S.D. v. S.L.

[Cite as S.D. v. S.L., 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


S.D.                                             Court of Appeals No. WD-23-006

        Appellant                                Trial Court No. 2021 DV 0086

v.

S.L.                                             DECISION AND JUDGMENT

        Appellee                                 Decided: December 15, 2023

                                          *****

        Thomas P. Goodwin, for appellant.

        Adam Banks, for appellee.

                                          *****

        MAYLE, J.

        {¶ 1} Petitioner-appellant, S.D., appeals the January 3, 2023 judgment of the

Wood County Court of Common Pleas, Domestic Relations Division, dismissing an ex

parte domestic violence civil protection order to which respondent-appellee, S.L., was

subject. For the following reasons, we affirm the trial court judgment.
                                     I.      Background

          {¶ 2} On November 12, 2020, S.L. was charged with domestic violence and child

endangering in Perrysburg Municipal Court case Nos. 2001220A and B.1 On July 1,

2021, the victim in that case, S.D., filed a petition for a domestic-violence civil protection

order (“DVCPO”) under R.C. 3113.31 against S.L., on behalf of herself and their child,

St.L. (born in 2019). After an ex parte hearing, the trial court issued an ex parte DVCPO

on July 1, 2021. It set the matter for a full hearing, to take place on July 9, 2021. By its

terms, the order would expire on December 31, 2021, “unless extended by separate

entry.”

          {¶ 3} In the meantime, S.D. was charged on July 6, 2021, in Wood County case

No. 2021CR0342, with trespassing in a habitation; S.L. was the victim in that case. S.D.

requested a continuance of the July 9, 2021 hearing. S.L.’s attorney entered an

appearance and also sought a continuance of the July 9, 2021 hearing. The trial court

reset the hearing for August 31, 2021.



1
  In their briefs and in the trial-court filings, the parties reference various criminal cases,
which we, too, reference in this decision. The Ohio Supreme Court has recognized that
“[a] court may take judicial notice of a document filed in another court not for the truth of
the matters asserted in the other litigation, but rather to establish the fact of such litigation
and related filings.” (Internal quotations omitted.) State ex rel. Coles v. Granville, 

, 

, 

, ¶ 20, quoting Liberty Mut. Ins. Co. v.
Rotches Pork Packers, Inc., 

 (2d Cir.1992). Consistent with this
authority, we have consulted the online trial court dockets for filing dates, case numbers,
and offenses charged.




2.
       {¶ 4} On August 16, 2021, S.L. was charged with violating a protection order in

Perrysburg Municipal Court case No. 2100872, and on August 26, 2021, he was charged

with violating a protection order and menacing by stalking in Ottawa County case No.

2022CR0273. Counsel entered an appearance for S.D. in the DVCPO action on

August 26, 2021. On September 1, 2021—the day after the DVCPO hearing was

scheduled to take place—S.D. sought a continuance “until such time that the companion

criminal cases have been resolved.” She argued that as a “victim” under Marsy’s Law,

she had the right to refuse to be interviewed, deposed, or subject to discovery requests

until the criminal charges against S.L. were resolved. S.L. did not oppose her motion.

       {¶ 5} Over the next ten months, several more unopposed requests for extensions

were sought and granted:

       • December 20, 2021: S.D. moved to extend the ex parte DVCPO;

       • December 27, 2021: The trial court issued a new ex parte DVCPO,

          effective until June 1, 2022, and set the matter for a full hearing on

          February 8, 2022. No new ex parte hearing took place;

       • February 9, 2022: The trial court set the matter for a Zoom hearing on

          March 22, 2022;

       • March 29, 2022: The trial court set the matter for a Zoom hearing on

          April 22, 2022;

       • June 1, 2022: S.D. moved to extend the ex parte DVCPO;




3.
       • June 3, 2022: The trial court issued a new ex parte DVCPO, effective

          until September 1, 2022. No new ex parte hearing took place.

       {¶ 6} On June 15, 2022, S.L. moved to amend the ex parte DVCPO to allow him

to visit with his daughter. Approximately three weeks later, on July 7, 2022, S.L. was

again charged with violating a protection order in Wood County case No. 2022CR0273.

On August 2, 2022, the trial court set the present matter for a phone conference to take

place on September 1, 2022. On September 2, 2022, it issued a new ex parte DVCPO,

effective until October 15, 2022, and scheduled the matter for a full hearing on

October 11, 2022. This ex parte DVCPO did not provide for protection of St.L. and

made no reference to an ex parte hearing having been held.

       {¶ 7} On September 28, 2022, S.D. moved to modify the September 2, 2022 ex

parte DVCPO to include St.L. among the protected parties. In a separate pleading filed

the same day, she moved to continue the hearing and extend the ex parte DVCPO “until

such time that the companion criminal cases have been resolved,” again citing Marsy’s

Law. This time, on October 5, 2022, S.L. filed a response opposing the motion and

moved to dismiss the action.

       {¶ 8} In a decision journalized on October 6, 2022, the magistrate denied S.D.’s

motion for a continuance as untimely under Local Rule 6.03(D) (requiring a motion for

continuance to be filed 14 days in advance), and it confirmed the October 11, 2022

hearing date. On October 11, 2022, S.D. moved to set aside the magistrate’s order,




4.
arguing that the order was inconsistent with the court’s prior orders, and S.L. moved to

dismiss the ex parte DVCPO. A week later, S.D. moved to renew the ex parte DVCPO.

       {¶ 9} In a judgment journalized on January 3, 2023, the trial court denied S.D.’s

motion to set aside the October 6, 2022 magistrate’s decision and dismissed the ex parte

DVCPO. It found (1) S.D. filed the action under R.C. 3113.31, which afforded S.L. the

right to a full hearing within ten days; (2) S.L. now wants a full hearing; (3) none of the

exceptions in R.C. 3113.31(D)(2)(a) apply, therefore, the court cannot continue the full

hearing; (4) S.D. could seek a protection order under R.C. 2919.26 by filing a motion in

the criminal case; (5) R.C. 2919.26 would require S.D. to appear at a full hearing, but it

would require her to provide information requested by the court—it would not require

her to answer questions from S.L. or his representative; (6) S.D.’s prior requests for

continuances and to extend the ex parte DVCPO were granted because S.L. did not object

to those requests; and (7) because S.L. now objects, the magistrate’s decision denying

S.D.’s motion for continuance is not inconsistent with prior orders of the court on the

same issue.

       {¶ 10} S.D. appealed. She assigns the following errors for our review:

              I. The Wood County Court of Commons Pleas, Domestic Relations

       Division (“Trial Court”) erred in finding the Petitioner-Appellant’s,

       (“Appellant”) rights as a victim of domestic violence per R.C 2919.25A

       does not provide good caused for granting neither R.C. 3113.31 Motions




5.
       for Continuance of Hearing nor R.C. 3113.31 Motions to Continue Ex Parte

       Order when Appellant cites Article, I, Section 10a, Ohio Constitution

       (“Marsy’s Law”), as good cause in support of either Motion.

              II. The Trial Court erred in issuing The Order denying Appellant’s

       September 28, 2022, Motion for Continuance of Hearing, Motion to

       Continue Ex Parte Order, and Memorandum in Support (“The Motion”), as

       Motions for Continuance of Hearing and Motions to Extend Ex Parte

       Domestic Violence Civil Protections Orders (“Motion to Extend Ex Parte

       CPO”) were previously granted on the same grounds in the same case

       before the same court.”

                                 II.   Law and Analysis

       {¶ 11} In her first assignment of error, S.D. argues that because charges are

pending against S.L. in a related criminal case in which she is the victim, the Ohio

Constitution, Article I, Section 10a (“Marsy’s Law”) permits her to refuse questioning by

S.L. in the present action where she seeks a DVCPO. She insists that the rights afforded

under Marsy’s Law constitute “other good cause” entitling her to a continuance of the ex

parte DVCPO so long as the criminal charges against S.L. remain pending.

       {¶ 12} In her second assignment of error, S.D. argues that the trial court’s decision

denying a continuance is at odds with (1) its prior orders granting continuances, and (2)

its decision in DiMasso v. DiMasso, Wood County case No. 2021-DV-0130 (Feb. 11,




6.
2022) (continuing full hearing and extending ex parte DVCPO until resolution of related

criminal case).

       {¶ 13} Under R.C. 3113.31, a person may petition a domestic relations court or a

common pleas court for a DVCPO. See Parrish v. Parrish, 

,

 (2002); Haas v. Semrad, 6th Dist. Lucas No. L-06-1294, 2007-Ohio-

2828, ¶ 9. At the petitioner’s request, the court, after holding an ex parte hearing, may

issue an ex parte DVCPO “for good cause shown.” R.C. 3113.31(D)(1). If the court

issues an ex parte DVCPO, due process requires that the court schedule a “full hearing”

within seven or ten days, depending on the restrictions contained in the order, and it must

give the respondent “notice of, and an opportunity to be heard at, the full hearing.”

Adamski v. Adamski, 6th Dist. Lucas No. L-21-1067, 

, ¶ 32, quoting R.C.

3113.31(D)(2)(a), and ¶ 43. At the full hearing, the court must allow the respondent to

argue and to present direct and rebuttal evidence. Deacon v. Landers, 

, 

 (4th Dist.1990) (“[T]he opportunity to be heard and to defend

oneself is required by R.C. 3113.31 before judgment of a protection order can be entered

against a party to the action.”).

       {¶ 14} Under the following circumstances, a trial court “may” grant a continuance

of the full hearing required under R.C. 3113.31: (1) the respondent has not been served

with notice prior to the date of hearing; (2) the parties consent to a continuance; (3) the

continuance is needed to allow a party to obtain counsel; or (4) the continuance is needed




7.
for other good cause. R.C. 3113.31(D)(2)(a)(i)-(iv). The grant or denial of a motion for

a continuance is reviewed for an abuse of discretion. R.H. v. J.H., 9th Dist. Medina No.

18CA0115-M, 

, citing State v. Unger, 

, 

, 

 (1981). A decision dismissing a request for a civil

protection order is also reviewed for an abuse of discretion. Barrett v. Soltesz, 6th Dist.

Erie No. E-14-089, 

, ¶ 26.

       A.     A trial court may, but is not required, to find that Marsy’s Law
              constitutes “good cause” for continuing a full hearing.

       {¶ 15} In her first assignment of error, S.D. argues that “Marsy’s Law constitutes

‘good cause,’” under R.C. 3113.31(D)(2)(a)(iv), entitling her to a continuance of the full

hearing the statute requires. In essence, S.D. claims that because the criminal

proceedings against S.L. remained pending, the trial court lacked discretion to do

anything but continue the hearing.

       {¶ 16} Article I, Section 10a(A) of the Ohio Constitution, commonly referred to as

Marsy’s Law, seeks “[t]o secure for victims justice and due process throughout the

criminal and juvenile justice systems.” It provides certain rights to victims, “which shall

be protected in a manner no less vigorous than the rights afforded to the accused.” 

Included among those rights is the right, “except as authorized by section 10 of Article I

of this constitution, to refuse an interview, deposition, or other discovery request made by

the accused or any person acting on behalf of the accused.” 

 at Article I, Section




8.
10a(A)(6). By its own terms, the provisions contained in Article I, Section 10a(A)

“supersede all conflicting state laws.” 

 at Article I, Section 10a(E).

       {¶ 17} Preceding the passage of Marsy’s Law as a constitutional amendment,

some Ohio courts found that pending criminal charges against a respondent may

constitute good cause for granting a petitioner’s request to continue a full hearing on a

DVCPO. See, e.g., Martin v. Martin, 10th Dist. Franklin No. 13AP-171, 2013-Ohio-

5703, ¶ 18 (finding that appellant “failed to demonstrate that the court abused its

discretion in concluding that the pending criminal charges constituted good cause for

granting a continuance”). On the other hand, some Ohio courts declined to find good

cause where a respondent requested a continuance of the hearing date pending the

completion of his criminal trial. See Conkle v. Wolfe, 

, 

 (4th Dist.1998); Wirtz v. Wirtz, 7th Dist. Mahoning No. 99-CA-57, 

, * 2-3 (Sept. 27, 2000).

       {¶ 18} These pre-Marsy’s Law cases make clear that a trial court may, in its

discretion, find that pending criminal charges against the respondent constitutes good

cause for continuing a full hearing. S.D. insists that the passage of Marsy’s Law now

obligates a trial court to find good cause when a victim requests a continuance of a full

hearing pending resolution of criminal proceedings. At oral argument, counsel for S.D.




9.
clarified that she asks us to find that there exists a bright-line rule requiring the trial court

to find good cause under these circumstances.2 We decline to do so.

       {¶ 19} First, Marsy’s Law permits a victim to refuse only an “interview,”

“deposition,” or “other discovery request.” It does not permit a victim to refuse to testify

at a court proceeding. Although no Ohio case has directly addressed this issue, the

Arizona Court of Appeals has recognized that its Victims’ Bill of Rights, Arizona

Constitution, Article II, Section 2.1(A)(5)—analogous to Ohio’s Marsy’s Law

amendment—does not insulate a victim from being required to appear and testify at court

proceedings. See State ex rel. Dean v. City Court of City of Tucson, 

(Ariz.App.1992); A.H. by Weiss v. Superior Court In & For Cnty. of Mohave, 

 (Ariz.App.1996) (“[S]ection 2.1(A)(5) was not intended to permit victims to

refuse to testify in court proceedings * * *.”). We too find that the plain language of

Article I, Section 10a(A)(6) of the Ohio Constitution does not permit a victim to refuse to

testify in court proceedings.3 Thus, proceeding to a full hearing on the DVCPO would



2
 S.D.’s attorney confirmed at oral argument that she is asking this court to establish a
bright-line rule requiring a trial court to grant a continuance of the full hearing and extend
an ex parte DVCPO where a petitioner seeks a DVCPO against a respondent, an ex parte
DVCPO has been granted, and the respondent is a defendant in a companion criminal
case that remains pending. She maintains that the protections afforded under Marsy’s
Law constitute “good cause,” such that a court must always grant a victim’s request to
continue a full hearing.
3
 What’s more, R.C. Chapter 2930 (“Victim’s Rights”) was overhauled earlier this year to
implement the protections provided in the Marsy’s Law amendment. Although R.C.
2930.071(B) (effective beginning April 6, 2023) now requires a defendant to show good



10.
not present a conflict between R.C. 3113.31 and Article I, Section 10a(A)(6), and would

not violate S.D.’s constitutional rights.

       {¶ 20} Also, Ohio’s Marsy’s Law amendment passed in 2017—nearly six years

ago. In that time, the Ohio Legislature has amended R.C. 3113.31 four times, but it has

not amended R.C. 3113.31(D)(2)(a) to include this scenario among the enumerated

reasons for continuing a full hearing. Its failure to amend the statute to create a bright-

line rule is a signal to this court that we, too, should decline to judicially create such a

bright-line rule.

       {¶ 21} Rather, we conclude that a trial court may find that pending criminal

charges against the respondent constitutes good cause for continuing a full hearing on a

petition for a DVCPO, but we decline to find that Marsy’s Law mandates a finding of

good cause and requires the court to grant a continuance. As such, we consider whether

the trial court abused its discretion here when it denied S.D.’s motion for a continuance.

       {¶ 22} An abuse of discretion connotes that the trial court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 

, 

 (1983). An unreasonable decision is one that lacks sound

reasoning to support the decision. Hageman v. Bryan City Schools, 10th Dist. Franklin

No. 17AP-742, 

. “An arbitrary decision is one that lacks adequate



cause at a hearing before subpoenaing a victim to testify at a pretrial hearing in the
criminal matter, nothing in that chapter permits a victim to refuse to testify at a court
proceeding.



11.
determining principle and is not governed by any fixed rules or standard.” 

 quoting

Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. No. 08AP-

69, 

, 

, ¶ 11. And an unconscionable decision is one

“that affronts the sense of justice, decency, or reasonableness.” 

       {¶ 23} S.D. first obtained the ex parte DVCPO on July 1, 2021. After 15 months,

a full hearing still had not occurred, despite the fact that the statute contemplated that a

hearing would take place within ten days of the ex parte DVCPO. In Wirtz, 7th Dist.

Mahoning No. 99-CA-57, 

, the court found that the trial court did not

abuse its discretion in refusing respondent’s request to continue the full hearing until after

his criminal trial, particularly because to do so could send the matter on a “course of

delay,” while “resolution of the civil protection order would be left lingering.” Id. at * 3.

Certainly, there have been many delays in the present matter and resolution of the

DVCPO has been left lingering, interfering with S.L.’s right to a full hearing. We,

therefore, find no abuse of discretion in the trial court’s finding that good cause did not

exist here to further delay the full hearing.

       {¶ 24} S.D. points us to DiMasso, Wood County case No. 2021 DV 0130 (Feb. 11,

2022), where a different trial judge granted a motion for continuance by the petitioner on

the basis of Marsy’s Law. There the petitioner complained that if the matter proceeded to

a full hearing before the criminal charges were resolved, she would be required to testify

and be subject to cross-examination by respondent’s counsel, providing respondent with




12.
“more discovery in the criminal proceeding than he would normally be entitled and in

violation of Section 10a(A)(6).” The trial judge found this argument persuasive and

granted her motion. We conclude, however, that this did not bind the trial judge in the

present case to reach the same conclusion.

       {¶ 25} First, the delay in DiMasso does not appear to have been as significant as

the delay in the present case. Second, in granting discretion to a trial court, it is

inevitable that two trial judges may disagree as to what does or does not constitute “good

cause”; this does not necessarily render either decision an “abuse of discretion.” See,

e.g., Davis v. Sam’s Club, 8th Dist. Cuyahoga No. 69647, 

, *5 (Sept. 12,

1996) (declining to find abuse of discretion despite the fact that appellate court or another

trial judge may have reached different conclusions); Waterford Tower Condominium

Assn. v. TransAmerica Real Estate Group, 10th Dist. Franklin No. 05AP-593, 2006-

Ohio-508, ¶ 19 (explaining that different conclusions reached by two trial court judges

after exercising discretion “does not compel the finding that either judge committed an

abuse of discretion”). Third, the trial court’s rationale in DiMasso was not tested in the

court of appeals, so the trial judge in the present case was not required to reach the same

conclusion as the trial judge in DiMasso. Finally, we believe that the trial court, in

accepting the petitioner’s rationale, may have overlooked the fact that Section 10a(A)(6)

does not permit a victim to refuse to testify in court proceedings; it merely permits her to




13.
refuse an “interview,” “deposition,” or “discovery request” made by the accused or his

representative.

       {¶ 26} This does raise one more issue worth noting. Specifically, while Marsy’s

Law does not insulate S.D. from testifying in court, it does excuse her from responding to

discovery requests from S.L. while the criminal matter remains pending. As a matter of

course, Civ.R. 65.1(D) already places limitations on a respondent’s right to discovery in a

DVCPO action. Marsy’s Law wholly eliminates the petitioner’s obligation to respond to

discovery requests from the respondent so long as the criminal matter remains pending.

This does not mean that a full hearing cannot take place. But if a respondent does not

consent to a victim’s request to continue the hearing and instead seeks to move forward

to the full hearing while the criminal case remains unresolved, he must do so subject to

the rights afforded the victim under Marsy’s Law. Here, this means that S.L. will have to

go forward with the full hearing without discovery from S.D.

       {¶ 27} Finally, although not specifically assigned as error, S.D. also argues that

“immediate and present danger of domestic violence alone is good cause for issuance and

extension of an ex parte CPO pursuant to R.C. 3113.31(D)(1).” In making this argument,

S.D. conflates the “good cause” required under R.C. 3113.31(D)(1) for a court to enter a

temporary ex parte DVCPO in the first place, with the “good cause” that must be shown

to continue a full hearing under R.C. 3113.31(D)(2)(a). “Immediate and present danger

of domestic violence to the family or household member or to the person with whom the




14.
respondent is or was in a dating relationship constitutes good cause” for entering a

temporary ex parte DVCPO—it does not provide a basis for continuing a full hearing.

R.C. 3113.31(D)(1).

       {¶ 28} We find S.D.’s first assignment of error not well-taken.

       B.     The trial court’s prior decisions granting continuances did not obligate
              it to grant a continuance here.

       {¶ 29} In her second assignment of error, S.D. claims that the trial court erred in

denying her motions for continuance and to extend the ex parte DVCPO because it had

granted previous motions. The trial court addressed this in its judgment. It explained

that the previous requests were granted “in the absence of objection by the Respondent.”

S.L. objected to S.D.’s most recent motion. This is certainly a valid rationale for

reaching a different outcome on S.D.’s most recent motion. And in any event, it is within

the direction of the trial court whether to grant or deny a request for continuance.

Adamski, 6th Dist. Lucas No. L-21-1067, 

, at ¶ 48. The trial court was not

obligated to grant additional requests for continuances merely because it granted previous

requests, particularly where those previous requests were unopposed. S.D. has not

demonstrated that the trial court abused its discretion here.

       {¶ 30} We find S.D.’s second assignment of error not well-taken.

                                     III.   Conclusion

       {¶ 31} A trial court may find that pending criminal charges against the respondent

constitutes good cause under R.C. 3113.31(D)(2)(a)(iv) for granting a victim’s request to




15.
continue a full hearing on a petition for a DVCPO, but we decline to find that Marsy’s

Law mandates a finding of good cause and requires the court to grant a continuance. The

trial court did not abuse its discretion in denying S.D.’s motions to continue the full

hearing and to extend the ex parte DVCPO. We find S.D.’s first assignment of error not

well-taken.

       {¶ 32} It was within the trial court’s discretion whether to grant a continuance

under R.C. 3113.31(D)(2)(a)(iv). It was not required to grant additional requests for

continuances merely because it granted previous requests. We find S.D.’s second

assignment of error not well-taken.

       {¶ 33} We affirm the January 3, 2023 judgment of the Wood County Court of

Common Pleas, Domestic Relations Division. S.D. is ordered to pay the costs of this

judgment under App.R. 24.

                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




16.
                                                                                S.D. v. S.L.
                                                                                WD-23-006




Christine E. Mayle, J.                          ____________________________
                                                        JUDGE
Charles E. Sulek, J.
CONCUR.                                         ____________________________
                                                        JUDGE



Gene A. Zmuda, J.
CONCURS AND WRITES
SEPARATELY.                                     ____________________________
                                                        JUDGE




       ZMUDA, J.

       {¶ 34} I concur with the majority’s well-reasoned analysis that the protection of a

victim’s rights, as described under Ohio’s Marsy’s law, does not establish a bright-line

rule mandating the continuance of the hearing required under R.C. 3113.31(D)(2)(a). I

write separately, however, because I find that S.D.’s argument that the trial court erred

when it found that protection of her rights did not constitute good cause to continue the

hearing under R.C. 3113.31(D)(2)(a)(iv) is improperly raised for the first time in this

appeal.




17.
       {¶ 35} Neither S.D.’s September 28, 2022 motion for continuance nor her

October 11, 2022 motion to set aside the magistrates order argues that protection of her

rights constitutes “good cause” for continuance of the hearing as described in R.C.

3113.31(D)(2)(a)(iv). “Arguments raised for the first time on appeal are generally

barred.” Lester v. Don’s Automotive Group, LLC, 

, 

, ¶

49 (6th Dist.). “Litigants must not be permitted to hold their arguments in reserve for

appeal, thus evading the trial court process.” 

 S.D.’s failure to allege that the

October 11, 2022 hearing should have been continued for good cause pursuant to R.C.

3113.31(D)(2)(a)(iv) precludes her from making that argument in this appeal. Therefore,

I would conclude our analysis of appellant’s first assignment of error upon finding that

S.D.’s protections under Marsy’s Law does not mandate a continuance of the hearing,

and would not address her good cause argument.

       {¶ 36} I concur in the remainder of the majority’s analysis and conclusions.



       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




18.