Hernandez v. Hamdy

2024 Ohio 4754, 256 N.E.3d 156

• Court: Ohio Court of Appeals
• Decided: September 30, 2024
• Docket: 2024-G-0015 & 2024-G-0016
• Status: Published

Opinion

[Cite as Hernandez v. Hamdy, 2024-Ohio-4754.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY

SARA HERNANDEZ, CASE NOS. 2024-G-0015 2024-G-0016 Petitioner-Appellant, Civil Appeals from the - vs - Court of Common Pleas

SHERIEF HAMDY, Trial Court Nos. 2022 DV 000350 Respondent-Appellee. 2020 DV 000490

OPINION

Decided: September 30, 2024 Judgment: Reversed and remanded

Larry W. Zukerman and Brian A. Murray, Zukerman, Lear and Murray Co., LPA, 3912 Prospect Avenue East, Cleveland, OH 44115, and Steven L. August, 3201 Enterprise Parkway, Suite 130, Beachwood, OH 44122 (For Petitioner-Appellant).

Adam J. Thurman, Thurman and Associates, LLC, 4212 West Streetsboro Road, Down, Richfield, OH 44286 (For Respondent-Appellee).

MATT LYNCH, J.

{¶1} Petitioner-appellant, Sara Hernandez, appeals from the judgment of the

Geauga County Court of Common Pleas, vacating the court’s prior ex parte orders of

protection as being issued without subject matter jurisdiction. For the following reasons,

we reverse the decision of the lower court and remand for further proceedings consistent

with this opinion.

{¶2} On August 10, 2020, in Geauga County Court of Common Pleas Case No.

2020 DV 000490, Hernandez filed a Petition for Domestic Violence Civil Protection Order against respondent, Sherief Hamdy, her ex-husband. She requested protection for

herself, her children, and her husband, alleging that Hamdy had a history of aggressive

and threatening behavior toward her and her children. It indicated that the two had a

domestic relations case in the Geauga County Court of Common Pleas with post-decree

motions pending. An ex parte protection order was granted on that date. The court issued

an Amended and Extended Ex Parte Protection Order on July 14, 2022, extending the

order through August 10, 2023, and a Further Amended order issued on July 19 extended

it through August, 10, 2024.

{¶3} Following a status conference, a Magistrate’s Order was issued on

September 28, 2023, ordering the parties to brief whether the court was permitted to

extend an ex parte order beyond one year as well as any other issues they believe should

be brought to the court’s attention.

{¶4} The magistrate issued a November 8, 2023 Decision finding that Hamdy did

not live in Geauga County and Hernandez had not lived there since June 2018. It found

that jurisdiction for domestic violence protection orders is limited to the county where the

protected person resides and the ex parte order must be vacated due to lack of

jurisdiction. Hernandez filed a November 22, 2023 Objection to the Magistrate’s Decision,

arguing that there is no statutory jurisdictional requirement to file in a specific county and

the court also had jurisdiction since the parties were engaged in post-decree custody

litigation in the Geauga County Court of Common Pleas.

{¶5} On February 9, 2024, the trial court denied the objections. It found: “When

a common pleas court has a domestic relations division, that Court and division has

jurisdiction over a DVCPO filed by a resident of that county.” It further concluded that the

Case Nos. 2024-G-0015 and 2024-G-0016 statute “gave subject matter jurisdiction only to common pleas and juvenile courts in the

county where the petitioner resides,” citing R.C. 3113.31(A)(2) and (B). It found the ex

parte protection order and any subsequent orders were void.

{¶6} In Case No. 2022 DV 000350, on June 16, 2022, Hernandez filed a

separate Petition for Domestic Violence Civil Protection Order in the Geauga County

Court of Common Pleas against Hamdy, which requested protection for herself, her

children, her husband, and her former stepchildren. It included allegations of verbal,

physical, and sexual abuse. On the same date, an ex parte protection order was issued,

which was extended on June 22, 2023.

{¶7} A similar magistrate’s decision, objections, and judgment of the court were

issued in this matter that were filed in Case No. 2020 DV 000490 as to the issue of subject

matter jurisdiction. The court vacated the ex parte protection order and related orders.

{¶8} On appeal, Hernandez raises the following assignments of error:

{¶9} “[1.] The trial court erred in determining that it lacked subject matter

jurisdiction over the Appellant’s petitions for domestic violence civil protection orders on

the basis that she was not a resident of Geauga County at the time she filed her petitions

with the Geauga County Court of Common Pleas.

{¶10} “[2.] The trial court erred in determining that it lacked subject matter

jurisdiction over the Petitioner’s petitions for domestic violence civil protection orders

when the parties were involved in ongoing post-decree child custody litigation that was

pending before the trial court at the time she filed both of her petitions for domestic

violence civil protection orders.”

{¶11} In her first assignment of error, Hernandez argues that the trial court erred

Case Nos. 2024-G-0015 and 2024-G-0016 in determining it did not have subject matter jurisdiction over the petition because R.C.

3113.31 does not contain a requirement to file such petition in the county where the

protected person resides.

{¶12} “‘Subject-matter jurisdiction of a court connotes the power to hear and

decide a case upon its merits’ and ‘defines the competency of a court to render a valid

judgment in a particular action.’” (Citation omitted.) Smith v. Ohio State Univ., 2024-

Ohio-764, ¶ 18. “When a court has the constitutional or statutory power to adjudicate a

particular class or type of case, that court has subject-matter jurisdiction.” Ostanek v.

Ostanek, 2021-Ohio-2319, ¶ 2; Bank of Am., N.A. v. Kuchta, 2014-Ohio-4275, ¶ 19

(“[s]ubject-matter jurisdiction is the power of a court to entertain and adjudicate a

particular class of cases”). “Subject-matter jurisdiction may never be waived and may be

challenged at any time.” Smith at ¶ 18. “If a court possesses subject-matter jurisdiction,

any error in the invocation or exercise of jurisdiction over a particular case causes a

judgment to be voidable rather than void.” Kuchta at ¶ 19. “[A] determination as to

whether the trial court has subject matter jurisdiction is . . . reviewed de novo.” Dilley v.

Dilley, 2017-Ohio-8439, ¶ 15 (11th Dist.).

{¶13} In general, common pleas courts have “original jurisdiction over all

justiciable matters and such powers of review of proceedings of administrative officers

and agencies as may be provided by law.” Ohio Const., art. IV, § 4(B). A common pleas

court’s “subject-matter jurisdiction . . . extends to ‘all matters at law and in equity that are

not denied to it.’” Kuchta at ¶ 20, quoting Saxton v. Seiberling, 48 Ohio St. 554, 558-59

(1891).

{¶14} The Ohio Supreme Court has held that “domestic-violence civil protection

Case Nos. 2024-G-0015 and 2024-G-0016 orders are creatures of statute,” and that R.C. 3113.31 “establishes a comprehensive

statutory scheme for issuing, modifying, and terminating domestic-violence protection

orders.” Cyran v. Cyran, 2018-Ohio-24, ¶ 13. “R.C. 3113.31 establishes jurisdiction and

hearing guidelines” for domestic violence protection orders. (Citation omitted.)

Cunningham v. Morgan, 2004-Ohio-6007, ¶ 22 (8th Dist.).

{¶15} Pursuant to R.C. 3113.31(C)(1)-(4), “[a] person may seek relief under [R.C.

3113.31] . . . by filing a petition with the court” which contains or states “[a]n allegation

that the respondent engaged in domestic violence against a family or household member

of the respondent or against a person with whom the respondent is or was in a dating

relationship,” the relationship of the respondent to petitioner, facts relating to the dating

relationship if relevant, and a request for relief under R.C. 3113.31. The language in R.C.

3113.31(A)(2) defines the court in which to file such petition:

“Court” means the domestic relations division of the court of common pleas in counties that have a domestic relations division and the court of common pleas in counties that do not have a domestic relations division, or the juvenile division of the court of common pleas of the county in which the person to be protected by a protection order issued or a consent agreement approved under this section resides if the respondent is less than eighteen years of age.

{¶16} There is no question that Geauga does not have a domestic relations

division and the court of common pleas would be the appropriate type of court in which

to file. The issue in the present matter is whether Geauga County is the correct county

in which to file the petition. The second portion of the foregoing language requires that

the petition be filed in “the juvenile division of the court of common pleas of the county in

which the person to be protected by a protection order issued . . . under this section

resides if the respondent is less than eighteen years of age.” This portion contains a

Case Nos. 2024-G-0015 and 2024-G-0016 requirement regarding the county where the matter must be filed but applies only if the

respondent is less than 18. The provision regarding the residence of the protected person

is sandwiched between two phrases relating to the juvenile court and respondent’s age

and is not included in relation to the first portion of the statute involving non-juvenile

respondents. The statutory language does not specify a requirement to file in a specific

county in the case of an adult respondent. Establishing a provision to be included in a

statute “is a matter for the Ohio General Assembly, not for this court.” Cyran at ¶ 13,

citing Morris Plan Bank of Cleveland v. Viona, 122 Ohio St. 28, 32, (1930) (“statutes

should be amended by legislative enactment, not by judicial construction”).

{¶17} The trial court concluded that R.C. 3113.31 “gave subject matter jurisdiction

only to common pleas and juvenile courts in the county where the petitioner resides” citing

R.C. 3113.31(A)(2) and (B). However, this conclusion does not address the foregoing or

explain where the language requires that the matter be filed in the common pleas court

where the petitioner resides in the case of a non-juvenile respondent.

{¶18} We recognize that R.C. 2903.214, a statute governing the filing of stalking

or sexually oriented offenses protection orders, allows the petitioner to file a petition for a

protection order with “the court,” which it defines as “the court of common pleas of the

county in which the person to be protected by the protection order resides.” R.C.

2903.214(A)(1). Courts have found that a party seeking a CPO under R.C. 2903.214

must file in the county where he or she resides and failure to do so deprives the trial court

of subject matter jurisdiction. Ellis v. Skinner, 2022-Ohio-4793, ¶ 35 (11th Dist.); W.E. v.

C.E., 2019-Ohio-4818, ¶ 6 (4th Dist.).

{¶19} This statute shares similarities to R.C. 3113.31, which has been used as

Case Nos. 2024-G-0015 and 2024-G-0016 “guidance” when determining the applicable burden of proof where R.C. 2903.214 was

silent on the issue. Denney v. Sanders, 2016-Ohio-5113, ¶ 17-19 (1st Dist.). However,

R.C. 2903.214 does not dictate the requirements for filing a protection order under R.C.

3113.31. Each statute contains its own definition of “court” for the purposes of

establishing jurisdiction. As noted above, R.C. 3113.31 “establishes a comprehensive

statutory scheme for issuing, modifying, and terminating domestic-violence protection

orders” and establishes jurisdiction relating to domestic violence protection orders.

Cyran, 2018-Ohio-24, at ¶ 13; Cunningham, 2004-Ohio-6007, at ¶ 22 (8th Dist.). See

also State v. Hart, 2024-Ohio-2037, ¶ 8, fn. 1 (11th Dist.) (noting that the appellant “relies

on” R.C. 3113.31 which “pertains to domestic violence civil protection orders” rather than

R.C. 2903.214, which relates to civil stalking protection orders). We must apply R.C.

3113.31 to determine the appropriate court in which to file a domestic violence protection

order petition.

{¶20} We recognize that, in Adamski v. Adamski, 2022-Ohio-32 (6th Dist.),

although addressing a matter for a DVCPO under R.C. 3113.31, the court cited R.C.

2903.214 for the proposition that a court lacks jurisdiction when a petitioner seeks a

protection order from a common pleas court in a county in which she does not reside. Id.

at ¶ 21. The court, however, did not provide any analysis as to why this provision would

apply to domestic violence protection orders, which are governed by R.C. 3113.31 rather

than R.C. 2903.214. Further, any analysis as to this issue was dicta as it was not required

to resolve the jurisdictional issue, since the petitioner resided in the county where the

petition was filed.

{¶21} The trial court observed that R.C. 3113.31(B) allows for continuation of

Case Nos. 2024-G-0015 and 2024-G-0016 jurisdiction when a petitioner leaves the residence or household to avoid further domestic

violence and concluded that such language would be superfluous if a petitioner could file

in any county. The pertinent language states: “The court has jurisdiction over all

proceedings under this section. The petitioner’s right to relief under this section is not

affected by the petitioner’s leaving the residence or household to avoid further domestic

violence.” R.C. 3113.31(B). This provision does not alter the language of R.C.

3113.31(A)(2). It appears this section indicates that, although domestic violence includes

the occurrence of specified acts “against a family or household member,” a protection

order can still be obtained even if the party seeking protection is no longer a family or

household member of the respondent. See Lewis v. Gravely, 2016-Ohio-1502, ¶ 30 (4th

Dist.) (observing that the imminent requirement of a threat of force needed to grant a

protection order does not require the offender to be in the process of carrying out a threat

of force at the time the court considers the petition, citing R.C. 3113.31(B)). Thus, it does

not change the analysis as to the issue of jurisdiction.

{¶22} The trial court also questioned the justification for the inclusion of a

residency requirement applying only to juvenile respondents. We initially observe that

former versions of the statute, prior to 2010, did not include the section involving a

reference to juvenile respondents but stated only: “‘Court’ means the domestic relations

division of the court of common pleas in counties that have a domestic relations division,

and the court of common pleas in counties that do not have a domestic relations division.”

It did not include a statement relating to residence, making it appear the legislature did

intend for the residency requirement to apply only to juveniles. Nonetheless, “inquiry into

legislative intent . . . is inappropriate absent an initial finding that the language of the

Case Nos. 2024-G-0015 and 2024-G-0016 statute is, itself” ambiguous. Dunbar v. State, 2013-Ohio-2163, ¶ 16; Jones v. Action

Coupling & Equip., Inc., 2003-Ohio-1099, ¶ 12 (“[w]hen the statutory language is plain

and unambiguous . . . we must rely on what the General Assembly has said”).

{¶23} There is an exception to the requirement that a statute be interpreted

according to its plain meaning where such application would lead to an “absurd result.” It

has been held that “when the General Assembly enacts a statute, it does not intend to

produce an absurd result.” State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s Office,

2017-Ohio-8714, ¶ 22. While it may be the case that allowing filing in a county other than

the one where the petitioner resides creates some logistical concerns and is not

consistent with the requirements set forth in other protection order statutes like R.C.

2903.214, we decline to determine that this rises to the level of an absurd result. We are

mindful that “all courts should exercise restraint in the application of the absurd-result

exception, employing it in only those cases in which the plain language of a statute results

in an obviously unintended result.” Id. at ¶ 26. We also note that here, the petition was

filed in a county close to where the parties reside, where Hernandez previously resided,

where the parties had ongoing custody proceedings relating to their child, and Hamdy

apparently had no objection to proceeding in that court given that he did not dispute

jurisdiction or venue.

{¶24} Finally, we observe that Civ.R. 3(C) provides the proper venue for

commencing an action, which includes, “[i]n actions for a civil protection order . . . the

county in which the petitioner currently or temporarily resides.” Civ.R. 3(C)(10). While

improper venue may be an appropriate defense in the present matter given that neither

party resides in Geauga County, it was not raised here. Generally, issues of venue are

Case Nos. 2024-G-0015 and 2024-G-0016 waived if not raised by the defendant. Gliozzo v. Univ. Urologists of Cleveland, Inc., 2007-

Ohio-3762, ¶ 8; Harris v. Rossi, 2018-Ohio-4573, ¶ 90 (11th Dist.). The record does not

demonstrate that Hamdy disputed venue and the trial court vacated its ex parte order not

on the grounds of venue but for a lack of jurisdiction. “Improper venue does not deprive

a court of jurisdiction to hear an action” and “a judgment is not subject to collateral attack

‘solely on the ground that there was improper venue.’” (Citation omitted.) Ellison v. K 2

Motors, L.L.C., 2023-Ohio-1871, ¶ 31-33 (10th Dist.) (“K 2’s argument is not that the trial

court lacked subject-matter jurisdiction, but that the matter should have been adjudicated

in Summit County, where the vehicle sale occurred. That is actually an argument about

venue.”).

{¶25} Since we disagree with the trial court’s determination that R.C.

3113.31(A)(2) requires the petitioner seeking a domestic violence protection order file in

their county of residence, we find that the trial court did not lack jurisdiction to issue its ex

parte orders and reverse this judgment.

{¶26} The first assignment of error is with merit.

{¶27} In her second assignment of error, Hernandez argues that the court erred

in finding it did not have jurisdiction over the case given that the parties were “actively

engaged in post-decree custody litigation involving their minor child in the Geauga County

Court of Common Pleas.”

{¶28} R.C. 3113.31(E)(1)(d) provides that, “[w]ith respect to a petition involving

family or household members,” the court’s order may “temporarily allocate parental rights

and responsibilities for the care of, or establish temporary parenting time rights with

regard to, minor children, if no other court has determined, or is determining, the allocation

Case Nos. 2024-G-0015 and 2024-G-0016 of parental rights and responsibilities for the minor children or parenting time rights.”

{¶29} In applying this provision, courts have come to somewhat different

conclusions. Compare J.L.D. v. A.S.D., 2019-Ohio-4106, ¶ 28 (7th Dist.) (“the trial court

properly dismissed appellant’s petition [for a domestic violence protection order] in

Columbiana County pursuant to the plain language delineated in R.C. 3113.31(E)(1)(d)”

since “[t]he trial court could not properly exercise jurisdiction over the matter given

pending post-divorce custody proceedings on the same children simultaneously pending

in Mahoning County”) with Stella v. Platz, 1999 WL 427672, *3 (4th Dist. June 17, 1999)

(vacating a CPO only “to the extent” that it attempted to alter parental rights already

determined in another court since this “exceeded the bounds of its jurisdiction”).

{¶30} Given our disposition of the first assignment of error, we decline to

determine whether this portion of the statute requires that a domestic violence petition be

filed only in the court where the parties have litigated a custody matter. Since we find

that the trial court erred in vacating its order due to lack of subject matter jurisdiction, we

need not find an alternate ground providing jurisdiction.

{¶31} The second assignment of error is moot.

{¶32} For the foregoing reasons, the judgments of the Geauga County Court of

Common Pleas are reversed and these matters are remanded for further proceedings

consistent with this opinion. Costs to be taxed against appellee.

EUGENE A. LUCCI, P.J.,

JOHN J. EKLUND, J.,

concur.

Case Nos. 2024-G-0015 and 2024-G-0016