Oddo v. Spencer

[Cite as Oddo v. Spencer, 2011-Ohio-4073.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DONNA ODDO, et al. JUDGES:
Hon. W. Scott Gwin, P. J.
Petitioners-Appellees Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2010 CA 00241
RICHARD SPENCER
Respondent-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2008 MI 00287
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 15, 2011
APPEARANCES:
For Petitioners-Appellees For Respondent-Appellant
KRISTINE W. BEARD
LESH, CASNER & MILLER
Suite 606 Belden Whipple Building
4150 Belden Village Street, NW
Canton, Ohio 44718-3651
Stark County, Case No. 2010 CA 00241 2
Wise, J.
{¶1} Appellant Richard Spencer appeals the decision of the Stark County Court
of Common Pleas, overruling his request to terminate the civil protection order against
him.
{¶2} Petitioner in the civil protection order is Donna Oddo.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts leading to this appeal are as follows:
{¶4} On July 17, 2008, Appellee Donna Oddo filed a petition against Appellant
Richard Spencer, for an anti-stalking civil protection order (“CPO”) pursuant to R.C.
2903.214, seeking relief for her family members, including her now ex-husband, Mike
Oddo, and her children: Justin Sterrick (dob 7/24/94), Brandon Sterrick (dob 9/21/95),
Ryan Sterrick (dob 12/09/98), and Adam Sterrick (dob 5/18/00). The Petition listed
several behaviors by the Respondent that the Petitioner believed were likely to cause
members of her family physical harm or emotional distress. Specifically the Petitioner
was concerned about the relationship which the Respondent had developed with her 14
year old son, Justin.
{¶5} A hearing was held and an ex parte CPO was granted, with a full hearing
set for July 24, 2008 at 10:00 AM, at the Stark County Courthouse.
{¶6} On July 24, 2008, at about 9:00 AM, at the request of the Stark County
Sheriff’s Department, Appellant appeared at the Stark County Courthouse and was
served with the petition, ex parte order, and notice of the full hearing.
{¶7} Appellant and Appellee, both pro se, then appeared before the magistrate
for the 10:00 hearing. Appellant did not ask for a continuance or the opportunity to
Stark County, Case No. 2010 CA 00241 3
obtain counsel. After hearing evidence, the magistrate issued a decision, signed by the
judge and file-stamped the same day, granting the CPO.
{¶8} On August 7, 2008, Appellant filed a motion for new trial, which the trial
court treated as an objection to the decision of the magistrate.
{¶9} On August 22, 2008, the trial court issued a decision adopting the
magistrate’s decision.
{¶10} The Order of Protection was granted for five years, expiring on July 24,
2013.
{¶11} On September 18, 2008, Appellant appealed to this Court. By Opinion
filed August 24, 2009, this Court affirmed the judgment of the trial court.
{¶12} On March 23, 2010, the Respondent, Richard Spencer, filed a Motion to
Modify and/or terminate the Court's Order of Protection arguing that the Order of
Protection is both unnecessary and unreasonable. Specifically, Respondent argued that
based on a material change in circumstances since the Order had been issued, a
Protection Order was no longer necessary to protect the Petitioner and her family (i.e.
Justin) from the threat of sexually oriented offenses. Furthermore, Respondent stated
that he is an avid hunter and essentially argued that the continuation of the Protection
Order unreasonably denied him the constitutional right to bear arms in order to enjoy
recreational hunting.
{¶13} An evidentiary hearing on the Motion was held before the Magistrate on
July 8, 2010. At the hearing, Petitioner testified that she felt Respondent no longer
posed a threat to her family and that it was her desire to terminate the protection order.
Stark County, Case No. 2010 CA 00241 4
Dr. Devies, a clinical psychologist, testified that it was his opinion that Respondent did
not at any time pose any sexual threat to Petitioner or Petitioner's family members.
{¶14} After the presentation of evidence, the Magistrate denied the
Respondent's motion to terminate the civil protection order.
{¶15} On July 8, 2010, Respondent filed an Objection to the Magistrate's
Decision arguing that the Magistrate abused her discretion and erred as a matter of law
in denying Respondent's motion.
{¶16} The trial court overruled the Objection and affirmed the Magistrate's
decision.
{¶17} It is from this decision that the Respondent-Appellant now appeals,
assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW IN OVERRULING THE PETITIONER'S REQUEST TO TERMINATE
THE CIVIL PROTECTION ORDER IN VIOLATION OF THE OHIO RULES OF CIVIL
PROCEDURE, CIV.R. 41(A).
{¶19} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW IN FAILING TO FIND THAT THERE HAS BEEN A MATERIAL
CHANGE IN CIRCUMSTANCES SIGNIFICANT TO TERMINATE THE CIVIL
PROTECTION ORDER AND IN FAILING TO FIND THAT IT IS NO LONGER
EQUITABLE OR REASONABLE FOR THE CIVIL PROTECTION ORDER TO REMAIN
IN FULL FORCE AND EFFECT THEREBY UNREASONABLY DENYING THE
RESPONDENT HIS CONSTITUTIONAL RIGHT TO BEAR ARMS.”
Stark County, Case No. 2010 CA 00241 5
I., II.
{¶20} We shall address Appellant’s assignments of error simultaneously as both
assign error to the trial court’s denial of his request to terminate the civil protection
order.
{¶21} In Ohio, a person may petition their common pleas court for an anti-
stalking or sexually-oriented offense civil protection order (“CPO”) under R.C. 2903.214.
See, e.g., State v. Davis, Hamilton App.Nos. C-070838, C-070845, 2008-Ohio-5281, ¶5.
{¶22} Initially, Appellant argues that Mrs. Oddo, as the petitioner in the civil
protection order, has the right and/or ability to voluntarily dismiss such petition against
Appellant herein. Appellant argues that Civ.R. 41(A) authorizes such dismissal.
{¶23} We find this argument to be without merit. Mrs. Oddo was the Petitioner in
the action for the civil protection order, not the plaintiff. While she may have been the
person who initiated the proceedings, it was the trial court who issued the order, not
Mrs. Oddo. As such, only the trial court has the ability to terminate, modify or renew
the order.
{¶24} Appellant next argues that the trial court erred in not finding a material
change in circumstances.
{¶25} A civil protection order made pursuant to R.C. §2903.214 is subject to
modification or termination. Prostejovsky v. Prostejovsky , Ashland App. No, 06-COA-
033, 2007-Ohio-5743.
{¶26} In Prostejovsky, this Court held that “a court may modify or vacate a civil
protection stalking order if the movant shows that the original circumstances have
materially changed and it is no longer equitable for the order to continue.”
Stark County, Case No. 2010 CA 00241 6
{¶27} Upon review, we do not find that the trial court abused its discretion in not
terminating the stalking protection order. The primary basis of the order was Appellant's
unwanted attention and obsession toward Mrs. Oddo’s then fourteen year old son.
{¶28} While there was evidence presented at the evidentiary hearing that
Appellant has complied with the civil protection order, compliance with the order, in the
context of this case, is insufficient to demonstrate that there has been a material change
of circumstances.
{¶29} Further, while Appellant argues that Mrs. Oddo wants this order to be
terminated, or at the very least does not oppose the termination, we find that it is clear
from her testimony that it is still her desire that Appellant not have any contact with her
family.
{¶30} Further, the protection order in this case was issued primarily for the
safety of Ms. Oddo’s son Justin, and while he is now two years older than he was when
the CPO was initially issued, he is still a minor. Further, due to the fact that his parents
have since divorced, he is now arguably in a more vulnerable position than he was
when the CPO was granted in 2008.
{¶31} We therefore find that the trial court did not abuse its discretion in
overruling the motion to terminate the protection order less than two years into the five
year term.
{¶32} As to Appellant’s argument that the continued imposition of the civil
protection order infringes on his constitutional right to bear arms, we find that such
argument was not raised in the direct appeal from the granting of the civil protection
order, nor was it raised before the trial court in the instant action. Having failed to raise
Stark County, Case No. 2010 CA 00241 7
this issue on direct appeal, we hold he is barred from raising it at this stage under the
doctrine of res judicata. Cf. State v. Jennings (Nov. 5, 2001), Richland App.No. 01CA62,
2001-Ohio-1742.
{¶33} Accordingly, Appellant's First and Second Assignments of Error are
overruled.
{¶34} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
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JUDGES
JWW/d 0718
Stark County, Case No. 2010 CA 00241 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DONNA ODDO, et al. :
:
Petitioners-Appellees :
:
-vs- : JUDGMENT ENTRY
:
RICHARD SPENCER :
:
Respondent-Appellant : Case No. 2010 CA 00241
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES