Tarini v. Tarini

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 10th District Court of Appeals » 2012 » Tarini v. Tarini

Tarini v. Tarini

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-6165

Case Date: 12/27/2012

Plaintiff: Tarini

Defendant: Tarini

Preview:[Cite as Tarini v. Tarini, 2012-Ohio-6165.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Thomas R. Tarini,                                                                             :
Petitioner-Appellant,                                                                         :   No. 12AP-336
                                                                                                  (C.P.C. No. 11DV-2080)
v.                                                                                            :
                                                                                                  (REGULAR CALENDAR)
Steve Tarini,                                                                                 :
Respondent-Appellee.                                                                          :
D  E  C  I  S  I  O  N
Rendered on December 27, 2012
Dennis W. McNamara, for appellant.
Gerald T. Sunbury, for appellee.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
BRYANT, J.
{¶ 1}  Petitioner-appellant, Thomas R. Tarini, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, denying his
request for a civil protection order against respondent-appellee, Steve Tarini. Because the
trial court denied petitioner the opportunity to fully present his case, we reverse.
I. Facts and Procedural History
{¶ 2}  On November 22, 2011, petitioner filed in the trial court a petition seeking a
civil protection order against respondent, his brother. The addendum to the petition
states respondent had been stalking petitioner for the last ten years and has attempted to
prevent petitioner from working for his father in the family business. According to the
addendum, respondent called petitioner, threatening to put a bullet in petitioner's body
and to create circumstances so that his body would not be found. The addendum further

No. 12AP-336                                                                                      2
asserts that petitioner tried to "make things right," but respondent continued to threaten
petitioner "in every way" so that petitioner was "in fear for [his] life this time." Petitioner
requested an ex parte protection order, which the trial court granted the same day,
effective until November 29, 2011.
{¶ 3}  The trial court set the matter for a full hearing on November 29, 2011, but in
view of both parties having recently retained counsel, the court continued the matter until
January 5, 2012 so the parties could conduct discovery and any possible negotiations. The
court ordered the November 22, 2011 order to remain in full force and effect until the next
hearing, except as modified by a separate order that allowed respondent to carry a gun
due to the nature of his work. On the scheduled hearing date of January 5, 2012, the court
again continued the hearing, with the modified November  22,  2011 order remaining
effective until February 21, 2012.
{¶ 4}  On  February  21,  2012,  the  court  heard  testimony  from  a  number  of
petitioner's witnesses but continued the hearing because the court had a trial on another
matter scheduled for that afternoon. The hearing on petitioner's request for a civil
protection order was rescheduled for March 15, 2012, and the court emphasized that the
"no contact order remains in effect until otherwise authorized by the Court." (Tr. 62.) The
hearing resumed on March 15, 2012. Because the discourse between the court and counsel
at the hearing is seminal to resolving petitioner's first assignment of error, we address it in
some detail.
{¶ 5}  As petitioner's counsel was conducting direct examination of petitioner, the
court stated: "All right. I'm going to stop you at this point. You have met the threshold and
I'm going to turn it over to  [respondent's counsel] to put on your case in chief and
rebuttal. I'm doing this because this is going to go on forever. It's not necessary at this
point." (Tr. 116.) The court then addressed respondent, expressing its concern that a
person in his position of authority would say he was going to put a bullet in petitioner's
head. The court told him: "So it's time for you to call your witnesses. * * * But they have
met their threshold for a [civil protection order]. So now the case goes to you." (Tr. 117.)
{¶ 6}  Petitioner's attorney asked the court: "Depending what follows, I can call
him back again later?" (Tr. 117.) The court responded: "Yes. You can always redirect based
upon his cross." (Tr. 117.) Respondent's counsel then clarified: "So I understand your

No. 12AP-336                                                                                     3
position that I can cross him and then call - -." (Tr. 117.) The court answered: "As if it's
fresh and new and then start your case. * * * They have met their threshold." (Tr. 117.)
{¶ 7}  After  respondent's  attorney  completed  petitioner's  cross-examination,
counsel for petitioner stated: "I originally had a good bit more direct examination. At this
point, do you want - - am - - Should I be limited just to the things [respondent's counsel]
asked him about, or are we back at where I left off?" (Tr. 148.) The court responded:
"Counsel, I indicated you had met your threshold. At this point, you are in his case in
chief." (Tr. 148.) Petitioner's attorney replied: "Okay. Then just a few things." (Tr. 148.)
Respondent's attorney followed redirect examination with recross-examination, and the
court asked petitioner's counsel if he had anything else. Counsel for petitioner responded:
"Not in the form of redirect or whatever that would be." (Tr. 155.) With that, the court
allowed petitioner to step down from the witness stand.
{¶ 8}  Respondent's counsel rested his case after respondent's testimony, and the
court asked: "Do - - Have I looked at all the exhibits that you all have introduced?" (Tr.
218.) Respondent's attorney answered: "The warrant, the contract and the power of
attorney." (Tr. 218.) Directing itself to counsel for petitioner, the court asked whether he
was actually marking the contract, to which counsel responded he was not.   The court
remarked: "I have two. I have a warrant, which is B and a power of attorney. A was the
tape." (Tr. 218-19.)
{¶ 9}  The court then began to discuss the evidence presented and the court's
reaction to it. In the middle of the court's statement, petitioner's attorney apparently did
something to attract the court's attention because the court stated: "This is my turn, not
your turn. You all rested." (Tr. 221.) Counsel for petitioner responded: "I didn't rest." (Tr.
221.) The court replied: "You should have. You submitted your documents. We are done
here." (Tr. 221.) The court continued its statements about the evidence and ultimately
stated: "I'm not going to grant the [civil protection order] at this time." (Tr. 225.)
{¶ 10} The court journalized its decision with an "Entry Denying Petition and
Dismissing Case." In it, the court stated that it "conducted a Full Hearing on the matter on
March 15, 2012." (R. 25-26.) The court determined that, after considering "the testimony
of the parties, their witnesses (if any) and all the relevant evidence in the case, the Court
finds that a prima facie of showing of attempting to cause or causing bodily injury to a

No. 12AP-336                                                                                      4
family or household member, or placing a family [or] household member by threat of
force  in  fear  of  imminent  physical  harm,  has  not  been  established."                     (R.                                                                               25-26.)
Accordingly, the order denied the petition and dismissed it without prejudice.
II. Assignments of Error
{¶ 11} Petitioner appeals, assigning two errors:
ASSIGNMENT OF ERROR NO. 1
THE   TRIAL   COURT   ERRED   WHEN   IT   DENIED
PETITIONER  THE  OPPORTUNITY  TO  COMPLETE  HIS
CASE IN  CHIEF AND DENIED PETITIOINER  [sic] THE
OPPORTUNITY TO PRESENT REBUTTAL EVIDENCE.
ASSIGNMENT OF ERROR NO. 2
THE  TRIAL  COURT'S  DECISION  DENYING  A  CIVIL
PROTECTION  ORDER  WAS  NOT  SUPPORTED  BY  THE
WEIGHT OF THE EVIDENCE.
III. First Assignment of Error - Incomplete Hearing
{¶ 12} Petitioner sought a civil protection order pursuant to R.C. 3113.31. Under
R.C. 3113.31(C), "[a] person may seek relief * * * on the person's own behalf * * * by filing
a  petition  with  the  court,"  stating  "[a]n  allegation  that  the  respondent  engaged  in
domestic violence against a family or household member of the respondent, including a
description of the nature and extent of the domestic violence." R.C. 3113.31(C)(1). The
petition also shall contain "[t]he relationship of the respondent to the petitioner" and "[a]
request for relief under this section." R.C. 3113.31(C)(2) and (3).
{¶ 13}                                                                                            If a person files a petition under R.C. 3113.31 and requests an ex parte order,
the court is to hold a hearing the same day, and for good cause shown may enter an ex
parte temporary order. R.C. 3113.31(D)(1). When the court, after an ex parte hearing,
issues an ex parte order, "the court shall schedule a full hearing for a date that is within
seven court days after the ex parte hearing." R.C. 3113.31(D)(2)(a).
{¶ 14}                                                                                            Although R.C. 3113.31 requires a "full hearing," the statute does not define
the term. Deacon v. Landers,  68 Ohio App.3d  26  (4th Dist.1990). Even so, "in an
unrelated context, a mere 'hearing' has been held to include the introduction of testimony
and documents." Id. at 29, fn. 4, citing State v. Johnson, 29 Ohio App.2d 219, 222 (7th

No. 12AP-336                                                                                      5
Dist.1971). Accordingly, a full hearing generally "is one in which ample opportunity is
afforded to all parties to make, by evidence and argument, a showing fairly adequate to
establish the propriety or impropriety of the step asked to be taken." Deacon at  30.
"[W]here the issuance of a protection order is contested, the court must, at the very least,
allow for presentation of evidence, both direct and rebuttal, as well as arguments."
(Footnote deleted.) Id.
{¶ 15} Here, counsel for petitioner was in the course of questioning petitioner on
direct examination when the court announced that, because petitioner met his threshold
showing for a civil protection order, the court was halting counsel's direct examination.
Petitioner's counsel inquired whether he would be able to call petitioner back at a later
time, and the court, perhaps misunderstanding counsel's question, assured him he would
be  able  to  question  petitioner  on  redirect  examination.  The  court  then  turned  to
respondent's counsel and advised he could proceed with his case-in-chief, including cross-
examination of petitioner who remained on the witness stand.
{¶ 16} At the conclusion of respondent's case-in-chief, respondent rested, and the
court inquired about documents. Rather than returning to petitioner to allow him to
resume proof and attempt to rebut the evidence respondent presented, the court advised
petitioner he was done and had rested. In doing so, the court deprived petitioner of a full
hearing under R.C. 3113.31. See Deacon at 29 (noting "[t]he fundamental requisites of due
process of law are notice and an opportunity to be heard); see also Cleveland v. Schaffer,
112  Ohio App.3d  631  (8th Dist.1996)  (pointing out the trial court's refusal to allow
defendant  to  present  a  trial  defense,  coupled  with  other  factors,  precluded  a  fair
resolution  of  credibility  and  weight  of  the  evidence  so  as  to  deprive  defendant  of
fundamental due process and a fair trial).
{¶ 17} Respondent attempts to circumvent the trial court's abbreviated hearing by
contending petitioner failed to proffer the evidence he would have presented had the
court permitted him the opportunity. "A trial court's determination as to the admissibility
of evidence is generally a matter within the sound discretion of the trial court." Davis v.
Killing, 171 Ohio App.3d 400, 2007-Ohio-2303, ¶ 11 (11th Dist.). "[J]udges have broad
discretion in admitting or excluding evidence, and controlling the order of interrogating
witnesses." State v. McGuire,  80 Ohio St.3d  390,  400-01  (1997).   As a result, even

No. 12AP-336                                                                                          6
though "[o]ne of the fundamental due process rights is the right to present witnesses in
one's  behalf,"  the  "right  may  be  tempered  by  judicial  discretion  and  the  laws  of
evidence." In re Houseman v. Houseman, 4th Dist. No. 831 (Oct. 30, 1981). Nonetheless,
" '[l]itigants are entitled to a fair and impartial trial, and in order to have this their
witnesses should be permitted to testify, under the rules of the court, within the proper
bounds of judicial discretion, and under the law governing the testimony of witnesses.' "
Id., quoting Fessenden v. Fessenden, 32 Ohio App. 16 (9th Dist.1928).
{¶ 18} The present case does not present an issue of proffer; it presents a due
process issue, as " '[p]arties to [a] suit are entitled to testify, if qualified under the law, and
counsel are entitled to be heard. These are not only statutory, but the constitutional rights
of litigants.' " Id., quoting Fessenden. As the Supreme Court of Ohio explained in Totten v.
Miller's Estate, 139 Ohio St. 29 (1941), paragraph two of the syllabus: "When a witness is
precluded from testifying on the ground of his alleged incompetency as a witness and not
on the ground that his proposed testimony is incompetent, his exclusion, if erroneous, will
be presumed to be prejudicial, and it is not necessary to proffer his proposed testimony in
order to challenge or review the action of the court as to his exclusion." A competent
witness is "one who is legally qualified to be heard to testify in a cause." Black's Law
Dictionary 284 (6th Ed.1990).
{¶ 19} Here, the trial court excluded one competent witness, and perhaps more
than one competent witness, not because of the nature of the testimony to be elicited, but
because  of  its  understanding  of  the  procedural  posture  of  the  case.  Under  those
circumstances, a proffer is not necessary.
{¶ 20} Finally, even if the trial court's refusal to allow petitioner to present direct
and rebuttal evidence is in itself not sufficient to deprive petitioner of due process, the
trial court's actions during the hearing, coupled with the judgment entry terminating the
action,  demonstrate a  due process violation. During the  hearing, the  court  assured
petitioner he had met his threshold and then gave respondent the opportunity to present
evidence. In using "threshold," the court can be understood only as informing petitioner
he presented a prima facie case entitling him to a civil protection order; the court
otherwise would have had no reason to allow respondent to proceed with his case-in-
chief. Yet, in the judgment entry terminating the action, the court concluded petitioner

No. 12AP-336                                                                                    7
failed to present a prima facie case. We, then, are left with the trial court's having denied
petitioner the opportunity to present additional evidence but dismissing his request for
civil protection order because his evidence did not establish a prima facie case for such an
order.
{¶ 21} Petitioner's first assignment of error is sustained. As a result, his second
assignment of error is premature.
IV. Disposition
{¶ 22} Having sustained petitioner's first assignment of error, rendering his second
assignment of error not yet ripe for review, we reverse the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, and remand for further
proceedings consistent with this decision.
Judgment reversed
and case remanded.
KLATT and FRENCH, JJ., concur.

Download 12ap-336.pdf