Cyran v. Cyran , 2016 Ohio 7323 ( 2016 )

[Cite as Cyran v. Cyran, 2016-Ohio-7323.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
REBECCA L. CYRAN :
: Appellate Case No. 27009
Plaintiff-Appellee :
: Trial Court Case No. 2015-DV-733
v. :
: (Domestic Relations Appeal from
CURTIS P. CYRAN : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 14th day of October, 2016.
...........
REBECCA L. CYRAN, 7165 Chadbourne Drive, Huber Heights, Ohio 45424
Petitioner-Appellee, pro se
ERIK R. BLAINE, Atty. Reg. No. 0080726, Wright and Schulte, LLC, 865 South Dixie
Drive, Vandalia, Ohio 45377
Attorney for Respondent-Appellant
.............
FAIN, J.
{¶ 1} Respondent-appellant Curtis P. Cyran appeals from a domestic violence
protection order entered by the Domestic Relations Court, restraining him from having
any contact with his ex-wife, petitioner-appellee, Rebecca Cyran. Cyran argues that the
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evidence is insufficient to support the elements necessary for granting a protection order.
We conclude that the issues raised in this appeal became moot when the order expired.
Therefore, Cyran’s appeal is Dismissed as moot.
I. The Factual and Procedural History
{¶ 2} Curtis Cyran was married to Rebecca Cyran, until a dissolution of marriage
was entered in the Warren County Domestic Relations Court in 2013. A shared parenting
order was entered governing the parents’ rights and responsibilities for their three minor
sons. Several post-decree motions were filed in Warren County Domestic Relations
Court, and proceedings were pending when Rebecca Cyran petitioned for a domestic
violence protection order in Montgomery County Domestic Relations Court. An
evidentiary hearing was conducted before a magistrate and a magistrate’s decision
granted the protection order. The court overruled objections to the magistrate’s decision
and adopted, as the order of the trial court, the magistrate’s decision granting the petition
for a domestic violence protection order for a period of one year. In support of the order,
the court found that the evidence established that an incident occurred when Rebecca
went to Curtis’s residence to pick up the children, which was delayed when one of the
children could not find his iPad. When Rebecca went up to the house to speak to Curtis
about the missing iPad, Curtis came out of the house, grabbed Rebecca and pushed her
into the bushes. Curtis went back into the house, then came out again and stated, “She
is lucky I didn’t shoot her.” Rebecca stated that she experienced an immediate fear for
her safety.
{¶ 3} The protection order named Rebecca as the only person to be protected,
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and did not change the parenting schedule, other than to permit the parties to text each
other regarding parenting issues, and allowing curbside pickup and drop off for exchange
of the children, without violating the protection order. The protection order was for a period
of one year, which expired on June 19, 2016. The petitioner, Rebecca Cyran did not seek
to extend the terms of the protection order and has not participated in this appeal. From
the protection order, Curtis Cyran appeals.
II. This Appeal Is Moot, Based on Expiration of the Protection Order
{¶ 4} Curtis raises two assignments of error contending that a protection order
cannot be ordered on the basis of a conditional threat, and that the evidence was
insufficient to prove the elements necessary for the granting of a domestic violence
protection order. However, before addressing the merits of the appeal, we note that by
its terms, the protection order has expired.
{¶ 5} We have consistently held that the appeal of a protection order is moot after
the order has expired. See Erbes v. Meyer, 2d Dist. Montgomery No. 23917, 2011-Ohio-
3274; Baldridge v. Baldridge, 2d Dist. Darke No. 2010-CA-10, 2011-Ohio-2423; Jagow v.
Weinstein, 2d Dist. Montgomery No. 24309, 2011-Ohio-2683. While we acknowledge
that other appellate courts have recognized exceptions to the mootness doctrine, we find
no evidence in the record of the case before us of, nor has Cyran demonstrated, the
existence of grounds for applying an exception. An exception has been recognized in
protection order cases when potential adverse collateral consequences could reasonably
occur as a result of the order. Jagow at ¶ 10, citing Wilder v. Perna, 174 Ohio App. 3d
586, 2007-Ohio-6635, 883 N.E.2d 1095 (8th Dist.). Several Ohio courts have relied on
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case law from Connecticut holding that “[c]ollateral consequences can include the effect
on one’s credit rating, the ability to drive certain vehicles, 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 50 states.” Cauwenbergh v. Cauwenbergh, 11th Dist. Ashtabula
No. 2006-A-0008, 2007-Ohio-1070, ¶ 18, citing Putman v. Kennedy, 279 Conn. 162, 173-
174, 900 A.2d 1256 (2006). See also Wilder v. Perna, supra. No Ohio court has
determined that these potential legal consequences in Connecticut also arise under Ohio
law. Ohio law governing permits for concealed handguns only takes into consideration
protection orders in effect at the time of application. R.C. 2923.125 (D)(1)(j). Federal
law, known as a Brady disqualifier, prohibits gun possession by anyone who is subject to
certain types of protection orders, but does not apply to expired orders. 18 U.S.C.
922(g)(8). No provision in Ohio’s drivers’ license laws, individual or commercial,
requires consideration of whether the applicant has or has had a civil protection order
issued against him. While we acknowledge that a past protection order could affect a
job application for certain types of employment, there is nothing in the record before us
to suggest any adverse consequence to Cyran’s current or future employment. Similarly,
there is nothing in the record to suggest that Cyran’s credit rating is affected by the expired
protection order, or that a potential adverse effect on his credit rating must be eliminated
in order to facilitate a necessary expansion of credit. Pursuant to Rule 10-B of the Rules
of Superintendence for the Courts of Ohio, the NCIC National Registry will automatically
purge the protection order from its database on its expiration date, so continuing adverse
consequences should not occur. Our research has not uncovered any Ohio law that
imposes sanctions or adverse consequences from an expired civil protection order by
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operation of law.
{¶ 6} The collateral consequences exception to the mootness doctrine was
developed in criminal cases because even if an entire sentence has been satisfied before
the matter is heard on appeal, the law imposes numerous adverse collateral
consequences upon convicted felons. State v. Golston, 71 Ohio St. 3d 224, 643 N.E.2d
109 (1994), syllabus. The collateral consequences to misdemeanants are substantially
different and may not be inferred without some evidence of the actual adverse effect on
the appellant. “Where a defendant, convicted of a criminal offense, has voluntarily paid
the fine or completed the sentence for that offense, an appeal is moot when no evidence
is offered from which an inference can be drawn that the defendant will suffer some
collateral disability or loss of civil rights from such judgment or conviction.” State v. Wilson,
41 Ohio St. 2d 236, 325 N.E.2d 236 (1975), syllabus.
{¶ 7} In the case before us, the only collateral consequence cited by Cyran is
potential future use of the protection order by his ex-wife in their ongoing contentious
post-divorce proceedings. Cyran urges us to follow the holding in Wilder, supra, that the
appeal of an expired domestic violence protection order is not moot because it is
reasonably possible that adverse consequences could affect future proceedings in the
“sensitive and often explosively litigated context of family dysfunction and dissolution.”
Wilder, supra at ¶ 15. We will continue to follow our own precedent holding the appeal
of a protection order is moot after the order has expired. Erbes, supra; Baldridge, supra;
Jagow, supra. We acknowledge that when supported by the record, the collateral
consequences exception to the mootness doctrine may be applied to the appeal of an
expired protection order. However, “[a] collateral disability must be a substantial,
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individualized impairment, and a purely hypothetical statement, about what might occur
in the future is not sufficient to give viability to an otherwise moot appeal.” In re A.J., 1st
Dist. Hamilton No. C-140246, 2014-Ohio-5566, ¶ 7, citing State v. Johnson, 43 Ohio
App.3d 1, 3, 538 N.E.2d 1082 (1st Dist.1988).
{¶ 8} We will not speculate whether the parties are likely to suffer collateral
consequences from an expired domestic relations protection order in unspecified future
post-divorce litigation. Without evidence of adverse collateral consequences, this court
has no authority to accept hypothetical, unspecified consequences as grounds for an
appeal of an expired order.
III. Conclusion
{¶ 9} This appeal will be Dismissed, as moot.
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DONOVAN, P.J., and WELBAUM, J., concur.
Copies mailed to:
Rebecca L. Cyran
Erik R. Blaine
Hon. Denise L. Cross