Elmurr v. Makdessi

[Cite as Elmurr v. Makdessi, 2019-Ohio-1437.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MALVINA ELMURR, AKA MAKDESSI :
Plaintiff-Appellant :
No. 107273
v. :
JOSEPH MAKDESSI :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 18, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DV-17-365915
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, and Nicole A.
Cruz, for appellant.
Paris & Paris, John T. Paris, for appellee.
RAYMOND C. HEADEN, J.:
Plaintiff-appellant Malvina Elmurr Makdessi (“Elmurr”) appeals
from the lower court’s granting of a domestic violence civil protection order against
defendant-appellee Joseph Makdessi (“Makdessi”) that did not include the parties’
infant daughter as a protected person. For the reasons that follow, we reverse.
Procedural and Substantive History
Elmurr arrived in the United States from her native Lebanon in
December 2015 on a 90-day fiancée visa. She and Makdessi were married on
February 6, 2016. In August 2016, Elmurr became a lawful permanent resident.
On November 18, 2016, Elmurr gave birth to a daughter. Shortly after
their daughter’s birth, Elmurr called police to their house following an altercation
between the parties.
On February 21, 2017, Elmurr was served with divorce papers from
Makdessi. Divorce proceedings between the parties are ongoing. On February 23,
2017, another incident occurred in which, according to Elmurr, Makdessi wanted to
take the baby from her. Elmurr alleged that Makdessi pulled her out of the
apartment by her hair and attempted to grab the baby from her and from Elmurr’s
mother.
Elmurr subsequently sought a protection order. She requested that
the trial court issue a domestic violence civil protection order against Makdessi for
the protection of herself and her minor child for a term of five years, the maximum
permissible time for the duration of a protection order under R.C. 3113.31. The trial
court granted an ex parte protection order on February 27, 2017, that listed Elmurr
and her minor child as protected persons.
A full hearing before a magistrate was held, taking place over three
separate dates: September 1, 2017; January 3, 2018; and January 19, 2018. Both
parties were represented at the hearing, and both parties testified and were cross-
examined. A friend of Makdessi’s, Officer Kenneth Willner (“Willner”) also testified.
The testimony of both parties makes clear that their marriage was
fraught from its outset. Initially, Makdessi’s mother lived with the couple. This
created tension between the parties, and eventually, at Elmurr’s urging, the couple
moved into their own apartment. Subsequently, Elmurr’s mother moved into the
couple’s apartment.
At the hearing, Elmurr testified that, over the course of their
marriage, Makdessi had been physically violent and threatening towards her,
engaging in hair pulling, pushing her, rapping on her head with his knuckles, and
drunkenly forcing her to engage in sexual intercourse. Elmurr testified that as a
result of her fear of Makdessi, she began sleeping in a room with her mother and
daughter, separate from Makdessi, and would lock herself inside the room to avoid
him. Elmurr also testified that Makdessi would hold their daughter incorrectly and
left the child unattended outside in the winter for approximately thirty minutes at a
time.
Following the hearing, the magistrate issued a domestic violence civil
protection order, listing Elmurr as a protected person, to remain in effect until
September 26, 2018. The magistrate made the following findings of fact:
Petitioner’s testimony is found to be essentially credible with respect to
the incidents involving herself and Respondent. Respondent’s
testimony is found to be less than credible. Officer Willner’s testimony
is found to be essentially credible but somewhat biased in favor of his
friend, the Respondent. Petitioner’s testimony is sufficient to support
a finding that Respondent committed domestic violence as defined in
O.R.C. 3113.31 and that the Petitioner is in danger of domestic violence.
The Court further finds that there was insufficient credible evidence
presented that warranted the parties’ minor child be protected.
On February 14, 2018, Elmurr filed preliminary objections to the
magistrate’s decision. On April 9, 2018, Elmurr filed supplemental objections to the
magistrate’s decision.
On May 15, 2018, the trial court overruled Elmurr’s objections and
adopted the magistrate’s decision. The trial court reiterated that absent credible
evidence, the minor child would not be listed as a protected person. Further, the
court stated:
Furthermore, the Court notes there is a pending Motion to Modify
Temporary Parental Rights (Pre-Decree) #409440 in the divorce
proceedings (Case No.: DR 17 365747) filed by Plaintiff/Father.
The Court has jurisdiction to modify parental rights and
responsibilities and visitation orders in the divorce proceedings and all
issues regarding the parties’ minor child are under the jurisdiction of
Case No.: DR 17 365747.
Elmurr now appeals, presenting two assignments of error for our
review.
Law and Analysis
In her first assignment of error, Elmurr argues that the trial court
erred and abused its discretion in failing to include the parties’ minor child as a
protected person on the protection order. In her second assignment of error, she
argues that the trial court abused its discretion in ordering that the terms of the
protection order be effective until September 26, 2018. Elmurr continues to seek a
protection order for herself and her minor child for a duration of five years, the
statutory maximum.
R.C. 3113.31 authorizes a trial court to issue a domestic violence civil
protection order where the petitioner has presented sufficient credible evidence to
support a finding that the respondent had engaged in acts or threats of domestic
violence. Allan v. Allan, 8th Dist. Cuyahoga No. 101212, 2014-Ohio-5039, ¶ 14.
Thus, challenges to the issuance of a protection order are essentially challenges to
the manifest weight of the evidence, in which appellate courts “must be guided by
the presumption that the findings of the trier of fact were indeed correct.” Seasons
Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The rationale
for this presumption is that “the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations
in weighing the credibility of the proffered testimony.” Id.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, 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, 1308 (1990).
Because both assignments of error challenge the scope of the
protection order, we review both for abuse of discretion. We turn first to Elmurr’s
second assignment of error, in which she challenges the duration of the protection
order.
R.C. 3113.31(E)(1)(d) provides that a protection order “may
[t]emporarily allocate parental rights and responsibilities for the care of, or establish
temporary parenting time 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 rights.” R.C. 3113.31(E)(3)(b) provides that
such an order “shall terminate on the date that a court in an action for divorce,
dissolution of marriage, or legal separation brought by the petitioner or respondent
issues an order allocating parental rights and responsibilities for the care of
children.” A court issuing a protection order is statutorily permitted to issue
temporary orders allocating parental rights and responsibilities in order to stop
domestic violence, but the statute does not vest the court with authority to modify
the allocation of parental rights and responsibilities in the CPO proceeding.
Dowhan v. Dowhan, 11th Dist. Lake No. 2012-L-065, 2013-Ohio-4097, ¶ 14, citing
Yazdani-Isfehani v. Yazdani-Isfehani, 170 Ohio App.3d 1, 2006-Ohio-7105, 865
N.E.2d 924, ¶ 23 (4th Dist.), citing Signer v. Signer, 8th District Cuyahoga No.
85666, 2006-Ohio-3580, ¶ 19.
As an initial matter, we must acknowledge the unique procedural
posture of this case. The trial court adopted the magistrate’s decision and issued the
protection order on May 15, 2018. Elmurr appealed on June 4, 2018, challenging
both the duration and scope of the order. The order was set to expire on
September 26, 2018. On September 19, 2018, Elmurr filed a motion to modify the
order in the trial court, seeking to extend the duration of the order. The trial court
has not ruled on that motion, pending this appeal.
Generally, an appeal from an expired domestic violence civil
protection is moot unless the appellant can demonstrate legal collateral
consequences. Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487,
¶ 14. Here, Elmurr’s challenge to the protection order is in part based on its
duration; the expiration date of the order was less than five months after its adoption
by the trial court. Where an order may have expired during the pendency of an
appeal by a petitioner challenging the duration of the order, the appeal is not moot.
A case becomes moot when parties “‘lack a legally cognizable interest in the
outcome.’” Id., quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23
L.Ed.2d 491 (1969). Because the thrust of Elmurr’s argument is that she has an
ongoing interest in enjoying the benefits of a domestic violence civil protection
order, we find an actual legal controversy overcoming any alleged mootness of this
appeal.
In her second assignment of error, Elmurr argues that the trial court
abused its discretion in ordering that the terms of the civil protection order be
effective until September 26, 2018. We agree.
The lower court found that Elmurr had presented credible evidence
that Makdessi had committed domestic violence as defined in R.C. 3113.31, and that
she was in danger of future domestic violence. After a thorough review of the record,
this court has been unable to find any evidence supporting the trial court’s
determination of September 26, 2018 as the date of the expiration of the civil
protection order. In particular, we found no evidence in the record to conclude that
Elmurr would no longer face this danger from Makdessi after September 26, 2018.
R.C. 3113.31(g) expressly provides that “[t]he remedies and procedures provided in
this section are in addition to, and not in lieu of, any other available civil or criminal
remedies.” While we recognize that civil divorce proceedings between the parties
are ongoing as of the date of this appeal, that fact alone does not warrant a
conclusion that the protection order was appropriately limited in duration. See
Parker v. Parker, 1st Dist. Hamilton No. C-130658, 2014-Ohio-5516. Further, the
Ohio Supreme Court has held that because violence against a former spouse may
not stop with a separation, there are strong policy reasons to extend protection
orders even after a divorce has become final. Felton v. Felton, 79 Ohio St.3d 34, 41,
679 N.E.2d 672 (1997). Based on the record, we can only conclude that the
September 26, 2018 expiration date was chosen by the court out of premature
deference to divorce proceedings that remain ongoing. We find this date to be
arbitrary. For the reasons described above, a final judgment in the divorce
proceedings would not necessarily negate Elmurr’s need for protection from
Makdessi. Even if it did, though, there has been no such final judgment in the
divorce proceedings. Further, we recognize the statutory limitations of a protection
order relative to a court’s custody determination for the couple’s child. However,
because the court has not made a preclusive custody determination in the divorce
proceedings between the parties, these statutory limitations relating to the couple’s
child are inapplicable and do not justify the seemingly arbitrary September 26, 2018
date selected by the trial court as the expiration date of the civil protection order.
The statutory limitations relating to the couple’s child are even less applicable where
the trial court failed to include the minor child as a protected person on the order.
For these reasons, in the absence of credible evidence in the record indicating that
the danger precipitating the civil protection order will pass as of
September 26, 2018, we find that the trial court’s decision to impose a protection
order for a duration of time less than the amount of time requested by Elmurr — the
statutory maximum of five years — was an abuse of discretion.
We turn next to Elmurr’s first assignment of error, in which she
argues that the trial court abused its discretion in failing to include her infant
daughter as a protected person on the protection order.
R.C. 3113.31(A)(1)(a)(iii) defines domestic violence as “committing
any act with respect to a child that would result in the child being an abused child,
as defined in section 2151.031 of the Revised Code.” An abused child is defined as,
inter alia, any child who is “endangered” as defined in R.C. 2919.22. R.C. 2919.22,
in turn, provides that one endangers a child by “creat[ing] a substantial risk to the
health or safety of the child, by violating a duty of care, protection, or support.”
Here, the trial court found sufficient credible evidence that Makdessi
had engaged in acts of domestic violence against Elmurr. This finding was made
solely on the basis of Elmurr’s testimony, which included multiple accounts of
physical violence against her within close proximity of their daughter. At the time
of the hearings in this case, the child was an infant, and Elmurr was still
breastfeeding her. Further, Elmurr testified that she feared for her daughter’s safety
and welfare, and she believed that Makdessi was using their daughter as a weapon
against her. Even if Elmurr’s testimony did not contain credible evidence that
Makdessi had engaged in acts of domestic violence directly against their daughter,
the testimony was sufficient to conclude that Makdessi had repeatedly created a
substantial risk to his daughter’s health and safety, in accord with R.C. 2919.22, both
by virtue of her proximity to domestic violence and the persistent threat against her
mother. Therefore, we find that it was unreasonable and an abuse of discretion for
the trial court not to include the parties’ infant daughter as a protected person on
the protection order.
For the foregoing reasons, we sustain Elmurr’s assignments of error
and remand to the trial court for proceedings consistent with this opinion.
Judgment reversed and remanded to the trial court for proceedings
consistent with this opinion.
It is ordered that appellant recover of appellee 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.
RAYMOND C. HEADEN, JUDGE
PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR