Cyran v. Cyran (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cyran v. Cyran, Slip Opinion No. 2018-Ohio-24.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-24
CYRAN, APPELLEE, v. CYRAN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cyran v. Cyran, Slip Opinion No. 2018-Ohio-24.]
Domestic relations—Domestic-violence civil protection orders—Appeals—
Mootness—Collateral consequences—Absent a showing of legal collateral
consequences resulting from an expired domestic-violence civil protection
order, an appeal of that order is moot.
(Nos. 2016-1737 and 2016-1870—Submitted September 13, 2017—Decided
January 4, 2018.)
APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County,
No. 27009, 2016-Ohio-7323.
_________________
O’NEILL, J.
{¶ 1} In this case we are asked to determine whether the collateral-
consequences exception to mootness applies to an appeal of an expired domestic-
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violence civil protection order issued pursuant to R.C. 3113.31, in the absence of
any collateral consequences at the time of the appeal. We hold that absent a
showing of legal collateral consequences resulting from an expired domestic-
violence civil protection order, an appeal of that order is moot.
Facts and Procedural History
{¶ 2} Rebecca and Curtis Cyran’s marriage was dissolved in 2013, and a
shared-parenting decree was put into effect for their three sons. On June 19, 2015,
in the Montgomery County Court of Common Pleas, Domestic Relations Division,
Rebecca filed a petition for a domestic-violence civil protection order against Curtis
under R.C. 3113.31. The incident that led Rebecca to file the petition took place
when she was picking up the children from Curtis on June 17, 2015. Rebecca’s
petition stated that she was approaching the front door of Curtis’s house when
Curtis rushed out the front door and threw her backward into the bushes. The
petition added that Curtis went back inside the house, then came back out and said
Rebecca was lucky that he did not shoot her. The domestic-relations court issued
an ex parte domestic-violence civil protection order on June 19, 2015. The order
made no change to Curtis and Rebecca’s parenting schedule and was to remain in
effect until June 19, 2016.
{¶ 3} On July 2, 2015, a magistrate conducted a full evidentiary hearing on
Rebecca’s petition. The magistrate found by a preponderance of the evidence that
Rebecca was in danger of or had been a victim of domestic violence as defined in
R.C. 3113.31(A) and on August 20, 2015, issued a decision and permanent
domestic-violence civil protection order that expired on June 19, 2016. Curtis
timely objected to the magistrate’s decision, arguing that his statement was a
conditional threat and that the protection order was not supported by the manifest
weight of the evidence. On January 15, 2016, the trial court dismissed Curtis’s
objections and adopted the magistrate’s order without change, retaining the June
19, 2016 expiration date. Curtis timely appealed. On September 9, 2016, the
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appellate court issued a show-cause order asking the parties to explain why the case
should not be dismissed as moot because the protection order had expired. Curtis
responded that Rebecca had sought the domestic-violence civil protection order
only as leverage for herself in future postdivorce proceedings. Curtis also argued
that he faced the possibility of collateral consequences with respect to his
concealed-firearm permit and his credit report as well as his ability to obtain
housing, drive certain vehicles, and obtain future employment. He urged the court
to adopt the Eighth District’s rule that the possibility of collateral consequences is
sufficient to support appellate consideration of an expired domestic-violence civil
protection order. See Wilder v. Perna, 174 Ohio App. 3d 586, 2007-Ohio-6635, 883
N.E.2d 1095 (8th Dist.). Rebecca did not respond to the show-cause order, and she
did not seek to extend the protection order.
{¶ 4} On October 14, 2016, the appellate court dismissed the appeal as
moot. The court examined each of the potential collateral consequences asserted
by Curtis and found no provision of Ohio law imposing sanctions or adverse legal
consequences on the basis of an expired protection order. The court acknowledged
the Eighth District’s Wilder decision but declined to apply it. The court determined
that it had no authority to speculate whether Curtis would suffer collateral
consequences from the expired order in future post-divorce proceedings.
{¶ 5} Curtis appealed to this court, asserting the following two propositions
of law:
Proposition of Law No. 1: The collateral consequences
exception to mootness applies to an appeal from an expired
protection order when the appellant faces possible collateral
consequences that may not be ascertainable at the time of the appeal.
Proposition of Law No. 2: There is a rebuttable presumption
that an appeal from an expired protection order is not moot.
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{¶ 6} On February 22, 2017, this court accepted Curtis’s discretionary
appeal. 148 Ohio St. 3d 1409, 2017-Ohio-573, 69 N.E.3d 750. We also determined
that a conflict exists between the Second Appellate District’s decision in this case
and the Eighth Appellate District’s decision in Wilder on the following question of
law: “Does the collateral consequences exception to mootness apply to an appeal
from an expired protective order when the appellant faces possible collateral
consequences that may not be ascertainable at the time of the appeal?”
Accordingly, we consolidated Curtis’s discretionary appeal with the certified-
conflict case. 148 Ohio St. 3d 1408, 2017-Ohio-573, 69 N.E.3d 749.
{¶ 7} We reject both propositions of law and answer the certified question
in the negative. We hold that in the absence of demonstrated legal collateral
consequences, the collateral-consequences exception to the mootness doctrine does
not apply to an expired domestic-violence civil protection order. In reaching this
conclusion, however, we express no opinion about whether another exception to
the mootness doctrine might apply in a different case. We also decline to establish
a rebuttable presumption that an appeal from an expired domestic-violence civil
protection order is not moot.
Analysis
Unascertainable Collateral Consequences
{¶ 8} In his first proposition of law, Curtis argues that the collateral-
consequences exception to the mootness doctrine applies to an appeal from an
expired protection order when the appellant faces possible collateral consequences
that may not be ascertainable at the time of the appeal. We disagree.
{¶ 9} The role of courts is to decide adversarial legal cases and to issue
judgments that can be carried into effect. Fortner v. Thomas, 22 Ohio St. 2d 13, 14,
257 N.E.2d 371 (1970). Under the mootness doctrine, American courts will not
decide cases in which there is no longer an actual legal controversy between the
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parties. In re A.G., 139 Ohio St. 3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37.
Thus, when parties “lack a legally cognizable interest in the outcome,” a case
becomes moot. Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 23
L. Ed. 2d 491 (1969). This court has recognized the collateral-consequences
exception to the mootness doctrine in criminal and traffic cases. State v. Golston,
71 Ohio St. 3d 224, 227, 643 N.E.2d 109 (1994) (due to the numerous statutory
restrictions imposed on convicted felons, an appeal of a felony conviction is not
moot even if the entire sentence has been satisfied before the matter is heard on
appeal); Cleveland Hts. v. Lewis, 129 Ohio St. 3d 389, 2011-Ohio-2673, 953 N.E.2d
278, ¶ 23, 31 (a misdemeanant demonstrates a substantial stake in the judgment of
conviction even after the sentence has been completed when he contests the charges
at trial and, after being convicted, seeks a stay of execution of sentence for the
purpose of preventing an intended appeal from becoming moot; in her concurring
opinion, Justice Lundberg Stratton pointed out Ohio Revised Code provisions that
use a prior misdemeanor charge to enhance the penalty for a future criminal charge
or penalty); State v. Wilson, 41 Ohio St. 2d 236, 325 N.E.2d 236 (1975), syllabus (a
misdemeanant must offer evidence from which an inference can be drawn that the
misdemeanant suffers some collateral disability in order to maintain the right to
appeal a conviction); In re S.J.K., 114 Ohio St. 3d 23, 2007-Ohio-2621, 867 N.E.2d
408, ¶ 14, 18 (an appeal of a traffic offense does not become moot after the
defendant has paid the fines and costs, because the statutory imposition of points
on a person’s driver’s license constitutes a collateral disability). Thus, under
current law, the collateral-consequences exception to mootness applies in cases in
which the collateral consequence is imposed as a matter of law. That is not the case
here.
{¶ 10} Here, Curtis asserts that the collateral-consequences exception to the
mootness doctrine should be applied even when the consequences may not be
ascertainable at the time of the appeal. He urges us to adopt the rule in Wilder, 174
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Ohio App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095. In Wilder, the Eighth
District held that an appeal of an expired protection order is not moot, “because it
is reasonably possible that adverse collateral consequences may occur.” Id. at ¶ 16.
The court adopted the rationale of the Connecticut Supreme Court that “ ‘in the
sensitive and often explosively litigated context of family dysfunction and
dissolution,’ ” it is reasonably possible that adverse collateral consequences may
occur as a result of the expired order. Id. at ¶ 15-16, quoting Putman v. Kennedy,
279 Conn. 162, 169-174, 900 A.2d 1256 (2006). We disagree.
{¶ 11} Finding a reasonable possibility that a collateral consequence may
occur calls for speculation. We understand that divorce, postdivorce, and custody
proceedings are sometimes acrimonious. However, “[i]t has become settled
judicial responsibility for courts to refrain from giving opinions on abstract
propositions and to avoid the imposition by judgment of premature declarations or
advice upon potential controversies.” Fortner at 14. Here, as the Second District
explained, there is no provision of Ohio law that imposes a restriction as a result of
an expired protection order. Curtis does not demonstrate or argue that he has
suffered any consequences. Rather, he argues that the possibility of future
collateral consequences should preserve his appeal of the expired order. We are
not convinced. Speculation is insufficient to establish a legally cognizable interest
for which a court can order relief using the collateral-consequences exception to
the mootness doctrine.
Rebuttable Presumption
{¶ 12} In his second proposition of law, Curtis asserts that there should be
a rebuttable presumption that an appeal from an expired protection order is not
moot. We decline to establish such a presumption. As discussed above, it is well
established that the role of courts is to “ ‘decide actual controversies by a judgment
which can be carried into effect.’ ” Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21
(1910), quoting Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 40 L. Ed. 293
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(1895). Further, this court has made it clear that courts have a responsibility to
refrain from giving advisory opinions. Smith v. Leis, 111 Ohio St. 3d 493, 2006-
Ohio-6113, 857 N.E.2d 138, ¶ 16.
{¶ 13} Equally clear is that domestic-violence civil protection orders are
creatures of statute. R.C. 3113.31 establishes a comprehensive statutory scheme
for issuing, modifying, and terminating domestic-violence civil protection orders.
The statute vests the court with broad authority to tailor domestic-violence civil
protection orders to fit the needs of each particular case. Felton v. Felton, 79 Ohio
St.3d 34, 37-38, 679 N.E.2d 672 (1997). The statute does not, however, establish
a rebuttable presumption that an appeal from an expired order is not moot, and it
does not authorize courts to hear appeals of expired orders. Establishing a
rebuttable presumption in R.C. 3113.31 that an expired civil protection order is not
moot is a matter for the Ohio General Assembly, not for this court. Morris Plan
Bank of Cleveland v. Viona, 122 Ohio St. 28, 32, 170 N.E. 650 (1930) (statutes
should be amended by legislative enactment, not by judicial construction).
Conclusion
{¶ 14} “The presence of a disagreement, however sharp and acrimonious it
may be, is insufficient to create an actual controversy if the parties to the action do
not have adverse legal interests.” State ex rel. Barclays Bank, P.L.C. v. Hamilton
Cty. Court of Common Pleas, 74 Ohio St. 3d 536, 660 N.E.2d 458 (1996), paragraph
one of the syllabus. Accordingly, we hold that in the absence of demonstrated legal
collateral consequences, an appeal from an expired domestic-violence civil
protection order does not satisfy the collateral-consequences exception to the
mootness doctrine. We note, again, that we express no opinion about whether
another exception to the mootness doctrine might apply in a different case.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ.,
concur.
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KENNEDY, J., dissents, with an opinion.
_________________
KENNEDY, J., dissenting.
{¶ 15} Today, the majority holds that the collateral-consequences exception
to the mootness doctrine does not apply to appellate review of a finding of domestic
violence contained within a civil protection order (“CPO”) issued pursuant to R.C.
3113.31, after a full hearing, when the order expires during the pendency of the
appeal. While collateral consequences, to save an appeal from mootness, may not
be speculative, see Pennsylvania v. Mimms, 434 U.S. 106, 108, 98 S. Ct. 330, 54
L. Ed. 2d 331 (1977), fn. 3, and must be more than a mere possibility, see Spencer
v. Kemna, 523 U.S. 1, 14-16, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998), proof of their
existence beyond a reasonable doubt is not required. Collateral consequences are
instead measured by probability or certainty. Id.
{¶ 16} A court of competent jurisdiction is mandated by R.C.
3109.04(F)(2)(c) to consider a “history of, or potential for * * * spouse abuse [or]
other domestic violence” in determining whether shared parenting is in the best
interest of a child when deciding whether to modify or terminate a decree of shared
parenting and shared-parenting plan (“shared-parenting plan”). Therefore, when a
respondent subject to a finding of domestic violence in a CPO is also a party to a
shared-parenting plan, the legal collateral consequences of a CPO are probable and
certain and the party’s appeal of the CPO is not moot. Therefore, I would reverse
the judgment of the Second District Court of Appeals and remand this matter for
appellate review.
{¶ 17} When determining whether to modify or terminate a shared-
parenting plan, a trial court is to determine the best interest of the children. See
R.C. 3109.04(B)(1). As set forth above, one of the factors the court is required to
consider when determining whether shared parenting is in the children’s best
interests is whether there is a history of or potential for domestic violence. See R.C.
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3109.04(F)(2)(c). A history of or potential for domestic violence may also weigh
in the court’s determination of other factors the court is required to consider,
including “the ability of the parents to cooperate” in making joint decisions
regarding their children, R.C. 3109.04(F)(2)(a), and each parent’s ability to
“encourage the sharing of love, affection, and contact between the child and the
other parent,” R.C. 3109.04(F)(2)(b).
{¶ 18} In response to the order issued by the Second District requiring him
to show cause why his appeal of an expired domestic-violence CPO should not be
dismissed as moot, appellant, Curtis Cyran, informed the court that he and appellee,
Rebecca Cyran, had three minor children whom they regularly exchanged for
parenting time and that legal actions between Curtis and Rebecca were still
pending. In support of his argument that collateral consequences resulted from the
CPO, Curtis stated that “ ‘a trial judge making a future custody determination
* * * might consider the issuance of a domestic violence restraining order in making
that sensitive decision,’ ” quoting Wilder v. Perna, 174 Ohio App. 3d 586, 2007-
Ohio-6635, 883 N.E.2d 1095. Thereafter, Curtis cited other collateral
consequences including potential difficulty obtaining housing and employment and
potential impacts on his credit report and concealed-firearm permit.
{¶ 19} In finding the appeal of the CPO moot, the Second District followed
the precedent established in Erbes v. Meyer, 2d Dist, Montgomery No. 23917,
2011-Ohio-3274, Baldridge v. Baldridge, 2d Dist. Darke No. 2010-CA-10, 2011-
Ohio-2423, and Jagow v. Weinstein, 2d Dist. Montgomery No. 24309, 2011-Ohio-
2683. 2016-Ohio-7323, 63 N.E.3d 187, ¶ 5, 7. However, a careful review of those
cases demonstrates the danger of equating the wide variety of protection orders
available in Ohio with domestic-violence CPOs and of treating the facts of those
cases as equivalent to those in this case.
{¶ 20} In Erbes, the court issued an antistalking civil protection order
(“SCPO”), id. at ¶ 1, and in Jagow, the court issued a consent-agreement SCPO, id.
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at ¶ 2. An SCPO is granted pursuant to R.C. 2903.214, and the underlying
allegation in the petition must be that the respondent has engaged in a violation of
R.C. 2903.211, the criminal statute that prohibits menacing by stalking. A finding
of domestic violence is not required for a court to issue an SCPO. While it is
possible for an SCPO to be issued against a current or former spouse, see e.g., Wildi
v. Wildi, 159 Ohio App. 3d 568, 2005-Ohio-257, 824 N.E.2d 1011, ¶ 1 (10th Dist.),
and Short v. Walker, 12th Dist. Preble No. CA2000-08-009, 2001 WL 32808, *1
(Jan. 16, 2001), the facts of Erbes and Jagow are devoid of any mention that the
parties were spouses, were family or household members, were parents to common
children, or were subject to a shared-parenting plan.
{¶ 21} While Baldridge involved the issuance of a CPO, as in this case, the
appellant in that case was not challenging a finding of domestic violence. The
appellant was a wife who had sought and received a CPO and who challenged a
provision in the CPO allowing her husband to contact her to discuss their child. Id.
at ¶ 2. Pursuant to R.C. 3113.31(E)(3)(b), however, all parenting provisions
contained in a CPO are terminated when a court issues a subsequent parenting order
in a divorce proceeding, and subsequent to the issuance of the CPO, the trial court
in Baldridge had issued a final judgment and decree of divorce containing custody
and visitation provisions. Under R.C. 3113.31(E)(3)(b), those provisions
superseded the portion of the CPO that the wife sought to overturn on appeal.
{¶ 22} While the appellate court in this case relied on cases involving
protection orders, the majority narrowly focuses on cases with collateral
consequences flowing from criminal and traffic offenses in reaching the conclusion
that the expiration of the CPO at issue here rendered the appeal moot. While the
collateral-consequences exception to the mootness doctrine developed out of the
adverse consequences arising from criminal convictions, see State v. Golston, 71
Ohio St. 3d 224, 643 N.E.2d 109 (1994), syllabus, our consideration of collateral
consequences should not take such a myopic view.
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{¶ 23} In this case, Rebecca and Curtis are subject to a shared-parenting
plan, and the domestic-relations court retains jurisdiction to modify or terminate
the shared-parenting plan until their children reach the age of majority. See R.C.
3109.04(B)(1); see also Loetz v. Loetz, 63 Ohio St. 2d 1, 2, 406 N.E.2d 1093 (1980).
The legislature has granted a trial court the ability to modify or terminate a shared-
parenting plan at any time upon motion of the court or either party subject to the
plan, R.C. 3109.04(E)(2)(b), and the determination whether to modify or terminate
the shared-parenting plan is based on the best interest of the children, R.C.
3109.04(E)(1)(a).
{¶ 24} In determining whether shared parenting is in the best interest of the
children, the General Assembly has enumerated mandatory factors for a court to
consider. See R.C. 3109.04(F)(2)(a) through (c). The General Assembly did not
assign any relative weight to the factors; therefore, the weight assigned to each
factor lies within the trial court’s sole discretion.
{¶ 25} When the court issued the CPO against Curtis, it made the finding
that Curtis committed an act of domestic violence against Rebecca. While the
following is not an exhaustive list of cases, Ohio case law abounds with examples
of parents whose parental rights and responsibilities have been affected by a prior
court’s determination that one parent has been found to have committed an act of
domestic violence or that a court issued a CPO. See Heilman v. Heilman, 3d Dist.
Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 29 (trial court factored in CPO in denying
father’s motion for shared parenting); Ruble v. Ruble, 12th Dist. Madison No.
CA2010-09-019, 2011-Ohio-3350, ¶ 13 (pursuant to R.C. 3109.04(F)(1)(c), court
considered testimony about husband’s domestic violence against wife in
determining the children’s best interest); Thacker v. Thacker, 3d Dist. Marion No.
9-10-26, 2010-Ohio-5675, ¶ 51 (trial court considered incidents of domestic
violence, including conviction for violating CPO, in denying father’s motion for
shared parenting); Barry v. Barry, 169 Ohio App. 3d 129, 2006-Ohio-5008, 862
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N.E.2d 143, ¶ 14 (8th Dist.) (domestic violence by one spouse against another is
relevant in a determination of an allocation of parental rights and responsibilities);
Clark v. Clark, 7th Dist. Noble No. 03 NO 308, 2004-Ohio-1577, ¶ 47 (court did
not abuse its discretion in considering mother’s domestic violence against father
when naming father residential parent and legal custodian of minor child); Dodd v.
Dodd, 6th Dist. Lucas No. L-00-1168, 2001 WL 812244, *1 (July 13, 2001) (court
properly considered “volatile relationship of the parents and [father’s] violent
tendencies” in naming mother residential parent and legal custodian of minor
children); Kelly-Doley v. Doley, 11th Dist. Lake No. 96-L-217, 1999 WL 262165,
*8 (March 12, 1999) (court properly found shared parenting would not be in the
best interest of the child due to parents’ violent and hostile relationship); Butzer v.
Butzer, 9th Dist. Wayne No. 97CA0018, 1998 WL 34615, *2 (Jan. 14, 1998) (court
properly considered father’s conviction for domestic violence against mother in the
presence of the children in naming mother primary residential parent); Alexander
v. Oiler, 2d Dist. Clark No. 96-CA-03, 1997 WL 7166, *4 (Jan. 10, 1997) (father’s
arrest for domestic violence was a substantial change in circumstances to support a
modification of custody); Clark v. Clark, 10th Dist. Franklin No. 96APF08-1063,
1997 WL 170298, *5 (April 8, 1997) (trial court did not err in stating that
“further domestic violence would be grounds to support a motion to modify
parental rights and responsibilities”); Taylor v. Taylor, 5th Dist. Richland No. 94
CA 67, 1995 WL 507446, *3 (May 3, 1995) (court did not err in considering
incidents of violence between mother and boyfriend in termination of shared-
parenting plan).
{¶ 26} In contrast to the Second District’s determination in this case, the
Eighth District held in Wilder, the case certified in conflict with this one, that an
appeal from a CPO was not rendered moot by the CPO’s expiration. 174 Ohio
App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095, at ¶ 16.
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{¶ 27} In Wilder, the parties had an agreed parenting-time schedule. The
mother filed a petition for a CPO against the father on behalf of the child. The trial
court issued the CPO, and the father appealed. The CPO expired during the
pendency of the appeal. In determining that the appeal of the CPO was not moot,
the Wilder court relied on Putman v. Kennedy, 279 Conn. 162, 173-174, 900 A.2d
1256 (2006), and Cauwenbergh v. Cauwenbergh, 11th Dist. Ashtabula No. 2006-
A-0008, 2007-Ohio-1070. In Putman, the court held that an appeal of a finding of
domestic violence in a CPO is not moot, in part because that finding of domestic
violence can be used in future proceedings determining parental rights and
responsibilities. Id. at 1263. In Cauwenbergh, the Eleventh District relied on
Putman in concluding that the appeal of a CPO was not moot. Cauwenbergh at
¶ 18.
{¶ 28} Two other appellate districts have agreed with the Eighth District
Court of Appeals. See J.T. v. R.T., 9th Dist. Medina No. 14CA0061-M, 2015-Ohio-
4418, ¶ 6; Detrick v. Preece, 3rd Dist. Logan No. 8-12-17, 2013-Ohio-2499, ¶ 8.
{¶ 29} And in addition to the Supreme Court of Connecticut in Putman, our
sister supreme court in the state of Maine has also rejected the mootness of an
appeal from a CPO that has expired, because of the required statutory consideration
of a domestic-violence protection order in future child-custody actions. Chretien
v. Chretien, 2017 ME 192, 170 A.3d 260, ¶ 9.
{¶ 30} Other state appellate courts have also recognized the collateral
consequences resulting from required statutory considerations of a domestic-
violence protection order in future child-custody actions and have permitted
appeals of expired orders. See Poland v. Poland, 2017 Ark. App. 178, 518 S.W.3d
98, 103-104; Cardoso v. Soldo, 230 Ariz. 614, 277 P.3d 811, ¶ 10 (Ariz.App.2012);
Pechovnik v. Pechovnik, 765 N.W.2d 94, 98 (Minn.App.2009); Schaban-Maurer v.
Maurer-Schaban, 238 S.W.3d 815, 823 (Tex.App.2007); Smith ex rel. Smith v.
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Smith, 145 N.C.App. 434, 437, 549 S.E.2d 912 (2001); In re H.Q., 152 Wis. 2d 701,
707-708, 449 N.W.2d 75 (Wis.App.1989).
{¶ 31} Society’s view of domestic violence and the reach of its ill effects
has changed over the past 30 years, and rightfully so. Adrine & Ruden, Ohio
Domestic Violence Law, Section 1:1, at 10-12 (2016). In response, the Ohio
General Assembly has enacted laws exacting harsher criminal penalties for acts of
domestic violence and has created a system of civil redress, i.e., civil protection
orders, see Felton v. Felton, 79 Ohio St. 3d 34, 37, 679 N.E.2d 672 (1997). In
keeping with the public policies underlying these changes, the Ohio legislature has
also enacted statutory guidelines mandating that a trial court, in determining the
parental rights and responsibilities of children, must consider the best interests of
the children and that the determination of whether shared parenting of children is
appropriate must include consideration of whether there is a history or potential for
domestic violence. R.C. 3109.04(F)(2)(c).
{¶ 32} While the General Assembly rightfully is the “ultimate arbiter of
public policy” on these considerations, State ex rel. Plain Dealer Publishing Co. v.
Cleveland, 106 Ohio St. 3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 54, we should
not foreclose a respondent’s ability to challenge a finding of domestic violence in
a CPO when we know that it is probable or certain that that finding will have an
effect on future parenting determinations. While we can hope that a trial court does
not consider one factor alone in a vacuum, the determination of the best interest of
the child rests within the sole discretion of the trial court. As such, a finding of
domestic violence alone can be relied on to deny a parent the “ ‘fundamental liberty
interest’ in the care, custody, and management of the child,” In re Murray, 52 Ohio
St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S.
745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
{¶ 33} A respondent who is found to have committed an act of domestic
violence and who has been subject to a CPO has a limited window of opportunity
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to challenge that finding on appeal. Because a finding of domestic violence can
impact a person’s fundamental constitutional right to parent their children, we
should not deny them their day in court.
{¶ 34} Today, the majority has given a weapon to those who would chose
to manipulate parenting proceedings. Just as people race to the courthouse to use
an ex parte CPO to get an advantage on residential parenting status before the filing
of a divorce or custody action, they will use the majority’s opinion to gain an
advantage in an ongoing parenting dispute. Based on today’s majority opinion,
regardless of whether a full-hearing CPO expires or is dismissed, a respondent can
never challenge on appeal the finding of domestic violence, and thereby, the
respondent is branded forevermore with the taint of being a perpetrator of domestic
violence.
{¶ 35} The ever-present likelihood that the finding of domestic violence in
a CPO may impact the determination of the best interest of the children and color
the court’s view of whether a parent is capable of making joint decisions with the
other parent regarding their children and encouraging the love and affection
between the children and the other parent is the embodiment of a collateral
consequence. Because of the commands of the General Assembly in R.C. 3109.04,
it is neither “speculative” nor “insufficient to establish a legally cognizable interest
for which a court can order relief.” Majority opinion at ¶ 11.
{¶ 36} As legal collateral consequences flow from a CPO when the
respondent is also a party to a shared-parenting plan, I decline to address the issue
of societal collateral consequences.
{¶ 37} Because a court of competent jurisdiction is required as a matter of
law pursuant to R.C. 3109.04(F)(2)(c) to consider a “history of, or potential for
* * * spouse abuse, [or] other domestic violence” when deciding whether shared
parenting is in the best interest of the children, legal collateral consequences as a
result of a finding of domestic violence in an expired CPO are probable and certain
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SUPREME COURT OF OHIO
in this case. Therefore, based on the facts of this case, when a respondent subject
to a finding of domestic violence in a CPO is also a party to a shared-parenting
plan, the CPO is not moot. Therefore, I would reverse the judgment of the Second
District Court of Appeals and remand this matter for appellate review.
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Wright & Schulte, L.L.C., and Stephen D. Behnke, for appellant.
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