S.L. v. M.E.H.

2024 Ohio 5482

• Court: Ohio Court of Appeals
• Decided: November 21, 2024
• Docket: 113646
• Status: Published

Opinion

[Cite as S.L. v. M.E.H., 2024-Ohio-5482.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

S.L., :

Petitioner-Appellee, : No. 113646 v. :

M.E.H., :

Respondent-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 21, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-985727

Appearances:

The Elkhatib Law Firm and Issa Elkhatib, for appellant.

S.L., pro se.

SEAN C. GALLAGHER, J.:

Respondent-appellant M.E.H. appeals the decision of the trial court

denying her motion for relief from judgment of a civil stalking protection order

(“CSPO”) that was issued against her. Upon review, we reverse the trial court’s

decision to deny the Civ.R. 60(B) motion and remand the matter for the trial court

to conduct an expedited evidentiary hearing on the merits in the matter. On September 20, 2023, petitioner-appellee S.L., pro se, filed a

petition to obtain a CSPO for herself and her minor child against M.E.H. It appears

from the record that at the time of the proceedings, M.E.H. was the current girlfriend

of the child’s father and S.L. was his ex-girlfriend with whom he shares the child.

There had been prior litigation between S.L. and M.E.H., and there was a consent

order that had been entered in a separate matter. S.L. asserted, among other

allegations, that M.E.H. was violating the consent order’s requirements and that she

feared for herself and the safety of her child. The trial court held an ex parte CSPO

hearing, denied an ex parte order, and set a full hearing for October 4, 2023.

After service was perfected, M.E.H. retained counsel in the matter.

On October 3, 2023, counsel for M.E.H. filed a motion for continuance, in which

counsel indicated that he was recently retained and needed additional time to

prepare for the matter. A notice of appearance also was filed by counsel.

The trial court proceeded with the hearing on October 4, 2023.

Neither respondent nor her counsel were present. There was no mention of the

motion for continuance.1 The trial court heard from S.L., who indicated that M.E.H.

was violating the terms of a consent order issued by a court magistrate. S.L. claimed

that M.E.H. was at the child’s daycare during an incident in which the child’s father

was trying to take the child when he was not supposed to be there, that M.E.H. was

not supposed to be anywhere near exchanges of the child, that the incident resulted

1 The motion for continuance was denied as moot on October 10, 2023. in the police being called, that M.E.H. made false allegations, and that the incident

resulted in S.L. losing her daycare for the child. There was no evidence that any

charges resulted from this incident, and S.L. conceded that she was not present at

the daycare. S.L. also claimed that M.E.H., who was not permitted to be within 500

feet of parental exchanges of the child, was showing up and hiding in bushes during

exchanges. S.L. stated that she was stressed by “the threat of [M.E.H.’s] constant

violence” and asserted that her child was making concerning comments. S.L. further

claimed that M.E.H. had not removed photos and videos of the child from social

media as required by the consent order. S.L. asserted that she did not feel safe for

herself or her daughter.

At the conclusion of the hearing, the trial court granted the requested

protection order for S.L. and the child for a period of five years. Among other

restrictions, M.E.H. is not permitted to be within 500 feet of all protected persons,

which includes S.L. and the child, and is not to have any contact with them.

Two days later, on October 6, 2023, M.E.H. filed a motion for relief

from judgment pursuant to Civ.R. 60(B) and requested a hearing. M.E.H. indicated

that her absence, as well as her attorney’s absence, from the October 4 hearing was

predicated on the belief that the motion for continuance would be considered given

the sudden retention of counsel. M.E.H. claimed that the issuance of the CSPO

would have adverse implications on her career and would be a violation of her due

process rights. Further, she requested that relief be granted in the interests of

justice, fairness, and her due process rights. The trial court held a hearing on the motion for relief from judgment

on January 17, 2024. The trial court heard from both parties and counsel for M.E.H.,

who explained the confusion that occurred surrounding the motion for continuance

and M.E.H.’s failure to appear and presented arguments against the issuance of the

CSPO. This court has fully reviewed the record, including the transcript of the

proceedings. On January 18, 2024, the trial court issued an entry denying the

motion for relief from judgment.

M.E.H. timely appealed. Under her sole assignment of error, M.E.H.

claims the trial court erred by denying her Civ.R. 60(B) motion without

consideration of the statutory factors.

As an initial matter, we will not consider the factual allegations made

in appellant’s brief that were never presented to the trial court. The matter is before

us on a challenge to the denial of a motion for relief from judgment. We limit our

review to the record before us and to the challenge presented. It is not for this court

to formulate legal arguments for the parties. See State v. Quarterman, 2014-Ohio-

4034, ¶ 19.

An appellate court reviews a decision denying a motion for relief from

judgment under Civ.R. 60(B) for an abuse of discretion. See Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 20 (1988), citing Griffey v. Rajan, 33 Ohio St.3d 75, 77

(1987). In this matter, we bear in mind that “Civ.R. 60(B) is a remedial rule to be

liberally construed so that the ends of justice may be served.” Kay v. Marc Glassman, 76 Ohio St.3d 18, 20 (1996), citing Colley v. Bazell, 64 Ohio St.2d 243,

249 (1980).

In order to prevail on a Civ.R. 60(B) motion, the moving party must

demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under one

of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness of the

motion. GTE Automatic Electric v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976),

paragraph two of the syllabus. The burden was upon M.E.H. to demonstrate her

entitlement to relief. See Rose Chevrolet at 21.

M.E.H. claims that she demonstrated the requirements for relief

under Civ.R. 60(B) but that none were discernibly considered by the trial court.

There is no question that M.E.H. demonstrated the timeliness of the motion, which

was filed two days after the CSPO was issued. M.E.H. also argues that she presented

a meritorious defense and that her failure to appear at the hearing on October 4,

2023, was, at worst, excusable neglect under Civ.R. 60(B)(1).

The Supreme Court of Ohio has previously defined “excusable

neglect” in the negative, stating that “the inaction of a defendant is not ‘excusable

neglect’ if it can be labeled as a ‘complete disregard for the judicial system.’” Kay,

76 Ohio St.3d 18, at 20, quoting GTE Automatic Electric at 153. “[T]he

determination of whether excusable neglect occurred ‘. . . must of necessity take into

consideration all the surrounding facts and circumstances.’” Rose Chevrolet, 36

Ohio St.3d at 21, quoting Colley, 64 Ohio St.2d at 249. M.E.H. argues that her failure to appear at the hearing on October 4,

2023, was not a disregard for the judicial process but was due to a

miscommunication and circumstances that constitute excusable neglect. She states

that there was prior litigation between the parties, that there were orders that were

already in place between them, that she did not delay in obtaining counsel to

represent her in this matter, that her counsel immediately filed for a continuance

because he needed time to prepare for the hearing, that she did not appear for the

hearing due to a miscommunication that occurred, and that the motion for

continuance was never even considered before the hearing. During the hearing on

the Civ.R. 60(B) motion, when the trial court asked counsel why M.E.H. did not

appear at the October 4 hearing, counsel explained these circumstances and argued

that there were severe consequences from the CSPO being granted without hearing

the full merits of the case. M.E.H., who did not wish to represent herself in the

matter, expressed that she knew her attorney was not going to be there, she was

scared to appear unrepresented, and she apologized to the court. It appears from

our review of the surrounding circumstances in this matter that M.E.H.’s failure to

appear was not a complete disregard for the judicial system and that she

demonstrated that excusable neglect occurred.

Our review also shows that M.E.H. sufficiently alleged a meritorious

defense. “Under Civ.R. 60(B), a movant’s burden is only to allege a meritorious

defense, not to prove that he will prevail on that defense.” Rose Chevrolet at 20,

citing Moore v. Emmanuel Family Training Ctr., 15 Ohio St.3d 64, 67 (1985). “‘Although proof of success is not required, the moving party must support its

alleged defense with operative facts that have enough specificity to allow the trial

court to judge the merits of the defense.’” Champlain Ents. L.L.C. v. Kuiper, 2023-

Ohio-3059, ¶ 19 (8th Dist.), quoting Home S. & L. of Youngstown v. Snowville

Subdivision Joint Venture, 2012-Ohio-4594, ¶ 18 (8th Dist.).

At the hearing on the Civ.R. 60(B) motion, counsel for M.E.H. argued

that M.E.H. should be given the opportunity to argue the merits of the matter, that

S.L.’s petition for the CSPO was frivolous, that M.E.H. and S.L. already had orders

against one another, that S.L. had made numerous unsubstantiated allegations to

the police, that part of this is “manipulating the system and taking advantage of

confusion” by M.E.H., and that S.L. was simply finding opportunities to “create

havoc” in M.E.H.’s life. Counsel further asserted that M.E.H. was no longer living at

the father’s residence because the child, who is a protected person, spends time at

his residence; that if M.E.H. were found in violation of the order, her employment

could be affected; and that she has a constant threat of being arrested. Under the

circumstances, counsel claimed that “when it comes to the interest of justice and

fairness,” relief from judgment is warranted.

During the same hearing, S.L. made arguments in support of the

CSPO and argued that M.E.H. was continuing to violate a consent order, which the

trial court reviewed. Counsel for M.E.H. argued that the consent order only involved

an order for M.E.H. to not be around on days that there was not visitation with the

child’s father and during parental exchanges of the child. M.E.H. also stated she had removed social media posts of images and/or videos of the child, as required by the

consent order, though this was disputed by S.L. After reviewing the terms of the

consent order that were already in place, the trial court stated that it was “going to

deny the motion for reconsideration” and that the CSPO would stand. However, the

matter was not before the court for reconsideration, and M.E.H. was not required to

prove her defense at the Civ.R. 60(B) hearing.

Finally, counsel for M.E.H. advocated against having the child

included in the CSPO, but the trial court indicated that the child was “on the consent

agreement” and that the court was not going to change anything. Yet, from the

record before us, it is questionable as to whether the requirements for including the

child under the CSPO were met.2

On appeal, M.E.H. argues that she was “prepared to present a four-

fold meritorious defense.” She claims that there were prior instances of misconduct

involving S.L., that a no-contact order and protection order were already in place,

that M.E.H.’s housing situation would be jeopardized by the CSPO at issue, and that

her employment and/or nursing license would be jeopardized. M.E.H. points to

arguments that were made at the hearing. We recognize that there are consequences

for any CSPO; that is not the crux of the analysis. Nonetheless, our review reflects

that operative facts were presented that, if proven, would support a meritorious

defense in the matter.

2 We make no determination on the merits of the matter. Indeed, we are not tasked

with determining whether appellee will actually prevail on her claim. After reviewing the record in this matter, we are unable to find that

the trial court acted within the bounds of its discretionary authority in denying the

motion for relief from judgment. Under the circumstances presented, we find that

M.E.H. established the requirements for Civ.R. 60(B) relief and that it is in the best

interests of justice to set aside the trial court’s decision to grant the CSPO and

remand the matter to the trial court for an expedited evidentiary hearing.

Judgment reversed; case remanded to the trial court with instructions

to conduct an expedited evidentiary hearing on the merits of the petition for the

CSPO.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. Case remanded to the

trial court for further proceedings.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and EILEEN T. GALLAGHER, J., CONCUR