Walker v. Walker

[Cite as Walker v. Walker, 2011-Ohio-3933.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

LINDA K. WALKER JUDGES:
Hon. William B. Hoffman, P.J.
Petitioner-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2010CA00311
DAVID B. WALKER

Respondent-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010 MI 365

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 8, 2011

APPEARANCES:

For Petitioner-Appellee For Respondent-Appellant

DOUGLAS C. BOND JEFFREY JAKMIDES
Morello & Bond, LTD. 325 East Main Street
700 Courtyard Centre Alliance, Ohio 44601
116 Cleveland Avenue N.W.
Canton, Ohio 44702
Stark County, Case No. 2010CA00311 2

Hoffman, P.J.

{¶1} Respondent-appellant David B. Walker appeals the October 5, 2010

Judgment Entry of the Stark County Court of Common Pleas granting a civil stalking

protection order against him and in favor of Petitioner-appellee Linda K. Walker.

STATEMENT OF THE CASE

{¶2} On August 27, 2010, Appellee filed a petition for an ex parte order of

protection. The trial court issued the ex parte order of protection, and scheduled the

matter for full hearing to be held on September 7, 2010. Appellant appeared pro se at

that hearing.

{¶3} Via Judgment Entry of October 5, 2010, the trial court issued a civil order

of protection against Appellant in favor of Appellee.

{¶4} Appellant now appeals, assigning as error:

{¶5} “I. THE TRIAL COURT ERRED IN NOT ADVISING THE RESPONDENT

PRO SE OF HIS RIGHT TO COUNSEL.

{¶6} “II. THE TRIAL COURT ERRED IN NOT DISCUSSING WITH THE

RESPONDENT PRO SE THE ADVISABILITY OF SECURING COUNSEL AND THE

POSSIBLE CONSEQUENCES OF PROCEEDING PRO SE.

{¶7} “III. THE TRIAL COURT ERRED IN NOT DETERMINING IF THE

RESPONDENT PRO SE WAS CAPABLE AND COMPETENT TO REPRESENT

HIMSELF.”

I, II, & III

{¶8} Appellant’s assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.
Stark County, Case No. 2010CA00311 3

{¶9} Appellant asserts a civil protection order hearing is akin to a criminal

proceeding, as the petitioner must establish the respondent engaged in menacing by

stalking and a violation of the same is a misdemeanor of the first degree. Therefore,

Appellant argues the trial court should have advised Appellant of his right to counsel,

the risks and consequences of proceeding pro se, and inquired as to whether Appellant

was knowingly and voluntarily waiving his right to counsel prior to the full hearing on the

civil protection order.

{¶10} The civil stalking protection order in this matter was issued pursuant to

R.C. 2903.214. The statute reads, in pertinent part:

{¶11} “(D)(2)(a) If the court, after an ex parte hearing, issues a protection order

described in division (E) of this section, the court shall schedule a full hearing for a date

that is within ten court days after the ex parte hearing. 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:

{¶12} “(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.

{¶13} “(ii) The parties consent to the continuance.

{¶14} “(iii) The continuance is needed to allow a party to obtain counsel.

{¶15} “(iv) The continuance is needed for other good cause.”
Stark County, Case No. 2010CA00311 4

{¶16} The granting of a civil protection order pursuant to R.C. 2903.214 is not

the equivalent of finding the person against whom the order is granted has committed a

criminal offense. See Rieger v. Rieger, 165 Ohio App.3d 454, 2006-Ohio-482, 847

N.E.2d 9, ¶ 9. Since proceedings involving the determination of whether to grant a

protection order are civil, a defendant is generally not entitled to legal representation.

See State ex rel. Jenkins v. Stern (1987), 33 Ohio St.3d 108, 110, 515 N.E.2d 928 (no

generalized right of counsel in civil litigation).

{¶17} In Westlake v. Patrick, Cuyahoga App. No. 85581, 2005-Ohio-4419, the

Eighth District Court of Appeals addressed the issue of whether double jeopardy

prohibitions attach to civil stalking protection order proceedings, and held:

{¶18} “In applying these concepts to this matter, we note, as an initial matter,

that double jeopardy claims generally are only applicable where the contempt finding is

criminal rather than civil. See Dayton Women's Health Center v. Enix (1991), 68 Ohio

App.3d 579, 590, 589 N.E.2d 121; State v. Miller, Holmes App. No. 02 CA 16, 2003-

Ohio-948. With regard to contempt of court pursuant to R.C. 2903.214, we further note

that, on its face, it clearly provides for a civil sanction, and is civil in nature, not criminal.

The statute shows a legislative intent designed to ensure the ‘safety and protection’ of

the complainant. R.C. 2903.214(D) and (E). The matter ‘shall proceed as a normal civil

action,’ R.C. 2903.214(D)(3), in accordance with the Rules of Civil Procedure, R.C.

2903.214(G). Violations are punished as contempt of court, but separate criminal

proceedings are specifically authorized under R.C. 2903.214(K), and the burden of

proof is a preponderance of the evidence. See Davis v. Dinunzio, Lake App. No.2004-L-

106, 2005-Ohio-2883.
Stark County, Case No. 2010CA00311 5

{¶19} “Moreover, an analysis of the other factors does not provide clear proof

that the statute provides a criminal penalty. First, no disability is imposed for a violation.

Second, violation of the order is pursued as contempt of court, absent a separate

criminal prosecution, as authorized pursuant to R.C. 2903.214(K). Third, civil contempt

sanctions are designed to compel future compliance with a court order, are considered

to be coercive rather than punitive, and inure to the benefit of a party to the litigation.

State ex rel Corn v. Russo, 90 Ohio St.3d 551, 555, 2001-Ohio-15, 740 N.E.2d 265;

Smith v. Doe (2003), 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164. Fourth, in such civil

contempt actions, the intent of the transgressing party is irrelevant. In re Carroll (1985),

28 Ohio App.3d 6, 501 N.E.2d 1204; Windham Bank v. Tomaszczyk (1971), 27 Ohio

St.2d 55, 271 N.E.2d 815; Pedone v. Pedone (1983), 11 Ohio App.3d 164, 463 N.E.2d

656. Fifth, the behavior to which it applies may also constitute an offense under R.C.

2919.27, but in such instance, the additional element of recklessness must be

established. State v. Lucas, 100 Ohio St.3d 1, 2003-Ohio-4778, 795 N.E.2d 642. Sixth,

there is no alternative criminal purpose connected to the sanctions as they are simply

coercive, Windham Bank v. Tomaszczyk, supra, and seventh, the possible sanctions

are not excessive as they simply reflect a trial court's inherent discretion to punish

contempt of court.

{¶20} “In this connection, defendant complains that the common pleas action did

involve a punitive sanction because the trial court announced that it had fined defendant

$500, then awarded Berry attorney's fees. The fine was never journalized, however, and

a court speaks only through its journal. Kaine v. Marion Prison Warden, 88 Ohio St.3d

454, 455, 2000-Ohio-381, 727 N.E.2d 907; State v. King, 70 Ohio St.3d 158, 162, 1994-
Stark County, Case No. 2010CA00311 6

Ohio-412, 637 N.E.2d 903. Further, a trial court may, within its discretion, include

attorney fees as part of the costs taxable to a defendant found guilty of civil contempt.

Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio St.3d

56, 67, 556 N.E.2d 157, 165; State, ex rel. Fraternal Order of Police v. Dayton (1977),

49 Ohio St.2d 219, 361 N.E.2d 428, syllabus.

{¶21} “In accordance with all of the foregoing, we hold that the statutory scheme

is not so punitive in purpose or effect as to transform what was clearly intended to be a

civil remedy into a criminal penalty. Accordingly, jeopardy did not attach to the earlier

common pleas proceedings and this matter is not barred by double jeopardy.”

{¶22} In the case at hand, we hold the September 7, 2010 hearing on the civil

stalking protection order held pursuant to R.C. 2903.214 was not akin to a criminal

proceeding; therefore, Appellant was not entitled to representation. Based upon the

case law set forth above, civil stalking protection order proceedings are civil in nature,

and Appellant was not entitled to representation as in a criminal proceeding. Pursuant

to the statute, Appellant was afforded a full and fair opportunity to be heard, and elected

to represent himself throughout the proceedings.

{¶23} Appellant’s three assignments of error are overruled.
Stark County, Case No. 2010CA00311 7

{¶24} The October 5, 2010 Judgment Entry of the Stark County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00311 8

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

LINDA K. WALKER :
:
Petitioner-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DAVID B. WALKER :
:
Respondent-Appellant : Case No. 2010CA00311

For the reasons stated in our accompanying Opinion, the October 5, 2010

Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs to

Appellant.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY