Opinion
No. 108614
04-02-2020
T.C., Petitioner-Appellant, v. J.R.C., Respondent-Appellee.
Appearances: L. Bryan Carr, for appellant. John V. Heutsche Co., L.P.A., and John V. Heutsche, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division
Case No. DV-18-372490
Appearances:
L. Bryan Carr, for appellant. John V. Heutsche Co., L.P.A., and John V. Heutsche, for appellee. ANITA LASTER MAYS, J.:
{¶ 1} Petitioner-appellant T.C. appeals and challenges as error the trial court's partial grant of respondent-appellee J.R.C.'s objections to the scope of a domestic violence civil protection order ("DVCPO"). For the reasons set forth below, we affirm the trial court's judgment.
I. Background and Proceedings
{¶ 2} On June 22, 2018, T.C. sought a DVCPO against his brother J.R.C. T.C. discovered that J.R.C. and their mother L.C. used a power of attorney from T.C. to defraud him of money and property while he was receiving cancer treatment out of state. Some of the money was used to purchase the residence in Walton Hills ("residence") that L.C. and J.R.C. placed in their names.
{¶ 3} At the ex parte hearing, T.C. informed the magistrate that he was living with L.C. and J.R.C. at the residence when he learned of the fraudulent activities. When he confronted them, J.R.C. "pushed me so hard that I fell back, I hit my head on the counter. My mother fell down. She broke her knee." (Tr. 8-9.) "I had five staples in my head. He pushed me so hard that I have a bruised sternum." Id.
DVCPO hearings are special statutory proceedings and the rules of civil procedure that are not consistent with Civ.R. 65.1 are not applicable. A magistrate is vested with authority to conduct an ex parte hearing and to grant or deny an order without judicial approval. Civ.R. 65.1(F)(2).
{¶ 4} Police were summoned. J.R.C. allegedly urged L.C. to tell the police that J.R.C. tripped and accidentally fell into T.C. and L.C. The police rejected J.R.C.'s explanation. T.C. advised that J.R.C. was charged with what constituted his second domestic violence case but pleaded guilty to the reduced charge of assault.
{¶ 5} The magistrate granted the ex parte DVCPO and T.C. was awarded exclusive use of the residence. On July 16, 2018, after L.C.'s release from the hospital for the knee injury, L.C. filed for a DVCPO against T.C. and alleged that T.C. threatened her.
{¶ 6} T.C. stated the petition was frivolously filed to remove T.C. and allow J.R.C. to regain access to the residence. (Cuyahoga C.P. No. DV-18-372781). An ex-parte DVCPO was granted and T.C. was excluded from the residence. T.C. later stated that, when he regained possession, the residence had been ransacked and contents removed.
{¶ 7} At the July 24, 2018 hearing before the magistrate, though separate cases, the petitions of T.C. and L.C. were before the trial court. The magistrate explained:
I was starting to tell you folks before we went on the record, we normally would not have these tried together. The reason that counsel have all agreed to do so, and the Court, as well, is mostly just to spare [L.C.] from having to tell her story twice and having to testify twice.(Tr. 5-6.) T.C., J.R.C., and L.C. were represented by counsel who confirmed their agreement to jurisdiction and the combined proceedings on the record.
Of course, [L.C.], I assume will be testifying to two complete different things, but if we try it together, she will be able to remain on the witness stand at one time and testify.
{¶ 8} L.C. testified that J.R.C. tripped and fell into T.C. which caused T.C. to hit his head on the countertop. The Walton Hills police testified to a dispatch report that T.C. had fallen and required assistance. Police arrived and determined that J.R.C. assaulted T.C.
{¶ 9} Hearings were conducted on July 24, 2018, November 6, 2018, November 9, 2018, and January 7, 2019. On January 11, 2019, the magistrate determined that T.C. had been assaulted and that L.C. and T.R.C. did not testify credibly. DVCPO modification entry No. 107081230, p. 5 (Jan. 11, 2019).
{¶ 10} The magistrate made the following finding of fact in T.C.'s case:
Petitioner was sworn and gave testimony that supports finding that Respondent committed domestic violence as defined in R.C. 3113.31 and that the Petitioner is in danger of domestic violence. Petitioner's testimony is found to be credible. Officer[s] * * * of the Walton Hills Police Department, testified credibly and professionally. [L.C.] did not testify credibly. Respondent did not testify credibly.
Petitioner and Respondent are brothers. [L.C.] is their mother.
In 2014, Petitioner was diagnosed with pancreatic cancer. He underwent treatment in another state and then returned to Ohio in 2016. He lived with Respondent, [L.C.] and Respondent's daughter for a few months in their home in Garfield Heights, was hospitalized again and then went into hospice care, where he remained for approximately a year and a half. He then went to skilled nursing care. In 2017, after his return to Ohio and while still in hospice or skilled nursing care, Petitioner executed a power of attorney, naming Respondent as his attorney-in-fact.
In February 2018, Petitioner was released from residential care and returned to the family home. By that time Respondent and [L.C.] had moved to a residence in Walton Hills. Respondent's daughter also lived in the Walton Hills home, and later so did Respondent's son. * * *
On May 31, 2018, about a month after he returned to the family, Petitioner answered the phone at the Walton Hills home. The caller was Petitioner's consultant from his investment company. Petitioner learned from this call that the Walton Hills home had been purchased with funds from Petitioner's account. This purchase had occurred without Petitioner's knowledge about a year before, while Petitioner was an inpatient. About a week later, on or about June 7, 2018, Petitioner noticed that the house phone had been disconnected. The disconnections had been happening for days. Petitioner asked Respondent for his cell phone, so that he could call the telephone
service provider. Petitioner, Respondent and [L.C.] were in the kitchen of the Walton Hills property when Petitioner asked Respondent for his cell phone. Respondent left the kitchen. He returned shortly thereafter. He pushed Petitioner on his chest with such force that Petitioner fell into a counter and then onto the floor. [L.C.], who had been standing close to Petitioner, fell as well. Petitioner was severely injured. [L.C.] was injured as well. Respondent called the police. Before the police arrived, Respondent told [L.C.] that they would tell the police that Respondent tripped and fell on Petitioner and [L.C.], causing both to fall. The police came. The account given by Petitioner differed significantly from that told by Respondent [L.C.]. Respondent was arrested. Petitioner [and] [L.C.] were taken to a hospital.Id.
On June 22, 2018, Petitioner filed the within Petition. An Ex Parte Civil Protection Order was granted. Among other things, Petitioner was granted exclusive use of the Walton Hills residence.
July 16, 2018, upon [L.C.'s] release from the hospital, she came to this Court, accompanied by Respondent, and filed a Domestic Violence Petition against Petitioner. An Ex Parte Civil Protection Order was granted naming [L.C.] as protected. She was not granted exclusive use of the Walton Hills residence. She returned to the Walton Hills residence. Within days, calls to the police by both [L.C.] and Petitioner reached a fever pitch and the police, no doubt exasperated and concerned over [L.C.'s] claims of shortness of breath and other issues, "ordered" Petitioner from the house. Petitioner went to a hotel, and later to a medical facility. [L.C.] remained in the Walton Hills home, immediately joined by Respondent's son and some friends. [L.C.'s] Petition was dismissed following the presentation of her case ([Cuyahoga C.P.] No. DV-18-372781), and the Ex Parte Protection Order against Petitioner was dissolved and set aside.
{¶ 11} The magistrate concluded
Respondent's actions against Petitioner (both before and after the July 7th incident) and was frequently the subject of manipulation by Respondent (and Respondent's son) to accomplish various ends against Petitioner. Her Petition against Petitioner after her release from the hospital was, by her own testimony, filed because she "had nowhere to go." None of the allegations made in her Petition were even presented by [L.C.] during the trial of her Petition against Petitioner, and in fact were completely contradicted by [L.C.'s] testimony during
the trial of her Petition. When questioned whether she would do anything to get Respondent back into the Walton Hills home, she testified in the affirmative. Respondent instructed [L.C.] to lie to the police immediately following the incident that led to the within filing. [L.C.] complied. When Respondent was prohibited from entering or approaching the Walton Hills residence as a result of the within Ex Parte Civil Protection Order, he played a significant role in [L.C.'s] reentering the residence, in his son's entering the home and, ultimately, in the exclusion of Petitioner following Petitioner's and [L.C.'s] calls to the police and [L.C.'s] various physical complaints. The Court finds that the exclusion of [L.C., J.R.C.'s son, and L.C.'s] "friends" from the Walton Hills residence, as well as the exclusion of Respondent, is equitable and fair to bring about the cessation of domestic violence against Petitioner.Id.
The Court further finds by a preponderance of the evidence: 1) that the Petitioner or Petitioner's family or household members are in danger of or have been a victim of domestic violence or sexually oriented offenses as defined in R.C. 3113.31(A) committed by Respondent; and 2) the following orders are equitable, fair, and necessary to protect the persons named in this Order from domestic violence.
{¶ 12} Section 2 of the DVCPO grants exclusive possession of the residence to T.C. and adds at the end of the standard form language that "[p]etitioner's exclusive use of the said property is to the exclusion of all other individuals, regardless of title to the said residence."
{¶ 13} On January 24, 2019, J.R.C. objected to the magistrate's decision. J.R.C. argued that the magistrate was swayed by extraneous issues that should have been excluded such as the hearsay evidence that T.C.'s investment company representative advised T.C. that the residence was purchased using funds from T.C.'s investment account. According to J.R.C., those matters are at the center of a pending civil action filed by T.C. against J.R.C. and L.C. in Calvey v. Calvey, Cuyahoga C.P. No. CV-18-904721 (Oct. 2, 2018).
{¶ 14} J.R.C. testified that the evidence supports his version of the incident. First, L.C. testified that it was an accident and he, L.C., and T.C. were the only witnesses. J.R.C. added his version was also confirmed by police testimony that J.R.C. reported his brother fell and was bleeding from the head, and by the police report reflecting J.R.C.'s statement that he fell into his brother by accident. J.R.C. offered that the magistrate's finding that L.C. was manipulated by or acted in concert with J.R.C. demonstrated bias against J.R.C. as evidenced by the magistrate's decision to exclude L.C., J.R.C.'s son, and L.C.'s friends from the residence.
{¶ 15} On February 24, 2019, L.C. entered a limited notice of appearance in the instant case to contest jurisdiction for failure of service. "In this matter the alleged contemnor has not been served an order to appear and this Court has no jurisdiction over L.C. with which it may proceed."
{¶ 16} On March 25, 2019, J.R.C. filed supplemental objections that reiterated the original protests. Footnoted in those objections is that only transcripts for the June 22, 2018, July 24, 2018, November 6, 2018, and November 9, 2018 hearings were being submitted with the objections. J.R.C. did not submit the January 7, 2019 hearing transcript because he was only objecting in the case of T.C.'s petition against J.R.C. and the proceedings for the omitted transcript only related to L.C.'s petition against T.C.
The trial court's May 20, 2019 final judgment entry grants T.C.'s motion to supplement the record with the January 7, 2019 transcript.
{¶ 17} T.C. replied that the trial court has broad statutory authority to craft a DVCPO that best protects the petitioner. T.C. also questioned J.R.C.'s standing to object to the language excluding L.C., her friends, and J.R.C.'s son.
{¶ 18} The trial court's May 20, 2019 final judgment entry provides:
After considering the magistrate's decision filed January 11, 2019, the pleadings and transcripts, respondent's preliminary objections filed January 24, 2019, and supplemental objections filed March 25, 2019, the court adopts the magistrate's decision with modifications.Journal entry No. 108801372 (May 20, 2019).
It is therefore ordered, adjudged and decreed that the Domestic Violence Protection Order issued January 11, 2019, is hereby adopted but amended, nunc pro tunc, to exclude the language regarding Petitioner's exclusive use of the property in Section 2 of the Order. The Amended Protection Order is attached as Exhibit "A" and incorporated herein by reference.
It is further ordered, adjudged and decreed that Petitioner's Motion to Supplement the Record filed April 22, 2019, is hereby granted.
It is further ordered, adjudged and decreed that the January 11, 2019 Protection Order remains in full force and effect until further order of this Court.
{¶ 19} Section 2 originally provided that T.C.'s exclusive use "is to the exclusion of all other individuals, regardless of title to the said residence." The modification deleted that language.
L.C. testified at the January 7, 2019 hearing that the residence was titled in the names of J.R.C. and L.C. and was purchased with T.C.'s money.
L.C.'s petition against T.C. was ultimately dismissed. --------
II. Standard of Review
{¶ 20} A trial court's decision to adopt a magistrate's report will not be reversed on appeal unless the decision amounts to an abuse of discretion. In re M.I.S., 8th Dist. Cuyahoga No. 98138, 2012-Ohio-5178, ¶ 11. Similarly, the decision to grant a civil protection order also lies within the sound discretion of the trial court. Friedlander v. Friedlander, 8th Dist. Cuyahoga No. 100245, 2014-Ohio-2180, ¶ 17, citing Hoyt v. Heindell, 191 Ohio App.3d 373, 2010-Ohio-6058, 946 N.E.2d 258, ¶ 39 (11th Dist.).
{¶ 21} "[C]hallenges to the scope of a protection order are [also] reviewed for an abuse of discretion." In re R.K., 8th Dist. Cuyahoga No. 108568, 2020-Ohio-35, ¶ 69, citing In re E.P., 8th Dist. Cuyahoga No. 96602, 2011-Ohio-5829, at ¶ 18. "An 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). When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
III. Discussion
{¶ 22} "R.C. 3113.31 expressly authorizes the courts to craft protection orders that are tailored to the particular circumstances." Reynolds v. White, 8th Dist. Cuyahoga No. 74506, 1999 Ohio App. LEXIS 4454, at *10 (Sept. 23, 1999). "[P]rotection orders issued pursuant to R.C. 3113.31 are the more appropriate and efficacious method to prevent future domestic violence and thus accomplish the goals of the legislation." Felton v. Felton, 79 Ohio St.3d 34, 41, 1997-Ohio-302, 679 N.E.2d 672.
{¶ 23} T.C. maintains that the magistrate's original conclusion is lawful, within the scope of the trial court's statutory authority to broadly fashion DVCPOs, and that J.R.C. lacked standing to object on behalf of the others excluded from the residence. J.R.C. responds that the cases were not formally consolidated and separate decisions were issued. Thus, the trial court lacked jurisdiction to exclude L.C., J.R.C.'s son (who testified he had moved into the residence about the time that the incident occurred), and L.C.'s friends.
{¶ 24} Civ.R. 53 requires that a trial court "make a full and independent judgment of the referred matter, and should not adopt the findings of the magistrate unless the trial court fully agrees with them." Snyder v. Snyder, 8th Dist. Cuyahoga No. 95421, 2011-Ohio-1372, ¶ 38, citing DeSantis v. Soller, 70 Ohio App.3d 226, 232, 590 N.E.2d 886 (10th Dist.1990). "A trial court retains its authority to decide an issue independent of the magistrate, since the grant of authority to a magistrate does not affect a trial court's inherent jurisdiction." Id., citing Proctor v. Proctor, 48 Ohio App.3d 55, 59, 548 N.E.2d 287 (3d Dist.1988).
{¶ 25} In addition, Civ.R. 53(D)(4)(b) vests a trial court with the discretion to "'adopt * * * a magistrate's decision in whole or in part, with or without modification.'" Id. at ¶ 39, quoting Civ.R. 53(D)(4)(b). "'A court may hear a previously-referred matter, [or] take additional evidence, or return a matter to a magistrate.'" Id. at id.
{¶ 26} The trial court stated that it reviewed the relevant documents and proceedings. "In reviewing the trial court's order, this court presumes that the trial court conducted the proper independent analysis of the magistrate's decision." Snyder, 8th Dist. Cuyahoga No. 95421, 2011-Ohio-1372, ¶ 41, citing Bradach v. Bradach, 8th Dist. Cuyahoga No. 88622, 2007-Ohio-3417, ¶ 19.
{¶ 27} The magistrate's findings of fact specify that the exclusion of J.R.C., J.R.C.'s son, L.C., and L.C.'s friends from the residence "is equitable and fair to bring about the cessation of domestic violence against" T.C. The trial court's judgment entry did not modify the magistrate's findings of fact.
{¶ 28} The trial court did not expressly sustain or overrule the objections. The magistrate's decision was adopted with the sole modification of the nunc pro tunc amendment to Section 2 of the DVCPO without elaboration. Section 2 of the DVCPO initially excluded J.R.C. from the residence as the respondent in the action and added language that excluded "all other individuals, regardless of title to said residence."
{¶ 29} In this case, T.C. filed the DVCPO petition against J.R.C. as respondent. The nunc pro tunc modification simply deleted the added language from Section 2. "The purpose of a nunc pro tunc entry is to make the record speak the truth." Pepera v. Pepera, 8th Dist. Cuyahoga Nos. 51989 and 52024, 1987 Ohio App. LEXIS 6807, at *2 (Mar. 26, 1987). The cases were not formally consolidated. L.C. was not a named respondent in the instant action and L.C.'s petition against T.C. was dismissed.
{¶ 30} We also note that at the oral argument of this appeal, counsel advised this court that legal title to the residence is now vested solely in T.C. In addition, L.C. is currently residing in a nursing home. J.R.C. and L.C. have no legal interest in or right to return to the residence. The DVCPO remains in effect against J.R.C. If needed, T.C. would arguably have a right of trespass against L.C. or may pursue a DVCPO against her also.
{¶ 31} Based on a thorough review of the record in this case, we do not find that the trial court abused its discretion. Appellant's sole assignment of error is overruled.
{¶ 32} The trial court's judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, domestic relations division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
ANITA LASTER MAYS, JUDGE PATRICIA ANN BLACKMON, P.J., and
RAYMOND C. HEADEN, J., CONCUR