Powell v. Becher

2011 Ohio 267

Opinion

[Cite as Powell v. Becher, 2011-Ohio-267.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

HEATHER POWELL : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : WILLIAM BECHER : Case No. 2010CA00273 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2009DV00166

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 24, 2011

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

HEATHER POWELL, PRO SE WILLIAM A. BECHER, PRO SE 3945 Mayfair Road, Apt. 101 1329 Woodland Avenue, NW Uniiontown, OH 44685 Canton, OH 44703 Stark County, Case No. 2010CA00273 2

Farmer, J.

{¶1} On November 3, 2009, appellant, Heather Powell, was granted a civil

protection order against appellee, William Becher. At one time, the two resided

together, and had a child on June 12, 2008. The order is to remain in effect until

November 3, 2014.

{¶2} On August 9, 2010, appellant filed a motion to dismiss the civil protection

order. By judgment entry filed August 26, 2010, the trial court denied the motion.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶4} "THE TRIAL COURT ERRED WHEN IT REFUSED TO DISMISS THE

PETITION FOR DOMESTIC VIOLENCE PROTECTION ORDER."

{¶5} Appellant claims the trial court erred in failing to grant her request to

terminate the civil protection order filed on November 3, 2009. We disagree.

{¶6} On August 9, 2010, appellant filed a request to terminate the order for the

reason of "wanting father to be present in daughter's life." In its judgment entry filed

August 26, 2010, the trial court noted appellee was "undergoing counseling," and

denied the request. The trial court stated, "[t]he parties are advised to retain counsel if

desired in the future."

{¶7} Apparently a hearing was held, but a transcript of the hearing has not

been filed for our review. In Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197,

199, the Supreme Court of Ohio held the following: Stark County, Case No. 2010CA00273 3

{¶8} "The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing

error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d

162. This principle is recognized in App.R. 9(B), which provides, in part, that '***the

appellant shall in writing order from the reporter a complete transcript or a transcript of

such parts of the proceedings not already on file as he deems necessary for inclusion in

the record.***.' When portions of the transcript necessary for resolution of assigned

errors are omitted from the record, the reviewing court has nothing to pass upon and

thus, as to those assigned errors, the court has no choice but to presume the validity of

the lower court's proceedings, and affirm." (Footnote omitted.)

{¶9} In the November 3, 2009 order, the trial court invited the parties to petition

the trial court on visitation and child support:

{¶10} "13. ***The child is part of this order. However, the parties may petition

the Court to address visitation. The Respondent may be granted an exception to this

order related to the child if the Court finds it appropriate and in the best interest of the

child.

{¶11} "15. ***The parties may petition the CSEA for a support order."

{¶12} Without a transcript of the hearing, we are unable to determine what the

trial court based the denial on. In both the original order and the subsequent denial, the

trial court left the door open for visitation issues.

{¶13} Based upon the state of the record before us, we cannot find the trial court

erred in denying the request to terminate the civil protection order.

{¶14} The sole assignment of error is denied. Stark County, Case No. 2010CA00273 4

{¶15} The judgment of the Court of Common Pleas of Stark County, Ohio,

Domestic Relations Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.

s/ Sheila G. Farmer_ _____________

_s/ W. Scott Gwin ________________

_s/ John W. Wise _________________

JUDGES

SGF/sg 112 Stark County, Case No. 2010CA00273 5

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

HEATHER POWELL : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : WILLIAM BECHER : : Defendant-Appellee : CASE NO. 2010CA00273

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, Domestic Relations

Division is affirmed. Costs to appellant.