[Cite as Studer v. Studer,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

RALPH STUDER,

PETITIONER-APPELLEE, CASE NO. 3-11-04

v.

BRENDA STUDER, OPINION

RESPONDENT-APPELLANT.

Appeal from Crawford County Common Pleas Court Domestic Relations Division Trial Court No. 05 DR 0306

Judgment Reversed and Civil Protection Order Vacated

Date of Decision: June 25, 2012

APPEARANCES:

Lori Ann McGinnis for Appellant

Geoffrey L. Stoll for Appellee Case No. 3-11-04

ROGERS, J.

{¶1} Respondent-Appellant, Brenda Studer (“Brenda” or “Respondent”),

appeals the judgments of the Court of Common Pleas of Crawford County,

Domestic Relations Division, granting the motion to continue the civil protection

order against her filed by Petitioner-Appellee, Ralph Studer (“Ralph” or

“Petitioner”). On appeal, Brenda argues that the trial court erred in hearing the

case and entering judgment when an affidavit of disqualification was filed with the

Ohio Supreme Court; that she was denied due process of law; and, that the trial

court erred in extending the civil protection order as Petitioner failed to meet his

burden by a preponderance of the evidence. Finding that Ralph failed to meet his

burden by a preponderance of the evidence, we reverse the decision of the trial

court and vacate the extension of the civil protection order.

{¶2} The procedural and substantive history of this case is rather bizarre.

The facts pertinent to the instant appeal are as follows. On November 18, 2005,

Ralph filed a petition for a civil protection order pursuant to R.C. 3113.31 against

his daughter, Brenda. In his petition, Ralph alleged that on November 16, 2005,

Brenda was verbally abusive to him, threw pop on him, and tried to hit him.

Ralph alleged that he and the rest of the family were afraid of her. The trial court

granted an ex parte order, to remain in effect until November 18, 2006. After a

full hearing on February 1, 2006, the trial court issued a civil protection order

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(“CPO”) to remain in effect until February 1, 2008.1 The order also included a

provision allowing Brenda weekly visitations with her mother, Elizabeth.2 On

January 25, 2008, Ralph filed a motion to continue the CPO, which the trial court

granted ex parte, to be effective until February 1, 2011.3 The trial court scheduled

a full hearing on the matter for February 11, 2008. Pursuant to an agreement

between the parties, the trial court ordered the CPO to remain in effect until

February 1, 2011.4 This judgment entry again provided for supervised visitation

between Brenda and her mother.

{¶3} On June 22, 2010, Brenda filed a motion to terminate the protection

order and to enforce visitation with Elizabeth (“Motion to Terminate”). Ralph

filed a motion to dismiss (“Motion to Dismiss”) arguing that the trial court did not

have personal jurisdiction over Elizabeth.5 The trial court set a hearing on the

motions for December 6, 2010. Before the hearing, Ralph filed a motion to

continue the CPO (“Motion to Continue”) and for a mental health examination of

Brenda (“Motion for Mental Examination”).

{¶4} On November 26, 2010, Brenda filed an affidavit of disqualification

of Judge Wiseman with the Ohio Supreme Court. The Ohio Supreme Court

1 The record is devoid of any evidence that establishes the trial court’s findings. However, we must presume regularity. 2 We note, however, that Elizabeth was not named in the petition and was not a party to the proceedings. 3 We find no authority for the issuance of an ex parte order extending the effective date of a CPO. 4 The trial court did not hold a full hearing as required by R.C. 3113.31(E)(1). 5 While we agree there was no authority to include orders affecting a non-party, we find Ralph’s objection interesting since visitation with the mother had been included twice before.

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denied the same on December 6, 2010. Judge Wiseman, however, voluntarily

recused himself and his magistrates from further proceedings in the matter on

December 2, 2010, referred the matter to the Ohio Supreme Court for the

appointment of a visiting judge, and vacated the December 6, 2010 hearing date.

The Ohio Supreme Court then assigned Judge Galvin as a visiting judge to preside

over and conclude the proceedings.6

{¶5} On January 5, 2011, the trial court scheduled a hearing for January 14,

2011. On January 7, 2011, Brenda moved for a continuance so that she could have

more time to serve subpoenas. The trial court denied the motion. On January 12,

2011, Ralph and the Crawford County Job and Family Services filed motions to

quash subpoenas. The trial court ostensibly granted Ralph’s motion to quash on

the same day and Crawford County Job and Family Services’ motion on January

14, 2011, both without a hearing or allowing Brenda an opportunity to respond.

On January 13, 2011, Brenda filed a motion to compel the presence of witnesses

and for a continuance, which was denied.7 She also filed an affidavit to disqualify

Judge Galvin with the Ohio Supreme Court on January 14, 2011, which was

denied on January 25, 2011.

6 The assignment was effective December 8, 2010, but was not filed with the Crawford County Clerk of Courts Office until January 13, 2011. 7 Brenda’s motion was filed on a single sheet of paper. Docket No. 70. The denial was not in the form of a ruling in a separate document, but was simply a notation on the same paper as the motion. Judge Galvin’s name was written by someone other than the judge who apparently was given permission over the telephone to sign for the judge.

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{¶6} At the January 14, 2011 hearing, the trial court instructed its case

manager to speak on the record regarding the affidavit of disqualification alleged

to have been filed with the Ohio Supreme Court. The case manager stated that at

9:30 that morning, she called James Bambino at the Ohio Supreme Court who

informed her that no affidavit of disqualification had been filed with the Ohio

Supreme Court. Accordingly, the trial court continued to hear the case.

{¶7} Donna Durtschi, Ralph’s daughter and Brenda’s sister, stated that if

the CPO was not extended, her families’ lives and her parents’ lives would

continue to be “a life of hell with no peace.” Hearing Tr., p. 20. She testified that

Ralph is in a very delicate condition as he has had two aortic aneurysms and very

unstable blood pressure. She feared that any type of altercation with Brenda

would kill him.

{¶8} Jennifer Dornbirer, another of Ralph’s daughters and Brenda’s sister,

testified that she believes Brenda is an ongoing danger to Ralph due to his poor

health. She believes that the CPO should continue because Ralph is not strong

enough to have a confrontation with Brenda. She testified that Ralph told her the

same.

{¶9} Scott Robertson, the Police Chief of New Washington then testified as

Brenda’s witness. He stated that in 2004 or 2005 Brenda filled out a police report

regarding an argument between her and Ralph that escalated into Ralph hitting

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her; Brenda then poured a small amount of pop on Ralph. Police Chief Robertson

testified that Brenda did not want to press charges against Ralph at that time. He

stated that he did not see any physical evidence to support Brenda’s claim that

Ralph hit her as she reported the incident several weeks after it occurred. He also

testified that Brenda and Ralph’s relationship was hostile before the filing of the

petition for the CPO. In response to the trial court’s questioning, Police Chief

Robertson testified that he has never personally observed any indication of abuse

or assault on any of the members of the household since 2006. He concluded by

testifying that Ralph’s health was deteriorating and that Ralph would have a small

chance of protecting himself if Brenda were to attack him.

{¶10} David Studer, Ralph’s son and Brenda’s brother, testified as

Brenda’s witness. He stated that he has lived at Ralph and Elizabeth’s home for

over forty years. He testified that he has seen Ralph hit Brenda, and that family

members have threatened him that if he continues to help Brenda, he will have to

leave Ralph and Elizabeth’s home. He said that he had a conversation with Ralph

about Ralph’s desire to drop the CPO, but that Ralph did not drop it due to threats

made by other family members. He stated that he sent letters to the other family

members about Brenda and Ralph’s situation but that he did not show the letters to

Ralph for fear he would become upset. He testified that he never witnessed any

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attempt by Brenda to hit Ralph, but that she did put sprinkles of pop on Ralph’s

head.

{¶11} On cross-examination, David testified that Ralph has a very serious

heart problem, and that Ralph is not supposed to be under any stress as it could kill

him. He stated that Brenda and Ralph’s relationship is not good as they argue

frequently. David explained that there was an incident with Brenda while she was

driving her vehicle. He testified that when Brenda was backing up, Ralph moved

out of the way, but that his movement was not sudden. He testified that whether

Brenda was trying to hit Ralph is “subject to interpretation.” Hearing Tr., p. 167.

He testified that Ralph would be safer if he had no contact with Brenda. He

testified that Brenda makes telephone calls to the house.

{¶12} Lastly, Brenda testified that she was never a threat to her father and

never violent toward him. She testified that she would never go to the house if she

thought it would put her father’s life at risk.

{¶13} On January 21, 2011, the trial court filed a judgment entry denying

the Motion to Terminate and granting the Motion to Dismiss. On January 28,

2011, the trial court filed a supplemental judgment entry extending the CPO until

January 31, 2016. In the supplemental judgment entry the trial court stated:

The uncontroverted testimony established that the Petitioner, Ralph C. Studer, suffers from a multitude of medical conditions that have left him in [a] severely compromised medical state. This same

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evidence further established that exposing Petitioner to any type of conflict is likely to have serious adverse consequences to his health.

Also established by testimony was the fact that the relationship between Petitioner and Respondent prior to the establishment of the Civil Protection Order was filled with conflict. The testimony further established that, during the period of time that the Civil Protection [O]rder has been in place, the Respondent has violated that Order by calling the Petitioner’s home. Docket No. 76.

{¶14} It is from these judgments Brenda appeals, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE TRIAL JUDGE ERRED IN PROCEEDING TO HEAR AND TO ENTER JUDGMENT IN THIS CASE WHEN AN AFFIDAVIT OF DISQUALIFICATION WAS FILED WITH THE OHIO SUPREME COURT AGAINST HER AND SHE HAD NOTICE OF THE AFFIDAVIT OF DISQUALIFICATION BOTH AT THE TIME SHE HEARD AND ENTERED JUDGMENT IN THE CASE.

Assignment of Error No. II

THE RESPONDENT WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDEMENT (sic) TO THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THE STATE OF OHIO AND THE LAWS OF THE STATE OF OHIO, WHEN THE TRIAL JUDGE DENIED HER THE OPPORTUNITY TO RETAIN COUNSEL TO REPRESENT HER, THE OPPORTUNITY TO CROSS-EXAMINE THE PROSECUTING WITNESS AGAINST HER, RALPH STUDER, AND THE OPPORTUNITY TO COMPEL THE ATTENDANCE OF WITNESSES ON HER BEHALF, AND THE OPPORTUNITY TO NOTICE AND A HEARING ON HER MOTIONS PENDING BEFORE THE COURT.

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Assignment of Error No. III

THE TRIAL JUDGE ERRED IN ISSUING AN EXTENSION OF THE CIVIL PROTECTION ORDER UNTIL JANUARY 31, 2016 WHERE THE PETITIONER DID NOT MEET HIS BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE.

{¶15} Due to the nature of Brenda’s assignments of error, we elect to

address her third assignment of error first as it is dispositive.

Assignment of Error No. III

{¶16} In her third assignment of error, Brenda argues that the trial court

erred in extending the CPO for an additional five years as Ralph failed to establish

by a preponderance of the evidence that Brenda committed an act of or threatened

domestic violence. Further, Brenda argues, that since the original CPO was

entered pursuant to an alleged consent agreement, there was never a finding of an

act of domestic violence.8 Brenda urges, therefore, that Ralph has not established

by a preponderance of the evidence that the CPO should have been extended.

{¶17} Ralph contends that the trial court did not abuse its discretion in

granting the extension of the CPO. Ralph highlights testimony from the hearing

which, he argues, establishes his fragile medical condition, the conflict-ridden

nature of his relationship with Brenda, and the risk that his medical conditions

could worsen if triggered by stress from contact with Brenda.

8 The initial CPO was granted after a full hearing. It was extended pursuant to the consent agreement.

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Standard of Review

{¶18} A trial court’s decision to grant or deny a civil protection order is

reviewed under an abuse of discretion standard. Deacon v. Landers,

(4th Dist. 1990). See also Newhouse v. Williams,

,

(3d Dist.). A trial court will be found to have abused

its discretion when its decision is contrary to law, unreasonable, not supported by

the evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-

Ohio-278, ¶ 17-18, citing Black’s Law Dictionary 11 (8th Ed. 2004). When

applying the abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Blakemore v. Blakemore,

(1983).

Extension of Civil Protection Order

{¶19} The purpose of a civil protection order issued pursuant to R.C.

3113.31 is to provide the petitioner or other household members with protection

from domestic violence. Thomas v. Thomas,

(10th Dist.

1988). When a petitioner seeks a civil protection order pursuant to R.C. 3113.31,

“the trial court must find that petitioner has shown by a preponderance of the

evidence that petitioner . . . [is] in danger of domestic violence.” Felton v. Felton,

(1997), paragraph two of the syllabus.

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{¶20} Domestic violence, as the basis for a civil protection order, is defined

in R.C. 3113.31(A)(1) as:

(a) Attempting to cause or recklessly causing bodily injury; (b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 or 2911.211 of the Revised Code; (c) Committing any act with respect to a child that would result in the child being an abused child . . . ; (d) Committing a sexually oriented offense.

{¶21} A thorough review of the record reveals that no finding of domestic

violence was made on the record until the hearing on January 14, 2011, during

which the trial court made the cursory statement: “I have reviewed the file . . . and

it’s apparent that the violence occurred, no matter what it is that was said here

today; that the opportunity for appeal is long gone, and the only issue is whether a

man who two doctors appear to have said hangs onto life by a thread is going to be

protected.” Hearing Tr., p. 215. Given the testimony at the hearing and the

evidence in the record, the trial court’s finding of domestic violence could only

refer to something that occurred prior to the issuance of the original CPO in 2005,

as the record reveals no finding or evidence of any conflict since that time.

{¶22} Assuming domestic violence occurred prior to 2005, the issue

becomes whether a preponderance of the evidence at the January 14 hearing

established the need for an extension. In determining whether to grant an

extension of a civil protection order, Ohio courts have looked to several relevant

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factors, although there is little informative case law on the matter. Past acts of

domestic violence may serve as the basis for an extension of a civil protection

order when coupled with new threats of domestic violence. See Woolum v.

Woolum,

(12th Dist. 1999), Lain v. Ververis, 12th Dist.

No. CA99-02-003 (Oct. 18, 1999), Anderson v. Anderson, 7th Dist. No. 00-C.A.-

89 (Dec. 19, 2001). See also Welch v. Staggs, 4th Dist. No. 08CA3216, 2009-

Ohio-379, ¶ 20-21 (trial court did not abuse its discretion in denying a renewal of a

CPO as the petitioner failed to report any alleged incidents of domestic violence or

alleged violations of the initial CPO to law enforcement or to the court).

{¶23} There must also be evidence that the petitioner has a reasonable fear

of serious physical harm based on new threats of domestic violence should the

trial court grant the motion to extend the CPO.

(past acts of

domestic violence coupled with recent threats and the petitioner’s fear for her

safety justified the renewal of the civil protection order); Patton v. Patton, 5th

Dist. No. CT2009-0031,

, ¶ 35-75 (testimony established that

based on past acts of domestic violence petitioner had a continued fear for her

safety if the civil protection order was not renewed). Whether the petitioner has a

reasonable fear of serious physical harm is a two-part test, requiring both a

subjective and an objective inquiry. Smith v. Burroughs, 3d Dist. No. 16-09-23,

, citing Williamson v. Williamson,

,

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, citing Strong v. Bauman, 2d Dist. Nos. 17256, 17414 (May

21, 1999). The subjective analysis requires that the petitioner testify both about

the act and the fear caused by the act. See Williamson, 180 Ohio App.3d at ¶ 47,

citing Henry v. Henry, 4th Dist. No. 04CA2781,

, citing

Ohio Domestic Violence Law, 8.7, at 254 (2004).

{¶24} Change in circumstances and the severity of the physical injury or

the nature of the domestic violence have also been considered in determining the

propriety of granting a civil protection order.

.

{¶25} Giving due deference to the trial court’s determination that a past act

of domestic violence occurred, we find, nonetheless that the trial court abused its

discretion by granting the extension of the CPO. First and foremost, no evidence

was presented as to Brenda’s current threats of domestic violence, i.e., any threats

occurring since the initial CPO was granted in 2005. In fact, the evidence

established the opposite. David testified that in the past five years Brenda has not

come over to the house. Hearing Tr., p. 181. Brenda testified that she has not

seen or talked to her parents in five years. Hearing Tr., p. 195. Further, there was

no testimony that Brenda attempted to contact Ralph since the initial 2005 CPO.

{¶26} Secondly, the record is devoid of any affirmative or specific

statement made by Ralph to establish his current fear of serious physical harm. He

failed to appear at the hearing to testify regarding the alleged acts of domestic

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violence or the fear he suffered as a result of those acts. In fact, the trial court

prevented Brenda from obtaining Ralph’s testimony when it arbitrarily quashed

her subpoena of him.9 Moreover, there was no offer of any sworn statement or

deposition. While this Court is sensitive to appellee’s fragile medical state, we

nonetheless, cannot engage in conjecture.

{¶27} In this case, the record reveals that Ralph not only failed to provide

any affirmative statement or testimony regarding his fear, but the witnesses

testifying on his behalf did not possess first-hand, personal knowledge of his fear.

Rather, the Petitioner’s witnesses, two of his daughters, testified about their

subjective fear that Ralph would not be able to defend himself against an attack or

that stress caused by a confrontation with Brenda would ultimately kill Ralph.

As there is no evidence of Ralph’s subjective fear, we need not address whether

this fear, if it exists, is reasonable.

{¶28} Lastly, the severity of the apparent initial act of domestic violence is

highly suspect. As there was no finding on the record as to what action constituted

domestic violence, we are prohibited from analyzing its nature or the severity of

any injury sustained by Ralph.

{¶29} It is apparent that the trial court, rather than applying the foregoing

factors, aimed to protect Ralph due to his medical condition, as evidenced by its

9 We find nothing in the record to indicate the petitioner complied with Civil Rule 45(C)(4) in his motion to quash, or that Brenda was permitted an opportunity to show a substantial need pursuant to Civil Rule 45(C)(5).

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statement that “the only issue is whether a man who two doctors appear to have

said hangs onto life by a thread is going to be protected.” Hearing Tr., p. 215.

“Restrictions must bear a sufficient nexus to the conduct that the trial court is

attempting to prevent.” Newhouse,

,

. Here, the conduct the trial court is attempting to prevent is any conduct which

may cause Ralph to experience adverse health consequences due to stress. The

purpose of a civil protection order, however, is not to protect people from adverse

health effects; the purpose is to protect people from domestic violence. Thomas,

.

{¶30} Accordingly, we find that a petitioner’s fragile medical condition

alone cannot provide the basis for a civil protection order issued pursuant to R.C.

3113.31. Without evidence of Petitioner’s reasonable fear of and Respondent’s

ongoing threats of future domestic violence, especially in light of the weak

evidence regarding past domestic violence, the extension of the domestic violence

civil protection order, in this case, is not the proper means to protect Petitioner.

We therefore find that the trial court abused its discretion in extending the CPO

based on Ralph’s medical condition.

{¶31} Accordingly, we sustain Brenda’s third assignment of error.

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{¶32} Due to our resolution of Brenda’s third assignment of error, her first

two assignments of error are rendered moot and we decline to address them.

App.R. 12(A)(1)(c).

{¶33} Having found error prejudicial to Brenda herein, in the particulars

assigned and argued in the third assignment of error, we reverse the judgment of

the trial court and vacate the extension of the civil protection order.

Judgment Reversed and Civil Protection Order Vacated

SHAW, P.J., Dissents. PRESTON, J., concurs in Judgment Only.

/jlr

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