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Martindale v. Martindale

Court of Appeals of Ohio, Fourth District, Athens

December 14, 2017

LISA A. MARTINDALE, Petitioner-Appellee,
ERIC J. MARTINDALE, Respondent-Appellant.

          Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.

          Sierra Meek, Nolan & Meek Co., LPA, Nelsonville, Ohio, and Micaela C. Deming, Bluffton, Ohio, for Appellee.



         {¶1} Eric Martindale commenced an appeal of the January 4, 2017 judgment of the Athens County Court of Common Pleas, subsequent to a Domestic Violence Civil Protection Order Full Hearing. Appellant contends the trial court erred in granting the full protection order and in naming the children as protected parties. Upon review, we find the trial court's decision is supported by competent, credible evidence. Accordingly, we overrule both assignments of error and affirm the judgment of the trial court.


         {¶2} Appellant and Appellee were married in 2011. They have four children: A.M., age 6, M.M., age 5, and twins born in July 2014. When the parties were married in 2011, Appellant was an active member of the United States Military. The parties lived together in Ohio, North Carolina, and Pennsylvania. According to the parties' testimony, the relationship between them was violent during most of the marriage. Appellee and the two older children returned to Athens County in November of 2013.

         {¶3} On December 20, 2013, Appellee filed a petition for an ex parte domestic violence civil protection order (CPO) in the Athens County Court of Common Pleas.[1] On the same date, Appellee was granted an order of protection and the matter was set for a full hearing on January 6, 2014. The matter was continued to February 20, 2014.

         {¶4} On February 20, 2014, prior to the full hearing, Appellant filed a motion to dismiss the domestic violence petition, alleging that he had suffered abuse at Appellee's hands, due to her anger issues and illicit drug usage. Appellant also alleged a lack of jurisdiction The magistrate took testimony from both parties regarding the allegations of domestic violence and the jurisdictional issue.

         {¶5} On February 26, 2014, the Magistrate's Order found that Appellant had sufficient minimum contacts with the State of Ohio to satisfy the jurisdictional requirements. The full hearing on the civil protection order was scheduled for April 28, 2014.[2] However, the full hearing actually resumed on May 30, 2014.

         {¶6} At that hearing, Appellee presented testimony from Nancy Grigsby, a director employed by the Ohio Domestic Violence Network, and Donna Pierce, Deputy Chief Probation Officer of the Dayton Municipal Court. On July 17, 2014, the magistrate issued a decision that all child-related matters should be addressed in the Pennsylvania proceedings. The parties' children were also ordered removed as "protected persons" from the current proceedings.[3]

         {¶7} On August 7, 2014, the trial court requested the Common Pleas Court for the County of Montgomery, Pennsylvania, Family Court Division, to release the sealed transcript and/or recording of the in-camera interview of testimony given by G.M., Appellant's older daughter by a prior marriage. Her testimony was given in April 2014 in the Pennsylvania proceedings. The trial court requested G.M.'s testimony for consideration in the upcoming full hearing on the CPO, scheduled for August 25, 2014.

         {¶8} At the full hearing, Appellee again testified and also presented testimony from Ariah Ripley, Appellant's prior spouse and mother of G.M. Appellant also testified. On October 31, 2014, the Magistrate issued Findings of Fact and Conclusions of Law: Magistrate's Order Denying Petition for Domestic Violence Civil Protection Order. The pertinent findings are as follows:

"4. Both parties presented evidence of physical injuries that he/she has sustained at the hands of the other party. Both parties testified that the last incident of physical violence between the parties occurred on July 6, 2013.
6. Neither party presented testimony from any third-party who had witnessed any incidence of physical violence by either of the parties.
10. During the pendency of this matter, Respondent has had limited, supervised visitation with A.M. and M.M. * * * No evidence was presented that Petitioner's parents ever noticed any injuries to the children upon retrieving them from Respondent after visitation."

         {¶9} The magistrate denied the Petition and ordered the Ex Parte CPO terminated, finding Appellee had failed to show by a preponderance of the evidence that she or children were in imminent danger of domestic violence. The magistrate made the following conclusions of law:

"Even without concerning the question of the remoteness of the events and whether they are even proximate enough in time to engender current rear, the Magistrate finds Petitioner's testimony not credible.
There's no credible evidence that Respondent attempted to cause or recklessly caused bodily injury to either of the children. Further, there's no credible evidence of any threats Respondent made that would place the children or Petitioner in fear of imminent serious physical harm to either of the children."

         {¶10} Of significance, on February 15, 2015, Appellee filed Notice of Preferred Charges against Appellant. On June 1, 2015, Appellee filed supplemental objections to the magistrate's order denying the CPO. On June 19, 2015, counsel for Appellant filed his response to the objections. On July 2, 2015, Appellee next filed a Notice of General Court Martial Hearing, which stated that military prosecutors had contacted her to inform her that after a months-long investigation, the military was proceeding with charges against Appellant on four counts of assault.

         {¶11} On December 20, 2015, the trial court issued its Ruling on Objections and Entry. The trial court adopted the magistrate's decision denying the full CPO and dismissing the Ex Parte CPO.

         {¶12} On January 21, 2016, Appellee filed a Motion for New Trial, pursuant to Civil R. 59(A)(8), based on newly discovered evidence. Appellee argued that on December 7, 2015, Appellant had appeared at a court martial and had submitted written stipulations of fact in which he admitted to domestic violence against Appellee while the children were in the home. On March 17, 2016, Appellant filed a Memorandum Contra the Motion for New Trial. On June 7, 2016, the trial court granted the motion for new trial, in part, to hear any new evidence as to the underlying proceedings. A hearing was set for November 2, 2016.

         {¶13} At the November 2, 2016 hearing, Appellee presented testimony from Phillip Stackhouse, Major Spicer, and Appellant as on cross-examination. The trial court subsequently granted a CPO which covered Appellee and the parties' two older children. The CPO expires in December 2018. The Court found as follows:

"Respondent admitted to striking Petitioner, see Petitioner's Exhibit A, causing her a black eye. Respondent is permitted visitation with parties' children as established by any other court order having jurisdiction."
{¶14} This timely appeal followed. Where pertinent, additional facts are set forth below.



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