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Annie Lupica v. Charles Lupica

November 3, 2011

ANNIE LUPICA PLAINTIFF-APPELLEE
v.
CHARLES LUPICA DEFENDANT-APPELLANT



Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DV-332863

The opinion of the court was delivered by: Mary Eileen Kilbane, A.J.:

Cite as Lupica v. Lupica,

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

BEFORE: Kilbane, A.J., Rocco, J., and E. Gallagher, J.

{¶1} Defendant-appellant, Charles Lupica (Charles), appeals the trial court's judgments sustaining plaintiff-appellee, Annie Lupica's (Annie), objections to the magistrate's decision and granting her a domestic violence civil protection order. Finding merit to the appeal, we reverse the decision of the trial court and remand for the trial court to vacate the domestic violence civil protection order.

{¶2} On August 9, 2010, Annie filed a domestic violence civil protection order (CPO) ex parte under R.C. 3113.31. The trial court held an ex parte hearing, at which Annie testified that Charles hit her while she was cutting their minor son's hair (C.L.).*fn1 Annie also testified that as a result of this incident, Charles was convicted of domestic violence in Rocky River Municipal Court. The Rocky River Municipal Court issued a temporary criminal protection order for Annie and C.L. Annie further testified that she is afraid that Charles is going to kill her because of previous threats he has made. The trial court granted the CPO ex parte and set the matter for a hearing ten court days later, on August 23, 2010. As part of the ex parte order, the court granted exclusive possession of the marital residence to Annie and ordered that Charles shall not return or interfere with the residence.

{¶3} On August 23, 2010, the matter proceeded to a hearing before the magistrate. At the hearing, Charles's counsel moved to dismiss the ex parte CPO, arguing that the hearing should have been set within seven court days after the court's order, which would have been on August 18, 2010. Defense counsel claimed that the revised code mandates a hearing within seven days when an individual is ordered away from the marital residence. Annie's counsel argued that under the terms of Charles's probation, through Rocky River Municipal Court, Charles is already barred from the residence so a hearing within ten court days was required.

{¶4} After the hearing, the magistrate issued a decision, finding that as part of Charles's sentence in his criminal domestic violence case, he was "ordered to stay away from [Annie and C.L.] during the pendency of [Charles's] Court supervision. Therefore, [Charles], by Court order, has been unable to return to the marital home since the time of his arrest. He did not vacate the marital residence voluntarily. Therefore, the provisions of [R.C. 3113.31(D)(2)(a)] require that the matter be heard within seven Court days of the issuance of the [ex parte CPO.] It was not." As a result, the magistrate dismissed Annie's CPO.

{¶5} Annie then objected to the magistrate's decision. The trial court sustained Annie's objections, without explanation, and set the matter for a hearing on November 30, 2010. The trial court found, without addressing whether the hearing should have been held within seven court days, that Annie met her burden of proof that Charles committed acts of domestic violence and placed her by threat of force in fear of imminent serious physical harm. The court further found that Annie did not meet her burden of proof that Charles abused C.L. Therefore, the court concluded that the ex parte CPO with respect to Annie shall remain in full force and effect until further order of the court or five years from the date of the hearing and the court denied the ex parte CPO with respect to C.L.

{¶6} Charles now appeals, raising four assignments of error for review. We shall address the fourth assignment of error first as it is dispositive.

ASSIGNMENT OF ERROR FOUR

"The trial court erred and/or abused its discretion by sustaining [Annie's] objections to the magistrate's decision."

{¶7} We review an appeal from a trial court's order regarding a magistrate's decision under an abuse of discretion standard. Demming v. Smith, Cuyahoga App. No. 94106, 2010-Ohio-4134, ¶28, citing O'Brien v. O'Brien, 167 Ohio App.3d 584, 2006-Ohio-1729, 856 N.E.2d 274. An abuse of discretion "'implies that the court's attitude is unreasonable, arbitrary or unconscionable.'" Blakemore v. Blakemore (1983), ...


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