D.M.W. v. E.W. ( 2018 )

[Cite as D.M.W. v. E.W., 2018-Ohio-821.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[D.M.W.], :
Petitioner-Appellee, : No. 17AP-359
(C.P.C. No. 17DV-326)
v. :
(REGULAR CALENDAR)
[E.W.], :
Respondent-Appellant. :
D E C I S I O N
Rendered on March 6, 2018
On brief: Samuel H. Shamansky Co., L.P.A., Samuel H.
Shamansky, Donald L. Regensburger, and Colin E. Peters,
for appellant. Argued: Samuel H. Shamansky.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BROWN, P.J.
{¶ 1} Respondent-appellant, E.W., appeals from a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, issuing a Domestic
Violence Civil Protection Order ("CPO") to petitioner-appellee, D.M.W. Appellant has also
filed a motion to supplement the record with three affidavits and an audio transcript of
the CPO hearing, which we grant.
{¶ 2} On March 15, 2017, appellee filed a CPO. On the same day, the trial court
granted a CPO ex parte and set the matter for a full hearing on March 28, 2017.
{¶ 3} On March 28, 2017, appellant appeared at the hearing with counsel, and
appellee appeared pro so. The trial court granted appellant's motion to continue, and the
matter was reset for a full hearing on April 21, 2017.
{¶ 4} On April 21, 2017, the matter was to be heard before the trial court.
Appellant has attached to his motion to supplement the record his own affidavit, the
No. 17AP-359 2
affidavit of his counsel, Sam Shamansky, and the affidavit of co-counsel, Julie Keys. The
following facts are derived from these affidavits. Keys and appellant arrived around the
start time for the scheduled hearing and checked-in with the trial court's bailiff. The bailiff
directed appellant to sit at the far end of the hallway outside the courtroom and to have no
contact with appellee. Keys discussed the possibility of a continuance with the bailiff, but
the bailiff informed Keys that the judge was not expected to arrive for at least 45 minutes.
Keys had another matter scheduled in the Franklin County Municipal Court, and the
bailiff told Keys to leave her cellphone number so Keys and Shamansky could be
contacted when the judge arrived. The bailiff eventually telephoned Keys that the judge
had arrived.
{¶ 5} When Keys arrived in the courtroom, the trial court overheard her speaking
to the bailiff about a possible continuance. The trial court indicated that no continuance
would be granted, and Keys told the trial court appellant was prepared for the full
contested hearing. Keys returned to the conference room outside the courtroom and
waited for the case to be called. Keys averred the bailiff knew Keys was in the conference
room and appellant was in the hallway. Approximately 10 to 15 minutes later, Keys heard
and saw the bailiff ask appellee to come into the courtroom. At this point, Shamansky
joined Keys in the conference room and waited to be summoned by the bailiff.
{¶ 6} After waiting a short time, appellant, Keys, and Shamansky entered the
courtroom, and the trial court told them that the case was "done." When Keys and
Shamansky asked for an explanation, the trial judge said that she could not ask appellee
to stay any longer. The trial court then continued with the docket. Appellant's counsel
stayed in the courtroom until the trial court completed the docket and then requested the
trial court make a record of the events. The trial court refused to allow them to make a
record and informed them of their right to appeal.
{¶ 7} On April 21, 2017, the trial court issued a CPO. Appellant appeals the trial
court's CPO, asserting the following assignment of error:
BY ISSUING A DOMESTIC VIOLENCE CIVIL PROTECTION
ORDER AFTER PURPOSELY DENYING APPELLANT AN
OPPORTUNITY TO BE HEARD AND FALSIFYING THE
RECORD, THE TRIAL COURT FAILED TO COMPLY WITH
STATUTORY LAW, ENGAGED IN CRIMINAL CONDUCT,
DISREGARDED THE OHIO CODE OF JUDICIAL
CONDUCT, ABUSED ITS DISCRETION, AND VIOLATED
No. 17AP-359 3
APPELLANT'S RIGHT TO DUE PROCESS AS
GUARANTEED BY THE UNITED STATES AND OHIO
CONSTITUTIONS.
{¶ 8} We first address appellant's motion to supplement the record. In the
motion, appellant seeks to supplement the appellate record with the affidavits of
appellant, Shamansky, and Keys, as well as the audio recording of the transcript.
Appellant asserts the affidavits explain the events that occurred outside of the record
taken at the full hearing. As for the audio recording, appellant claims the bailiff's tone of
voice shows her confusion about the attendance issue. We hereby grant appellant's
motion to supplement the record pursuant to App.R. 9(E).
{¶ 9} In appellant's sole assignment of error, appellant argues the trial court
failed to give him an opportunity to be heard, actively denied him such opportunity, and
failed to comply with statutory law. Specifically, as set forth above in the factual summary,
appellant contends his counsel checked-in with the bailiff, the bailiff was aware counsel
and appellant were waiting outside of the courtroom, counsel had already informed the
trial court and bailiff they were prepared for a full hearing, yet the trial court's bailiff failed
to retrieve them and the trial court conducted the CPO hearing in the absence of appellant
and his counsel. The transcript of the hearing also reveals the following discussion
between the trial court and appellee at the commencement of the hearing:
JUDGE BROWNE: You [appellee] filed a Civil Protection
Order against [appellant]?
[APPELLEE]: Yes.
JUDGE BROWNE: Alright, and it is 10:51 a.m. What time did
you get here this morning?
[APPELLEE]: 8:15.
JUDGE BROWNE: Okay, alright. Counsel for your husband
has appeared, asked for a continuance, I said no we needed to
proceed, and it's about half an hour later. I'm not gonna [sic]
make you wait any longer. Is it your intention to have a Civil
Protection Order issued in this case?
[APPELLEE]: Yes.
(Tr. at 2.)
No. 17AP-359 4
{¶ 10} At the end of the hearing, the following discussion took place between the
trial court and its bailiff:
BAILIFF: Your Honor, it was one little spot that I didn't know
what to put - - what to put about who attended. Do I still say
that they checked in or not or how - - how to you - -
JUDGE BROWNE: Nuh-huh (negative response).
BAILIFF: - want me to put the attendance?
JUDGE BROWNE: Same - - same, they were served and
didn't appear.
BAILIFF: Oh, okay.
(Tr. at 6-7.) Consistent with the court's above directive, the CPO indicates that
"Respondent was served but failed to appear."
{¶ 11} Appellee sought a CPO through R.C. 3113.31. Where an appeal requires an
analysis of R.C. 3113.31, the civil domestic violence statute, we apply a de novo standard of
review. Hope Academy Broadway Campus v. Ohio Dept. of Edn., 10th Dist. No. 07AP-
758, 2008-Ohio-4694, ¶ 13. If a petitioner files a petition under R.C. 3113.31 and requests
an ex parte order, the trial court is to hold a hearing the same day and, for good cause
shown, may enter an ex parte temporary order. R.C. 3113.31(D)(1). When, like in the
present case, the court issues an ex parte CPO that does not order the respondent to
vacate the premises under R.C. 3113.31(E)(1)(b) or (c), but orders any other type of CPO
that is authorized under R.C. 3113.31(E), "the court shall schedule a full hearing for a date
that is within ten court days after the ex parte hearing." R.C. 3113.31(D)(2)(a).
{¶ 12} Though R.C. 3113.31 requires a "full hearing," the statute does not define the
term "full hearing." This court has previously considered the meaning of "full hearing" as
used in R.C. 3113.31. In Tarini v. Tarini, 10th Dist. No. 12AP-336, 2012-Ohio-6165, we
noted that although R.C. 3113.31 does not define the term "full hearing," in general a full
hearing " 'is one in which ample opportunity is afforded to all parties to make, by evidence
and argument, a showing fairly adequate to establish the propriety or impropriety of the
step asked to be taken.' " Id. at ¶ 14, quoting Deacon v. Landers, 68 Ohio App.3d 26, 30
(4th Dist.1990). " '[W]here the issuance of a protection order is contested, the court must,
No. 17AP-359 5
at the very least, allow for presentation of evidence, both direct and rebuttal, as well as
arguments.' " Id., quoting Deacon at 30.
{¶ 13} In the present case, based on affidavits of appellant and his counsel and the
transcript from the hearing, we find the trial court failed to afford appellant a full hearing
as required by R.C. 3113.31. The trial court was aware appellant and his counsel were
present and prepared for a full contested hearing, yet it did not permit appellant or
counsel to appear before the court to present evidence. The trial court's failure to conduct
a "full hearing" as contemplated by R.C. 3113.31 constitutes reversible plain error. See
Tarini at ¶ 18-20 (concluding trial court's failure to conduct a "full hearing" under R.C.
3113.31 constitutes not only a violation of the statute but a deprivation of due process as
well). Therefore, we sustain appellant's assignment of error.
{¶ 14} Accordingly, appellant's single assignment of error is sustained, and the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
is reversed. We remand this matter to that court with instructions to: (1) vacate its
April 21, 2017 judgment, (2) schedule a new full hearing for a date that is within ten court
days after the filing of the judgment entry in this appeal, consistent with the requirement
to schedule a full hearing within ten court days of the ex parte hearing outlined in R.C.
3113.31(D)(2)(a), unless the court grants a continuance consistent with the same statute,
(3) conduct the new full hearing in accordance with this decision, and (4) immediately
reinstate and make effective the previously issued ex parte CPO until the matter is
resolved after the full hearing.
Motion granted; judgment reversed;
cause remanded with instructions.
TYACK and DORRIAN, JJ., concur.
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