Staats v. Finkel , 2011 Ohio 4063 ( 2011 )

[Cite as Staats v. Finkel, 2011-Ohio-4063.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
RYAN T. STAATS C.A. No. 25625
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JILL E. FINKEL COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2010-03-0559
DECISION AND JOURNAL ENTRY
Dated: August 17, 2011
WHITMORE, Judge.
{¶1} Respondent-Appellant, Jill Finkel, appeals from the judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, denying her motion to vacate the
civil protection order sought by Petitioner-Appellee, Ryan Staats. This Court affirms.
I
{¶2} On March 1, 2010, Staats petitioned the court for a domestic violence civil
protection order against his estranged girlfriend, Finkel, based on an incident that occurred in
their Pennsylvania apartment in late February. According to Staats’ petition, Finkel “threatened
to shoot [and] kill [him,] *** [g]rabbed [a] kitchen knife [and] said she was going to stab [him,]
*** and was commit[t]ed to [a] mental institution after a short police chase.” The trial court
granted the petition ex parte and scheduled the matter for a full hearing on March 8, 2010.
{¶3} Both Finkel and Staats attended the hearing, though Finkel appeared pro se, while
Staats had counsel present. The matter was heard by a magistrate, but no testimony was taken
2
from either witness, as the parties reported to the court that they had entered into a consent
agreement whereby Finkel agreed to avoid future contact with Staats or his family. Finkel
acknowledged, on the record, that she had entered into to the foregoing consent agreement. The
magistrate subsequently issued a “Consent Agreement and Domestic Violence Civil Protection
Order,” valid through March 8, 2015. The magistrate’s decision was approved and adopted by
the trial court on March 10, 2010, and a copy was sent to both parties.
{¶4} On May 18, 2010, Finkel, through her counsel, filed a motion for relief from
judgment. In her motion, she alleged that she had two meritorious defenses. First, she argued
that she was severely hearing impaired and was “unable to fully comprehend the nature and
substance of the [March 8th] proceedings.” Finkel went on to explain by way of an affidavit in
support of her motion that she appeared at the hearing with the intent of requesting a continuance
in order to obtain counsel. According to Finkel, she was told by the court bailiff that she needed
to discuss her request for a continuance with Staats’ counsel, which she did, however, Staats’
counsel opposed her request. Finkel further attested that she did not understand that she needed
to request a continuance from the magistrate. She attested that, because she “did not understand
[she] had the right to request a continuance from the magistrate, [she] proceeded with the hearing
and with the Consent Decree in open court, believing that [she] had no other option and no right
to counsel.” Second, she argued that she obtained a Protection From Abuse order against Staats
in Pennsylvania on April 12, 2010, following a full hearing based on the same incident that
occurred in February. She points to that order in support of her assertion that Staats was the
aggressor in the incident, and she was the victim. Though her motion stated that the
Pennsylvania order was attached, there is no such order contained in the record. In closing,
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Finkel stated, without any argument in support, that the civil protection order entered by the trial
court should be vacated on the grounds of “mistake and inadvertence.”
{¶5} On September 13, 2010, the trial court denied her motion. Finkel timely appealed
from the denial of her motion to vacate and asserts one assignment of error for our review.
II
Assignment of Error
“THE TRIAL COURT ERRED IN OVERRULING A 60(B) MOTION TO
VACATE WHERE UNCONTESTED AFFIDAVIT STRENGTH EVIDENCE
ESTABLISHED THAT APPELLANT WAS SIGNIFICANTLY HEARING
IMPAIRED AND WAS UNREPRESENTED BY COUNSEL[.]”
{¶6} In her sole assignment of error, Finkel argues that the trial court erred in denying
her motion to vacate the civil protection order. We disagree.
{¶7} As a preliminary matter, we note that the record reveals that, in the protection
notice issued to the National Crime Information Center in conjunction with the initial ex parte
order, the trial court included that Finkel “is hard of hearing” and that she “reads lips.” Staats
also recorded in the “special instructions” section of his service request to the sheriff’s
department that Finkel “has hearing loss, but reads lips.” Thus, there is evidence in the record
that the trial court was aware, and had made others aware, of Finkel’s hearing difficulties.
Further, we note that the transcript from the March 8th hearing demonstrates that the trial court
clarified with Finkel, on the record, that she had consented to avoid Staats pursuant to the same
terms and conditions imposed in the original ex parte order, and that Finkel affirmed that was the
parties’ agreement. At no point did she suggest to the trial court that she required assistance in
order to properly understand the proceedings based on her hearing difficulties. See R.C. 2311.14
(requiring the court to provide a qualified interpreter to assist in the event a person cannot
understand a proceeding based on a hearing impairment).
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{¶8} The decision to grant or deny a motion for relief from judgment pursuant to
Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an
abuse of that discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. An abuse of discretion
means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore
v. Blakemore (1983), 5 Ohio St.3d 217, 219. Civ.R. 60(B) states, in relevant part,
“To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate 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 Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio
St.2d 146, paragraph two of the syllabus.
The denial of a Civ.R. 60(B) motion is proper if the moving party fails to satisfy any one of the
foregoing requirements. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20.
{¶9} The Supreme Court has held “that Civ.R. 60(B) may not be used as a substitute
for appeal.” Doe v. Trumbull Cty. Children Servs. Bd. (1986), 28 Ohio St.3d 128, 131. That is,
“the availability of Civ.R. 60(B) relief is generally limited to issues that cannot properly be
raised on appeal.” Haas v. Bauer, 9th Dist. No. 02CA008198, 2004-Ohio-437, at ¶25, citing
Yakubik v. Yakubik (Mar. 29, 2000), 9th Dist. No. 19587, at *2. Therefore, the trial court acts
within its discretion in denying a motion to vacate where the movant attempts to raise matters
that should have been raised in a direct appeal. Spano Brothers Const., Inc. v. Leisinger (July
24, 1996), 9th Dist. No. 17438, at *2.
{¶10} Though cast as two separate meritorious defenses in her motion to vacate, Finkel
essentially argues that her due process rights were violated at the March 8th hearing. That is, she
argues that because of her hearing difficulties, she was unable to appreciate the substance of the
proceeding, and therefore, alleges she was denied a meaningful opportunity to be heard by the
trial court. Had she been afforded that opportunity, she would have requested a continuance in
5
order to secure counsel. Upon obtaining counsel, she then maintains that she would have been
able to successfully defend against Staats’ claim and demonstrate that she was the victim of
domestic violence, not the perpetrator. Hence, her ability to assert that she had a meritorious
defense stems from her alleged due process violation.
{¶11} Finkel’s alleged due process violation, however, could have been raised by way of
a direct appeal. Accordingly, that argument is not the proper subject of a motion to vacate under
Civ.R. 60(B). Haas at ¶25. See, also, Jizco Enterprises, Inc. v. Hehmeyer, 9th Dist. No. 24803,
2010-Ohio-349, at ¶4-11 (concluding that appellants’ 60(B) arguments were essentially
challenges to the underlying merits of the trial court’s decision). Finkel did not need to rely on
evidence outside the record to allege that she was denied her due process rights at the March 8th
hearing, and she could have properly challenged the trial court’s decision on such constitutional
grounds at the time the trial court issued its final order on March 10th. Moreover, as previously
noted, Finkel’s motion to vacate failed to include any discussion of, or legal support for, her
assertion that she was entitled to relief on the basis of mistake or inadvertence, as the motion
focused solely on whether she could establish a meritorious defense to Staats’ petition. See Rose
Chevrolet, Inc., 36 Ohio St.3d at 20 (acknowledging that the failure to satisfy any one of the
three requirements set forth in GTE Automatic Electric is fatal to a motion filed pursuant to
Civ.R. 60(B)).
{¶12} Because the issues raised by Finkel were not the proper subject of a Civ.R. 60(B)
motion, the trial court did not abuse its discretion in denying her motion to vacate the consent
agreement and civil protection order. Spano Brothers Const., Inc., at *2. Accordingly, Finkel’s
sole assignment of error is overruled.
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III
{¶13} Finkel’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
EDMUND M. SAWAN, Attorney at Law, for Appellant.
EDWARD BONETTI, Attorney at Law, for Appellee.