Sheerer v. Billak , 2017 Ohio 1556 ( 2017 )

[Cite as Sheerer v. Billak, 2017-Ohio-1556.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104879
NATALIE SHEERER
PETITIONER-APPELLEE
vs.
SCOTT BILLAK
RESPONDENT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-16-863037
BEFORE: McCormack, P.J., E.T. Gallagher, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: April 27, 2017
ATTORNEY FOR APPELLANT
Seneca Konturas
Law Offices of Seneca Konturas, L.L.C.
125 S. Water Street, Suite 3/4
Kent, OH 44240
ATTORNEY FOR APPELLEE
Dustin N. Smith
Bartos & Bartos, L.P.A.
20220 Center Ridge Rd., Suite 320
Rocky River, OH 44116
TIM McCORMACK, P.J.:
{¶1} Respondent-appellant Scott Billak appeals from the trial court’s
denial of the parties’ joint motion to modify or dismiss the court’s order of a civil stalking
protection order (“CSPO”) issued under R.C. 2903.214. For the following reasons, we
affirm.
{¶2} On May 10, 2016, petitioner-appellee Natalie Sheerer filed a petition for a
CSPO against Billak, her ex-boyfriend. Following an ex parte hearing, the trial court
issued an order of protection, effective until June 8, 2016. The court scheduled a full
hearing for May 23, 2016. At Sheerer’s request, however, the hearing was continued
until May 31, 2016, in order for the parties to reach an agreement on the protection order.
The hearing was continued once again, this time upon the parties’ mutual request, in an
effort to reach a settlement on the matter.
{¶3} On June 8, 2016, Sheerer appeared in court for the full hearing and
presented the court with an agreed entry for a “no-contact” order for a period of five
years. Neither Billak nor his attorney appeared. Sheerer requested the trial court adopt
the agreement in place of the CSPO. The court declined to do so, stating that the agreed
no-contact order placed reciprocal obligations upon the petitioner and the respondent, and
because there was no petition filed against Sheerer, the court lacked jurisdiction to impose
any restrictions on Sheerer.
{¶4} The trial court noted on the record that Billak’s counsel had not entered an
appearance on the matter and neither Billak nor his attorney was present. The court then
permitted Sheerer’s counsel to phone Billak’s counsel. Counsel contacted Billak’s
attorney on the telephone. The attorney acknowledged his representation of Billak,
and he indicated he had nothing to add to the matter. Because the court declined to
accept the parties’ agreed entry and the ex parte protection order would expire that same
day, Sheerer elected to proceed with the full hearing.
{¶5} The court then conducted a full hearing on the CSPO, hearing the
petitioner’s testimony, and it found that Billak had engaged in conduct that includes
menacing by stalking and that this conduct has caused Sheerer mental distress.
Thereafter, the court made its findings of facts and issued a protection order for five
years, expiring in May 2021.
{¶6} Following the issuance of the protection order, Billak retained new counsel.
With the assistance of new counsel, the parties drafted a revised no-contact order,
eliminating the “reciprocal” obligations to which the trial court had initially objected.
On August 4, 2016, the parties filed a joint motion under Civ.R. 60(B) to modify or
terminate the court’s order of protection issued on June 8, 2016. In their motion, the
parties requested that the court dismiss the CSPO and adopt the proposed agreed entry for
no-contact order, stating that the entry reflects the joint intentions of both Sheerer and
Billak and their desire to settle the matter upon the terms of the agreed entry.
{¶7} The trial court denied the parties’ joint motion, finding the motion not well
taken under Civ.R. 60(B). Based upon “the evidence submitted at the full hearing on
[the] matter, the court’s prior findings, and the joint request to modify the order of this
court,” the court ordered that the CSPO entered in June 2016 remain in effect until 2021.
{¶8} Respondent Billak now appeals from the trial court’s decision, claiming the
court erred “when it failed to grant petitioner-respondent’s joint motion to modify a prior
court order granting a civil stalking protection order and replace it with an agreed entry of
no contact order.” Petitioner-appellee Sheerer has not filed a brief on appeal.
{¶9} Billak contends that under Civ.R. 60(B), he is entitled to relief from
judgment. Civ.R. 60(B) delineates various reasons a trial court may relieve a party from
a final judgment, order, or proceeding:
(1) mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered
in time to move for a new trial under Rule 59(B); (3) fraud * * *,
misrepresentation, or other misconduct of an adverse party; (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.
Specifically, Billak claims that he is entitled to relief under Civ.R. 60(B)(1), (4), and/or
(5).
{¶10} In order to prevail on a motion for relief from judgment under Civ.R. 60(B),
the moving party must establish that: (1) the party has a meritorious defense or claim 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. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d
113 (1976), paragraph two of the syllabus. Failure to prove any of the three elements is
fatal to the motion because the elements are “independent and in the conjunctive, not the
disjunctive.” Id. at 151.
{¶11} Billak also contends that he is entitled to relief through the court’s authority
to modify or vacate the civil stalking protection order. Where the moving party
demonstrates that the original circumstances have materially changed and it is no longer
equitable for the order to continue, a trial court may modify or vacate a CSPO. Cipriani
v. Ehlert, 8th Dist. Cuyahoga No. 103767, 2016-Ohio-5840, ¶ 7; Jones v. Hunter, 11th
Dist. Portage No. 2008-P-0015, 2009-Ohio-917, ¶ 12 (stating that although there is no
section of R.C. 2903.214 that provides for a modification of a CSPO, a trial court may
review an order made under this statute); Prostejovsky v. Prostejovsky, 5th Dist. Ashland
No. 06-COA-033, 2007-Ohio-5743, ¶ 26 (likening a CSPO to a permanent injunction).
As the Fifth District in Prostejovsky explained, “‘the court cannot be required to disregard
significant changes in law or facts if it is “satisfied that what it has been doing has been
turned through changing circumstances into an instrument of wrong.”’” Id. at ¶ 25,
quoting System Fedn. No. 91, Ry. Emp. Dept. v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368,
5 L.Ed.2d 349 (1961), quoting United States v. Swift & Co., 286 U.S. 106, 114-115, 52
S.Ct. 460, 76 L.Ed. 999 (1932).
{¶12} We review appeals from the denial of a motion for relief from judgment
under Civ.R. 60(B) for an abuse of discretion. Syed v. Poulos, 8th Dist. Cuyahoga Nos.
103137 and 103499, 2016-Ohio-3168, ¶ 38. Likewise, we review a trial court’s decision
whether or not to terminate a protection order issued under R.C. 2903.214 for an abuse of
discretion. Delaine v. Smith, 8th Dist. Cuyahoga No. 103860, 2016-Ohio-5250;
Hayberg v. Tamburello, 5th Dist. Tuscarawas No. 2013AP0011, 2013-Ohio-3451, ¶ 25.
The term “abuse of discretion” implies that the court’s attitude was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶13} Here, the trial court based its decision to deny relief from the protection
order, or deny the motion to modify or terminate the order, upon the evidence submitted
at the full hearing, which consisted of the petitioner’s testimony. R.C. 2903.14 governs
the issuance of a civil stalking protection order and provides that the court may issue a
protection order to protect a victim of menacing by stalking. R.C. 2903.211, entitled
“menacing by stalking,” provides that
[n]o person by engaging in a pattern of conduct shall knowingly cause
another person to believe that the offender will cause physical harm to the
other person or a family or household member of the other person or cause
mental distress to the other person or a family or household member of the
other person.
R.C. 2903.211(A)(1).
{¶14} A “pattern of conduct” is “two or more actions or incidents closely related in
time[.]” R.C. 2903.211(D)(1). A perpetrator acts “knowingly” when he is aware his
conduct will probably cause a certain result. R.C. 2901.22(B). “Mental distress” is
defined as any mental illness or condition that either causes temporary substantial
incapacity or would require treatment by a mental health professional or other mental
health services, whether or not help was actually sought. R.C. 2903.211(D)(2).
{¶15} At the full protection order hearing, Sheerer testified that she and Billak had
been dating. After the relationship ended, Billak began texting and calling daily and he
appeared at her residence uninvited on three occasions. He presumably followed
another tenant in the building and made his way to her apartment. On one of these
occasions, he was extremely intoxicated. Billak also appeared at her place of
employment on two occasions, waiting for her in the parking lot. The second time he
appeared at Sheerer’s work place, Billak attempted to block Sheerer from entering her
vehicle. Sheerer testified that Billak continued to contact her after she obtained legal
counsel, who requested that Billak no longer contact Sheerer.
{¶16} Sheerer also testified that she had been seeking mental health treatment
while she was dating Billak and Billak was aware of her treatment. Sheerer stated that
she felt “somewhat” threatened and intimidated by Billak, knowing he has a “fiery temper
and owns firearms.” On one occasion, during an argument with Billak, he, in fact,
produced a gun. She began to feel “slightly paranoid about [her] surroundings, being
worried that [Billak] may show up” at her residence or work, noting that the two of them
worked near each other. When she noticed him following her in the past, she would take
a different route home or drive by the police station near her home. She ultimately
moved her residence, because she worried that Billak would continue to follow her home.
Finally, Sheerer testified that she continued to seek mental health treatment because of
Billak’s conduct, stating that her anxiety from which she suffered had worsened.
{¶17} Billak did not appear at the full hearing upon the advice of counsel. Billak
stated in the joint motion for relief that he believed the court would adopt the parties’
proposed settlement agreement.
{¶18} Following Sheerer’s testimony, the trial court concluded that the evidence
established Billak engaged in conduct that included menacing by stalking as defined
above and this behavior caused Sheerer mental distress “for which she is under medical
treatment and in fear.” The court also determined that the protection order is “equitable,
fair, and necessary to protect [the petitioner] from the stalking offense.”
{¶19} Under the circumstances, and in light of the deferential standard of review,
we cannot find that the trial court abused its discretion in denying the parties’ joint motion
to modify or terminate the civil stalking protection order. The court relied upon the
evidence and findings made during the full protection order hearing in June, and it
determined that Sheerer’s testimony established all of the elements of menacing by
stalking. The trial court was free to consider this evidence in making its determination.
See Delaine, 8th Dist. Cuyahoga No. 103860, 2016-Ohio-5250, at ¶ 23 (finding that
because a hearing is not required on a request to terminate, it was free to rely on evidence
and findings established at the full protection hearing); Jones, 11th Dist. Portage No.
2008-P-0015, 2009-Ohio-917, at ¶ 15 (stating that the trial court could not properly
evaluate whether or not the original circumstances have materially changed without
considering the respondent’s conduct that gave rise to the issuance of the CSPO). In
denying the motion, the trial court implicitly determined that the parties failed to establish
any grounds for relief under Civ.R. 60(B), there was no material change in the original
circumstances that caused the order to be issued, and prospective application of the
protection order would not be inequitable. The trial court’s decision was supported by
the evidence obtained at the hearing on the full protection order and therefore not
unreasonable, arbitrary, or unconscionable.
{¶20} Billak’s sole assignment of error is overruled, and the judgment of the trial
court is affirmed.
It is ordered that appellee recover of 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 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.
________________________________________
TIM McCORMACK, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
SEAN C. GALLAGHER, J., DISSENTING:
{¶21} I respectfully dissent. The parties in this case approached the trial court
with a consent agreement before the full hearing on the civil stalking protection order.
Parties should always be encouraged to work out their differences before requiring a trial
court’s intervention. The parties attempted to consent to an agreement that would
accomplish the goals of any protection order but without the drain on court resources.
R.C. 2903.214 does not use the terms “protection order” and “consent agreement”
interchangeably. R.C. 2903.214(J). Division (E) precludes a court from issuing a
“protection order” that requires reciprocal burdens but is otherwise silent as to consent
agreements entered under the section. Thus, R.C. 2903.214(E) does not preclude parties
from entering a consent judgment that involves reciprocal burdens. Even if we
considered the terms synonymous and if the parties’ agreement to reciprocal burdens may
not be authorized by statute, the statutory preclusion is not jurisdictional. Parties are
free to waive a statutory right by contract. Sanitary Commercial Servs., Inc. v. Shank,
57 Ohio St.3d 178, 180, 566 N.E.2d 1215 (1991). Nevertheless, the protection order
was not timely appealed.
{¶22} In a continuing effort to receive that which was requested, the petitioner and
respondent filed a joint motion to modify the protection order (or in the alternative a
motion under Civ.R. 60(B)) and offered a consent judgment in its place. The trial court
once again denied that request under the auspices of Civ.R. 60(B), claiming that our
decision in Delaine v. Smith, 8th Dist. Cuyahoga No. 103860, 2016-Ohio-5250,
demanded as much. In this case, both parties agreed that Civ.R. 60(B)(4) or (5) applied
or, in the alternative, that the trial court had jurisdiction to modify the protection order
independent of a Civ.R. 60(B) motion. I agree with the parties.
{¶23} Reliance on Delaine for the proposition that Civ.R. 60(B) is applicable to
motions to modify protection orders is misplaced. Delaine held that no hearing is
required on a motion to terminate a protection order filed four years after the protection
order was issued. The facts of this case are different and warrant different
considerations, but of note was the fact that the respondent in Delaine filed a motion to
terminate the protection order and not a motion for relief from a final judgment under
Civ.R. 60(B). The trial court did not determine whether the protection order could be
modified; its sole consideration was the requirements of Civ.R. 60(B), which are not
applicable in light of the trial court’s continuing jurisdiction to consider modification of
the protection order. 1 The trial court thus erred in applying the Civ.R. 60(B)
requirements to the motion to modify the protection order.
{¶24} I would reverse the trial court’s decision and remand for further
proceedings.
It should also be noted that although R.C. 2903.214 does not expressly provide for
1
modification of an order, division (J) does provide that no court may charge a petitioner any fee and
the respondent may be assessed court costs in the connection with the modification of the protection
order or consent agreement and Civ.R. 65.1 expressly provides for service of a motion for
modification.