Powell v. Becher , 2011 Ohio 267 ( 2011 )

[Cite as Powell v. Becher, 2011-Ohio-267.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
HEATHER POWELL : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
WILLIAM BECHER : Case No. 2010CA00273
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Domestic Relations Division, Case No.
2009DV00166
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 24, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
HEATHER POWELL, PRO SE WILLIAM A. BECHER, PRO SE
3945 Mayfair Road, Apt. 101 1329 Woodland Avenue, NW
Uniiontown, OH 44685 Canton, OH 44703
Stark County, Case No. 2010CA00273 2
Farmer, J.
{¶1} On November 3, 2009, appellant, Heather Powell, was granted a civil
protection order against appellee, William Becher. At one time, the two resided
together, and had a child on June 12, 2008. The order is to remain in effect until
November 3, 2014.
{¶2} On August 9, 2010, appellant filed a motion to dismiss the civil protection
order. By judgment entry filed August 26, 2010, the trial court denied the motion.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED WHEN IT REFUSED TO DISMISS THE
PETITION FOR DOMESTIC VIOLENCE PROTECTION ORDER."
I
{¶5} Appellant claims the trial court erred in failing to grant her request to
terminate the civil protection order filed on November 3, 2009. We disagree.
{¶6} On August 9, 2010, appellant filed a request to terminate the order for the
reason of "wanting father to be present in daughter's life." In its judgment entry filed
August 26, 2010, the trial court noted appellee was "undergoing counseling," and
denied the request. The trial court stated, "[t]he parties are advised to retain counsel if
desired in the future."
{¶7} Apparently a hearing was held, but a transcript of the hearing has not
been filed for our review. In Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197,
199, the Supreme Court of Ohio held the following:
Stark County, Case No. 2010CA00273 3
{¶8} "The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing
error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St. 2d
162. This principle is recognized in App.R. 9(B), which provides, in part, that '***the
appellant shall in writing order from the reporter a complete transcript or a transcript of
such parts of the proceedings not already on file as he deems necessary for inclusion in
the record.***.' When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the reviewing court has nothing to pass upon and
thus, as to those assigned errors, the court has no choice but to presume the validity of
the lower court's proceedings, and affirm." (Footnote omitted.)
{¶9} In the November 3, 2009 order, the trial court invited the parties to petition
the trial court on visitation and child support:
{¶10} "13. ***The child is part of this order. However, the parties may petition
the Court to address visitation. The Respondent may be granted an exception to this
order related to the child if the Court finds it appropriate and in the best interest of the
child.
{¶11} "15. ***The parties may petition the CSEA for a support order."
{¶12} Without a transcript of the hearing, we are unable to determine what the
trial court based the denial on. In both the original order and the subsequent denial, the
trial court left the door open for visitation issues.
{¶13} Based upon the state of the record before us, we cannot find the trial court
erred in denying the request to terminate the civil protection order.
{¶14} The sole assignment of error is denied.
Stark County, Case No. 2010CA00273 4
{¶15} The judgment of the Court of Common Pleas of Stark County, Ohio,
Domestic Relations Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Wise, J. concur.
s/ Sheila G. Farmer_ _____________
_s/ W. Scott Gwin ________________
_s/ John W. Wise _________________
JUDGES
SGF/sg 112
Stark County, Case No. 2010CA00273 5
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
HEATHER POWELL :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
WILLIAM BECHER :
:
Defendant-Appellee : CASE NO. 2010CA00273
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, Domestic Relations
Division is affirmed. Costs to appellant.
s/ Sheila G. Farmer_ _____________
_s/ W. Scott Gwin ________________
_s/ John W. Wise _________________
JUDGES