C.S.J. v. S.E.J.

[Cite as C.S.J. v. S.E.J., 2019-Ohio-3273.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
C.S.J., :
Petitioner-Appellee, :
No. 107401
v. :
S.E.J., :
Respondent-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 15, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DV-17-368501
Appearances:
Adam S. Baker, for appellee.
S.E.J., pro se.
PATRICIA ANN BLACKMON, P.J.:
Appellant S.E.J. appeals from the judgment of the trial court that
granted appellee’s petition for a domestic violence civil protection order pursuant to
R.C. 3113.31. He assigns three errors for our review:
I. The trial court erred and abused its discretion when trial [court]
continued to proceed with trial after the appellant established for
the record the appellee had procedural [sic] defaulted by failing
to timely answer the admissions as required by Civ.R 36(C).
II. The trial court erred and abused its discretion when trial [court]
continued to proceed with trial after the appellant established for
the record the court’s order of service had not been perfected.
III. The appellee failed to establish perfected service on three
separate occasions without any proof of service.
Having reviewed the record and the controlling law, we affirm the
decision of the trial court. For the sake of clarity, we shall address the assigned
errors out of their predesignated order.
The record indicates that appellant and appellee were married in
2008 and have one son who was born the following year. On August 22, 2017,
appellee filed a petition for an ex parte domestic violence civil protection order
against appellant. The court issued an ex parte protection order that day.
The court scheduled a full hearing on the matter commencing in
February 2018, after both parties signed an agreed entry approving trial dates.
Appellant filed discovery requests, including multiple requests for admissions under
Civ.R. 36. He also filed motions to deem various matters admitted that were later
denied by the trial court. Both parties appeared at the evidentiary hearing and
presented evidence. According to the App.R. 9(C) statement of the evidence
submitted in this case:
On February 7, 2018, [appellee] was sworn and gave testimony that
supports finding that [appellant] committed domestic violence as
defined in R.C. 3113.31 and that the [appellee] is in danger of domestic
violence. Her testimony is found to be credible. [Appellant’s]
testimony was marginally credible. * * *
[Appellee] testified that on or about August 1, 2017, [appellant]
forcefully took [appellee’s] backpack from her person.
[Appellant] picked up a box and threw it forcefully at [appellee’s] face,
while she was wearing her glasses causing injury and bleeding.
[Appellee] played an audio recording of the incident. [Appellee] was
hysterical and crying. [Appellant] profusely apologized. [Appellee]
submitted four (4) cell-phone photographs of herself taken 30 minutes
after the aforementioned incident. The photographs clearly depict
[appellee’s] swollen face, cheek and lips. [Appellant’s] objection to [the
recording] is overruled as the [appellee] testified that she recorded the
incident, and that the recording was accurate. Same corroborated her
testimony.
On or about August 15, 2017, [appellant] dropped [appellee] off at Rite-
Aid drug store to pick up a prescription. [Appellant] left Petitioner at
the drug store and she had to take bus home. Upon her return home,
[appellee] noticed a camera set up with note that stated, “Don’t touch
the camera.” [Appellee] testified that she was so frightened she called
the police. The Police advised her to go to a shelter. [Appellee]
contacted shelters and they were filled up [so she] stayed at a hotel. *
**
[Appellant] disputed that on August 1, 2017, he threw a box at
[appellee]. He testified that it was a “flinch,” and that [appellee]
“bumped his wrist with her lips.” However, [appellant] conceded that
the photographs accurately reflected [appellee’s] injuries. As such, it is
readily apparent that [appellant] caused serious physical harm upon
the [appellee]. R.C. 3113.31(A)(1)(a).
The Court further finds by preponderance of the evidence * * * that
[appellee is] in danger of or has been a victim of domestic violence
* * * as defined in R.C. 3113.31(A), committed by [appellant.]
The court imposed a domestic violence civil protection order and
ordered it to remain in effect until August 2022.
Requests for Admissions
In the first assigned error, appellant argues that appellee did not
“timely” respond to his requests for admissions pursuant to Civ.R. 36 because
appellee’s counsel assured him that discovery responses would be returned within
14 days, and responses were one day late. He maintains that various matters should
be deemed admitted under Civ.R. 36.
In order to grant a domestic violence civil protection order pursuant
to R.C. 3113.31, the court must find that petitioner has shown by a preponderance of
the evidence that petitioner or petitioner’s family or household members are in
danger of domestic violence. Felton v. Felton, 79 Ohio St. 3d 34, 42, 1997-Ohio-302,
679 N.E.2d 672, paragraph two of the syllabus; Johnson v. Burke, 8th Dist.
Cuyahoga No. 103702, 2016-Ohio-2947, ¶ 23. R.C. 3113.31(A)(1) defines domestic
violence to include, inter alia, “attempting to cause or recklessly causing bodily
injury[.]”
Because courts are expressly authorized to “craft protection orders
that are tailored to the particular circumstances,” challenges to the scope of a
protection order are reviewed for abuse of discretion. M.D. v. M.D., 8th Dist.
Cuyahoga Nos. 106581 and 106758, 2018-Ohio-4218, ¶ 45, citing Allan v. Allan, 8th
Dist. Cuyahoga No. 101212, 2014-Ohio-5039, ¶ 11, quoting Reynolds v. White, 8th
Dist. Cuyahoga No. 74506, 1999 Ohio App. LEXIS 4454 (Sept. 23, 1999). “An abuse
of discretion connotes more than an error of law or judgment; it implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983). When applying the
abuse of discretion standard, a reviewing court may not substitute its judgment for
that of the trial court. Berk v. Matthews, 53 Ohio St. 3d 161, 169, 559 N.E.2d 1301
(1990).
Civ.R. 36(B) provides that ‘[a]ny matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal or
amendment of the admission.” Generally, the express language of Civ.R. 36(A),
requests for admissions are “‘self-executing; if there is no response to a request or
an admission, the matter is admitted. Unlike other discovery matters, the admission
is made automatically and requires no further action by the party requesting the
admissions.’” Smallwood v. Shiflet, 8th Dist. Cuyahoga No. 103853, 2016-Ohio-
7887, ¶ 18, quoting State v. Cordell, 10th Dist. Franklin No. 08AP-361, 2008-Ohio-
6124, ¶ 10.
However, Civ.R. 65.1 governs special statutory proceedings under
R.C. 3113.31, and states:
(A) Applicability; Construction; Other rules. The provisions of this
rule apply to special statutory proceedings under R.C. 3113.31, R.C.
2151.34, and R.C. 2903.214 providing for domestic violence, stalking,
and sexually oriented offense civil protection orders, shall be
interpreted and applied in a manner consistent with the intent and
purposes of those protection order statutes, and supersede and make
inapplicable in such proceedings the provisions of any other rules of
civil procedure to the extent that such application is inconsistent with
the provisions of this rule.
***
(D) Discovery.
(1) Time. Discovery under this rule shall be completed prior to the time
set for the full hearing.
(2) Discovery order. Discovery may be had only upon the entry of an
order containing all of the following to the extent applicable:
(a) The time and place of the discovery;
(b) The identities of the persons permitted to be present, which shall
include any victim advocate; and
(c) Such terms and conditions deemed by the court to be necessary to
assure the safety of the Petitioner, including if applicable, maintaining
the confidentiality of the Petitioner’s address.
(Emphasis added.)
Pursuant to the 2016 Staff Notes for this rule,
The [domestic violence civil protection order] statutes do not address
discovery. Division (D) provides for discovery only upon a court order
containing accommodations and protections deemed necessary for the
protection of the petitioner.
The record in this case indicates that without obtaining prior approval
from the court, appellant served multiple requests for admissions upon appellee,
which were followed by motions to deem matters admitted. Under the clear
language of Civ.R. 65.1, however, in order to fulfill the aims of accommodating and
protecting an ex parte petitioner, a discovery order must first be obtained before
proceeding with discovery. Such order would specify the time, place, terms and
conditions of discovery. Moreover, as the magistrate thoughtfully opined in this
case:
Neither party requested a discovery order prior to the date of this
proceeding, January 3, 2018. The purpose of the statute is to determine
whether the Petitioner and/or the parties’ minor child are in danger of
domestic violence based on the truth of the allegations contained in the
Petition. Felton v. Felton[, 79 Ohio St. 3d 34, 37-38, 679 N.E.2d 672
(1997)]. This Magistrate is of the opinion that such requests for
admissions are inconsistent with the purpose of the statute, to protect
individuals from domestic violence. Discovery should be used as a
shield and not a sword. Civil Rule 65.1 addresses discovery in these
proceedings. This Magistrate offered that the Respondent could
schedule the Petitioner’s deposition to take place in this Courthouse
prior to the full hearing taking place. The Respondent declined the
opportunity to do so.
In accordance with the foregoing, we conclude that the trial court did
not abuse its discretion in denying appellant’s motions to deem various matters
admitted. The first assigned error lacks merit.
Appellee’s Service of Discovery Documents
In the third assigned error, appellant maintains that appellee failed
to properly serve him with her discovery responses.
Again, we note that appellant did not first obtain a court order for
discovery as required under Civ.R. 65.1. Additionally, the magistrate properly
denied his attempt to deem matters submitted to appellee as admitted prior to the
full evidentiary hearing. Further, appellant was permitted to extensively cross-
examine appellee and pursue expansive areas of inquiry during the full evidentiary
hearing. Accordingly, we find no prejudicial error.
The third assigned error is without merit.
Service of Notices and Orders from the Court
In the second assigned error, appellant asserts that he was not
properly served with court notices and orders after he notified the court of his
change of address.
In order to render a valid judgment, a court must have jurisdiction
over the defendant in the action. Maryhew v. Yova, 11 Ohio St. 3d 154, 156, 464
N.E.2d 538 (1984). A court may acquire personal jurisdiction over the defendant
either by service of process upon the defendant, the voluntary appearance and
submission of the defendant or his legal representative, or by certain acts of the
defendant or his legal representative that constitute an involuntary submission to
the jurisdiction of the court. Id. Jurisdiction over the person is presumed to exist
in the absence of an objection. Jones v. Jordan, 8th Dist. Cuyahoga No. 88696,
2007-Ohio-2519, ¶ 11.
Under R.C. 3113.31(D),
The court shall give the respondent notice of, and an opportunity to be
heard at, the full hearing. The court shall hold the full hearing on the
date scheduled under this division unless the court grants a
continuance of the hearing in accordance with this division. Under any
of the following circumstances or for any of the following reasons, the
court may grant a continuance of the full hearing to a reasonable time
determined by the court:
(i) Prior to the date scheduled for the full hearing under this division,
the respondent has not been served with the petition filed pursuant to
this section and notice of the full hearing.
(ii) The parties consent to the continuance.
Here the record indicates that appellant was properly served with the
ex parte order and the notices of the full hearing that were initially scheduled.
Appellant moved to a new residence after the ex parte order was issued. However,
he subsequently signed several agreed orders outlining the trial dates. Significantly,
appellant signed various agreed judgment entries scheduling the hearing on the
protection order and explaining that the ex parte order would remain in effect.
Furthermore, appellant did not raise an objection to the sufficiency of process.
Civ.R. 12(H). Appellant also appeared in the action and filed numerous documents,
clearly demonstrating his awareness of the scheduling of trial as well as the court’s
personal jurisdiction. In accordance with all of the foregoing, we conclude that the
trial court had personal jurisdiction over appellant in this matter.
The second assigned error is without merit.
Motion No. 528115 (which was referred to the merit panel for
disposition) seeking reconsideration of this court’s prior order striking Exhibit D
from appellant’s merit brief is denied in part and granted in part. The motion to
reconsider is denied as to the letter included within Exhibit D, but is reversed as to
the remainder of Exhibit D, which is part of the trial court record.
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR