[Cite as Studer v. Studer, 2012-Ohio-2838.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
RALPH STUDER,
PETITIONER-APPELLEE, CASE NO. 3-11-04
v.
BRENDA STUDER, OPINION
RESPONDENT-APPELLANT.
Appeal from Crawford County Common Pleas Court Domestic Relations Division Trial Court No. 05 DR 0306
Judgment Reversed and Civil Protection Order Vacated
Date of Decision: June 25, 2012
APPEARANCES:
Lori Ann McGinnis for Appellant
Geoffrey L. Stoll for Appellee Case No. 3-11-04
ROGERS, J.
{¶1} Respondent-Appellant, Brenda Studer (“Brenda” or “Respondent”),
appeals the judgments of the Court of Common Pleas of Crawford County,
Domestic Relations Division, granting the motion to continue the civil protection
order against her filed by Petitioner-Appellee, Ralph Studer (“Ralph” or
“Petitioner”). On appeal, Brenda argues that the trial court erred in hearing the
case and entering judgment when an affidavit of disqualification was filed with the
Ohio Supreme Court; that she was denied due process of law; and, that the trial
court erred in extending the civil protection order as Petitioner failed to meet his
burden by a preponderance of the evidence. Finding that Ralph failed to meet his
burden by a preponderance of the evidence, we reverse the decision of the trial
court and vacate the extension of the civil protection order.
{¶2} The procedural and substantive history of this case is rather bizarre.
The facts pertinent to the instant appeal are as follows. On November 18, 2005,
Ralph filed a petition for a civil protection order pursuant to R.C. 3113.31 against
his daughter, Brenda. In his petition, Ralph alleged that on November 16, 2005,
Brenda was verbally abusive to him, threw pop on him, and tried to hit him.
Ralph alleged that he and the rest of the family were afraid of her. The trial court
granted an ex parte order, to remain in effect until November 18, 2006. After a
full hearing on February 1, 2006, the trial court issued a civil protection order
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(“CPO”) to remain in effect until February 1, 2008.1 The order also included a
provision allowing Brenda weekly visitations with her mother, Elizabeth.2 On
January 25, 2008, Ralph filed a motion to continue the CPO, which the trial court
granted ex parte, to be effective until February 1, 2011.3 The trial court scheduled
a full hearing on the matter for February 11, 2008. Pursuant to an agreement
between the parties, the trial court ordered the CPO to remain in effect until
February 1, 2011.4 This judgment entry again provided for supervised visitation
between Brenda and her mother.
{¶3} On June 22, 2010, Brenda filed a motion to terminate the protection
order and to enforce visitation with Elizabeth (“Motion to Terminate”). Ralph
filed a motion to dismiss (“Motion to Dismiss”) arguing that the trial court did not
have personal jurisdiction over Elizabeth.5 The trial court set a hearing on the
motions for December 6, 2010. Before the hearing, Ralph filed a motion to
continue the CPO (“Motion to Continue”) and for a mental health examination of
Brenda (“Motion for Mental Examination”).
{¶4} On November 26, 2010, Brenda filed an affidavit of disqualification
of Judge Wiseman with the Ohio Supreme Court. The Ohio Supreme Court
1 The record is devoid of any evidence that establishes the trial court’s findings. However, we must presume regularity. 2 We note, however, that Elizabeth was not named in the petition and was not a party to the proceedings. 3 We find no authority for the issuance of an ex parte order extending the effective date of a CPO. 4 The trial court did not hold a full hearing as required by R.C. 3113.31(E)(1). 5 While we agree there was no authority to include orders affecting a non-party, we find Ralph’s objection interesting since visitation with the mother had been included twice before.
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denied the same on December 6, 2010. Judge Wiseman, however, voluntarily
recused himself and his magistrates from further proceedings in the matter on
December 2, 2010, referred the matter to the Ohio Supreme Court for the
appointment of a visiting judge, and vacated the December 6, 2010 hearing date.
The Ohio Supreme Court then assigned Judge Galvin as a visiting judge to preside
over and conclude the proceedings.6
{¶5} On January 5, 2011, the trial court scheduled a hearing for January 14,
2011. On January 7, 2011, Brenda moved for a continuance so that she could have
more time to serve subpoenas. The trial court denied the motion. On January 12,
2011, Ralph and the Crawford County Job and Family Services filed motions to
quash subpoenas. The trial court ostensibly granted Ralph’s motion to quash on
the same day and Crawford County Job and Family Services’ motion on January
14, 2011, both without a hearing or allowing Brenda an opportunity to respond.
On January 13, 2011, Brenda filed a motion to compel the presence of witnesses
and for a continuance, which was denied.7 She also filed an affidavit to disqualify
Judge Galvin with the Ohio Supreme Court on January 14, 2011, which was
denied on January 25, 2011.
6 The assignment was effective December 8, 2010, but was not filed with the Crawford County Clerk of Courts Office until January 13, 2011. 7 Brenda’s motion was filed on a single sheet of paper. Docket No. 70. The denial was not in the form of a ruling in a separate document, but was simply a notation on the same paper as the motion. Judge Galvin’s name was written by someone other than the judge who apparently was given permission over the telephone to sign for the judge.
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{¶6} At the January 14, 2011 hearing, the trial court instructed its case
manager to speak on the record regarding the affidavit of disqualification alleged
to have been filed with the Ohio Supreme Court. The case manager stated that at
9:30 that morning, she called James Bambino at the Ohio Supreme Court who
informed her that no affidavit of disqualification had been filed with the Ohio
Supreme Court. Accordingly, the trial court continued to hear the case.
{¶7} Donna Durtschi, Ralph’s daughter and Brenda’s sister, stated that if
the CPO was not extended, her families’ lives and her parents’ lives would
continue to be “a life of hell with no peace.” Hearing Tr., p. 20. She testified that
Ralph is in a very delicate condition as he has had two aortic aneurysms and very
unstable blood pressure. She feared that any type of altercation with Brenda
would kill him.
{¶8} Jennifer Dornbirer, another of Ralph’s daughters and Brenda’s sister,
testified that she believes Brenda is an ongoing danger to Ralph due to his poor
health. She believes that the CPO should continue because Ralph is not strong
enough to have a confrontation with Brenda. She testified that Ralph told her the
same.
{¶9} Scott Robertson, the Police Chief of New Washington then testified as
Brenda’s witness. He stated that in 2004 or 2005 Brenda filled out a police report
regarding an argument between her and Ralph that escalated into Ralph hitting
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her; Brenda then poured a small amount of pop on Ralph. Police Chief Robertson
testified that Brenda did not want to press charges against Ralph at that time. He
stated that he did not see any physical evidence to support Brenda’s claim that
Ralph hit her as she reported the incident several weeks after it occurred. He also
testified that Brenda and Ralph’s relationship was hostile before the filing of the
petition for the CPO. In response to the trial court’s questioning, Police Chief
Robertson testified that he has never personally observed any indication of abuse
or assault on any of the members of the household since 2006. He concluded by
testifying that Ralph’s health was deteriorating and that Ralph would have a small
chance of protecting himself if Brenda were to attack him.
{¶10} David Studer, Ralph’s son and Brenda’s brother, testified as
Brenda’s witness. He stated that he has lived at Ralph and Elizabeth’s home for
over forty years. He testified that he has seen Ralph hit Brenda, and that family
members have threatened him that if he continues to help Brenda, he will have to
leave Ralph and Elizabeth’s home. He said that he had a conversation with Ralph
about Ralph’s desire to drop the CPO, but that Ralph did not drop it due to threats
made by other family members. He stated that he sent letters to the other family
members about Brenda and Ralph’s situation but that he did not show the letters to
Ralph for fear he would become upset. He testified that he never witnessed any
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attempt by Brenda to hit Ralph, but that she did put sprinkles of pop on Ralph’s
head.
{¶11} On cross-examination, David testified that Ralph has a very serious
heart problem, and that Ralph is not supposed to be under any stress as it could kill
him. He stated that Brenda and Ralph’s relationship is not good as they argue
frequently. David explained that there was an incident with Brenda while she was
driving her vehicle. He testified that when Brenda was backing up, Ralph moved
out of the way, but that his movement was not sudden. He testified that whether
Brenda was trying to hit Ralph is “subject to interpretation.” Hearing Tr., p. 167.
He testified that Ralph would be safer if he had no contact with Brenda. He
testified that Brenda makes telephone calls to the house.
{¶12} Lastly, Brenda testified that she was never a threat to her father and
never violent toward him. She testified that she would never go to the house if she
thought it would put her father’s life at risk.
{¶13} On January 21, 2011, the trial court filed a judgment entry denying
the Motion to Terminate and granting the Motion to Dismiss. On January 28,
2011, the trial court filed a supplemental judgment entry extending the CPO until
January 31, 2016. In the supplemental judgment entry the trial court stated:
The uncontroverted testimony established that the Petitioner, Ralph C. Studer, suffers from a multitude of medical conditions that have left him in [a] severely compromised medical state. This same
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evidence further established that exposing Petitioner to any type of conflict is likely to have serious adverse consequences to his health.
Also established by testimony was the fact that the relationship between Petitioner and Respondent prior to the establishment of the Civil Protection Order was filled with conflict. The testimony further established that, during the period of time that the Civil Protection [O]rder has been in place, the Respondent has violated that Order by calling the Petitioner’s home. Docket No. 76.
{¶14} It is from these judgments Brenda appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL JUDGE ERRED IN PROCEEDING TO HEAR AND TO ENTER JUDGMENT IN THIS CASE WHEN AN AFFIDAVIT OF DISQUALIFICATION WAS FILED WITH THE OHIO SUPREME COURT AGAINST HER AND SHE HAD NOTICE OF THE AFFIDAVIT OF DISQUALIFICATION BOTH AT THE TIME SHE HEARD AND ENTERED JUDGMENT IN THE CASE.
Assignment of Error No. II
THE RESPONDENT WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDEMENT (sic) TO THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THE STATE OF OHIO AND THE LAWS OF THE STATE OF OHIO, WHEN THE TRIAL JUDGE DENIED HER THE OPPORTUNITY TO RETAIN COUNSEL TO REPRESENT HER, THE OPPORTUNITY TO CROSS-EXAMINE THE PROSECUTING WITNESS AGAINST HER, RALPH STUDER, AND THE OPPORTUNITY TO COMPEL THE ATTENDANCE OF WITNESSES ON HER BEHALF, AND THE OPPORTUNITY TO NOTICE AND A HEARING ON HER MOTIONS PENDING BEFORE THE COURT.
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Assignment of Error No. III
THE TRIAL JUDGE ERRED IN ISSUING AN EXTENSION OF THE CIVIL PROTECTION ORDER UNTIL JANUARY 31, 2016 WHERE THE PETITIONER DID NOT MEET HIS BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE.
{¶15} Due to the nature of Brenda’s assignments of error, we elect to
address her third assignment of error first as it is dispositive.
{¶16} In her third assignment of error, Brenda argues that the trial court
erred in extending the CPO for an additional five years as Ralph failed to establish
by a preponderance of the evidence that Brenda committed an act of or threatened
domestic violence. Further, Brenda argues, that since the original CPO was
entered pursuant to an alleged consent agreement, there was never a finding of an
act of domestic violence.8 Brenda urges, therefore, that Ralph has not established
by a preponderance of the evidence that the CPO should have been extended.
{¶17} Ralph contends that the trial court did not abuse its discretion in
granting the extension of the CPO. Ralph highlights testimony from the hearing
which, he argues, establishes his fragile medical condition, the conflict-ridden
nature of his relationship with Brenda, and the risk that his medical conditions
could worsen if triggered by stress from contact with Brenda.
8 The initial CPO was granted after a full hearing. It was extended pursuant to the consent agreement.
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Standard of Review
{¶18} A trial court’s decision to grant or deny a civil protection order is
reviewed under an abuse of discretion standard. Deacon v. Landers, 68 Ohio
App.3d 26, 31 (4th Dist. 1990). See also Newhouse v. Williams, 167 Ohio App.3d
215, 223, 2006-Ohio-3075 (3d Dist.). A trial court will be found to have abused
its discretion when its decision is contrary to law, unreasonable, not supported by
the evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-
Ohio-278, ¶ 17-18, citing Black’s Law Dictionary 11 (8th Ed.2004). When
applying the abuse of discretion standard, a reviewing court may not simply
substitute its judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
Extension of Civil Protection Order
{¶19} The purpose of a civil protection order issued pursuant to R.C.
3113.31 is to provide the petitioner or other household members with protection
from domestic violence. Thomas v. Thomas, 44 Ohio App.3d 6, 7 (10th Dist.
1988). When a petitioner seeks a civil protection order pursuant to R.C. 3113.31,
“the trial court must find that petitioner has shown by a preponderance of the
evidence that petitioner . . . [is] in danger of domestic violence.” Felton v. Felton,
79 Ohio St.3d 34 (1997), paragraph two of the syllabus.
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{¶20} Domestic violence, as the basis for a civil protection order, is defined
in R.C. 3113.31(A)(1) as:
(a) Attempting to cause or recklessly causing bodily injury; (b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 or 2911.211 of the Revised Code; (c) Committing any act with respect to a child that would result in the child being an abused child . . . ; (d) Committing a sexually oriented offense.
{¶21} A thorough review of the record reveals that no finding of domestic
violence was made on the record until the hearing on January 14, 2011, during
which the trial court made the cursory statement: “I have reviewed the file . . . and
it’s apparent that the violence occurred, no matter what it is that was said here
today; that the opportunity for appeal is long gone, and the only issue is whether a
man who two doctors appear to have said hangs onto life by a thread is going to be
protected.” Hearing Tr., p. 215. Given the testimony at the hearing and the
evidence in the record, the trial court’s finding of domestic violence could only
refer to something that occurred prior to the issuance of the original CPO in 2005,
as the record reveals no finding or evidence of any conflict since that time.
{¶22} Assuming domestic violence occurred prior to 2005, the issue
becomes whether a preponderance of the evidence at the January 14 hearing
established the need for an extension. In determining whether to grant an
extension of a civil protection order, Ohio courts have looked to several relevant
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factors, although there is little informative case law on the matter. Past acts of
domestic violence may serve as the basis for an extension of a civil protection
order when coupled with new threats of domestic violence. See Woolum v.
Woolum, 131 Ohio App.3d 818, 822 (12th Dist. 1999), Lain v. Ververis, 12th Dist.
No. CA99-02-003 (Oct. 18, 1999), Anderson v. Anderson, 7th Dist. No. 00-C.A.-
89 (Dec. 19, 2001). See also Welch v. Staggs, 4th Dist. No. 08CA3216, 2009-
Ohio-379, ¶ 20-21 (trial court did not abuse its discretion in denying a renewal of a
CPO as the petitioner failed to report any alleged incidents of domestic violence or
alleged violations of the initial CPO to law enforcement or to the court).
{¶23} There must also be evidence that the petitioner has a reasonable fear
of serious physical harm based on new threats of domestic violence should the
trial court grant the motion to extend the CPO. Woolum at 822 (past acts of
domestic violence coupled with recent threats and the petitioner’s fear for her
safety justified the renewal of the civil protection order); Patton v. Patton, 5th
Dist. No. CT2009-0031, 2010-Ohio-2096, ¶ 35-75 (testimony established that
based on past acts of domestic violence petitioner had a continued fear for her
safety if the civil protection order was not renewed). Whether the petitioner has a
reasonable fear of serious physical harm is a two-part test, requiring both a
subjective and an objective inquiry. Smith v. Burroughs, 3d Dist. No. 16-09-23,
2010-Ohio-4806, ¶ 16, citing Williamson v. Williamson, 180 Ohio App.3d 260,
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2008-Ohio-6718, ¶ 47, citing Strong v. Bauman, 2d Dist. Nos. 17256, 17414 (May
21, 1999). The subjective analysis requires that the petitioner testify both about
the act and the fear caused by the act. See Williamson, 180 Ohio App.3d at ¶ 47,
citing Henry v. Henry, 4th Dist. No. 04CA2781, 2005-Ohio-67, ¶ 19-22, citing
Ohio Domestic Violence Law, 8.7, at 254 (2004).
{¶24} Change in circumstances and the severity of the physical injury or
the nature of the domestic violence have also been considered in determining the
propriety of granting a civil protection order. Williamson at ¶ 57-60.
{¶25} Giving due deference to the trial court’s determination that a past act
of domestic violence occurred, we find, nonetheless that the trial court abused its
discretion by granting the extension of the CPO. First and foremost, no evidence
was presented as to Brenda’s current threats of domestic violence, i.e., any threats
occurring since the initial CPO was granted in 2005. In fact, the evidence
established the opposite. David testified that in the past five years Brenda has not
come over to the house. Hearing Tr., p. 181. Brenda testified that she has not
seen or talked to her parents in five years. Hearing Tr., p. 195. Further, there was
no testimony that Brenda attempted to contact Ralph since the initial 2005 CPO.
{¶26} Secondly, the record is devoid of any affirmative or specific
statement made by Ralph to establish his current fear of serious physical harm. He
failed to appear at the hearing to testify regarding the alleged acts of domestic
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violence or the fear he suffered as a result of those acts. In fact, the trial court
prevented Brenda from obtaining Ralph’s testimony when it arbitrarily quashed
her subpoena of him.9 Moreover, there was no offer of any sworn statement or
deposition. While this Court is sensitive to appellee’s fragile medical state, we
nonetheless, cannot engage in conjecture.
{¶27} In this case, the record reveals that Ralph not only failed to provide
any affirmative statement or testimony regarding his fear, but the witnesses
testifying on his behalf did not possess first-hand, personal knowledge of his fear.
Rather, the Petitioner’s witnesses, two of his daughters, testified about their
subjective fear that Ralph would not be able to defend himself against an attack or
that stress caused by a confrontation with Brenda would ultimately kill Ralph.
As there is no evidence of Ralph’s subjective fear, we need not address whether
this fear, if it exists, is reasonable.
{¶28} Lastly, the severity of the apparent initial act of domestic violence is
highly suspect. As there was no finding on the record as to what action constituted
domestic violence, we are prohibited from analyzing its nature or the severity of
any injury sustained by Ralph.
{¶29} It is apparent that the trial court, rather than applying the foregoing
factors, aimed to protect Ralph due to his medical condition, as evidenced by its
9 We find nothing in the record to indicate the petitioner complied with Civil Rule 45(C)(4) in his motion to quash, or that Brenda was permitted an opportunity to show a substantial need pursuant to Civil Rule 45(C)(5).
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statement that “the only issue is whether a man who two doctors appear to have
said hangs onto life by a thread is going to be protected.” Hearing Tr., p. 215.
“Restrictions must bear a sufficient nexus to the conduct that the trial court is
attempting to prevent.” Newhouse, 167 Ohio App.3d 215, 2006-Ohio-3075, at ¶
16. Here, the conduct the trial court is attempting to prevent is any conduct which
may cause Ralph to experience adverse health consequences due to stress. The
purpose of a civil protection order, however, is not to protect people from adverse
health effects; the purpose is to protect people from domestic violence. Thomas,
44 Ohio App.3d at 7.
{¶30} Accordingly, we find that a petitioner’s fragile medical condition
alone cannot provide the basis for a civil protection order issued pursuant to R.C.
3113.31. Without evidence of Petitioner’s reasonable fear of and Respondent’s
ongoing threats of future domestic violence, especially in light of the weak
evidence regarding past domestic violence, the extension of the domestic violence
civil protection order, in this case, is not the proper means to protect Petitioner.
We therefore find that the trial court abused its discretion in extending the CPO
based on Ralph’s medical condition.
{¶31} Accordingly, we sustain Brenda’s third assignment of error.
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{¶32} Due to our resolution of Brenda’s third assignment of error, her first
two assignments of error are rendered moot and we decline to address them.
App.R. 12(A)(1)(c).
{¶33} Having found error prejudicial to Brenda herein, in the particulars
assigned and argued in the third assignment of error, we reverse the judgment of
the trial court and vacate the extension of the civil protection order.
SHAW, P.J., Dissents. PRESTON, J., concurs in Judgment Only.
/jlr
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