Duff v. Duff

2014 Ohio 1040

• Court: Ohio Court of Appeals
• Decided: March 14, 2014
• Docket: 13 CA 23
• Status: Published

Opinion

[Cite as Duff v. Duff, 2014-Ohio-1040.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JENNIFER FLINT DUFF JUDGES: Hon. John W. Wise, P. J. Petitioner-Appellant Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13 CA 23 ROBERT WALLACE DUFF

Respondent-Appellee OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 13 DV 213

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 14, 2014

APPEARANCES:

For Petitioner-Appellant For Respondent-Appellee

MICAELA DEMING ROBERT WALLACE DUFF, PRO SE 5384 Whispering Oak Boulevard 12171 East Pike, Apartment B Columbus, Ohio 43206 Cambridge, Ohio 43725 Guernsey County, Case No. 13 CA 23 2

Wise, P. J.

{¶1}. Appellant Jennifer Flint Duff appeals from the Guernsey County Court of

Common Pleas, which dismissed her pending action for a domestic violence civil

protection order and motion for contempt of court against Appellee Robert Wallace

Duff. The relevant facts leading to this appeal are as follows.

{¶2}. On May 6, 2013, appellant filed a filed a petition for a domestic violence

civil protection order ("DVCPO") against appellee.

{¶3}. The trial court thereupon granted an ex parte DVCPO naming appellant

and her daughter as protected parties. A hearing on the matter was set for May 14,

2013.

{¶4}. Following said hearing, the magistrate issued an order on May 15, 2013,

stating inter alia that "testimony and evidence was received but the case was not

completed." The order also stated that the "parties agreed that the ex parte order shall

remain in effect until August 6, 2013, or until either party files a divorce and temporary

order issues, whichever comes first."

{¶5}. On May 23, 2013, appellant filed a motion for contempt and an affidavit in

support, alleging that appellee had violated the ex parte order.

{¶6}. On May 24, 2013, appellee filed a "motion to set aside magistrate's

decision (sic)," with a request for findings of fact and conclusions of law.

{¶7}. On May 28, 2013, the trial court issued a judgment entry ordering appellee

to appear and show cause why he should not be held in contempt, setting the date for

June 19, 2013. Guernsey County, Case No. 13 CA 23 3

{¶8}. On May 29, 2013, the trial court issued another entry stating that "The

Motion to Set Aside Magistrate's Decision; and Motion for Findgins [sic] of Fact and

Conclusions of Law shall come before the Court on June 14, 2012 [sic] without oral

hearing on the pleadings then before the Court. * * * [T]he parties need not appear but

should file all other pleadings/information they wish the Court to consider * * *."

{¶9}. On June 4, 2013, appellee filed a request for continuance and a request

for jury trial.

{¶10}. On June 6, 2013 the trial court, sua sponte, entered an order stating that

the case had "not been completed within the appropriate time frame (30 days from

filing) and, therefore, the court lacks jurisdiction."

{¶11}. Thus, the trial court dismissed the DVCPO without further hearing, and

also cancelled the contempt hearing scheduled for June 19, 2013.

{¶12}. Appellant herein raises the following three Assignments of Error:

{¶13}. “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DISMISSING

APPELLANT'S PETITION FOR A DOMESTIC VIOLENCE CIVIL PROTECTION

ORDER FOR LACK OF JURISDICTION.

{¶14}. “II. THE TRIAL COURT'S DISMISSAL RESULTED IN A VIOLATION OF

APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND EFFECTIVELY

LEFT HER AND HER DAUGHTER WITHOUT LEGAL PROTECTION AGAINST HER

ALLEGED PERPETRATOR.

{¶15}. “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN

SUMMARILY DISMISSING APPELLANT'S MOTION FOR CONTEMPT UPON

ERRONEOUSLY DISMISSING HER CIVIL PROTECTION CASE.” Guernsey County, Case No. 13 CA 23 4

I.

{¶16}. In her First Assignment of Error, appellant maintains the trial court erred in

dismissing her petition for a DVCPO on jurisdictional and timeliness grounds. We agree.

{¶17}. The trial court in the case sub judice relied on Superintendence Rules 37

and 39, which appear to set forth a one-month guideline for the disposition of domestic

violence cases in the domestic relations division of common pleas courts. Certainly,

"[t]he Rules of Superintendence were designed to secure the prompt and efficient

disposition of cases." Daniels v. Daniels, 5th Dist. Licking No. 13–CA–87, 2014-Ohio-

83, ¶ 13. However, it is well-recognized that the "Rules of Superintendence are only

general guidelines for the court to follow at its discretion ***." See In re K. V., 6th Dist.

Lucas No. L–11–1087, 2012-Ohio-190, ¶ 27.

{¶18}. In Daniels, supra, the parties to a divorce action had reached an in-court

settlement, but the planned final written agreement apparently "fell apart." See id. at ¶ 3.

The husband thereafter filed several motions with the trial court. The court ultimately

dismissed the entire case, citing to the passage of time in relation to the "Ohio Supreme

Court guidelines." Id. at ¶ 4. Upon the wife's appeal, we reversed, stating that "[t]o

dismiss a case because the guideline for disposition has been exceeded and advising

the parties it can be refiled—thereby beginning anew the start of the clock—does not

serve [the purpose of the Superintendence Rules], but rather thwarts it." Id. at ¶ 13.

{¶19}. In the case sub judice, it appears from the record that the magistrate,

having heard evidence on the DVCPO petition, issued an order simply keeping the ex

parte order in place rather than issuing a decision on the merits, stating at the end of the

hearing that "[w]e either have to have more testimony in this case, or we have to have a Guernsey County, Case No. 13 CA 23 5

temporary orders hearing in the divorce action because I don't have time today." See

Tr. at 71.1 Upon review, we find our rationale in Daniels applicable to the circumstances

of the present case. We thus find merit in appellant's contention that the trial court erred

in thereafter dismissing the case and failing to finalize a decision on the DVCPO

petition. Furthermore, we note appellee has not filed a brief in response to this appeal.

App.R. 18(C) states in pertinent part: “If an appellee fails to file the appellee's brief

within the time provided by this rule, or within the time as extended, the appellee will not

be heard at oral argument * * * and in determining the appeal, the court may accept the

appellant's statement of the facts and issues as correct and reverse the judgment if

appellant's brief reasonably appears to sustain such action.”

{¶20}. Accordingly, appellant's First Assignment of Error is sustained.

II.

{¶21}. In her Second Assignment of Error, appellant maintains the trial court

violated her right to due process of law by dismissing her petition for a DVCPO on

jurisdictional and timeliness grounds.

{¶22}. In light of our above conclusions, appellant's Second Assignment of Error

is found to be moot.

III.

{¶23}. In her Third Assignment of Error, appellant maintains the trial court erred

in dismissing her contempt action.

1 It does not appear a divorce action had been filed as of the time of the DVCPO hearing. See appellee's comments to the magistrate at Tr. 71, Lines 22-24. Guernsey County, Case No. 13 CA 23 6

{¶24}. In light of our above conclusions, the issue of contempt is again ripe for

review by the trial court, and therefore appellant's Third Assignment of Error is

sustained.

{¶25}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Guernsey County, Ohio, is hereby reversed and remanded to the

trial court for further proceeding in accordance with law.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

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