Wheeler v. Wheeler , 2015 Ohio 4206 ( 2015 )

[Cite as Wheeler v. Wheeler, 2015-Ohio-4206.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
Amanda Danyelle Wheeler, :
Petitioner-Appellee, : Case No. 14CA3663
v. :
Larry Calvin Wheeler, : DECISION AND JUDGMENT ENTRY
Respondent-Appellant. : RELEASED: 10/6/2015
_______________________________________________________________________
APPEARANCES:
Brigham M. Anderson, Anderson & Anderson Co., L.P.A., for appellant.
Lauren R. Weller, Southeastern Ohio Legal Services, for appellee.
_______________________________________________________________________
TYACK, J.
{¶ 1} Larry Calvin Wheeler is appealing from the granting of a civil protection
order ("CPO") for the benefit of his wife, Amanda Danyelle Wheeler, and his
stepdaughter. He assigns a single error for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION IN
ISSUING A CIVIL PROTECTION ORDER AS THE
OVERALL ATTITUDE OF THE TRIAL COURT IS
UNREASONABLE, ARBITRARY AND UNCONSCIONABLE.
{¶ 2} Counsel for Larry Wheeler submits a number of issues in support of his
assignment of error:
[1.] THE TRIAL COURT CONDUCTED AN EX PARTE
HEARING ON THE ISSUANCE OF A TEMPORARY CIVIL
PROTECTION ORDER WHEN DEFENDANT APPELLANT
WAS PRESENT FOR THE HEARING OUTSIDE OF THE
COURTROOM.
Scioto App. No. 14CA3663 2
[2.] THE TRIAL COURT ERRED IN INCLUDING THE
PARTIES' CHILDREN IN THE CIVIL PROTECTION ORDER
WHEN THE COURT IN 14-DR-278 HAD SUBJECT
MATTER JURISDICTION.
[3.] THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO CONSOLIDATE THE CIVIL PROTECTION
ORDER AND DIVORCE PROCEEDINGS.
[4.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
THE COURT ANSWERED QUESTIONS FOR THE
PETITIONER.
[5.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT FAILED TO CONDUCT A FULL HEARING ON THE
ISSUANCE OF AN EX PARTE ORDER WITHIN SEVEN
DAYS AS REQUIRED BY OHIO LAW.
{¶ 3} Counsel for Larry Wheeler does not argue that Amanda Wheeler was not
entitled to a CPO. Counsel's silence on this issue is understandable because Larry
Wheeler physically assaulted his wife on numerous occasions and caused her serious
injuries, including three broken ribs. Under the facts, Amanda was clearly entitled to
protection from Larry. Instead, counsel attacks the trial court judge's handling of the case,
including the trial judge's "attitude." Accordingly, we address the five points set forth in
appellant's brief and find the actions taken by the judge were well within his judicial
discretion.
{¶ 4} The statute which allows for CPOs, R.C. 3113.31, clearly allows for an initial
ex parte hearing. The initial hearing does not require the presence of the abuser.
Indeed, when the abuser has engaged in repeated abuse and has often threatened a
spouse, excluding the abuser from the courtroom while the abused spouse is testifying
may be advisable. The need for immediate attention to the abusive relationship
necessitates procedures such as that provided by the Ohio Legislature. Counsel for Larry
Scioto App. No. 14CA3663 3
Wheeler asserts that Larry was present in the courthouse while the ex parte hearing was
proceeding. Nothing in the record before us supports that assertion. What counsel
asserts may be true; we must rely on the appellate record as opposed to the assertion of
counsel.
{¶ 5} Minors were present for at least some of the abuse. The trial court had
every right to take steps to prevent them from witnessing any future incidents. The trial
court judge did not have to wait for the divorce case to proceed to the point of allocating
parental rights and responsibilities before taking steps to protect the wife and children.
{¶ 6} For the same reason, the trial court judge was not required to consolidate
the two actions. CPO proceedings often require prompt action. Divorce cases can
extend for years. A trial court judge does not abuse his or her discretion by refusing to
consolidate the two.
{¶ 7} Counsel for Larry Wheeler argues that a prior case in the Fourth Appellate
District mandates a consolidation of the divorce case. The case is Yazdani-Isfehani v.
Yazdani-Isfehani, 170 Ohio App. 3d 1, 2006-Ohio-7105 (4th Dist.). The case cited
involves a totally separate issue; namely, the jurisdiction of a trial court to modify a CPO
after the CPO has been final. The Fourth District ruled that the CPO could not be
modified after it had been final. The Fourth District noted that the father never moved for
new or additional orders in the divorce case which was subsequently filed. The case
simply does not stand for the proposition that the CPO proceeding and the divorce under
the circumstances in this case must be joined into a single proceeding.
{¶ 8} During the second hearing, Amanda Wheeler had been asked repeatedly
about her failure to take aggressive action through law enforcement and the courts when
Scioto App. No. 14CA3663 4
she was abused previously. She responded repeatedly that, because of the threats and
violence in her past with Larry, she was afraid. Finally, having admonished the two sets
of counsel for Larry Wheeler not to be repetitious in the cross-examination, the judge did
not wait for Amanda to repeat her answer again. The trial court judge simply inserted her
previous responses. The trial court judge did not commit reversible error by doing so.
{¶ 9} As to the last issue, ideally, a full hearing will be conducted within seven
days following the ex parte hearing. Sometimes a trial court judge needs to extend that
time in order to be fair to one or both of the parties. Here, Amanda Wheeler's first lawyer
quit before the full evidentiary hearing. The judge was fully within his discretion to delay
the proceedings to allow her to obtain new counsel.
{¶ 10} In summary, the single assignment of error is overruled, and the judgment
of the trial court is affirmed.
JUDGMENT AFFIRMED.
Scioto App. No. 14CA3663 5
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court, Domestic Relations Division, to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
* Brown, P.J., and Dorrian, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
G. Gary Tyack, Judge*
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
* G. Gary Tyack, Susan D. Brown and Julia Lillian Dorrian of the Tenth Appellate District
sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate District.