M.D. v. M.D., Nos. 106581

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: MARY J. BOYLE, J.
• Citation: 2018 Ohio 4218,121 N.E.3d 819
• Docket Number: Nos. 106581,106758
• Decision Date: 18 October 2018
• Parties: M.D., Petitioner-Appellant v. M.D., Respondent-Appellee

121 N.E.3d 819
2018 Ohio 4218

M.D., Petitioner-Appellant
v.
M.D., Respondent-Appellee

Nos. 106581
106758

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: October 18, 2018

Joseph G. Stafford, Nicole A. Cruz, Stafford Law Co., L.P.A., 55 Erieview Plaza, 5th Floor, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT.

Larry W. Zukerman, Brian A. Murray, Zukerman, Daiker & Lear Co., L.P.A., 3912 Prospect Avenue, East, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE.

BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, J.:

{¶ 1} Petitioner-appellant, M.D. ("Petitioner"), appeals from a trial court judgment

121 N.E.3d 822

sustaining the objections of respondent-appellee, M.D. ("Respondent"), and vacating a civil protection order ("CPO") issued by a magistrate that had protected Petitioner and the parties' two minor children. Petitioner raises five assignments of error for our review:

1. The trial court abused its discretion in its implementation of the 1 ½ hour time restriction resulting in substantial irregularities in the proceedings and prejudice to the appellant.

2. The trial court erred as a matter of law and abused its discretion in finding that the appellee was denied his right to a full hearing.

3. The trial court erred as a matter of law and abused its discretion in arbitrarily setting a one (1) year time restriction on all testimony and evidence.

4. The trial court erred and abused its discretion in substituting its decision for that of the trial court magistrate.

5. The trial court erred as a matter of law and abused its discretion in dismissing the appellant's motion for a new trial and motion for relief from judgment.

{¶ 2} Finding merit to Petitioner's first three assignments of error, we reverse the judgment of the trial court and remand for a new full hearing.

I. Procedural History and Factual Background

{¶ 3} Petitioner and Respondent were married in August 1998. They had two children born as issue of the marriage: M.T.D. in October 2006 and Q.D. in March 2010. The parties had been living in London since 2012, where they owned two "flats." In July 2015, however, Respondent got a job in Austin, Texas. Petitioner and the children remained in London until July 2016, when they moved to Solon to live with Petitioner's parents. Respondent would visit Petitioner and the children in Solon approximately twice a month.

{¶ 4} On May 31, 2017, Petitioner filed a petition for a domestic violence civil protection order pursuant to R.C. 3113.31. She also requested ex parte (emergency) protection for herself and the two children. After the ex parte hearing, the magistrate granted the ex parte CPO, naming Petitioner and the two children as protected persons under the order.

{¶ 5} The magistrate continued the full hearing on the CPO several times per the parties' agreement. In an August 8, 2017 agreed judgment entry that was signed by Petitioner and her counsel, Respondent and his counsel, the magistrate, and the trial judge, the parties agreed that they would only use 1.5 hours to present their case and that the full hearing would take place on Monday, August 21, 2017.

{¶ 6} On Friday, August 18, 2017, Respondent filed an "Emergency Motion for a Discovery Order Regarding Children Services' Records in London." Respondent's counsel emailed a copy of the emergency motion to Petitioner's counsel, telling him that the magistrate intended to deny the motion. The magistrate stated that she denied Respondent's emergency motion because she intended to limit testimony during the full hearing to allegations of domestic violence that occurred within one year of Petitioner filing the CPO, which was May 31, 2017. Thus, according to the magistrate, she would not consider the children services' report because it was dated prior to June 1, 2016.

{¶ 7} Petitioner testified that after she and the children moved back to Ohio in July 2016, they saw Respondent more frequently than they did when they were still in London. She testified that since they have been living in Ohio, Respondent "visits" them at her parents approximately two times per month.

121 N.E.3d 823

{¶ 8} Petitioner testified that on Mother's Day 2017, Respondent told her to "enjoy Mother's Day because it might be the last one you have." She explained that Respondent had previously threatened to kill her. He told her that "all [his] problems would be solved if he killed [her], cut [her] up, put [her] in a black trash bag, and threw [her] in the [Thames]," which was five minutes from their flat. When he said it, Petitioner said that "it was so scary because he was calm." He then told her that "he would just say that [she] had gone * * * somewhere remote and that he lost track of [her] and that he would send out a search party to find [her] so no one would realize for quite a long time."

{¶ 9} Petitioner also testified that Respondent does "IT for a living" and stalks her electronically through her cell phone and internet use. She described a time from the fall of 2016 when Respondent called her cell phone 22 times in a row. She did not answer because she was outside with her mother and the children. Respondent also called her mom's phone and her parents' landline. Respondent later told her that he knew she was there because he tracked her phone and her mom's phone.

{¶ 10} Petitioner further explained that she has her regular phone and a secret phone. The secret phone is an old one that she stopped using when she got her new phone. But Respondent figured out that she was using the old phone again because he "troll[ed] the wifi for devices." She could not explain how Respondent does it because she does not understand technology, but she said that AT & T confirmed to her that Respondent could track her cell phone through wifi.

{¶ 11} Petitioner testified that Respondent is very controlling. She said that he has hacked into her email account and read her emails. She stated that he monitors all of her internet activity. She said that he makes her feel like a "caged animal." If she uses her bank card to purchase something over one cent, he immediately texts her and asks, "[w]hat is this for?"

{¶ 12} Petitioner also discussed when she found a recording camera in her bedroom in London after Respondent had gone back to Texas after visiting them.¹ She found it a few days after Respondent left. It was the fall of 2015. She said that she saw a red light on a small device between two photographs that were on a nightstand. The device was plugged into the wall. She said that it could have been a phone, but it was smaller than an iPhone. It was on the opposite side of the bed from where she slept. She identified two photos that she took of the camera on the nightstand. She said that she unplugged it and was not able to turn it on after she unplugged it. When she unplugged it, Respondent sent her "very angry text messages." Petitioner testified that she never agreed to Respondent videoing them having sex.

{¶ 13} Petitioner explained that Respondent also stalks her in person. She said that one time, he texted her a photo of her yoga studio and said, "[y]ou say you're at ‘yoga’ but on my way to the dentist I passed it and * * * nope."

{¶ 14} Petitioner testified that Respondent has also spun his car out on a bridge

121 N.E.3d 824

with her in it. He told her, "I drive carefully with the kids, but with you * * *[.]"

{¶ 15} When asked why she did not just leave Respondent, Petitioner explained that it was not that simple. She said, "I would have if I could have, but I have two children." When asked why she emailed Respondent if she was afraid of him, she responded that it was a "coping strategy." She said that she tries to "appease him," to make it seem like everything is okay, and to make him "calm for a brief period of time." She explained that Respondent is "just angry all the time. It doesn't have to be anything specific." She said, "I've tried to appease him. I've tried so hard to, like, make it okay and he's become worse and worse and worse over time. And just nothing will set him off." She also stated that over time, he "does it in front of the children * * * as if they aren't there. So they witness his angry outbursts and they witness his abusive behavior towards me."

{¶ 16} Petitioner further testified that she went on trips with Respondent and the children, but said that it was "horrible." She said that she would get stomach aches, pain in her neck and shoulders, and diarrhea. In March 2017, they went on vacation for spring break. While checking into a hotel, Respondent "threw a massive temper tantrum" in front of the children. M.T.D. was so upset that he "wet and soiled himself." While she was cleaning it up, Respondent "sped off" in the car and did not come back until the next morning.

{¶ 17} She explained another incident from October 2016, when they went to church around the time of M.T.D.'s birthday. On the way home, Respondent got "angry about something" and "made a scene." Respondent was driving. He stopped the car, got out, and made her drive. She said that she never knows what is going to "set him off." She stated that...