Snell v. Snell

2012 Ohio 2159

• Court: Ohio Court of Appeals
• Decided: May 14, 2012
• Docket: 11 CA 64
• Status: Published

Opinion

[Cite as Snell v. Snell, 2012-Ohio-2159.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

DIANE SNELL JUDGES: Hon. W. Scott Gwin, P. J. Petitioner-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 11 CA 64 DOUGLAS D. SNELL

Respondent-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2009 CPO 1371

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 14, 2012

APPEARANCES:

For Petitioner-Appellee For Respondent-Appellant

DOUGLAS D. SNELL 7340 Garber Road Bellville, Ohio 44813 Richland County, Case No. 11 CA 64 2

Wise, J.

{¶1} Appellant Douglas D. Snell appeals the decision of the Richland County

Court of Common Pleas, Domestic Relations Division, which denied his motion to

terminate a domestic violence civil protection order (“DVCPO”). Appellee Diane L. Snell

is appellant’s spouse. The relevant facts leading to this appeal are as follows.

{¶2} Appellant and appellee are married, but living separate and apart. Four of

their children are currently minors. In 2005, appellee obtained a civil protection order

against appellant, which this Court subsequently affirmed. See Snell v. Snell, Richland

App.No. 2006-CA-16, 2006-Ohio-2899 (“Snell I”).

{¶3} On October 7, 2009, appellee filed a subsequent petition for a domestic

violence civil protection order. The trial court issued an ex parte civil protection order

on the same day.

{¶4} On October 23, 2009, the court conducted a full hearing, and entered a

domestic violence civil protection order effective until October 7, 2014. The order

directed appellant, inter alia, to not abuse appellee by harming, attempting to harm,

threatening, following, stalking, harassing, forcing sexual relations upon, or committing

sexually oriented offenses against her. The civil protection order also made appellee

legal custodian and residential parent of the parties' four minor children, and granted

appellant parenting time in accordance with the court's local rules.

{¶5} Appellant directly appealed the 2009 CPO to this Court. On May 14, 2010,

we affirmed the trial court’s decision. See Snell v. Snell, Richland App.No. 09-CA-134,

2010-Ohio-2245. (“Snell II”). Richland County, Case No. 11 CA 64 3

{¶6} On February 28, 2011, appellant filed a pro se motion to dismiss or

terminate the CPO. The matter proceeded to a hearing before a magistrate on May 24,

2011. Rather than issue a separate judgment entry, the magistrate effectively denied

the motion to terminate by issuing a new CPO, using a standard “Form 10.01-I” order,

maintaining the termination date of 2014. The new CPO, with parenting orders, was

signed by the judge and filed on June 6, 2011.

{¶7} On June 20, 2011, appellant filed an objection to and/or motion to

reconsider the magistrate’s decision. The record does not indicate that any additional

orders or judgment entries were issued by the trial court.

{¶8} Appellant filed a notice of appeal on July 1, 2011. He herein raises the

following eighteen Assignments of Error:

{¶9} “I. THE COURT COMMITTED A PLAIN ERROR, OR DUE PROCESS

VIOLATION OF LAW, IN ALLOWING, ADMITTING INTO THE RECORD OR

CONSIDERING ANY REFERENCE OR EVIDENCE ETC CONTAINED IN OR

CONCERNING A ‘NO CONTEST’ PLEAD CASE OF THE RESPONDENT.

{¶10} “II. THE COURT ERRED AS A MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING ANY EVIDENCE CONSIDERED OR ALLOWED CONCERNING

ANYTHING BUT DOMESTIC VIOLENCE AND DUE PROCESS RIGHTS OF THE

RESPONDENT.

{¶11} “III. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING DUE PROCESS AND SUBSTANTIAL RIGHTS REGARDING

THE COURT DISALLOWING THE RESPONDENT TO PRESENT EVIDENCE OF NO Richland County, Case No. 11 CA 64 4

DV EVEN AFTER THE RESPONDENT LEARNED OF INAPPROPRIATE ACTIONS

OF THE PETITIONER.

{¶12} “IV. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING THE COURT CONCLUSIONS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE, DUE PROCESS. THE COURT LIMITED THE

RESPONDENT TO TESTIMONY, EVIDENCE AND HIS ARGUMENT TO

INFORMATION REGARDING 'DV ONLY', THUS SHOULD ITS DECISION BASED ON

(SIC).

{¶13} “V. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING DUE PROCESS, FAIR HEARING OR OTHER RIGHTS, BY

REQUIRING THE RESPONDENT TO REMOVE HIS GLASSES (EVEN THOUGH THE

BAILIFF WAS INFORMED THE RESPONDENT HAS A PRESCRIPTION FOR THEM)

AND NOT BEING ALLOWED TO WEAR THEM IN THE COURTROOM. THE

RESPONDENT HAS MEDICAL PURPOSE WITH DOCTOR'S ORDERS TO WEAR

GLASSES (SEE ATTACHED PRESCRIPTION), YET THE COURT'S BAILIFF

REQUIRED THE RESPONDENT REMOVE HIS GLASSES PRIOR TO ENTERING

THE COURTROOM.

{¶14} “VI. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING THE INAPPROPRIATE CONDUCT OF THE COURT IN

ALLOWING ACCESS TO THE COURT BY THE PETITIONER'S COUNCIL (SIC)

THAT IS NOT RECIPROCATED TO THE RESPONDENT. THE COURT ALLOWS

ACCESS BY THE PETITIONER'S COUNCIL (SIC) THAT THE RESPONDENT IS NOT

GRANTED; AND THE COURT HAS MET AND DISCUSSED MATTERS PENDING Richland County, Case No. 11 CA 64 5

BEFORE THE COURT WITH OPPOSING COUNCIL (SIC) OUTSIDE THE

PRESENCE OF THE RESPONDENT ON SEVERAL OCCASIONS.

{¶15} “VII. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING THE CONTINUED VIOLATIONS OF LAW AND RIGHTS,

AGAINST THE RESPONDENT, PARTICULARLY, DUES (SIC) PROCESS AND, THE

USE OF AN UNCONSTITUTIONAL OR VAGUE STATUTE TO VIOLATE THE

RIGHTS OF THE RESPONDENT AS WELL AS VIOLATE THE RULES AND

PRECEDENCE OF CASE LAW.

{¶16} “VIII. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING DENIAL OF DUE PROCESS OR OTHER RIGHTS OF THE

RESPONDENT BY THE COURT'S REFUSAL TO ALLOW THE RESPONDENT TO

PRESENT EVIDENCE (OR REVISIT THE ISSUE) OF THE CPO NOT BEING

ORIGINALLY BASED ON DV OR THREATS. AND THUS A CPO NOT PROPERLY

FOUNDED ACCORDING TO THE LAW WHICH ADD TO THE GROUNDS FOR

DISMISSAL.

{¶17} “IX. THE COURT ERRED AND ARGUMENT IS MADE REGARDING THE

UNCONSTITUTIONAL LAW (USE OF AND ORDERS FROM) ORC 3113.31 AS IT

UNFAIRLY DISCRIMINATES AGAINST MEN AS BEING UNFAIR OR VIOLATING

THE EQUAL PROTECTION CLAUSE, 5TH AND 14TH AMENDMENT AND OTHER

SUBSTANTIAL RIGHTS OF THE RESPONDENT.

{¶18} “X. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING AGAINST MANIFEST WEIGHT OF EVIDENCE ITS FINDING

THE CPO IS STILL NECESSARY. Richland County, Case No. 11 CA 64 6

{¶19} “XI. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING DUE PROCESS, FAIR HEARING, RULES OF EVIDENCE AS

WELL AS OTHER RIGHTS OF THE RESPONDENT REGARDING THE COURT NOT

ALLOWING TESTIMONY REGARDING WHAT HAS HAPPENED TO THE CHILDREN

SINCE THE CPO HAS BEEN IN EFFECT.

{¶20} “XII. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING THE COURT(S) AND GOVERNMENT USING AND ALLOWING

THE CONSTITUTIONAL RIGHTS OF THE RESPONDENT TO BE VIOLATED BY

RESULTS OF THE STATUTE AND SUBSEQUENT ORDERS OF THE COURT OF

THIS MATTER.

{¶21} “XIII. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING DUE PROCESS AND AN UNBIASED TRIBUNAL. IN HIS FINAL

ORDER THE MAGISTRATE WRITE 'THE REFERENCES IN THE LETTERS

FURTHER DEMONSTRATE THAT BECAUSE OF THE CHILDREN THE MOTHER

CONTINUES TO OCCUPY THE THOUGHTS OF THE RESPONDENT, CAUSING

HIM TO COMMUNICATE ABOUT HER.'

{¶22} “XIV. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING THE USE OF A VAGUE AND ARBITRARY STATUTE TO

VIOLATE THE DUE PROCESS AND SUBSTANTIAL RIGHTS OF THE

{¶23} “XV. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING THE COURT'S ORDER'S (SIC) AND DECISIONS AND THEIR

EFFECTS TO OF (SIC) A VIOLATION OF THE RESPONDENT'S CONSTITUTIONAL Richland County, Case No. 11 CA 64 7

RIGHTS AND HIS RIGHT OF FREE SPEECH AND OTHER LIBERTIES INCLUDING

A VAGUENESS VIOLATION.

{¶24} “XVI. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT IS

MADE REGARDING THE VIOLATION OF DUE PROCESS OR A VIOLATION OF THE

5TH AND 14TH AMENDMENTS BY ISSUING ORDER'S (SIC) OF THE COURT

DEPRIVING THE RESPONDENT OF THE PROTECTIONS AND GUARANTEES

AFFORDED ALL CITIZEN (SIC) OF THE U.S.A.

{¶25} “XVII. THE COURT ERRED AS MATTER OF LAW AND ASSIGNMENT

IS MADE REGARDING THE USE OF A VAGUE AND ARBITRARY STATUTE AND

OR VAGUE AND ARBITRARY COURT ORDERS TO VIOLATE THE DUE PROCESS

AND SUBSTANTIAL RIGHTS OF THE RESPONDENT.

{¶26} “XVIII. THE COURT ERRED AND ARGUMENT IS MADE REGARDING

THE STATUTE ORC 3113.31 AND/OR 2919.27, OR THE COURT'S CPO ORDERS

AND ACTIONS ARE A VIOLATION OF THE RESPONDENT'S RIGHTS TO EQUAL

PROTECTION UNDER THE LAW OF THE FOURTEENTH AMENDMENT, DUE

PROCESS AND OTHER GUARANTEES BY THE CONSTITUTION OR LAW.”

{¶27} As an initial procedural matter, we note 3113.31(E)(8)(b) states in

pertinent part: “Either the petitioner or the respondent of the original protection order or

consent agreement may bring a motion for modification or termination of a protection

order or consent agreement that was issued or approved after a full hearing. ***.” As

noted in our recitation of the facts, although the motion to terminate the CPO was

heard by the magistrate, following which appellant filed an objection, appellant

nonetheless proceeded to file a notice of appeal to this Court. Ordinarily, we would be Richland County, Case No. 11 CA 64 8

inclined to remand the case to the trial court to rule on the pending objections under

Civ.R. 53. However, in Calzo v. Lynch, Richland App.No. 11CA45, 2012-Ohio-1353,

we considered the fact that Form 10.01-I judgment entries for civil protection orders

lack conspicuous language informing the parties of their responsibility to object to the

magistrate’s decision. We thus determined that “an Order of Protection issued by a

magistrate and simultaneously signed by a judge utilizing Form 10.01–I is a final,

appealable order ***.” Id. at ¶36.

{¶28} We therefore find it unnecessary to order a remand for the trial court judge

to review the objections to the magistrate’s decision under the circumstances of this

case.

I., II., III., XI.

{¶29} In his First, Second, Third, and Eleventh Assignments of Error, appellant

argues the trial court erred and/or violated his right to due process by allowing or

disallowing certain evidence during the hearing before the magistrate. We disagree.

{¶30} Pursuant to Evid.R. 611(A), a trial court “shall exercise reasonable control

over the mode and order of interrogating witnesses and presentation of evidence so as

to * * * avoid needless consumption of time[.]” Alleged errors based on violations of

Evid.R. 611 are reviewed under the abuse of discretion standard. Ward v. Patrizi,

Geauga App.No. 2010–G–2994, 2011-Ohio-5100, ¶ 37, citing Marshall v. Scalf,

Cuyahoga App.No. 88708, 2007–Ohio–3667, at ¶ 28–29. An abuse of discretion

implies that the court's attitude is unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Furthermore, an appellant's

brief is required to present “[a]n argument containing the contentions of the appellant Richland County, Case No. 11 CA 64 9

with respect to [the] assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the

record on which appellant relies,” as per the requirements set forth in App.R. 16(A)(7).

{¶31} Appellant’s brief consistently fails to direct us to any specific points in the

transcript to support his claims that the magistrate improperly regulated the introduction

of evidence. However, a review of the transcript in toto does not lead us to conclude

that the magistrate’s management of the hearing constituted an abuse of discretion.

{¶32} Accordingly, appellant’s First, Second, Third, and Eleventh Assignments

of Error are overruled.

IV., X.

{¶33} In his Fourth and Tenth Assignments of Error, appellant argues the trial

court’s decision that the CPO would remain in effect was against the manifest weight of

the evidence. We disagree.

{¶34} In seeking to terminate a CPO, the moving party has the burden of proof

to show, by a preponderance of the evidence, that termination of a CPO is appropriate

because either the CPO is no longer needed or because the terms of the original CPO

are no longer appropriate. Twitty v. Bowe, Franklin App.No. 09-AP953, 2010-Ohio-

1391, ¶7. A civil judgment which is supported by competent and credible evidence may

not be reversed as being against the manifest weight of the evidence. State v. McGill,

Fairfield App.No. 2004–CA–72, 2005–Ohio–2278, ¶ 18. As an appellate court, we must

give deference to the findings of the trial court because the trial court is best able to

view the witnesses and observe their demeanor, gestures, and voice inflections, and to Richland County, Case No. 11 CA 64 10

weigh the credibility of the testimony. Seasons Coal Company, Inc. v. City of Cleveland

(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

{¶35} The gist of appellant’s argument seems to go to the issue of whether proof

of domestic violence or threat of domestic violence was demonstrated in this case.

However, appellant again fails to direct us to specific record citations to support his

claims. See App.R. 16(A)(7), supra. Based on our review of the record and the

transcript of the May 24, 2011 hearing, we are unpersuaded that the court’s decision to

maintain the CPO was against the manifest weight of the evidence.

{¶36} Appellant’s Fourth and Tenth Assignments of Error are overruled.

V.

{¶37} In his Fifth Assignment of Error, appellant contends he was denied due

process of law when he was required to remove his prescription sunglasses before

entering the courtroom. We disagree.

{¶38} Appellant again does not identify the portions of the record to support his

argument, although it appears doubtful that his interaction with the bailiff prior to the

hearing would have been recorded. Nonetheless, in order to secure reversal of a

judgment, a party on appeal must generally show that a recited error was prejudicial.

See Tate v. Tate, Richland App.No. 02–CA–86, 2004–Ohio–22, ¶ 15 (additional

citations omitted). Based on appellant’s limited argument in this regard, we are unable

to conclude that appellant was denied due process of law.

{¶39} Appellant’s Fifth Assignment of Error is overruled. Richland County, Case No. 11 CA 64 11

VI., XIII.

{¶40} In his Sixth and Thirteenth Assignments of Error, appellant contends the

trial court was biased and engaged in inappropriate behavior.

{¶41} Upon review of appellant’s brief, we find this Court is not the proper forum

in which to address these claims. See, e.g., In re F.M., Tuscarawas App.No. 2011 AP

07 0029, 2012-Ohio-1082, ¶ 72.

{¶42} Appellant’s Sixth and Thirteenth Assignments of Error are overruled.

VII., VIII., IX., XII., XIV., XV., XVI., XVII., XVIII.

{¶43} In his Seventh, Eighth, Ninth, Twelfth, Fourteenth, Fifteenth, Sixteenth,

Seventeenth, and Eighteenth Assignments of Error, appellant contends the trial court’s

decision under R.C. 3113.31 violated his rights to due process, equal protection, and

other constitutional guarantees, and that the civil protection statutes are

unconstitutionally vague. We disagree.

{¶44} It is well-established in Ohio that statutes are presumed to be

constitutional unless shown beyond reasonable doubt to violate a constitutional

provision. See Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 352, 639

N.E.2d 31. We note that in appellant’s 2006 appeal to this Court, i.e., Snell I, he raised

twenty-one (out of a total of forty-nine) assigned errors based on constitutional

challenges to the civil protection statutory scheme. We rejected all of appellant’s said

challenges at that time, and our review of appellant’s present arguments does not

persuade us that R.C. 3113.31 is unconstitutional.

{¶45} Appellant’s Seventh, Eighth, Ninth, Twelfth, Fourteenth, Fifteenth,

Sixteenth, Seventeenth, and Eighteenth Assignments of Error are overruled. Richland County, Case No. 11 CA 64 12

{¶46} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, Richland County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.

___________________________________

JUDGES JWW/d 0430 Richland County, Case No. 11 CA 64 13

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

DIANE SNELL : : Petitioner-Appellee : : -vs- : JUDGMENT ENTRY : DOUGLAS D. SNELL : : Respondent-Appellant : Case No. 11 CA 64

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

judgment of the Court of Common Pleas, Domestic Relations Division, Richland County,

Ohio, is affirmed.

Costs assessed to Respondent-Appellant.

JUDGES