[Cite as Roxey v. Smallwood, 2016-Ohio-720.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DONNALYN I. ROXEY : JUDGES:
: Hon. William B. Hoffman, P.J.
Petitioner - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ROBERT C. SMALLWOOD, JR. : Case Nos. 15-CA-15 and 15-CA-39
:
Respondent - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
2014 CP 00022
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 23, 2016
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
ORVAL E. FIELDS, II NICHOLAS R. GRILLI
KRISTI R. MCANAUL ALYSSA L. PARROTT
Orval Fields & Associates, Co., L.P.A. Dagger, Johnston, Miller,
660 Hill Road. N., PO Box 220 Ogilvie & Hampson
Pickerington, Ohio 43147 144 East Main Street, PO Box 667
Lancaster, Ohio 43130
Fairfield County, Case No. 15-CA-15 and 15-CA-39 2
Baldwin, J.
{¶1} Appellant Robert C. Smallwood, Jr. appeals a judgment of the Fairfield
County Common Pleas Court issuing a civil stalking protection order (CSPO) against him
and in favor of appellee Donnalyn I. Roxey, and a judgment overruling his motion for Civ.
R. 60(B) relief from said order.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 16, 2014, appellee filed a petition for a CSPO, and an ex parte
order was issued on the same date. The order protected both appellee, who was
previously married to appellant, and appellee’s minor daughter from a previous
relationship. The order further provided for exchange of the parties’ minor daughter, who
was at the time the subject of a share parenting agreement, at the Pickerington police
station. The order sets forth that the full hearing would be held on November 24, 2014,
and reflects service of the order on appellant. Although service initially was returned as
failed, the docket reflects that the order was served on appellant on October 27, 2014.
{¶3} Appellee moved to continue the November 24, 2014 hearing. The motion
for continuance included a certificate of service on appellant. The court granted the
motion and set the hearing for February 20, 2015. The record does not reflect that the
notice of the new hearing date was served on appellant.
{¶4} The case proceeded to a full hearing on February 20, 2015. Appellant
failed to appear, and the magistrate noted on the record that it did not appear that
appellant had been served. Counsel for appellee responded that his understanding was
that appellant was served at the jail at some point in the last two weeks. The magistrate
Fairfield County, Case No. 15-CA-15 and 15-CA-39 3
noted that notice of the new hearing date would not be part of what they served him, but
she would see if appellant could be brought to court from the jail for the hearing.
{¶5} Appellant was brought up from the jail and orally waived his right to a full
hearing. The magistrate explained that he would be waiving his right to a full hearing, his
right to cross-examine witnesses, his right to look at the evidence presented by appellee,
and his right to present witnesses and evidence on his own behalf. The magistrate further
explained that he was waiving the right to request specific factual findings from the court.
The magistrate read the terms of the CSPO to appellant. When she finished, appellant
asked two questions. First, he asked to clarify that the persons protected under the order
were appellee and her minor daughter, and second, he asked a question regarding how
the order would work if he encountered appellee while driving. Appellant then signed a
written waiver of a full hearing on the CSPO.
{¶6} Appellant filed a notice of appeal from the CSPO, which was assigned case
number 15-CA-15. Appellant also filed a motion for Civ. R. 60(B) relief from the order, or
in the alternative a motion to modify the CSPO to allow peaceful, reasonable contact
between the parties relating to their minor child. This Court remanded the case to the
trial court to rule on the Civ. R. 60(B) motion. The trial court overruled the motion, and
appellant filed a notice of appeal from that order, assigned case number 15-CA-39. This
Court consolidated the two appeals.
{¶7} Appellant assigns four errors:
{¶8} “I. THE TRIAL COURT DENIED APPELLANT HIS DUE PROCESS WHEN
IT ISSUED ITS JUDGMENT ENTRY/CIVIL STALKING PROTECTION ORDER FULL
Fairfield County, Case No. 15-CA-15 and 15-CA-39 4
HEARING (O.R.C. §2903.214) HAVING NEVER SERVED APPELLANT WITH PROPER
NOTICE OF THE CONTINUED FULL HEARING.
{¶9} “II. THE TRIAL COURT ERRED IN ISSUING ITS JUDGMENT
ENTRY/CIVIL STALKING PROTECTION ORDER FULL HEARING (O.R.C. §2903.214)
WITHOUT APPELLANT KNOWINGLY AND INTELLIGENTLY WAIVING HIS RIGHT TO
A FULL HEARING OF THE CIVIL STALKING PROTECTION ORDER.
{¶10} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR CIV. R. 60(B) RELIEF AND NOT SETTING ASIDE ITS JUDGMENT ENTRY/CIVIL
STALKING PROTECTION ORDER FULL HEARING (O.R.C. §2903.214).
{¶11} “IV. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR CIV. R. 60(B) RELIEF WITHOUT FIRST HAVING AN EVIDENTIARY HEARING ON
APPELLANT’S MOTION FOR CIV. R. 60(B) RELIEF.”
I.
{¶12} Appellant argues that he was denied due process because he was not
served with proper notice of the continued full hearing.
{¶13} R.C. 2903.14(D)(2)(a) provides for notice of the full hearing on a CSPO and
sets forth the procedure regarding continuing the full hearing:
(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
Fairfield County, Case No. 15-CA-15 and 15-CA-39 5
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:
(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.
(ii) The parties consent to the continuance.
(iii) The continuance is needed to allow a party to obtain counsel.
(iv) The continuance is needed for other good cause.
{¶14} In Oddo v. Spencer, 5th Dist. Stark No. 2008CA00215, 2009-Ohio-4320,
the full hearing on a CPO was set for July 24, 2008 at 10:00 a.m. At 9:00 on the morning
of the hearing, the respondent appeared at the courthouse at the request of the sheriff’s
department, and at that time was served with the petition, the ex parte order, and the
notice of the full hearing. We concluded that appellant received reasonable notice and
an opportunity to be heard, and the trial court did not abuse its discretion in proceeding
with the full hearing. Id. at ¶16. In the instant case, appellant had received notice of the
petition, the ex parte order, the original date of the full hearing and the motion to continue
the full hearing prior to the date of the full hearing, and received notice of the actual date
of the full hearing on the hearing date. Pursuant to our decision in Oddo, we find
reasonable notice was afforded to appellant under the circumstances presented, and the
trial court did not err in failing to sua sponte reset the hearing to another date.
{¶15} Further, the defense of insufficiency of service attacks the court’s
jurisdiction, and must be asserted by a party’s first pleading, motion, or appearance in the
Fairfield County, Case No. 15-CA-15 and 15-CA-39 6
case. E.g., Smith v. Hensel, 5th Dist. Ashland No. 04-COA-077, 04-COA-078, 2005-
Ohio-3465, ¶12. If a party appears for any purpose other than to object to jurisdiction,
the party is deemed to have entered a general appearance in the action and voluntarily
submitted himself to the jurisdiction of the court. Id. As appellant did not object to the
lack of service at his first opportunity, he submitted himself to the jurisdiction of the court
and cannot now complain of lack of notice.
{¶16} The first assignment of error is overruled.
II.
{¶17} In his second assignment of error, appellant argues that his waiver of a full
hearing was not knowing and voluntary. He argues that the court erred in failing to inquire
as to whether he wished to continue the case in order to consult with counsel.
{¶18} In Oddo, supra, the respondent argued that the magistrate should have
inquired about his readiness to proceed and his interest in obtaining an attorney to
represent him in a CPO action. In rejecting his argument, we concluded that full colloquy
requirements, such as those set forth in a Crim. R. 11 plea proceeding, were not required
in a civil protection proceeding. 2009-Ohio-4320, ¶16. Since proceedings involving the
determination of whether to grant a protection order are civil, a defendant is generally not
entitled to legal representation. Walker v. Walker, 5th Dist. Stark No. 2010CA00311,
2011-Ohio-3933, ¶16. Counsel for appellant had not entered an appearance in the
instant action, and appellant did not indicate to the court that he was represented and
wished to consult with counsel prior to proceeding.
{¶19} Appellant then appeared in open court and orally waived his right to a full
hearing. The magistrate explained that he would be waiving his right to a full hearing, his
Fairfield County, Case No. 15-CA-15 and 15-CA-39 7
right to cross-examine witnesses, his right to look at the evidence presented by appellee,
and his right to present witnesses and evidence on his own behalf. The magistrate further
explained that he was waiving the right to request specific factual findings from the court.
The magistrate read the terms of the CSPO to appellant. When she finished, appellant
asked two questions. First, he asked to clarify that the persons protected under the order
were appellee and her minor daughter, and second, he asked a question regarding how
the order would work if he encountered appellee while driving. Appellant then signed a
written waiver of a full hearing on the order. Nothing in the record demonstrates that his
waiver was not knowing and voluntary.
{¶20} The second assignment of error is overruled.
III., IV.
{¶21} In his third and fourth assignments of error, appellant argues that the court
erred in overruling his motion for Civ. R. 60(B) relief from judgment and in failing to hold
an evidentiary hearing on his motion.
{¶22} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the
movant must demonstrate that: (1) the party has a meritorious defense to present if relief
is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.
60(B)(1) through (5); and (3) the motion is made within a reasonable time, and where the
grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment.
GTE Automatic Electric Company, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.2d 113, paragraph two of the syllabus (1976).
{¶23} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial
court's discretion, and the decision will be reversed only for an abuse of discretion. Griffey
Fairfield County, Case No. 15-CA-15 and 15-CA-39 8
v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122(1987). The phrase “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).
{¶24} Appellant moved for relief from judgment pursuant to Civ. R. 60(B) (1), (4)
and (5):
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect . . . (4) the judgment has been satisfied, released or discharged, or
a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application; or (5) any other reason justifying relief from the
judgment.
{¶25} In his affidavit attached to the motion, appellant avers that had he known
the CSPO could affect his ability to communicate with his ex-wife concerning their minor
daughter, and would therefore affect his ability to maintain shared parenting of his
daughter, he would not have waived the full hearing. However, he does not set forth a
meritorious defense to the CSPO proceeding. The court did not err in overruling the
motion for Civ. R. 60(B) relief without a hearing.
{¶26} The third and fourth assignments of error are overruled.
Fairfield County, Case No. 15-CA-15 and 15-CA-39 9
{¶27} Appellee filed a motion to enlarge the record on appeal on December 29,
2015. On January 7, 2016, this Court took the motion under advisement pending merit
review. Appellee’s motion is overruled.
{¶28} The judgment of the Fairfield County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J. and
Delaney, J. concurs.
Hoffman, P.J. concurs separately
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
CRB/rad
Fairfield County, Case No. 15-CA-15 and 15-CA-39 10
Hoffman, P.J., concurring
{¶29} I concur in the majority’s analysis and disposition of Appellant’s second,
third and fourth assignments of error.
{¶30} I further concur in the majority’s disposition of Appellant’s first assignment
of error. I do not find the record affirmatively demonstrates Appellant ever received written
notice of the hearing by the trial court.1 Nevertheless, I concur in the decision to overrule
Appellant’s first assignment of error because of his failure to request a continuance and
his subsequent waiver of a full hearing which would supersede any error relative to his
failure to receive written notice of the hearing.2
1 In our Spencer case noted by the majority, the Appellant therein received written notice,
albeit on the same day as the hearing.
2 I find the majority’s discussion of jurisdiction based upon a party’s appearance in court
of little relevance to Appellant’s due process argument.