Daugherty v. Daugherty , 2012 Ohio 1520 ( 2012 )

[Cite as Daugherty v. Daugherty, 2012-Ohio-1520.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
LUCINDA DAUGHERTY, : Case No. 11CA18
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
JEFFREY DAUGHERTY, : RELEASED 03/28/12
:
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Jeffrey Daugherty, South Bloomingville, Ohio, pro se appellant.
David B. Shaver, Pickerington, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Jeffrey Daugherty appeals from a domestic violence civil protection order
issued on behalf of his former wife and their minor son. Mr. Daugherty contends that
the court erred when it took various actions relating to the petition for his son. Because
that petition remains pending in the trial court, the entry Mr. Daugherty appeals from
does not constitute a final, appealable order. Thus we lack jurisdiction to consider that
part of Mr. Daugherty’s appeal and dismiss it.
{¶2} Mr. Daugherty also complains that the trial court erred when it granted Ms.
Daugherty an ex parte protection order and granted her a final order of protection.
Because the final order superseded the temporary ex parte order, any error in the
court’s issuance of the ex parte order is now moot. Regarding the final order of
protection, Mr. Daugherty not only failed to object to the court’s purported errors but
explicitly told the court he had no objections to its decision to grant the petition.
Hocking App. No. 11CA18 2
Therefore, he waived the right to raise these issues on appeal or invited any resultant
error.
I. Facts
{¶3} According to Mr. Daugherty, he and Ms. Daugherty divorced in 2009.
(Appellant’s Br. 6). In March 2011, Ms. Daugherty sought a domestic violence civil
protection order against Mr. Daugherty for herself and their son. The trial court issued
an ex parte protection order, which it later temporarily extended. The court also
appointed a guardian ad litem for the child and found that Mr. Daugherty could have
supervised visitation with his son pending the final hearing.
{¶4} By entry dated June 3, 2011, the court granted Ms. Daugherty a civil
protection order against Mr. Daugherty. However, the court did not decide whether to
grant or deny the request for a protection order for the child. Instead, the court again
ordered weekly supervised visitation between Mr. Daugherty and his son, instructed the
guardian ad litem to interview the son and file a report with the court, and ordered that
“[i]ssues regarding visitation and custody are certified to the Hocking County Juvenile
Court.” Mr. Daugherty filed a notice of appeal from this entry.
{¶5} Subsequently, on August 26, 2011, the court issued an entry stating that
the child was “not a protected person under the final order.” The court ordered that “the
Hocking County Court of Common Pleas, General Division, shall have continuing
jurisdiction regarding all matters related to parental rights and responsibilities in case
number 08 DR 243.” In addition, the court held that “[p]arenting orders made in [this
case] regarding visitation and custody of [the son] are hereby vacated. The
appointment of Steve Jackson as [guardian ad litem] is terminated effective August 25,
Hocking App. No. 11CA18 3
2011.”
II. Assignments of Error
{¶6} Mr. Daugherty assigns the following errors for our review:
ERROR 1: THE COURT SHOULD HAVE FOUND THAT [LUCINDA’S]
SWORN STATEMENT DID NOT MEET THE BURDEN OF PROVING
THE ACT OF DOMESTIC VIOLENCE BY A PREPONDERANCE OF THE
EVIDENCE AND ACCORDINGLY DISMISSED THE ACTION “FOR LACK
OF EVIDENCE.”
ERROR 2: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING JEFFREY[’]S DUE PROCESS OF LAW BY NOT PROVIDING
RESPONDENT WITH AN OPPORTUNITY TO BE HEARD AND BY NOT
PROVIDING ADEQUATE NOTICE OF THE FULL SCOPE OF THE
HEARING DURING THE GUARDIAN AD LITEM HEARING.
ERROR 3: THE TRIAL COURT ERRORED [SIC] WHEN THEY [SIC]
ORDERED THE GUARDIAN AD LITEM TO INVESTIGATE CLAIMS OF
CHILD ABUSE
ERROR 4: THE TRIAL COURT’S FINDING THAT JEFFREY ENGAGED
IN DOMESTIC VIOLENCE AGAINST LUCINDA WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND THEREFORE THE TRIAL
COURT ERRED BY ISSUING A CIVIL PROTECTION ORDER.
ERROR 5: THE TRIAL COURT ABUSED ITS DISCRETION AND
COMMITTED REVERSIBLE ERROR WHEN IT MADE ITS ALLOCATION
OF PARENTAL RIGHTS AND RESPONSIBILITIES LIMITING JEFFREY-
FATHER’S [SIC] VISITATION WITH HIS SON.
III. Final, Appealable Order
{¶7} Before we address the merits of the appeal, we must decide whether we
have jurisdiction to do so. Appellate courts “have such jurisdiction as may be provided
by law to review and affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district[.]” Section 3(B)(2), Article IV,
Ohio Constitution; see, also, R.C. 2505.03(A). If a court’s order is not final and
appealable, we have no jurisdiction to review the matter and must dismiss the appeal.
Hocking App. No. 11CA18 4
Eddie v. Saunders, Gallia App. No. 07CA7, 2008-Ohio-4755, at ¶11. In the event that
the parties do not raise the jurisdictional issue, we must raise it sua sponte. Sexton v.
Conley (Aug. 7, 2000), Scioto App. No. 99CA2655, 2000 WL 1137463, at *2.
{¶8} Typically an order must satisfy R.C. 2505.02 to constitute a final,
appealable order. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 88,
541 N.E.2d 64. Additionally, if the case involves multiple parties or multiple claims, the
court’s order must ordinarily meet the requirements of Civ.R. 54(B) to qualify as a final
order. Under Civ.R. 54(B), “[w]hen more than one claim for relief is presented in an
action * * * or when multiple parties are involved, the court may enter final judgment as
to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay.” Generally, absent the mandatory
language that “there is no just reason for delay,” an order that does not dispose of all
claims is subject to modification and is not final and appealable. Noble v. Colwell
(1989), 44 Ohio St.3d 92, 96, 540 N.E.2d 1381; see Civ.R. 54(B). “In the ordinary case,
Civ.R. 54(B) certification demonstrates that the trial court has determined that an order,
albeit interlocutory, should be immediately appealable, in order to further the efficient
administration of justice and to avoid piecemeal litigation or injustice attributable to
delayed appeals.” Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909
N.E.2d 88, at ¶11.
{¶9} Here, the case involves multiple parties. Ms. Daugherty sought a
protection order against Mr. Daugherty for herself and their son. However, the order Mr.
Daugherty appeals from only grants Ms. Daugherty a protection order. The order does
not grant a protection order for the former couple’s son.
Hocking App. No. 11CA18 5
{¶10} The court’s entry does not contain Civ.R. 54(B) language. So ordinarily
even if we found the entry Mr. Daugherty appealed from satisfied R.C. 2505.02, we
would conclude we lacked jurisdiction over this appeal. However, the Revised Code
contains a specific statute on the appealability of orders granting or denying domestic
violence civil protection orders. R.C. 3113.31(G) provides: “An order issued under this
section, other than an ex parte order, that grants a protection order or approves a
consent agreement, that refuses to grant a protection order or approve a consent
agreement that modifies or terminates a protection order or consent agreement, or that
refuses to modify or terminate a protection order or consent agreement, is a final,
appealable order.” Thus, the General Assembly has expressly made the determination
that an order granting or denying a protection order under R.C. 3113.31, even if
interlocutory, is immediately appealable. Therefore, there is no need for a trial court to
certify under Civ.R. 54(B) that “there is no just cause for delay.” When R.C. 3113.31(G)
is implicated, the trial court has no discretion to determine whether to separate claims or
parties and permit an interlocutory appeal. See, by way of analogy, Sullivan, supra, at
¶12 (explaining that because R.C. 2744.02(C) makes an order denying a political
subdivision the benefit of an alleged immunity from liability a final order, trial courts lack
discretion to determine whether to separate claims or parties and permit an interlocutory
appeal of such an order). Therefore, even without the Civ.R. 54(B) certification, we
have jurisdiction to consider Mr. Daugherty’s arguments challenging the court’s decision
to grant Ms. Daugherty a protection order.
{¶11} However, we lack jurisdiction to consider his arguments concerning his
son’s petition. Although the trial court purports to certify the son’s case to the juvenile
Hocking App. No. 11CA18 6
court, the record does not contain an entry from the juvenile court indicating it
consented to the certification.1 Thus, the petition for a protection order for the son is still
pending in the trial court. See R.C. 3109.06 (“[A]ny court, other than a juvenile court,
that has jurisdiction in any case respecting the allocation of parental rights and
responsibilities for the care of a child under eighteen years of age and the designation
of the child’s place of residence and legal custodian or in any case respecting the
support of a child under eighteen years of age, may, on its own motion or on motion of
any interested party, with the consent of the juvenile court, certify the record in the case
or so much of the record and such further information, in narrative form or otherwise, as
the court deems necessary or the juvenile court requests, to the juvenile court for further
proceedings; upon the certification, the juvenile court shall have exclusive jurisdiction.”
(Emphasis added)).
{¶12} Therefore, we dismiss the following portions of Mr. Daugherty’s appeal:
1.) the first assignment of error to the extent it appears to challenge the court’s decision
to grant his son an ex parte protection order; 2.) the second assignment of error to the
extent it raises a due process based challenge to proceedings involving his son’s
petition; 3.) the third assignment of error, which challenges the court’s instructions to his
son’s guardian ad litem; and 5.) the fifth assignment of error, which challenges the
court’s orders regarding visitation with his son.
{¶13} We recognize that on August 26, 2011, the trial court entered a judgment
that purports to modify its June 3, 2011 orders concerning Mr. Daugherty’s son. In the
August entry, the court states that the son is “not a protected person under the final
1
A court of record speaks through its journal entries, not its oral pronouncements. State v. King (1994),
70 Ohio St.3d 158, 162, 637 N.E.2d 903.
Hocking App. No. 11CA18 7
order.” Although the court previously purported to certify the son’s case to the juvenile
court, in the August entry the court indicates that it has continuing jurisdiction over
parental rights and responsibilities but under a different case number (presumably the
Daughertys’ divorce case). The court also purports to vacate its visitation orders and
appointment of a guardian ad litem. However, the trial court entered this judgment after
Mr. Daugherty filed his notice of appeal, and “[t]he filing of a notice of appeal deprives a
trial court of jurisdiction to grant any relief inconsistent with an appellate court’s ability to
affirm, modify or reverse the judgment being appealed.” State v. Scheutzman, Athens
App. No. 07CA22, 2008-Ohio-6096, at ¶6. Because the trial court lacked jurisdiction to
modify its orders relating to the son, the August entry is a nullity and we must disregard
it.
{¶14} The fact that we are dismissing this appeal as it relates to the petition for
Mr. Daugherty’s son does not change this result. The mere fact that a party perfected
an appeal from an order that a court of appeals ultimately determines not to be a final,
appealable order does not confer authority on the trial court “to proceed on those claims
that could be affected while the appeal was pending.” State ex rel. Electronic
Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30,
2011-Ohio-626, 950 N.E.2d 149, at ¶16 (per curiam). “‘[T]he determination as to the
appropriateness of an appeal lies solely with the appellate court,’ and a trial court
judge’s opinion that the order appealed from is not a final, appealable order does not
alter the fact that the filing of the notice of appeal divests the trial court of jurisdiction to
proceed with the adjudication during the pendency of the appeal.” Id., quoting and
citing In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, at ¶¶10-11.
Hocking App. No. 11CA18 8
IV. Protection Orders for Ms. Daugherty
A. Ex Parte Order
{¶15} In his first assignment of error, Mr. Daugherty appears to challenge the
court’s decision to issue Ms. Daugherty a temporary ex parte protection order rather
than dismiss the case. However, that order is not a final, appealable order, see R.C.
3113.31(G). And the court’s final order of protection superseded it, rendering any claim
regarding the ex parte order moot. See, by way of analogy, In re J.L.R., Washington
App. No. 08CA17, 2009-Ohio-5812 (explaining that in domestic relations actions, final
order supersedes temporary orders, rendering possible errors in the temporary orders
moot). Thus, we overrule the first assignment of error to the extent it challenges the ex
parte order for Ms. Daugherty.
B. Final Protection Order
{¶16} In his fourth assignment of error, Mr. Daugherty challenges the final
protection order the court granted Ms. Daugherty, arguing that the trial court’s finding
that he engaged in domestic violence against Ms. Daugherty was against the manifest
weight of the evidence. Mr. Daugherty argues that the only time the court received any
evidence on this issue was at an ex parte hearing. And in his second assignment of
error, Mr. Daugherty appears to complain that he was denied due process because he
did not have an opportunity to be heard and present evidence to contest the court’s
issuance of the final order.
{¶17} Mr. Daugherty correctly points out that the only time the court received
any evidence in this case to establish that he engaged in domestic violence against Ms.
Daugherty was at an ex parte hearing where she testified, i.e. when he had no
Hocking App. No. 11CA18 9
opportunity to cross-examine her. (See Appellant’s Br. 21). And he complains this
testimony was insufficient to establish domestic violence. However, in telling Mr.
Daugherty it planned to grant the petition for Ms. Daugherty, the court stated: “[S]o [Mr.
Daugherty] and counsel, this is your time to speak up if there is some need or desire to
have a contact or whatever with [Ms. Daugherty], but otherwise I’m going to grant only
that portion of request for civil protection that directs you to have no contact with her.
I’m going to certify the issues of custody and visitation to the juvenile court and I’ll deal
with that there.” Mr. Daugherty’s attorney did not object, and Mr. Daugherty responded:
“I have no objections. I’ve never had contact with her other than to establish a visitation
anyways.”
{¶18} “[A]n appellate court will not consider any error which counsel for a party
complaining of the trial court’s judgment could have called but did not call to the trial
court’s attention at a time when such error could have been avoided or corrected by the
trial court.” State v. Gordon (1971), 28 Ohio St.2d 45, 50, 276 N.E.2d 243. Moreover,
“[u]nder the invited-error doctrine, a party will not be permitted to take advantage of an
error that he himself invited or induced the trial court to make.” State ex rel. The V Cos.
v. Marshall, 81 Ohio St.3d 467, 471,1998-Ohio-329, 629 N.E.2d 198 (per curiam). Mr.
Daugherty not only failed to object to the court’s decision to grant Ms. Daugherty a
protection order when it had not received any evidence outside the testimony it heard at
an ex parte hearing, but he affirmatively told the court he had no objection to this
decision and did not present any evidence himself when given the opportunity. Thus he
not only waived the right to raise these issues on appeal, In re Guardianship of Larkin,
Pike App. No. 09CA791, 2009-Ohio-5014, at ¶22, but he also invited any error in the
Hocking App. No. 11CA18 10
court’s decision. See State v. Bialec, Cuyahoga App. No. 86564, 2006-Ohio-1585, at
¶12 (Corrigan, J. concurring). Accordingly, we overrule his second assignment of error
to the extent it challenges the court’s issuance of a final protection order for Ms.
Daugherty, and we overrule the fourth assignment of error.
V. Conclusion
{¶19} We lack jurisdiction to consider Mr. Daugherty’s first and second
assignments of error to the extent they involve his son’s petition for a protection order
and dismiss those portions of the appeal. In all other regards, we overrule these
assignments of error. We also lack jurisdiction to consider Mr. Daugherty’s third and
fifth assignments of error. In addition, we overrule the fourth assignment of error.
JUDGMENT AFFRIMED IN PART
AND APPEAL DISMISSED IN PART.
Hocking App. No. 11CA18 11
Kline, J., dissenting, in part.
{¶20} I respectfully dissent, in part, and concur in judgment and opinion, in part.
I dissent from the portion of the opinion that holds that the custody and visitation issues
remain pending in the trial court because the juvenile court has not consented to the
common pleas court’s certification under R.C. 3109.06. I agree that R.C. 3109.06
requires the juvenile court to consent to the certification. Here, however, I conclude that
we can infer the juvenile court’s consent from the record. The common pleas court
judge presiding over the case was also the only judge serving on the Hocking County
Juvenile Court. Regarding certification, the judge, while presiding over the case in
common pleas court, stated, “I’m going to certify the issues of custody and visitation to
the juvenile court and I’ll deal with that there.” (Emphasis added.) June 1, 2011 Tr. at
4.
{¶21} Thus, the record demonstrates that the juvenile court has consented to the
certification as required by R.C. 3109.06. As a result, I conclude that we should
consider the issues relating to Appellant’s son’s petition for a protection order that would
not otherwise be reviewable absent the juvenile court’s consent to certification.
{¶22} Finally, I concur in judgment and opinion with all other aspects of the
opinion.
Hocking App. No. 11CA18 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART and the APPEAL IS
DISMISSED IN PART 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 Hocking
County Common Pleas Court 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. Exceptions.
McFarland, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion, in part, and Dissents, in part, with Opinion.
For the Court
BY: ____________________________
William H. Harsha, 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.