Snell v. Snell ( 2012 )

[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
RESPONDENT.
{¶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.
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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.
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JUDGES