Rieger v. Rieger

• Decision Date: 03 February 2006
• Docket Number: No. 20754.,20754.
• Citation: 165 Ohio App.3d 454,847 N.E.2d 9,2006 Ohio 482
• Parties: RIEGER, Appellee, v. RIEGER, Appellant.
• Court: Ohio Court of Appeals

Page 9

847 N.E.2d 9

165 Ohio App.3d 454

2006-Ohio-482

RIEGER, Appellee, v. RIEGER, Appellant.

No. 20754.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided February 3, 2006.

Joseph M. Rieger, appellant, pro se.

WOLFF, Judge.

{¶ 1} Joseph Rieger appeals pro se from the overruling of his motion to seal the record of a consented-to civil protection order ("CPO"). Rieger appeared pro se for an evidentiary hearing before a magistrate. The magistrate overruled the motion. After Rieger filed objections, the trial court found the objections to be without merit and adopted the magistrate's decision and permanent order. Cathy Rieger did not appear in the trial court and has not appeared here.

{¶ 2} Rieger's pro se brief contains thirteen assignments of error, which we have rearranged and combined in order to facilitate our discussion and disposition of this appeal.

{¶ 3} Rieger's essential contention is that the CPO should be sealed, because its accessibility on the Internet is preventing him from obtaining a better job. He contends that prospective employers do background checks on the Internet, and the CPO on his record is a red flag for those employers.

{¶ 4} The magistrate's decision is as follows:

{¶ 5} "On March 30, 2004, the respondent, Joseph M. Rieger, filed a motion to seal the records of the within domestic violence action. The hearing was held on April 15, 2004. Present was respondent without an attorney.

{¶ 6} "The court issued a civil protection order as contained in a consent agreement on January 27, 1998. By its terms, this civil protection order expired on January 27, 2003. The respondent is requesting that the court seal the record of this domestic violence action so that it will not be available for review in a background check which he believes may interfere with his chances of obtaining future employment elsewhere.

{¶ 7} "The respondent has not been able to obtain other employment and he believes that it is because of background checks by prospective employers. He has been and is currently employed as a financial analyst with the City of Dayton for the past 9½ years and he anticipates leaving that position at the end of ten years. The respondent doesn't believe that he has a future to be promoted to a supervising position and he wants to move to Florida with his cousins or another area and obtain employment. His resumes have not resulted in other employment as he has desired and he does not believe that he should be required to maintain his current employment if he chooses not to do so.

{¶ 8} "The respondent entered into a consent agreement on January 27, 1998 and was represented by an attorney at that time. The allegations in the petition were that the respondent pushed the petitioner, became enraged and ripped down the shower curtain, threw towels at her, threatened to shoot the petitioner and had stalked the petitioner.

{¶ 9} "There is no law permitting the court to grant a request to seal the record of a civil protection order. The granting of a civil protection order is not a criminal offense, no charges are filed and the granting of a civil protection order does not make the respondent guilty of any crime. Therefore, there is nothing to expunge or seal as in a criminal action. See O.R.C. § 2953.32(C)(2); see also P.E.S. v. K.L., 720 A.2d 487 (Pa.Super.Ct.1998). Further, the law provides for enhanced criminal penalties for a subsequent offenses of domestic violence and the sealing of a civil record destroys the one means that the public has of assessing the danger the offender presents to society and other potential victims. The respondent has not shown a sufficient basis to `expunge' or `seal' the record in this action, even if there was some authority to allow the court to take such action."

Appellant's Assignments of Error

{¶ 10} 1. "The assignment of error is that the magistrate did not allow me to introduce as evidence a valid and common sense based study, which I verily believe in. The Community Research Partners and the Ohio State University Center for Law, Policy, and Social Science performed the study.

{¶ 11} "The study speaks directly to my motion for the courts to seal my CPO that is out in the public domain via the Montgomery County Court website. The study goes on to say that 28% of employers use the Internet to do background checks.

{¶ 12} "Mr. Rieger (appellant) has a master's degree from Wright State University and the level of employment that Mr. Rieger seeks is highly scrutinized by employer background checks."

{¶ 13} This assignment concerns information that appellant obtained from the Internet to the effect that 28 percent of employers use the Internet for background searches and that a conviction for domestic violence could be a red flag. The trial court properly refused to admit this hearsay evidence. Furthermore, Rieger testified without objection that 28 percent of employers use the Internet for background searches.

{¶ 14} This assignment is overruled.

{¶ 15} 2. "The assignment of error in this case is that Cathy Rieger (appellee) was intrinsically involved in this case as the other part of the contract. Cathy Rieger said that according to my attorney Bob Goelz that if I agreed to this CPO then she would drop a stalking charge that she had against me in the city of Riverside. We lived one mile apart for over 6 months and she happened to see me on a common road we share in the neighborhood. Well Cathy Rieger did not drop the stalking charge she only reduced it to disorderly conduct. Thus, the whole CPO is in error because she did not hold up her part of the agreement to drop the stalking charge completely — no reduced charge.

{¶ 16} 4. "The assignment of error is that Bob Goelz informed me that after 5 years the whole record of this proceeding would not be available for viewing and that no crime was ever deemed to have occurred.

{¶ 17} 8. "The assignment of error is that Cathy Rieger (appellee) didn't dismiss the charges she had them reduced to disorderly conduct. She violated her verbal agreement with me. Thus, the CPO contract is not based on the full faith of the parties. Cathy Rieger did not hold up to her word to drop the D2 court charges. I would never have signed the agreement had I known that she was not going to hold up her part of the agreement (whether verbal or written). Also, a CPO is not a violation of any law it is an agreement in writing. My attorney Bob Goelz told me that after five years the CPO and all of its language so to speak would disappear from the record. I never would have agreed to it had I known that it would damage me beyond the five years by remaining on the Montgomery County public records data base."

{¶ 18} In these three assignments, Rieger complains that Cathy Rieger did not fulfill her duty to drop the stalking charge and that Rieger's lawyer at the time he agreed to the CPO told him that the CPO would not remain of record after five years. He claims that the CPO is defective, because Cathy Rieger did not fulfill her duty to drop the stalking charge if he agreed to the CPO. He also claims that he would not have agreed to the CPO had he known that it would remain of record after its five-year term expired.

{¶ 19} Rieger has ventured beyond the hearing transcript in these assignments. Even so, these assignments are not cognizable in this appeal, which is from a refusal to seal the record of the CPO. Rieger's remedy for these particular grievances is a Civ.R. 60(B) motion for relief from judgment, which he has not pursued.

{¶ 20} These assignments are overruled.

{¶ 21} 6. "The assignment of error is the reality is that employers do background checks using the Internet in some cases. And I feel in all common sense that when employers saw my CPO records that's why they didn't hire me."

{¶ 22} It is entirely speculative that the record of the CPO has prevented Rieger from obtaining jobs he has applied for.

{¶ 23} This assignment is overruled.

{¶ 24} 7. "Judge Brigner wouldn't allow my daughter to have special visitation for my mother's viewing and funeral. I submitted a motion to the court for my daughter to be able to attend my mom's viewing and funeral. A person named Kathy who worked for Judge Brigner's office came out to me in the lobby and said it was too late in the game for my request to be granted. She said that was what Judge Brigner wanted communicated to me. So I say to the appeals court, is that not a clear prejudice against Joe Rieger (appellant)?"

{¶ 25} This assignment finds no support in the hearing transcript or record before us and is immaterial to this appeal. It is, therefore, overruled.

{¶ 26} 9. "The assignment of error is that the CPO agreement shows that it is in effect for five years. Five years ended in early 2003 thus, the agreement is over and all vestiges of it are. But, as long as it is on the Montgomery County records website it will continue to have an effect on Joseph Rieger (appellant) long after the contract ended. So in essence the contract is beyond five years even though Mr. Rieger (appellant) never agreed to that. Also, the magistrate continues to reject my evidence that I verily believe in as an important part of my case."

{¶ 27} The magistrate refused to accept Rieger's copy of the CPO into evidence, because the original is already in the court's file. The magistrate was certainly entitled to exclude merely duplicative evidence.

{¶ 28} This assignment is overruled.

{¶ 29} 10. "The assignment of error is that the magistrate will not allow statements made in court by Joseph Rieger (appellant) to be introduced as evidence. these statements clearly speak of Mr. Rieger's good character which Mr. Rieger's feels is important for the court to hear. A person of good character should not have their credibility destroyed by having a CPO record on the Montgomery County website."

{¶ 30} Rieger's Exhibit D chronicled several heroic deeds that Rieger...