DiVincenzo v. DiVincenzo

[Cite as DiVincenzo v. DiVincenzo, 2023-Ohio-570.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
PAULA DIVINCENZO, CASE NO. 2022-L-052
Petitioner-Appellee,
Civil Appeal from the
-v- Court of Common Pleas,
Domestic Relations Division
STEVE DIVINCENZO,
Respondent-Appellant. Trial Court No. 2019 DV 000038
OPINION
Decided: February 27, 2023
Judgment: Affirmed
Sandra A. Dray, Sandra A. Dray Co., LPA, 1111 Mentor Avenue, Painesville, OH 44077
(For Petitioner-Appellee).
Hans C. Kuenzi, Hans C. Kuenzi Co., LPA, The Offices at Pinecrest, 100 Park Avenue,
Suite 210, Orange Village, OH 44122 (For Respondent-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Steve DiVincenzo (“Father”), appeals from an amended
domestic violence civil protection order (“DVCPO”) issued by the Lake County Court of
Common Pleas, Domestic Relations Division, after our remand in DiVincenzo v.
DiVincenzo, 11th Dist. Lake No. 2021-L-093, 2022-Ohio-434 (“DiVincenzo I”). The
amended DVCPO granted protection to the minor son of Father and appellee, Paula L.
DiVincenzo (“Mother”), for a term of five years, and includes an agreed judgment entry
granting Father supervised parenting time for three hours each week. In addition, as part
of our remand order in DiVincenzo I, the trial court allowed Father to proffer the testimony
of the guardian ad litem (“GAL”) from the parties’ divorce case since the trial court
prohibited the GAL from testifying at the full DVCPO hearing and did not allow Father to
proffer the GAL’s testimony at that time.
{¶2} Father raises four assignments of error on appeal, contending that the trial
court erred by (1) barring the testimony of the GAL from the parties’ post-divorce
proceedings at the full DVCPO hearing; (2) imposing supervised parenting time; (3)
limiting supervised parenting time to three hours per week; and (4) extending the term of
the DVCPO to the statutory maximum of five years.
{¶3} After a careful review of the record and pertinent law, we find Father’s
assignments of error are without merit. (We address them out of turn for the sake of
cohesiveness and the last three together since they are part and parcel of the same
issue.) It is imperative to keep in mind that a DVCPO is a special, truncated proceeding
intended to provide immediate and temporary protection in dangerous domestic
situations.
{¶4} We cannot say the trial court erred by imposing supervised parenting time
for three hours a week and/or for issuing the DVCPO for the statutory maximum term of
five years since the trial court appropriately tailored the DVCPO to the circumstances of
this case to keep the child safe from harm. More specifically, the trial court found Father
recklessly caused bodily injury to the child, which resulted in burns over 25% of the child’s
body and a resultant criminal conviction for Father. The court also found that supervised
parenting time and the maximum term of five years were necessary to keep the child safe,
particularly since the child is too young to self-protect from reckless behavior and poor
judgment. In addition, the trial court adopted the parties’ agreement that Father’s
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supervised parenting would occur for three hours per week. A “best interest” analysis is
not required, as Father contends. A more permanent modification of parental rights and
responsibilities (with a mandated best interest analysis) may be obtained through a
motion to modify the shared parenting decree pursuant to R.C. 3109.04(E) in the parties’
post-divorce proceedings.
{¶5} Nor can we say the trial court abused its discretion in barring the GAL from
testifying because the GAL admitted she would be testifying as a layperson with no
knowledge of the specific incident. The GAL was appointed several months after the
incident occurred in the parties’ post-divorce proceedings upon a motion for visitation
rights that was filed by the child’s paternal grandmother (Father’s mother) for that limited
purpose.
{¶6} The judgment of the Lake County Court of Common Pleas, Domestic
Relations Division, is affirmed.
Substantive and Procedural History
{¶7} In February 2019, Mother filed a petition for a DVCPO pursuant to R.C.
3113.31, following an incident in which the parties’ minor child, who was then four years
old, suffered second-degree burns caused by scalding hot water falling down the length
of his back while in Father’s care. Mother requested she and the child be named
protected persons.
{¶8} The magistrate issued an ex parte order that included suspending Father’s
parenting time. The parties agreed to a modified interim order, which provided Father
with supervised parenting time.
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{¶9} The full hearing on the petition for DVCPO was delayed due to a criminal
investigation of the child’s injuries. In April 2020, in the Lake County Court of Common
Pleas, Father pleaded no contest to one count of endangering children, a first-degree
misdemeanor, in violation of R.C. 2919.22(A). One month later, Father was sentenced
to one year of community control, 180 days in jail, with 149 days suspended, and ordered
to have no contact with the child.
{¶10} Thereafter, the trial court in this case approved the parties’ agreement to
allow Father to have FaceTime contact with the child four times per week.
{¶11} The case proceeded to a full hearing on the petition for DVCPO. As relevant
to this appeal, during the hearing, Father called the GAL from the parties’ post-divorce
proceedings as a witness. The GAL had been appointed after the incident in an unrelated
matter, i.e., the paternal grandmother’s motion for visitation. Mother objected. The GAL
informed the court that she could only testify as a layperson in this matter because it was
ancillary to the parties’ divorce case. The trial court sustained Mother’s objection and
found the GAL would not testify since it was unnecessary and unrelated. Further, there
was evidence for the trial court to consider regarding Father’s supervised visits following
the incident by way of the parenting time supervisors’ reports.
{¶12} Ultimately, the trial court found Father recklessly caused the child to suffer
second-degree burns on 25% of his body and failed to exercise due care by not obtaining
appropriate medical treatment for the child after the accident. The incident also resulted
in a criminal conviction. The court determined that the child was unable to protect himself
from Father’s “reckless conduct or poor judgment.” Further, the court noted that the
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reports of the parenting time supervisors showed Father’s home was unkempt and
mouse-infested and that Father’s personal hygiene was appalling.
{¶13} The trial court issued a five-year DVCPO, naming Mother and the child as
protected persons, which included the parties’ agreement in an agreed judgment entry to
allow Father supervised parenting time for three hours a week.1
{¶14} Father appealed. In DiVincenzo I, we reversed and remanded after
determining that (1) Mother should not be named as a protected person since there was
no testimony that she was in danger of domestic violence and (2) Father was denied the
opportunity to proffer the GAL’s testimony. Thus, we were unable to review the propriety
of, or any prejudice resulting from, the trial court’s ruling prohibiting the GAL from testifying
at the DVCPO hearing. Id. at ¶ 11, ¶ 17.
{¶15} Upon remand, the trial court issued a “remand judgment entry,” in which the
trial court noted that after the remand in DiVincenzo I, Father filed a motion to appoint the
GAL from the parties’ domestic relations case as the GAL in the instant case. In addition,
the GAL filed a motion for an attorney telephone conference. The trial court denied both
motions in the remand proceeding.
{¶16} Father then proceeded with his proffer, which relied on the GAL’s
investigation in the domestic relations case. The proffer stated “the GAL would testify
she saw Father in her office three times; that she saw Father and the parties’ minor child
at Father’s house two times; that she saw Father at his house once without the minor
1. While this case was pending, Mother filed a motion to terminate shared parenting, which the trial court
ultimately granted. We recently reversed and remanded in DiVincenzo v. DiVincenzo, 11th Dist. Lake No.
2022-L-014, 2022-Ohio-4457 (“DiVincenzo II”), because the trial court erred in taking judicial notice of the
factual findings made in the DVCPO proceeding and in dismissing Father’s motion to show cause based
on the ex parte DVCPO. Id. at ¶ 30.
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child. The GAL would testify she does not believe supervision of Father’s parenting time
is necessary. Further, the GAL would testify Father and minor child need meaningful
blocks of time together, including overnights. The GAL would testify Father had a
profound lack of judgment in the February 6, 2019, scalding incident of the minor child
and she does not believe Father has a tendency towards reckless behavior. He has
learned from the February incident.
{¶17} “The proffer would include that the GAL determined the Respondent’s home
is appropriate for the minor child. At this point, counsel for Father was cautioned by this
Judge during the proffer not to include facts already in evidence from the full hearing.
{¶18} “The GAL’s proffer would include that the Respondent desires a more
positive relationship with the Petitioner; that the minor child wants to spend more time
with Respondent. The GAL spoke with [a] Cuyahoga County Child Protective Services
workers after the GAL’s appointment.”
{¶19} In accordance with the remand order, the trial court issued an amended
DVCPO removing Mother as a protected person and included the parties’ previously
agreed judgment entry granting Father supervised parenting time for three hours a week.
{¶20} Father raises four assignments of error on appeal:
{¶21} “[1.] The trial court erred in barring the testimony of the Guardian Ad Litem
at [the] full hearing.
{¶22} “[2.] The trial court erred in imposing supervised parenting time between
defendant-appellant and the minor child.
{¶23} “[3.] The trial court erred in limiting supervised parenting time between
defendant-appellant and the minor child to three hours each week.
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{¶24} “[4.] The trial court erred in extending the term of the protection order to its
statutory maximum of five years.”
{¶25} We review Father’s assignments of error out of turn for the sake of
cohesiveness. Further, we address Father’s second, third, and fourth assignments of
error together since they concern the scope of the DVCPO, particularly as to the trial
court’s temporary allocation of Father’s parenting time.
Scope of the DVCPO
{¶26} Father challenges whether the trial court erred by imposing supervised
parenting time, limiting supervised parenting time to three hours per week, and lastly, by
issuing the DVCPO for the statutory maximum period of five years.
{¶27} When a trial court finds, by a preponderance of evidence, that the petitioner
or the petitioner’s family is in danger of domestic violence, the trial court may grant a
protection order to bring about a cessation of the domestic violence. See R.C. 3113.31.
An appellate court will not reverse a trial court’s decision to grant a civil protection order
absent an abuse of discretion. Deacon v. Landers, 68 Ohio App.3d 26, 31, 587 N.E.2d
395 (4th Dist.1990); Tredenary v. Fritz, 11th Dist. Lake No. 2017-L-045, 2017-Ohio-8632,
¶ 23.
{¶28} R.C. 3113.31 gives the trial court extensive authority to tailor the DVCPO
to the circumstances before the court. Felton v. Felton, 79 Ohio St.3d 34, 38, 679 N.E.2d
672 (1997). As relevant to this case, a civil protection order may “temporarily allocate
parental rights and responsibilities for the care of, or establish temporary visitation rights
with regard to, minor children, if no other court has determined, or is determining, the
allocation of parental rights and responsibilities for the minor children or parenting time
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rights. (Emphasis added.) R.C. 3113.31(E)(1)(d). Therefore, by its own terms, R.C.
3113.31(E)(1)(d) permits the trial court to temporarily provide for the care of minor
children, but the trial court in a civil domestic violence proceeding cannot issue a
permanent decree allocating parental rights and responsibilities or permanently modify
an existing decree. Couch v. Harrison, 12th Dist. Clermont No. CA2000-08-063, 2001
WL 121108, *3 (Feb. 12, 2001). See also Insa v. Insa, 2016-Ohio-7425, 72 N.E.3d 1170,
¶ 34-36 (2d Dist.).
{¶29} In addition, R.C. 3113.31(E)(3)(a) provides that a DVCPO may be valid up
to five years.
{¶30} At the outset, we must note that Father repeatedly contends that the trial
court is required to conduct a “best interest” analysis in determining parenting time and
whether it should be supervised and in determining the period of time a DVCPO shall
issue in a DVCPO proceeding. That is simply not the case. A DVCPO is a special
proceeding intended to provide immediate and temporary protection in dangerous
domestic situations, and no best interest analysis is required.
{¶31} As the Twelfth District succinctly explained in Couch:
{¶32} “Although placement of minor children under R.C. 3113.31(E)(1)(d)
necessarily involves considerations of the best interest of the children, the statute does
not specifically require the trial court to consider the ‘best interest factors’ used for creating
or modifying a shared parenting plan, or determining companionship rights. See R.C.
3109.04(F)(1); R.C. 3109.051(D). A court is not free to add words to a statute on the
basis that the addition might be desirable, or in the belief the legislature ‘meant’ to include
them. Wheeling Steel Corp. v. Porterfield (1970), 24 Ohio St.2d 24, 28. Had the
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legislature intended to have trial courts weigh the best interest factors in R.C.
3109.04(F)(1) before allocating parental rights and responsibilities in a civil protection
order, it would have expressly so declared. See id. Rather, R.C. 3113.31 demonstrates
a clear and unambiguous legislative intent to enable the trial court to immediately provide
for the temporary safety and protection of minor children. Where, as in this case, a minor
child is the victim of domestic violence by a parent, it is patently obvious that [it] is in the
child’s best interest to be removed from the abusive situation.” (Footnote omitted.) Id. at
*3.
{¶33} The trial court found the evidence overwhelmingly showed that Father
recklessly caused bodily injury to his four-year-old child, which resulted in burns over 25%
of his body, and that Father was criminally convicted of endangering the child. Further,
Father did not exercise any due care following the incident. The court specifically found
that unsupervised parenting time would put the minor child in an unsafe situation and that
a five-year protection order was necessary for the continued safety of the child—who was
unable to protect himself from Father’s reckless conduct or poor judgment.
{¶34} As to the length of time of the supervised parenting visits, we note that the
trial court adopted the parties’ agreement and that parental allocation of visitation is
temporary in DVCPO proceedings. See R.C. 3113.31(E)(1)(d). A more permanent
modification of parental rights and responsibilities may be obtained through a motion to
modify the shared parenting decree pursuant to R.C. 3109.04(E). Indeed, the parties’
divorce case has been reopened since Mother filed a motion to terminate shared
parenting (and our recent remand on the issue in DiVincenzo II). We cannot say that the
trial court erred in its determinations under these circumstances. See Schottenstein v.
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Schottenstein, 10th Dist. Franklin No. 02AP-842, 2003-Ohio-5032, ¶ 9 (The trial court did
not abuse its discretion where the DVCPO order complied with the requirements of R.C.
3113.31 by temporarily allocating parental rights and responsibilities and issuing the order
within the statutory maximum of five years).
{¶35} Father’s second, third, and fourth assignments of error are overruled.
Testimony of the GAL
{¶36} In his first assignment of error, Father contends that the trial court erred by
barring the testimony of the GAL at the hearing.
{¶37} A trial court’s ruling on the exclusion of evidence is reviewed for an abuse
of discretion. DiVincenzo I at ¶ 14. An abuse of discretion is the trial court’s “‘failure to
exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.
Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th
Ed.Rev.2004). On review of purely legal questions, however, an appellate court has de
novo review. See Big Bob’s, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498,
2003-Ohio-418, 784 N.E.2d 753, ¶ 15 (10th Dist.).
{¶38} As our review of the full DVCPO hearing and Father’s proffer revealed, the
trial court barred the GAL from testifying because, according to the GAL’s own admission,
she would be testifying as a layperson who had no knowledge of the specific incident that
prompted the DVCPO hearing. As the GAL remarked at the hearing: “Some of the
broader scope things that [Father’s counsel] is to, I mean, anyone who would walk through
[Father’s] house could give that testimony or it could have been given by imagery or
something else. So whatever my opinion as a layperson is worth, I will testify at the
Court’s pleasure.” A review of Father’s proffer reveals the GAL’s testimony would have
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concerned parenting time issues that are outside the scope of a DVCPO proceeding and
perhaps are more relevant in the parties’ post-divorce shared parenting proceedings. As
we noted above, the GAL was appointed after the incident occurred in the parties’ post-
divorce proceedings upon the motion for visitation filed by the paternal grandmother.
Further, there was layperson testimony by way of the parenting supervisors’ report that
was more directly relevant to the specific incident.
{¶39} The General Assembly enacted the civil domestic violence statute to
specifically authorize a court to issue protection orders designed to ensure the safety and
protection of family and household members. Felton at 37. When faced with the reality
of domestic violence, the trial court has an obligation to exercise its discretionary authority
to respond to the immediate needs of the victim(s) and influence the behavior of the
abuser. Id. at 44-45, citing Voris, The Domestic Violence Civil Protection Order and the
Role of the Court, 24 Akron L.Rev. 423, 432 (1990). Thus, when a court determines the
petitioner or the petitioner’s family is in danger of domestic violence, the trial court may
grant a protection order to bring about a cessation of the domestic violence. R.C.
3113.31(E)(1). The trial court has extensive authority under R.C. 3113.31(E) to tailor the
civil protection order “to the exact situation before it at the time.” (Emphasis added.)
Felton at 38.
{¶40} “‘[I]n order for a reviewing court to reverse an evidentiary ruling of the trial
court, an appellant must affirmatively demonstrate through the record on appeal not only
that error was committed, in the technical sense, but also that such error was prejudicial
to appellant, except in rare circumstances where the error is so substantial that prejudice
will be presumed.’” Heath v. Heath, 12th Dist. Fayette No. CA2016-08-011, 2017-Ohio-
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5506, ¶ 23, quoting Moser v. Moser, 72 Ohio App.3d 575, 579-580, 595 N.E.2d 518 (3d
Dist.1991).
{¶41} We cannot say the trial court abused its discretion in excluding the GAL’s
testimony under these circumstances.
{¶42} Fathers first assignment of error is overruled.
{¶43} For the foregoing reasons, Father’s assignments of error are without merit
and the judgment of the Lake County Court of Common Pleas, Domestic Relations
Division, is affirmed.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
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