Saqr v. Naji , 2017 Ohio 8142 ( 2017 )

[Cite as Saqr v. Naji, 2017-Ohio-8142.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
AMEERA SAQR, : APPEAL NO. C-160850
TRIAL NO. DV1600130
Petitioner-Appellee, :
vs. : O P I N I O N.
SELIM NAJI, :
Respondent-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 11, 2017
Cathy Cook, for Petitioner-Appellee,
Selim Naji, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Respondent-appellant Selim Naji appeals the trial court’s denial of his
motion to terminate a domestic violence civil protection order (“CPO”). Because we
hold that there was no error in the trial court’s decision, we affirm its judgment.
Background
{¶2} On February 11, 2016, petitioner-appellee Ameera Saqr filed a petition
for a CPO against Naji, her then-husband. Saqr sought the CPO following an
incident of alleged domestic violence that occurred at the couple’s home on February
10, 2016. Saqr also requested protection for the couple’s three children. The same
day that Saqr filed her petition, the magistrate entered an ex parte CPO against Naji
that prevented him from contacting Saqr and the children. The magistrate ordered a
full hearing on the CPO, which took place on March 2, 2016. At the full hearing, Saqr
played several recordings she had taken with her phone during verbal altercations
with Naji. The parties spoke a mixture of English and Arabic in these recordings,
and an interpreter translated the Arabic portions.
{¶3} The magistrate issued a “full hearing” CPO on April 11, 2016. The
order stated that it would be effective until February 11, 2017, and included extensive
factual findings. The CPO also stated that “[t]he parties’ minor children are made
protected persons under this order.”
{¶4} On April 21, 2016, Naji filed objections to the magistrate’s decision.
On July 21, 2016, Naji filed a supplement to his objections that challenged several of
the magistrate’s factual findings and argued that the children should not have been
made protected parties under the CPO. The trial court held a hearing on Naji’s
objections the same day.
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{¶5} On August 5, 2016, the trial court issued an entry on Naji’s objections.
In pertinent part, the entry stated: “The Court finds it is against the manifest weight
of the evidence to name the minor children * * * as protected persons. * * * The
DVCPO with regard to [Saqr] remains in full force and effect.” On August 22, 2016,
the trial court entered a new “full hearing” CPO that contained exactly the same
factual findings as the April 11, 2016 CPO, except that one sentence was struck
through: “The parties’ minor children are made protected persons under this order.”
The CPO continued to state that it was effective until February 11, 2017, and
indicated that it was final and appealable.
{¶6} On August 12, 2016, Naji filed a motion to terminate the CPO. The
motion stated, in pertinent part, that “the civil protection order should be terminated
due to the Petitioner committing fraud upon the court by playing editted [sic]
versions of audio of alleged domestic violence events.”
{¶7} On August 25, 2016, the magistrate held a hearing on Naji’s motion.
Naji argued that the interpreter at the March 2, 2016 hearing had “made a lot of
mistake [sic].” Saqr’s counsel objected, and the magistrate told Naji, “Now, wait a
minute. Those—those are things that you should have raised objections to at the
time.” Naji also wanted to introduce recordings to demonstrate the discrepancies
between what he believed the parties were saying, and what the interpreter believed
the parties were saying. The magistrate ordered Naji to transcribe what he believed
the content of the recordings to be, and to provide the recordings and his transcripts
to Saqr’s counsel for review.
{¶8} Later in the hearing, Naji asked the magistrate what he would do if he
found out that he had made a decision based on a “fake document.” The magistrate
responded,
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OHIO FIRST DISTRICT COURT OF APPEALS
Well, for one thing, if I ruled on that document, and it was improper,
the ball—it literally is not in my court. The ball is in your court to file
an appeal to that. * * * [I]f you were not satisfied with what the judge
did in terms of your objections and if he didn’t rule on the things
properly that you brought up to him, then we have the Court of
Appeals. * * * Now if it—if it’s something that you didn’t bring up on
objections, but now you’re attacking it collaterally, I don’t think that
you can do that, because it is what is known as res judicata.
The magistrate informed Naji that he was still within the 30-day window to file a
notice of appeal from the trial court’s entry on the objections.
{¶9} Naji then asserted that the recordings played during the March 2, 2016
hearing had been “edited and changed” by Saqr. The magistrate responded, “The
issues you’re raising, Mr. Naji, those are things that are more properly before the
Court of Appeals * * *. And I strongly recommend that * * * if you do want to appeal
this, that you do so in a timely fashion, because the law only gives you so much time
to do it, okay?” The magistrate continued the hearing on Naji’s motion until
September 16, 2016. Despite the magistrate’s warnings, Naji did not appeal the trial
court’s entry on the objections.
{¶10} When the hearing continued, Naji again contended that Saqr had
edited portions from the audio recordings played at the March 2, 2016 hearing. The
magistrate told Naji that he had failed to show the relevance of this claim “in terms
of * * * what relief you’re seeking,” i.e., the termination of the CPO:
Assuming for a moment * * * that she * * * edit[ed] out important
parts[,] * * * [o]f what use are any of these recordings in support
of * * * your motion[]? * * * I’m getting the distinct impression, Mr.
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Naji, that you’re trying to get a second bite at the apple on the
underlying facts having to do with * * * the civil protection order
against you. * * * All of this should have been presented to [the trial
court] on objections. * * * [N]one of that is—certainly is not admissible
now, because I’ve already issued the decision. You’ve already [filed
objections to] it. The judge has issued his ruling.
Naji then stated that he wanted counsel, and the magistrate continued the
proceedings until October 3, 2016, so that Naji could obtain counsel.
{¶11} Naji arrived on October 3 without counsel. The magistrate gave him
the opportunity to introduce evidence on his motion to terminate the CPO.
Ultimately, the magistrate did not allow most of Naji’s exhibits into evidence, either
because Naji had failed to comply with the magistrate’s earlier order that he timely
provide the recordings and transcripts to Saqr’s counsel, or because Naji was
attempting to challenge findings of fact that the trial court had adopted over Naji’s
objections in its August 22 CPO. The magistrate then interviewed Saqr regarding the
statutory factors for considering a motion to terminate a CPO. Saqr stated that she
did not consent to the CPO being terminated; that Naji had thus far complied with
the terms and conditions of the CPO; that February 10, 2016, was the last incident of
alleged abuse; and that she feared that without the CPO, “[h]e’ll terrorize me.” The
magistrate denied Naji’s motion.
{¶12} On October 4, 2016, the trial court issued a judgment entry on Naji’s
motion. The entry, made on Sup.R. Form 10.01-L, stated that the CPO remained in
full force and effect. It also did not set a new date for the CPO to terminate, leaving
February 11, 2017, as the date of termination. It was stamped “final, appealable
order,” and contained no notice that Naji needed to file objections prior to filing an
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OHIO FIRST DISTRICT COURT OF APPEALS
appeal. Naji filed no objections with the trial court, but filed a notice of appeal on
November 2, 2016.
Assignments of Error
{¶13} Naji asserts two assignments of error. His first is that the trial court
erred in denying his motion to terminate the CPO; his second is that the trial court
erred by denying him relief from judgment.
Naji’s Failure to File Objections Does Not Forfeit His Appeal
{¶14} Naji did not file objections to the magistrate’s denial of his motion to
terminate the CPO, which calls our attention to a recent revision to the Rules of Civil
Procedure.
{¶15} Prior to July 1, 2012, Civ.R. 65.1, which governs the procedures for
CPOs, did not exist, and the other Civil Rules governed these procedures.
Specifically, Civ.R. 53(D)(3)(a)(iii) provided, then as now, that “[a] magistrate’s
decision shall indicate conspicuously that a party shall not assign as error on appeal
the court’s adoption of any factual finding or legal conclusion * * * unless the party
timely and specifically objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv) further provided that “[e]xcept for a
claim of plain error, a party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion * * * unless the party has objected to that
finding or conclusion as required by Civ.R. 53(D)(3)(b).”
{¶16} The forms used by the courts of common pleas to issue CPOs,1 and for
decisions on motions to modify or terminate them,2 do not contain the language that
1 Sup.R. Form 10.01-I
2 Sup.R. Form 10.01-L
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Civ.R. 53(D)(3)(a)(iii) requires.3 See, e.g., Larson v. Larson, 3d Dist. Seneca No. 13-
11-25, 2011-Ohio-6013, ¶ 11-14. However, Sup.R. 10.01 directs the domestic relations
divisions of the courts of common pleas to use forms “substantially similar” to these
forms. Courts faced with this dilemma prior to July 1, 2012, held that “if the
magistrate fails to provide the parties with the notice pursuant to Civ.R.
53(D)(3)(a)(iii), a party may raise their arguments for the first time on appeal.”
Calzo v. Lynch, 5th Dist. Richland No. 11CA45, 2012-Ohio-1353, ¶ 36. See Larson at
¶ 14.
{¶17} This issue became moot once Civ.R. 65.1 came into effect, because that
rule originally did not require a party to file objections to a magistrate’s decision on a
CPO before the party could appeal such a decision, and therefore no notice regarding
the filing of objections was required. Parties could immediately appeal a magistrate’s
decision on a CPO, or file objections, or both—in which case the appeal would trump
the objections and render them moot. See Schneider v. Razek, 2015-Ohio-410, 28
N.E.3d 591, ¶ 32 (8th Dist.).
{¶18} However, on July 1, 2016, during the pendency of this case in the trial
court, Civ.R. 65.1(G) was amended to require parties to file objections to a
magistrate’s decision prior to appealing the decision. Furthermore, Civ.R. 86(PP)
provides that the July 1, 2016 amendments to the Civil Rules “govern * * * all further
proceedings in actions then pending, except to the extent that their application in a
particular action pending when the amendments take effect would not be feasible or
would work injustice.”
3The current versions of both forms were adopted on March 1, 2014, and do not contain Civ.R.
53(D)(3)(a)(iii) language. The previous versions of the forms, adopted July 1, 2010, also did not
contain such language.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Here, Naji did not file objections to the magistrate’s denial of his
motion to terminate the CPO, and the strict letter of the Civil Rules required him to
do so. However, the form used to issue the decision on Naji’s motion, Sup.R. Form
10.01-L, contained no notice that objections must be filed as required by Civ.R.
53(D)(3)(a)(iii). Because the form fails to comply with Civ.R. 53(D)(3)(a)(iii), this
case fits into the fact patterns of Calzo and Larson, and Naji may raise his arguments
for the first time on appeal, despite his failure to file objections. See Walters v.
Lewis, 7th Dist. Mahoning No. 15 MA 0135, 2016-Ohio-1064, ¶ 18.
Naji’s First Assignment of Error Is Moot
{¶20} Naji’s first assignment of error is that the trial court erred by denying
his motion to terminate the CPO. Because the CPO at issue in this case expired on
February 11, 2017, we must determine whether this assignment of error is moot.
Mootness is a question of justiciability, and “[j]urisdiction and justiciability are
threshold considerations in every case, without exception.” Barrow v. New Miami,
2016-Ohio-340, 58 N.E.3d 532, ¶ 12 (12th Dist.) (identifying standing and ripeness
as other justiciability issues). We are “required to raise justiciability sua sponte.”
Beadle v. O’Konski-Lewis, 2016-Ohio-4749, 68 N.E.3d 221, ¶ 10 (6th Dist.), quoting
Stewart v. Stewart, 134 Ohio App.3d 556, 558, 731 N.E.2d 743 (4th Dist.1999).
{¶21} There is currently a conflict among the Ohio appellate districts
regarding whether an appeal from an expired civil protection order is moot. See
Cyran v. Cyran, 148 Ohio St.3d 1408, 2017-Ohio-573, 69 N.E.3d 749 (certified
conflict case). The Second, Tenth, and Twelfth Districts have held that such an
appeal is moot in most circumstances, while the Third, Fifth, Sixth, Eighth, Ninth,
and Eleventh Districts have held that it is not. We have not previously addressed this
question.
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{¶22} At issue is the “collateral consequences” exception to the mootness
doctrine, which in criminal cases allows for appeals of moot questions because of the
collateral consequences attached to a criminal conviction. The districts that have
found that the “collateral consequences” exception applies to an expired CPO have
reasoned that it was “reasonably possible that adverse collateral consequences could
occur” from the CPO being on a party’s record. See, e.g., Wilder v. Perna, 174 Ohio
App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095, ¶ 14-16 (8th Dist.). Potential
collateral consequences include “the effect on one’s credit rating, the ability to drive
certain vehicles, the ability to obtain directors-officers liability insurance, the ability
to obtain a weapons permit, the ability to obtain employment, and the filing of the
order in a national registry that is enforceable in all 50 states.” Cauwenbergh v.
Cauwenbergh, 11th Dist. Ashtabula No. 2006-A-0008, 2007-Ohio-1070, ¶ 18. There
are also potential immigration consequences for those who violate CPOs. See 8
U.S.C. 1227(a)(2)(E)(ii).
{¶23} This case is distinguishable from other cases regarding whether an
appeal from an expired CPO is moot, however, because this case involves not an
appeal from the CPO itself, but rather an appeal from a motion to terminate a CPO.
This case is analogous to Jagow v. Weinstein, 2d Dist. Montgomery No. 24309,
2011-Ohio-2683. There, the trial court entered a consent agreement CPO on October
5, 2007, that was to remain in force until November 21, 2010. Id. at ¶ 2. On June 15,
2009, the respondent filed a motion to terminate the CPO early, and on October 12,
2010, the trial court adopted the magistrate’s decision overruling the motion. Id. at ¶
3. The respondent appealed, and the CPO expired while the appeal was pending. Id.
at ¶ 4-6. The Second District held that the appeal was moot, and further held that
the “collateral consequences” exception did not apply because:
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[Respondent] is not challenging the initial issuance of the consent-
agreement protection order per se. Rather, [respondent] is
challenging the court’s decision not to terminate the order early,
before the agreed-to expiration date. Even if his relief requested below
had been granted, the pre-existing, but expired, CPO would be a
matter of record. Thus, any decision of this court on the issue
presented would not eliminate the expired order. Therefore, we
determine that there are no potential collateral consequences from the
expired order which would be resolved by continuing this appeal.
Id. at ¶ 10. In other words, terminating the CPO early would not “void” it, only “end”
it, and the CPO would have remained on the respondent’s record even if he had been
successful on appeal. Therefore, granting respondent the relief he requested would
not eliminate any potential collateral consequences. Compare State v. Howell, 5th
Dist. Stark No. 2001CA00346, 2002-Ohio-3947, ¶ 18 (the collateral consequences
exception to the mootness doctrine did not apply where appellant appealed “solely
on the issue of the length of his sentence and not on the underlying conviction[,]”
because “[i]f an individual has already served his sentence, there is no collateral
disability or loss of civil rights that can be remedied by a modification of the length of
that sentence in the absence of a reversal of the underlying conviction”).
{¶24} Similarly, Naji’s first assignment of error challenges the denial of his
motion to terminate the CPO, and is therefore moot, because the CPO has already
terminated and any potential collateral consequences would not be resolved by
sustaining this assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Naji Is Not Entitled to Relief from Judgment
{¶25} Naji’s second assignment of error is that the trial court erred by not
granting him relief from judgment. At the outset, we note that Naji never explicitly
identified his motion to terminate the CPO as a motion for relief from judgment
under Civ.R. 60(B), yet he claims that the trial court erred by failing to grant him
relief from judgment under that rule. He is essentially asking us to hold that the
magistrate erred by failing to construe his motion to terminate the CPO as a request
for relief from judgment under Civ.R. 60(B). A review of the record indicates that,
while Saqr’s counsel at one point referred to Civ.R. 60(B) when discussing Naji’s
motion, Naji himself never described his motion as requesting relief from judgment,
and the magistrate consistently viewed Naji’s requested relief as the termination of
the CPO.4
{¶26} Naji’s failure to specifically identify his motion as one for relief from
judgment is not fatal, however. The general rule is that “[w]hen a motion is
ambiguous or unclear, the name given to the motion is not controlling, but instead
the substance, not the caption, determines the operative effect of the motion.”
Jackson v. Jackson, 188 Ohio App.3d 493, 2010-Ohio-3531, 935 N.E.2d 937, ¶ 17
(6th Dist.). See State v. Smith, 2016-Ohio-3521, 68 N.E.3d 114, ¶ 16 (1st Dist.),
quoting State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12
(holding that a court confronted with a motion that does not designate a statute or
rule under which relief can be granted “may ‘recast’ the motion ‘in whatever category
necessary to identify and establish the criteria by which the motion should be
judged’ ”).
4 It is possible that Naji misconstrued the word “terminate” to mean “void” rather than “end.”
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{¶27} However, examining the “substance” of Naji’s motion does not
immediately indicate that he was requesting relief from judgment. His motion
simply stated that “the civil protection order should be terminated due to the
Petitioner committing fraud upon the court by playing editted [sic] versions of audio
of alleged domestic violence events,” and that “the protection [order] was based upon
fraudulent evidence.” (Emphasis added.) A later filing, dated September 8, 2016,
contains only a brief reference to “Petitioner committing fraud on the court as
alleged my [sic] motion.” Faced only with these sparse statements, the magistrate
cannot be faulted for construing the motion as asking for what it literally asked for:
the “termination,” the “end,” of the CPO. An allegation of fraud does not
automatically translate into a request for relief under Civ.R. 60(B).
{¶28} But even if the trial court had construed Naji’s motion as a request for
relief under Civ.R. 60(B), Naji would not have been entitled to such relief. The rule
states:
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or
proceeding for the following reasons: * * * (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation or
other misconduct of an adverse party[.] * * * The motion shall be
made within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order or proceeding was
entered or taken. A motion under this subdivision (B) does not affect
the finality of a judgment or suspend its operation.
{¶29} This rule is not a substitute for a direct appeal. As the Seventh District
recently stated:
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Civ.R. 60(B) involves matters outside the record which justify relief
from judgment, which cannot be raised on direct appeal because they
are outside the record. As such, issues which could have been or were
raised in a direct appeal ordinarily are not proper issues to be raised in
a motion for relief from judgment; the proper vehicle for correction of
claimed errors that could have been supported by transcripts and
evidence in the record is through a direct appeal, not a Civ.R.
60(B) motion.
(Emphasis added.) Ritchie v. Mahoning Cty., 2017-Ohio-1213, 80 N.E.3d 560, ¶ 25
(7th Dist.). See Blount v. Smith, 8th Dist. Cuyahoga No. 96991, 2012-Ohio-595, ¶ 10.
{¶30} “To succeed on a motion for relief from judgment under Civ.R. 60(B),
a movant must establish (1) a meritorious defense or claim to present, in the event
that relief from judgment is granted, (2) entitlement to relief under one of the rule’s
provisions, and (3) compliance with the rule’s time requirements.” Bank of Am.,
N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 11. The
moving party must also provide “affidavit quality evidence” to support his or her
claim. Banker’s Trust Co. of California, N.A. v. Long, 5th Dist. Stark No.
2002CA00023, 2002-Ohio-5399, ¶ 11.
{¶31} With regard to a claim of a party’s alleged fraud, misrepresentation, or
misconduct, relief should be granted only “ ‘where the court is reasonably well
satisfied that the testimony by a material witness is false; that, without it, the trier of
fact might have reached a different conclusion; and that the party seeking relief was
taken by surprise when false testimony was given and was unable to meet it or did
not know of its falsity until after trial.’ ” Carpenter v. Johnson, 196 Ohio App.3d,
2011-Ohio-4867, 962 N.E.2d 377, ¶ 13 (2d Dist.), quoting Goldshot v. Goldshot, 2d
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Dist. Montgomery No. 19000, 2002 WL 857689, *4 (Apr. 26, 2002). “Absent an
abuse of discretion, we will not disturb a trial court’s decision to grant or deny
a Civ.R. 60(B) motion.” Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539, 937
N.E.2d 628, ¶ 12 (4th Dist.), citing State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980).
{¶32} Naji claims that Saqr committed fraud on the court by editing the
audio played at the initial hearing. However, at no point below did Naji claim that he
only became aware of any alleged falsity after the trial court had ruled on his
objections, that evidence of the alleged fraud was outside of the record, or that the
alleged fraud took him by surprise and that he could not meet it. He provided no
“affidavit quality evidence,” nor did he offer admissible proof of the evidence’s falsity.
Naji did not offer any evidence as to when he first became aware of the alleged fraud,
nor as to what he is claiming Saqr allegedly did to alter the recordings. Nonetheless,
Naji himself was one of the participants in the recorded conversations, and was
present in the courtroom when the conversations were played at the hearing on
March 2, 2016, months before he filed his motion to terminate the CPO.
Conclusion
{¶33} Naji’s first assignment of error is moot, and he failed to establish that
he was entitled to relief under his second assignment of error. The trial court did not
err in overruling his motion, and we therefore overrule Naji’s second assignment of
error and affirm the trial court’s judgment.
Judgment affirmed.
MOCK, P.J., and MYERS, J., concur.
Please note:
This court has recorded its own entry this date.
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