Blankenship v. Howard , 2020 Ohio 5532 ( 2020 )

[Cite as Blankenship v. Howard, 2020-Ohio-5532.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BETTY E. BLANKENSHIP JUDGES:
Hon. William B. Hoffman, P.J.
Petitioner-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 19-CA-00020
CHARLES M. HOWARD, II
Respondent-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of
Common Pleas, Case No. 17-CP-00178
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2020
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
BETTY E. BLANKENSHIP CHARLES M. HOWARD, II
227 South Jackson Street 1821 Mary Augusta Street
New Lexington, Ohio 43764 Manteca, California 95337
Perry County, Case No. 19-CA-00020 2
Hoffman, P.J.
{¶1} Respondent-appellant Charles Howard appeals the October 21, 2019 Entry
entered by the Perry County Court of Common Pleas, which denied his objections to the
magistrate’s September 17, 2019 decision, and approved and adopted said decision as
order of the court. Petitioner-appellee is Betty E. Blankenship.
STATEMENT OF THE CASE
{¶2} Appellant and Appellee were never married, but resided together for
approximately ten years, during which time they had two children together. At some point,
during the course of the relationship, the parties moved from Ohio to California. It appears
the relationship ended sometime in 2010. Appellant was subsequently charged with
domestic violence against Appellee. The Superior Court of California, County of San
Joaquin, issued a criminal protection order (“CPO”) against Appellant on November 3,
2010. On January 25, 2013, the California Superior Court issued a second CPO, effective
until January 24, 2018. Appellee and the two children eventually returned to Ohio.
Appellant still resides in California.
{¶3} On December 6, 2017, Appellee filed a petition for domestic violence civil
protection order (“DVCPO”) in the Perry County Court of Common Pleas.
{¶4} The trial court conducted a hearing on the petition on December 26, 2017.
Appellant was served with notice of the hearing, but did not appear. On January 4, 2018,
the trial court issued a DVCPO, effective until December 26, 2022. The DVCPO included
the parties’ children as “person(s) protected by this order.”
{¶5} On March 12, 2018, Appellant filed a motion to quash the DVCPO. The
motion came on for hearing before the magistrate on May 9, 2018. The magistrate denied
Appellant’s motion via decision filed May 14, 2018. Via Order filed the same day, the trial
Perry County, Case No. 19-CA-00020 3
court approved and adopted the magistrate’s decision. Appellant did not file objections
to the magistrate’s decision or appeal the trial court’s adoption of said decision.
{¶6} Appellant filed a motion for new trial on July 31, 2019. Therein, Appellant
argued the California Superior Court had general and personal jurisdiction over him and
had home state jurisdiction over the children. Appellant further asserted the trial court
failed to allow him to cross-examine Appellee’s witness at the hearing; and the trial court
violated his right to be free from double jeopardy. Appellant concluded the trial court did
not have authority to enforce the California CPO. The trial court set the motion for non-
oral hearing on August 30, 2019.
{¶7} The magistrate denied Appellant’s motion via decision and order filed
September 17, 2019. The trial court approved and adopted the magistrate’s decision as
order of the court on the same day. Appellant filed objections to the magistrate’s decision,
which the trial court summarily denied via Entry filed October 21, 2019.
{¶8} It is from this entry Appellant appeals, assigning the following as error1:
I. A. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
GRANTING PLAINTIFF CRIMINAL PROTECTION ORDER FROM
CALIFORNIA WAS READY TO EXPIRE IN JANUARY 2018. PLAINTIFF
BEING A NON-RESIDENT, AS IT PERTAINS TO THIS SUBJECT
JURISDICTION, RENEWED OHIO CIVIL PROTECTION ORDER,
WITHOUT SHOWING THE PREPONDERANCE OF THE EVIDENCE.
1 Other than bracketed “SIC”, all other brackets original to Appellant’s Brief.
Perry County, Case No. 19-CA-00020 4
B. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR,
WHEN THE PLAINTIFF IS UNABLE TO SHOW RELEVANT DATES AS
TO WHEN THE LAST INCIDENT OF ABUSE, THREAT OF HARM, OR
COMMISSION [SIC] OTHER RELEVANT INFORMATION CONCERNING
THE SAFETY AND PROTECTION OF THE PETITIONER OR OTHER
PROTECTED PARTIES.
C. TRIAL COURT ALLOWED PLAINTIFF TO INCLUDE THEIR
TWO CHILD[REN] ON THE RENEWED PROTECTION ORDER. BY
ALLOWING THE TWO CHILD[REN] IN-COMMON TO BE INCLUDED ON
THE RENEWED ORDER, THE TRIAL COURT HAS VIOLATED THE
CALIFORNIA VISITATION ORDER THE DEFENDANT HAS.
D. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR,
PLAINTIFF’S TESTIMONY WHEN ASKED BY TRIAL COURT, “THE LAST
TIME HE’S THREATENED, PHYSICAL HARM TO YOU.” IN PERTINENT
PART I DO NOT HAVE THE DATES IN FRONT OF ME.
II. WORD JURISDICTION HAS FEW DEFINITIONS ACCORDING
TO WEBSTER. HOWEVER, ONE DEFINITION IS [SIC] HOLDS
TRUTHFUL IS: “THE LIMITS OR TERRITORY WITHIN WHICH
AUTHORITY BE EXERCISED.” TRIAL COURT IN THIS MANNER
EXPRESS ITSELF SEVERAL TIMES DURING THE FULL HEARING,
HOW IT WILL NOT HEAR/LISTEN TO MATTERS DEALING WITH THE
PENDING CHILD[REN] CUSTODY MATTER. TRIAL COURT IN
STATEMENTS MAD [SIC], KNEW WHOLE HEARTILY [SIC] THE
Perry County, Case No. 19-CA-00020 5
PENDING MATTER IN CALIFORNIA. AS A MATTER OF LAW, THE
TRIAL COURT SHOULD HAVE FOLLOWED THE GUIDED LINES [SIC]
ADDRESSED IN THE UCCJEA. THE HOME STATE JURISDICTION AND
UCCJEA, HAVE BEEN VIOLATED BY THE TRIAL COURT.
III. EXPERT WITNESS WORKED IN THE DEFENDANT’S FAVOR.
AT ONE POINT IN THE BEGINNING OF THE HEARTING [SIC], THE
TRIAL COURT ASKED PLAINTIFF IF MAYBE AMEND THE RENEW
PROTECTION ORDER, SO DEFENDANT COULD VISIT THE CHILDREN.
REPLIED NO. PLAINTIFF EXPERT WITNESS, REPLIES TO THE
QUESTION ASKED, “SHOULD THERE BY ANY SIGNIFICANT CHANGE
IN THEIR LIFE RIGHT NOW THAT WOULD HELP THEM ALONG.” M.A.
STATES, “I WOULD RECOMMOND [SIC] THAT.” SHE WOULD
RECOMMEND THAT. SADLY, DEFENDANT HAS TRIED TO REACH
OUT TO THE EXPERT WITNESS, BUT UNABLE TO RETURN MY CALLS.
WITH MAKING THE CALLS TO THE EXPERT WITNESS, DEFENDANT
HAS JUST FOUND OUT, FEW WEEKS AGO THE CHILD[REN] NO
LONGER SEE THIS PERSON.
I, III
{¶9} We begin our analysis by clarifying the issues presented for our review.
{¶10} This appeal comes to us from the trial court’s entry denying Appellant’s
motion for new trial. The denial of a motion for new trial is reviewed under an abuse of
discretion standard. Thomas v. Columbia Sussex Corp., 10th Dist. No. 10AP–93, 2011-
Perry County, Case No. 19-CA-00020 6
Ohio-17, 2011 WL 96277, ¶ 16. Appellant does not contest the trial court's ruling on his
motion. Rather, his arguments on appeal are the same arguments asserted in his motion
to quash DVCPO filed March 12, 2018, and denied by the trial court via Order issued May
14, 2018, and which were the grounds for July 31, 2019 motion for new trial. Appellant
did not appeal the trial court’s May 14, 2018 Order.
{¶11} Because Appellant could have raised these arguments in a direct appeal
from the denial of his motion to quash DVCPO, his claims are barred by res judicata.
Accordingly, we find the trial court did not abuse its discretion in denying Appellant’s
motion for new trial.
{¶12} Appellant’s first and third assignments of error are overruled.
II
{¶13} In his second assignment of error, Appellant indirectly challenges the trial
court’s jurisdiction to issue the DVCPO. Appellant’s challenge is premised upon the trial
court’s alleged failure to follow the guidelines set forth in the UCCJEA.
{¶14} The UCCJEA was drafted to avoid jurisdictional conflicts and competition
between different states in child custody litigation. Berube v. Berube, 5th Dist. Stark No.
2017CA00102, 2018-Ohio-828, 2018 WL 1168722, ¶ 10. The intent of the UCCJEA was
to ensure a state court would not exercise jurisdiction over a child custody proceeding if
a court in another state was already exercising jurisdiction over the child in a pending
custody proceeding. Rosen v. Celebrezze, 117 Ohio St. 3d 241, 2008-Ohio-853, 883
N.E.2d 420, ¶ 20-21. The UCCJEA “is premised on the assumption that sister state courts
will communicate with one another.” In re M.M.V., 2020 COA 94, 469 P.3d 556, ¶ 33
Perry County, Case No. 19-CA-00020 7
(Colo. App.), citing Saavedra v. Schmidt, 96 S.W.3d 533, 547-48 (Tex. App. 2002). See,
R.C. 3217.09.
{¶15} Appellant essentially argues the trial court lacked subject matter jurisdiction
because it failed to communicate with the California family court as contemplated by the
UCCJEA. We disagree.
{¶16} While the trial court and the California family court arguably had concurrent
jurisdiction, the trial court had jurisdiction to issue the DVCPO pursuant to R.C
3113.31(A)(2) and (B). Any potential error by the trial court in failing to communicate
with the California family court did not deprive the trial court of its jurisdiction. Any
potential error resulting from such failure would be an error in the trial court’s exercise of
its jurisdiction and would have been subject to direct appeal from the trial court’s January
4, 2018 order granting Appellee’s petition for the domestic violence civil protection order.
Because Appellant failed to appeal the January 4, 2018 order, he is barred by res judicata
from asserting this argument in his appeal from the trial court’s denial of his motion for
new trial.
Perry County, Case No. 19-CA-00020 8
{¶17} Appellant’s second assignment of error is overruled.
{¶18} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur