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Delmatto v. Hamed

December 3, 2008

TONI DELMATTO PETITIONER-APPELLANT
v.
YAHYA HAMED RESPONDENT-APPELLEE



CHARACTER OF PROCEEDING: Civil appeal from the Fairfield Court of Common Pleas, Domestic Relations Division, Case No. 07DR439.

The opinion of the court was delivered by: Gwin, P.J.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: Affirmed.

{¶1} Petitioner-appellant Toni Delmatto appeals a judgment of the Court of Common Pleas, Domestic Relations Division, of Fairfield County, Ohio, which sustained the motion of Respondent-appellee Yahya Hamed to modify its previously entered civil protection order by removing the parties' minor child as a protected person. Appellant assigns five errors to the trial court:

{¶2} "I. THE LOWER COURT WAS WITHOUT JURISDICTION TO MODIFY THE JANUARY 7, 2008, ORDER OF PROTECTION DUE TO THE FACT THAT PETITIONER WAS NOT SERVED RESPONDENT'S MOTION TO MODIFY, IN ACCORDANCE WITH THE OHIO RULES OF CIVIL PROCEDURE AND THE MODIFICATION IS VOID AB INITIO.

{¶3} "II. THE LOWER COURT GRANTED THE MOTION TO MODIFY UPON INSUFFICIENT EVIDENCE IN THE ABSENCE OF AN ORDER OF THE FRANKLIN COUNTY COURT OF COMMON PLEAS THAT WAS SIGNED BY A JUDGE.

{¶4} "III. A DOMESTIC VIOLENCE COURT COMMITS AN ERROR OF LAW WHEN IT MODIFIES AN ORDER OF PROTECTION BASED UPON THE TEMPORARY ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES IN A DIVORCE ACTION.

{¶5} "IV.THE APPELLANT AND THE MINOR CHILD HAVE BEEN DENIED THE EQUAL PROTECTION OF R.C. 3113.31 BECAUSE THEY FILED THEIR ACTION FIRST, PRIOR TO THE TEMPORARY ORDERS UNDER CIVIL RULE 75 (N) WHEN SIMILARLY SITUATED PERSONS WHO FILE THEIR ACTION AFTER THE RULE 75 (N) ORDERS ARE PROVIDED THE PROTECTIONS OF R.C.3113.31.

{¶6} "V. THE USE OF CIVIL RULE 75 (N) TO OVERRIDE THE STATUTORY PROTECTIONS UNDER REVISED CODE SECTION 3113.31 VIOLATES SECTION 5, ARTICLE IV OF THE OHIO CONSTITUTION."

{¶7} The record indicates on October 9, 2007, the Fairfield County Domestic Relations Court entered an ex parte Civil Protection Order which, among other things, ordered appellee to stay away from appellant and their minor child, and granted appellant sole custody with no visitation rights for appellee.

{¶8} On November 15, 2007, appellee filed for divorce in Franklin County Court of Common Pleas, Domestic Relations Division.

{¶9} On January 7, 2008, the court in Fairfield County conducted a full hearing on the civil protection order and issued a temporary order again prohibiting appellee from having any contact with appellant or the child.

{ΒΆ10} On March 20, 2008, the court in Franklin County issued temporary orders in the divorce action, which, among other things, awarded appellant sole custody of the child, and granted appellee supervised visitation rights. The following day, appellee filed his ...


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