Weber v. Forinash

[Cite as Weber v. Forinash, 2015-Ohio-3187.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY

Angela Weber Court of Appeals No. S-14-034

Appellee Trial Court No. 12-DR-303

v.

Brett Forinash DECISION AND JUDGMENT

Appellant Decided: August 7, 2015

*****

Kristopher K. Hill and Thomas J. DeBacco, for appellant.

*****

YARBROUGH, P.J.

I. Introduction

{¶ 1} This is an appeal from the judgment of the Sandusky County Court of

Common Pleas, issuing a domestic violence civil protection order against appellant, Brett

Forinash. We affirm.
 A. Facts and Procedural Background

{¶ 2} Appellant and appellee, Angela Weber, are parents of a minor child, M.F.

They lived together in North Carolina from May 2011 until December 2011, when their

relationship ended and appellee decided to move back to Vickery, Ohio. At that time,

appellant decided to move back into his parents’ home in Ashtabula, Ohio.

{¶ 3} On March 12, 2012, appellant instituted an action in North Carolina, seeking

custody of M.F.1 The following day, appellee filed her petition for a domestic violence

civil protection order. In her petition, appellee alleged that she worries for the safety of

herself and her children because appellant “often punches walls, slams doors, punched [a]

wall next to [her] and asked if [she] thought he was going to hit [her] and said [the] only

woman he punched was his mother.” Appellee also alleged that appellant had smacked

her son in the side of his head for no reason. Additionally, appellee asserted that

appellant “stated he wants his ex-wife dead and swore to God if he was in [North

Carolina] he would do it.” On the same day appellee’s petition was filed, the trial court

issued an ex parte protection order, and set the matter for a full hearing before a

magistrate.

{¶ 4} At the hearing, appellee testified that she sought the domestic violence civil

protection order because she was “scared to death and scared for [her] kids because

[appellant] would just punch the walls and scream at [her] and just – he couldn’t control

1
According to his appellate brief, appellant’s custody action in North Carolina was
subsequently dismissed and re-filed in the Sandusky County Court of Common Pleas,
Juvenile Division.

2.
his temper.” In discussing appellant’s conduct, appellee stated that appellant would

frequently pin her against the wall and punch the wall next to her head. Appellee also

testified that appellant “was always just yelling and screaming, punching stuff, throwing

stuff at [her].” Appellee went on to recount an incident in which she was in the laundry

room of the home and heard her minor son, M.W., begin to cry after being hit by

appellant. When she confronted appellant about the incident, he stated that he “didn’t hit

him that hard.” In addition to the foregoing, appellee testified that she was fearful of

appellant based on his prior threats to kill his ex-wife. Moreover, she indicated that

appellant forced her to have sex with him prior to moving in with him.

{¶ 5} At the conclusion of appellee’s testimony, appellant was called to the stand.

During his testimony, appellant denied all allegations of domestic violence. Indeed,

appellant testified that he ended his relationship with appellee because he was “tired of

the abuse.” He went on to state that he had been physically and verbally abused by

appellee. He reasoned that appellee was seeking a domestic violence civil protection

order only to prevent him from having contact with M.F. In support of his assertion,

appellant referenced the fact that appellee’s petition was filed on the day after the custody

action was filed. Notably, during her testimony, appellee stated that she did not receive

notice of the custody action in North Carolina until after she filed her petition for a

domestic violence civil protection order. Nonetheless, appellant insisted that appellee

was aware of the action at the time the petition was filed. Moreover, appellant stated that

3.
appellee frequently threatened to keep M.F. away from him and prevented her from

calling him daddy.

{¶ 6} In addition to his own testimony, appellant solicited the testimony of his

mother, Diane Forinash. When asked whether appellant had ever struck her, Diane

indicated that he had not. Diane further testified that appellant was not violent with any

members of his family. Regarding her observations of appellant’s relationship with

appellee, Diane stated that appellee “ruled the roost.” She explained that appellant “had

to do what [appellee] said.” Diane also testified that she overheard appellee threatening

violence against appellant’s ex-wife.

{¶ 7} At the conclusion of the hearing, the magistrate took the matter under

advisement. Thereafter, on January 31, 2014, the magistrate issued his decision, finding

that appellee established that appellant committed acts of domestic violence against

appellee. Thus, the magistrate recommended the grant of appellee’s petition for a

domestic violence civil protection order.

{¶ 8} Two weeks later, appellant filed his objections to the magistrate’s decision.

In his objections, appellant argued that appellee failed to prove that she was in present

danger of domestic violence by a preponderance of the evidence. Appellant asserted that

it was improper for the magistrate to rely upon allegations of prior acts of domestic

violence that occurred several months before appellee filed her petition, especially since

the parties “lived hours apart, without alleged incident, for months.” Once again,

4.
appellant reiterated his allegation that appellee’s petition was filed only in response to the

pending custody action.

{¶ 9} On July 10, 2014, the trial court issued its decision overruling appellant’s

objections and adopting the magistrate’s recommendations. In its decision, the trial court

found that the magistrate’s findings of fact were supported by the hearing transcript.

B. Assignment of Error

{¶ 10} Appellant timely appeals the decision of the trial court, asserting the

following assignment of error:

I. The trial court erred in issuing a civil protection order, based upon

R.C. 3113.31, as the Appellee failed to establish, by a preponderance of the

evidence, sufficient credible evidence that Appellant engaged in acts or

threats of domestic violence. There was no incident of domestic violence

between the parties sufficient to support a finding that Appellee was in

imminent danger of domestic violence at the time of the filing of her

petition.

II. Analysis

{¶ 11} At the outset, we must address an issue raised by the dissent concerning

whether the trial court’s order issuing the civil protection order is a final appealable

order.

{¶ 12} Relevant to our determination of this issue, Civ.R. 65.1 governs the

issuance of civil protection orders under R.C. 3113.31 and provides, in relevant part:

5.
 (F) Proceedings in matters referred to magistrates

***

(3) Full hearing proceedings. The following shall apply when these

special statutory proceedings are referred to a magistrate for full hearing

and determination:

***

(c) Court adoption; modification; rejection.

(i) A magistrate’s denial or granting of a protection order after a full

hearing shall comply with the statutory requirements relating to such orders

and is not effective unless adopted by the court.

(ii) When a magistrate has denied or granted a protection order after

a full hearing, the court may adopt the magistrate’s denial or granting of the

protection order upon review of the order and a determination that there is

no error of law or other defect evident on the face of the order.

***

(iv) A court’s adoption, modification, or rejection of a magistrate’s

denial or granting of a protection order after a full hearing under this

division does not constitute a judgment or interim order under Civ.R.

53(D)(4)(e) and is not subject to the requirements of that rule.

6.
 (v) A court’s adoption, modification, or rejection of a magistrate’s

denial or granting of a protection order after a full hearing shall be effective

when signed by the court and filed with the clerk.

***

(G) Final order; stay of appeal. Notwithstanding the provisions of

any other rule, an order entered by the court under division (F)(3)(c) of this

rule, with or without the subsequent filing of objections, is a final,

appealable order that can be appealed upon issuance of the order. The

timely filing of objections under division (F)(3)(d) of this rule shall stay the

running of the time for appeal until the filing of the court’s ruling on the

objections. (Emphasis added.)

{¶ 13} Here, the order from which appellant appealed constituted an order by the

trial court under Civ.R. 65.1(F)(3)(c). Indeed, the trial court’s judgment entry stated:

“[t]he Decision/Recommendation of the Magistrate is correct and is approved.”

Moreover, the trial court stated the relief as follows: “The Domestic Violence Protection

Order as pertains to the petitioner only will remain in full force and effect.”

{¶ 14} Having found that the trial court’s judgment entry constitutes an order

under Civ.R. 65.1(F)(3)(c), we find that it was a final, appealable order pursuant to

Civ.R. 65.1(G). Thus, we must disagree with the dissent’s conclusion that the entry does

not constitute a final appealable order. Consequently, we will proceed to address the

merits of appellant’s sole assignment of error.

7.
 {¶ 15} Pursuant to R.C. 3113.31, a person who is subject to domestic violence

may petition a court for a protection order. Relevant here, domestic violence is defined

as “[p]lacing another person by the threat of force in fear of imminent serious physical

harm.” R.C. 3113.31(A)(1)(a). A person seeking a civil protection order must

demonstrate by a preponderance of the evidence that he or she is in danger of domestic

violence. Felton v. Felton, 79 Ohio St.3d 34, 42, 679 N.E.2d 672 (1997).

{¶ 16} “The decision to grant or dismiss a request for a civil protection order is

within the discretion of the trial court.” Rangel v. Woodbury, 6th Dist. Lucas No. L-09-

1084, 2009-Ohio-4407, ¶ 11, citing Deacon v. Landers, 68 Ohio App.3d 26, 31, 587

N.E.2d 395 (4th Dist.1990). “An appellate court will not reverse a trial court’s decision

regarding a civil protection order absent an abuse of discretion.” Id., citing Parrish v.

Parrish, 146 Ohio App.3d 640, 646, 767 N.E.2d 1182 (4th Dist.2000). An abuse of

discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). “If the trial court’s decision is supported by credible and competent evidence, the

appellate court will not reverse the decision as an abuse of discretion.” Rangel at ¶ 11,

citing Jarvis v. Jarvis, 7th Dist. Jefferson No. 03-JE-26, 2004-Ohio-1386, ¶ 13.

{¶ 17} In his assignment of error, appellant argues that the trial court erred in

finding that appellee demonstrated that domestic violence had occurred by a

preponderance of the evidence. Specifically, appellant contends that appellee failed to

establish that she was in imminent danger of domestic violence at the time of the filing of

8.
her petition, as the parties had not lived together for over two months when the case was

filed.2

{¶ 18} Regarding the timing of the acts of domestic violence that form the basis

for a petition for a domestic violence civil protection order, we have previously stated

that “a finding of statutory domestic violence may not be based solely on remote events,

but must be premised on conduct current enough that the fear engendered is current.”

Gannon v. Gannon, 6th Dist. Wood No. WD-07-078, 2008-Ohio-4484, ¶ 39. In Gannon,

we approved of the petitioner’s argument that the acts which instill fear of imminent

harm need not happen on the same day as the petition. Id. at ¶ 38. Rather, the acts must

give rise to a fear that is “present on the day alleged, irrespective of when the acts

precipitating the fear occurred.” Id.

{¶ 19} We have reviewed the record in its entirety. Based upon our review, we

find that the evidence of appellant pinning appellee against the wall while punching the

wall next to her head, taken together with appellee’s testimony that appellant forced

appellee to have sex with him, was sufficient to give rise to a fear of imminent serious

physical harm on the day appellee filed her petition. Thus, we cannot conclude that the

2
Notably, this is the only argument advanced by appellant to support his contention that
the trial court erred in issuing the civil protection order. Consequently, we need not
address the issues raised by the dissent concerning the trial court’s compliance with the
Rules of Civil Procedure or the Rules of Superintendence. App.R. 12(A). Moreover, our
review of case law within this district reveals that “[t]he rules of superintendence * * *
are guidelines for judges only and are not intended to function as rules of practice and
procedure.” Caudill v. Caudill, 6th Dist. Sandusky No. S-04-018, 2006-Ohio-1116, ¶ 5,
citing State v. Mahoney, 34 Ohio App.3d 114, 517 N.E.2d 957 (1st Dist.1986).

9.
trial court abused its discretion in granting appellee’s petition for a domestic violence

civil protection order.

{¶ 20} Accordingly, appellant’s assignment of error is not well-taken.

III. Conclusion

{¶ 21} For the foregoing reasons, the judgment of the Sandusky County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
CONCUR. _______________________________
JUDGE
James D. Jensen, J.,
DISSENTS.

JENSEN, J.

{¶ 22} Respectfully, I dissent. My reasons are threefold.

{¶ 23} First, the Supreme Court of Ohio, in consultation with the Domestic

Violence Task Force and by request of the General Assembly under H.B. 335, developed

various forms to be used by courts in the application for and issuance of uniform

10.
protection orders that are easily recognizable to law enforcement agencies across the

state. Calzo v. Lynch, 5th Dist. Richland No. 11CA45, 2012-Ohio-1353, ¶ 28, citing

Sup.R. 10.01(C).

{¶ 24} Sup.R. 10.01(C) provides:

In every case in which the domestic relations division of a court of

common pleas issues or approves an ex parte civil protection order, a full

hearing civil protection order, or a consent agreement pursuant to section

3113.31 of the Revised Code, the court shall use, as applicable, forms that

are substantially similar to “Forms 10.01-H through 10.01-J.”

{¶ 25} Here, the trial court utilized Form 10.01-H entitled “DOMESTIC

VIOLENCE CIVIL PROTECTION ORDER (CPO) EX PARTE (R.C. 3113.31)” when it

granted petitioner’s request for protection after the ex parte hearing. However, the trial

court did not complete Form 10.01-I entitled “DOMESTIC VIOLENCE CIVIL

PROTECTION ORDER (CPO) FULL HEARING (R.C. 3113.31)” after the full hearing.

The magistrate issued a decision on January 31, 2014 recommending

that the Court GRANT the petition of [appellee] for a DVCPA against

[appellant] under R.C. 3113.31 for the protection of herself by issuing

standard form 10.01-I, checking the boxes to Paragraph Numbers 1, 5, 6

and 7, with a termination date of April 8, 2018. The DVCPO should

contain an additional provision at Paragraph Number 18 that the order shall

11.
 be subject and superseded by any parenting time order issued by the

Sandusky County Juvenile Court regarding the parties [sic] minor daughter.

There is no evidence in the record that Form 10.01-I was ever issued. Rather, on

July 10, 2014, when ruling on appellant’s objection to the magistrate’s decision, the trial

court simply stated: “[T]he Domestic Violence Protection Order as pertains to the

[appellee] only will remain in full force and effect.” The trial court in “approving” the

January 31, 2014 decision of the magistrate without utilizing Form 10.01-I, or a form

substantially similar to it, failed to comply with the Rules of Superintendence for the

Courts of Ohio.

{¶ 26} To further muddle the matter, in an entry dated November 27, 2013, the

trial court issued an order indicating: “IT IS HEREBY ORDERED that the Ex Parte

Order expired on May 1, 2013, it has been returned from the Fremont PD and destroyed

therefore this case is closed.” Thus, the July 10, 2014 judgment entry approving the

magistrate’s decision and ordering that the order of protection “remain in full force and

effect” has no legal effect because at the time the judgment was entered, the ex parte

order, as the trial court noted, had expired.

{¶ 27} Assuming, arguendo, that the trial court’s failure to comply with Sup.R.

10.01(C), does not constitute reversible error, I find that that the July 10, 2014 judgment

entry does not constitute a “judgment” for purposes of appellate review. The July 10,

2014 judgment entry states, in relevant part, as follows:

12.
 This cause comes before the Court for consideration of the

Objections filed by the [appellant] from the Magistrate’s Decision filed

herein on January 31, 2014.

* **

After a review of the transcript, and the filings of the parties, the

Court find as follows: (1) the finding of fact of the Magistrate are

supported by the transcript; (2) the conclusions of law of the Magistrate are

supported by the law; and (3) the objections are therefore not well taken

and are overruled.

IT IS THEREFORE ORDERED as follows:

1. The Decision/Recommendation of the Magistrate is correct and is

approved.

2. The Domestic Violence Protection Order as pertains to the

[appellee] only will remain in full force and effect.

{¶ 28} It has long been held that “a trial court order that merely adopts a

magistrate’s decision, without specifying the relief being granted, does not constitute a

final appealable order.” King v. Kelly, 4th Dist. Lawrence No. 2002-Ohio-4647, ¶ 12.

See also Short v. Short, 6th Dist. Fulton No. F-03-005, 2002 WL 537990, *2 (Apr. 8,

2002) (a “judgment must so dispose of the matters at issue between the parties that they

* * * will be able to determine with reasonable certainty the extent to which their rights

and obligations have been determined”); Sabrina J. v. Robbin C., 6th Dist. Lucas No.

13.
L-00-1374, 2001 WL 85157 (Jan. 26, 2001) (“An order of a trial court which merely

adopts a magistrate’s decision * * * is not a final appealable order” unless it states the

outcome and “contain[s] an order which states the relief granted so that the parties are

able to determine their rights and obligations by referring solely to the judgment entry.”);

Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 215, 736 N.E.2d 101 (9th

Dist.2000) (“One fundamental principle in the interpretation of judgments is that, to

terminate the matter, the order must contain a statement of the relief that is being afforded

the parties.”); Martin v. Martin, 11th Dist. Portage No. 93-P-00654, 1994 WL 315667, *2

(June 24, 1994) (“While the trial court may properly adopt [a referee’s report], it still

must enter its own judgment, including a statement of the relief to which the party is

entitled without reference to any other documents.”) Here, the trial court’s July 10, 2014

judgment entry merely “approves”—as opposed to “adopts”—the January 31, 2014

magistrate’s decision. Semantics aside, the judgment entry does not contain “an order by

the judge which states the relief granted so that the parties are able to determine their

rights and obligations by referring to the judgment entry.” See Hall v. Darr, 6th Dist.

Ottawa No. OT-03-001, 2003-Ohio-1035, ¶ 37. Thus, there is no final order. Id.

{¶ 29} Second, proceedings brought pursuant to R.C. 3113.31 are civil in nature,

and proceed according to the Ohio Rules of Civil Procedure. Haas v. Semrad, 6th Dist.

Lucas No. L-06-1294, 2007-Ohio-2828, ¶ 9, citing Felton v. Felton, 79 Ohio St.3d 34,

37, 679 N.E.2d 672 (1997). Historically, a petition for a domestic violence civil

14.
protection order could be referred to a magistrate as provided by Civ.R. 53. Tabatabai v.

Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 10.

{¶ 30} However, a recent amendment to the civil rules implemented Civ.R. 65.1

entitled “Civil Protection Orders.” Civ.R. 65.1 was adopted

to provide a set of provisions uniquely applicable to [special statutory

proceedings established by R.C. 3113.31, R.C. 2151.34 and R.C. 2903.214]

because application of the existing rules, particularly with respect to

service, discovery, and reference to magistrates, interferes with the

statutory process and is inconsistent with its purpose.” 2012 Staff Note,

Civ.R. 65.1.

Civ.R. 65.1 became effective July 1, 2012 and applies to all proceedings brought after the

effective date. See Civ.R. 86(II). It also applies to all proceedings pending on the

effective date, “except to the extent that [its] application in a particular action pending

when the amendment [took] effect would not be feasible or would work injustice, in

which event the former procedure applies.” Id.

{¶ 31} As noted by the majority, appellee filed a petition for a domestic violence

civil protection order on March 12, 2012. The trial court granted an ex parte order the

following day. A full hearing was held before a magistrate on April 8, 2013, eight

months after the amendment’s effective date.

{¶ 32} Here, the record is clear: the trial court followed the procedures set forth

under Civ.R. 53 instead of those set forth under Civ.R. 65.1. The majority ignores the

15.
trial court’s procedural missteps, cites select portions of Civ.R. 65.1, and concludes that

“the order from which appellant appealed constituted an order by the trial court under

Civ.R. 65.1(F)(3)(c).” I strongly disagree. While the procedural missteps likely do not

constitute reversible error in this instance, they certainly warrant more than the majority’s

enigmatic conclusion.

{¶ 33} Third, I disagree with the majority’s conclusion that the trial court did not

abuse its discretion in granting appellee’s petition for a domestic violence civil protection

order. In support of its decision, the majority asserts: “the evidence of appellant pinning

appellee against the wall while punching the wall next to her head, taken together with

appellee’s testimony that appellant forced appellee to have sex with him were sufficient

to give rise to a fear of imminent serious physical harm on the day appellee filed her

petition.”

{¶ 34} The majority cites Gannon, 2008-Ohio-4484, for the proposition that the

acts which instill fear of imminent harm need not happen on the same day the petition is

filed, but that the fear is “present on the day alleged, irrespective of when the acts

precipitating the fear occurred.” I would agree with that statement, if the full hearing was

held within seven court days after the ex parte hearing as required by R.C.

3113.31(D)(2)(a), or a reasonable time thereafter. Here, even if appellee was in fear of

imminent serious physical harm on the day she filed her petition for a domestic violence

civil protection order, the full hearing on the petition took place 13 months after appellee

asserted her claim. The majority completely ignores this fact, which reflects a flaw in its

16.
analysis. At the time of the full hearing, there is no evidence in the record to show

appellee was in “immediate and present danger of domestic violence to the family or

household member” as required by R.C. 3113.31(D)(1).

{¶ 35} “[W]hen granting a [domestic violence civil] protection order, the trial

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

petitioner or petitioner’s family or household members are in danger of domestic

violence.” Felton, 79 Ohio St.3d at 42. Pursuant to R.C. 3113.31(A)(1), “domestic

violence” is defined as any of the following as against a family or household member:

(a) Attempting to cause or recklessly causing bodily injury;

(b) Placing another person by threat of force in fear of imminent

serious physical harm or committing a violation of section 2903.211

[menacing by stalking] or 2911.211 [aggravated trespass] of the Revised

Code;

(c) 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; [or]

(d) Committing a sexually oriented offense.

{¶ 36} Here, the trial court, through its adoption of the magistrate’s decision,

determined that appellant “committed domestic violence” against appellee. However,

this court has held that a finding of statutory domestic violence, alone, is insufficient to

support the issuance of a domestic violence civil protection order if the conduct was not

17.
current enough that the fear engendered was current. See Gannon v. Gannon, 6th Dist.

Wood No. WD-07-078, 2008-Ohio-4484, ¶ 39 (“The cases appellant cites * * * properly

hold that a finding of statutory domestic violence may not be based solely on remote

events, but must be premised on conduct current enough that the fear engendered is

current.”).

{¶ 37} Appellee alleged that appellant once forced sexual relations upon her. That

act occurred on or about August 31, 2010, 32 months before the full hearing was held,

before appellee decided to reside with appellant. Appellee further alleged that appellant

often punched the wall next to her head. Those acts occurred no later than December 12,

2011, 16 months before the full hearing was held. At the time of the full hearing, the

parties lived hours apart and had not had any contact with each other for over 14 months.

{¶ 38} Viewing the evidence in a light most favorable to appellee, I would

conclude that there was insufficient evidence from which the trial court could have found,

on the day the full hearing was held, that there was an act of statutory domestic violence

current enough upon which appellee could reasonably premise a fear of imminent harm

to herself or her children.

{¶ 39} For these three reasons, I would reverse.

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.

18.