Doss v. Doss
| Decision Date | 22 April 2022 |
| Docket Number | 2021-CA-28 |
| Citation | 2022 Ohio 1339 |
| Parties | HOLLY M. DOSS Plaintiff-Appellee v. JOSEPH H. DOSS Defendant-Appellant |
| Court | Ohio Court of Appeals |
(Appeal from Family Court), Trial Court Case Nos. 2018-DR-78 and 2018-DR-102.
JOHN H. COUSINS, IV, Atty. Reg. No. 0083498, Attorney for Plaintiff-Appellee
CHRISTOPHER J. GEER, Atty. Reg. No. 0012371 and DALE D. COOK Atty. Reg. No. 0020707, Attorneys for Defendant-Appellant
{¶ 1} Defendant-Appellant Joseph H. Doss appeals from a judgment entry decree of divorce entered in two consolidated actions: (1) a divorce case involving Joseph and Plaintiff-Appellee, Holly Doss; and (2) a case in which Holly sought a domestic violence civil protection order ("CPO") against Joseph.[1] In addition, Joseph has appealed from a judgment denying his motion for new trial. Both judgments were included in a single notice of appeal following the decision on the new trial motion.
{¶ 2} Joseph has presented eight assignments of error challenging the provisions in the divorce decree, as well as the denial of his motion to supplement the record, the denial of his motion to recuse, and the denial of his motion for a new trial. We conclude that the trial court's denial of the motion for new trial was an abuse of discretion, because the court relied on incorrect legal reasoning. The order denying the motion for a new trial, therefore, will be reversed and remanded so the trial court can correctly analyze the motion. Furthermore, as a successor judge, the judge will be required to review the trial transcripts, since manifest weight challenges were included in the new trial motion.
{¶ 3} Because the trial court's judgment on the motion for a new trial is being reversed, the remaining assignments of error are not yet ripe for review, other than alleged error in an order denying Joseph's motion to supplement the record and alleged error concerning Joseph's motion for recusal. No appeal was properly taken from the final order disposing of the motion to supplement, and we will not consider it. Further, a recusal decision had not yet been filed when Joseph filed his notice of appeal, and he did not ask for leave to amend his notice of appeal. As a result, the recusal decision is not properly before us.
{¶ 4} Following the court's decision on remand, Joseph will again be able to appeal from the divorce decree and the decision on his motion for a new trial, if that decision is adverse to him. Accordingly, the judgment on the motion for new trial will be reversed and remanded, and the appeal as to the divorce decree will be dismissed.
{¶ 5} As indicated, this appeal involves two cases that were consolidated. On April 25, 2018, Holly filed a complaint seeking a divorce from Joseph, and the case was designated as Champaign C.P. No. 2018-DR-78. Holly and Joseph had been married in October 2008, and they had two children, who were ages seven (nearly eight) and six when the divorce complaint was filed.
{¶ 6} Shortly thereafter, Holly filed a petition for a domestic violence CPO against Joseph, and the case was designated as Champaign C.P. No. 2018-DR-102. In the petition, which was filed on May 21, 2018, Holly alleged the following matters: Joseph had been constantly texting, emailing, and harassing her, her children, and her family for weeks, and his behavior had been escalating. The behavior included vulgar comments, driving by the house in the early morning and evenings playing loud music and squealing his tires, removing the children from school and taking them out of town for a weekend without Holly's knowledge and without notifying her, threatening that Holly's "day was coming," and showing up in out-of-town locations where Holly and/or her parents had spontaneously taken the children, meaning that he was monitoring their activities. Holly also mentioned other pending cases against Joseph for criminal damaging, disorderly conduct, and a civil stalking protection order ("CSPO") that had been issued ex parte.
{¶ 7} Previously, on May 8, 2018, Holly's father, Thomas Cox, had filed a petition for a CSPO against Joseph and had been granted an ex parte order that day, protecting him and his wife, Deborah. See Cox v. Doss, 2d Dist. Champaign No. 2018-CA-29, 2019-Ohio-2592, ¶ 4 and 6 (affirming the full CSPO that was ultimately granted in August 2018).
{¶ 8} An ex parte order was issued in Holly's CPO case (Case No. 2018-DR-102), and a hearing was set for June 4, 2018. However, the hearing was then continued a number of times.
{¶ 9} On May 29, 2018, Joseph filed an answer to the divorce complaint as well as a counterclaim for divorce. After meeting with counsel on May 31, 2018, the trial court issued temporary orders in the divorce action. The orders granted temporary custody of the children to Holly and gave Joseph the standard order of parenting time, to be supervised by one of his parents. The court also required both parents to abstain from abusing alcohol or drugs of abuse for at least two hours before any parenting session and ordered Joseph to pay temporary spousal and child support. In addition, the court granted Holly exclusive use of the marital home in Urbana, Ohio, effective June 1, 2018, and required Joseph to pay the mortgage, taxes, and insurance on the property. On the same day, the court appointed a guardian ad litem ("GAL").
{¶ 10} On June 1, 2018, when Holly came to the marital home to take possession, a fire was occurring in the kitchen, which caused substantial damage and required that she and the children continue living with her parents, where they had been staying. Holly believed Joseph had set the fire.
{¶ 11} On August 6, 2018, the judge overseeing the Cox CSPO case in the Champaign County Common Pleas Court General Division (Champaign C.P. No. 2018-CVSD-22) transferred it to the Domestic Relations-Juvenile-Probate Division, and the judge in Holly's CPO case accepted the transfer. The judge also consolidated both cases, and the pleadings in Case No. 2018-CVSD-22 were incorporated into Holly's CPO case. See Journal Entry, Case No. 2018-DR-102 (Aug. 8, 2018). After reading the transcript and evidence in the Cox case, the judge concluded that a CSPO was appropriate to protect the Coxes. Journal Entry, 2018-DR-102 (Aug. 23, 2018). The court, therefore, restrained Joseph from contacting the Coxes, from being within 500 feet of them, from damaging any of their property, from carrying any weapons, and from using or possessing any alcohol or illegal drugs. The order was effective until August 21, 2023. CSPO, Case No. 2018-DR-102 (Aug. 23, 2018), p. 1-4.
{¶ 12} Joseph appealed from this order on August 27, 2018. As noted, we affirmed the judgment on June 28, 2019. Cox, 2d Dist. Champaign No. 2018-CA-29, 2019-Ohio-2592, at ¶ 33. The Supreme Court of Ohio declined review on October 29, 2019. See Cox v. Doss, 157 Ohio St.3d 1466, 2019-Ohio-4419, 133 N.E.3d 536.
{¶ 13} While the CSPO appeal was pending, the other cases continued in the trial court. Previously, on June 22, 2018, Joseph had filed a contempt action against Holly, and a hearing was scheduled at a pretrial hearing on July 30, 2018. Joseph also filed a motion for modified temporary orders on July 3, 2018. In that motion, Joseph asked to regain access to the marital home since Holly was not living there. He also asked for temporary custody or increased parenting time and for lifting of the supervision requirement. The request for modification was scheduled to be heard at the July 30, 2018 pretrial.
{¶ 14} On July 13, 2018, Holly requested both an oral hearing and modification of the temporary orders to terminate Joseph's visitation. Again, the court scheduled this for hearing on July 30, 2018. On July 25, 2018, the GAL filed a report, but the court restricted public access to the report.
{¶ 15} On the day of the pretrial, Joseph filed a motion for mediation. After holding the pretrial on July 30, 2018, the court issued modified temporary orders, granting Joseph exclusive use of the marital premises and ordering him to pay all associated expenses. The court also allowed Joseph unsupervised parenting time, ordered exchanges to take place at the paternal grandfather's residence, and ordered that no alcohol or drug use occur just prior to or during parenting times. On the same day, the court set a final pretrial and status conference for October 10, 2018, and indicated that the parties could attend mediation if they wished. However, the court did not order the parties to mediation.
{¶ 16} A full hearing on Holly's CPO request was scheduled for August 27, 2018. In the meantime, however, Joseph asked the trial judge to recuse herself. On August 28, 2018, the judge granted the recusal request for both the divorce and the CPO case, over Holly's objection. The Supreme Court of Ohio then assigned retired judge Michael Brady to hear both cases. Judge Brady scheduled a status conference for October 3, 2018. On the day of the status conference, Joseph filed a motion to stay the Cox CSPO pending appeal. The same day, Joseph filed a second motion to modify the temporary orders.
{¶ 17} After an updated GAL report was filed on October 16, 2018, the trial court again restricted public access to the report. Hearings on modification of temporary orders were then held on December 12 and 14, 2018. Due to a change in the first GAL's employment circumstances, the trial court appointed a substitute GAL on December 20, 2018.
{¶ 18} On March 18, 2019, the court filed an entry granting in part Joseph's second motion to modify the temporary orders. Holly was still designated as temporary legal custodian and residential parent, and Joseph's parenting time...
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