has not had contact with Appellee because the CSPO has been
in place. The fact Appellant complied with the CSPO does not mean the order should be
modified or terminated. As stated, supra, Appellant wanted the CSPO terminated
because he desired to maintain his relationship with his grandchildren and to be able to
attend their events unrestricted. Appellee is willing to facilitate Appellant’s relationship
with her children. Appellant’s grandchildren are not protected parties under the CSPO;
therefore, the existence of the CSPO does not affect that relationship. Ashland County, Case No. 21-COA-003 7
{¶17} Based upon the foregoing, we find the trial court did not abuse its discretion
in denying Appellant’s motion to modify and/or terminate the CSPO.
{¶18} Appellant's sole assignment of error is overruled.
{¶19} The judgment of the Ashland County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Hoffman, P.J. Wise, John, J. and Wise, Earle, J. concur