Sarah J. Peterson, Petitioner-Appellee,
Aaron D. Butikofer, Respondent-Appellant.
from the Franklin County (C.P.C. No. 18DV-498) Court of
Common Pleas, Division of Domestic Relations
Anthony W. Greco, and Hari K. Sathappan, for appellee.
Christopher J. Minnillo, for appellant.
1} Aaron D. Butikofer ("husband"),
respondent-appellant, appeals from a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations,
in which the court issued a domestic violence civil
protection order ("CPO") in favor of Sarah J.
Peterson ("wife"), petitioner-appellee.
2} On July 27, 2017, husband and wife married in
Anchorage, Alaska. After that date, husband lived in Alaska
and wife lived in Columbus, Ohio, until wife moved to Alaska
on October 7, 2017. Wife alleged that husband began
physically and verbally abusing her soon after she moved to
Alaska. On February 28, 2018, wife returned to Ohio where she
claimed husband continued to verbally threaten and harass her
via text messages and e-mails.
3} On April 19, 2018, while four months pregnant,
wife filed a petition for a CPO and the trial court granted
an ex parte CPO the same day. The court set a full hearing
for April 26, 2018. The court also issued an order to serve,
which seemingly indicated two process servers: the sheriff of
Anchorage County and Anchorage Judicial Services. On April
24, 2018, a return of service was filed indicating husband
was personally served on April 23, 2018.
4} In his appellate brief, husband claimed that,
after being served the petition for a CPO, he contacted the
trial court's bailiff via phone to request a continuance.
These communications are not a part of the record before this
5} On April 26, 2018, the trial court held a full
hearing on the petition at which the trial court noted
husband called and indicated he would not be present at the
hearing. The court held the hearing and granted a CPO on the
same day. Husband appeals the trial court's judgment,
asserting the following four assignments of error:
[I.] THE LOWER COURT ERRED IN CONDUCTING A FULL HEARING ON
THE PETITION FOR A CIVIL PROTECTION ORDER WITHOUT PROOF OF
OUT OF STATE SERVICE OF THE PETITION AND THE EX
PARTE ORDER OF PROTECTION, WITH NOTICE OF HEARING.
[II.] THE LOWER COURT DID NOT HAVE IN PERSONAM
JURISDICTION OVER THE APPELLANT AND WAS WITHOUT AUTHORITY TO
ISSUE A CIVIL PROTECTION ORDER.
[III.] THE REFUSAL TO GRANT THE APPELLANT A REASONABLE
CONTINUANCE DENIED HIM THE OPPORTUNITY TO FULLY PARTICIPATE
IN THE HEARING [AS] REQUIRED UNDER R.C. 3113.31, AND THEREBY
VIOLATED THE APPELLANT'S RIGHT TO DUE PROCESS.
[IV.] THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING A
CIVIL PROTECTION ORDER BASED UPON A LACK OF EVIDENCE TO
SUPPORT THE CONCLUSION THAT THE APPELLEE WAS IN DANGER OF
6} Husband argues in his first assignment of error
that the trial court erred when it conducted a full hearing
on the CPO without proof of out-of-state service of the
petition and ex parte CPO. Husband contends service was not
perfected because the special process server was not
appointed in accordance with Civ.R. 4.3 and Loc.R. 41 of the
Franklin County Court of Common Pleas, Domestic Relations
7} R.C. 3113.31(D)(2)(a) provides that:
If the court, after an ex parte hearing, issues an order
described in division (E)(1)(b) or (c) of this section, the
court shall schedule a full hearing for a date that is within
seven court days after the ex parte hearing. If any other
type of protection order that is authorized under division
(E) of this section is issued by the court after an ex parte
hearing, the court shall schedule a full hearing for a date
that is within ten court days after the ex parte hearing. The
court shall give the respondent notice of, and an opportunity
to be heard at, the full hearing. The court shall hold the
full hearing on the date scheduled under this division unless
the court grants a continuance of the hearing in accordance
with this division.
8} Civ.R. 65.1 provides, in pertinent part:
(1) Service by clerk. The clerk shall cause
service to be made of a copy of the petition, and all other
documents required by the applicable protection order statute
to be served on the Respondent and, if applicable, on the
parent, guardian, or legal custodian of the Respondent.
(2) Initial service. Initial service, and
service of any ex parte protection order that is entered,
shall be made in accordance with the provisions for personal
service of process within the state under Civ.R. 4.1(B) or
outside the state under Civ.R. 4.3(B)(2). Upon failure of
such personal service, or in addition to such personal
service, service may be made in accordance with any
applicable provision of Civ.R. 4 through Civ.R 4.6.
9} Civ.R. 4.1, "Process: Methods of
service," provides, in pertinent part:
All methods of service within this state, except service by
publication as provided in Civ.R. 4.4(A), are described in
this rule. Methods of out-of-state service and for service in
a foreign country are described in Civ.R. 4.3 and 4.5.
* * *
(B) Personal service. When the plaintiff
files a written request with the clerk for personal service,
service of process shall be made by that method.
When process issued from the Supreme Court, a court of
appeals, a court of common pleas, or a county court is to be
served personally under this division, the clerk of the court
shall deliver the process and sufficient copies of the
process and complaint, or other document to be served, to the
sheriff of the county in which the party to be served resides
or may be found. * * * In the alternative, process issuing
from any of these courts may be delivered by the clerk to any
person not less than eighteen years of age, who is not a
party and who has been designated by order of the court to
make personal service of process under this division. The
person serving process shall locate the person to be served
and shall tender a copy of the process and accompanying
documents to the person to be served. When the copy of the
process has been served, the person serving process shall
endorse that fact on the process and return it to the clerk,
who shall make the appropriate entry on the appearance
When the person serving process is unable to serve a copy of
the process within twenty-eight days, the person shall
endorse that fact and the reasons therefor on the process and
return the process and copies to the clerk who shall make the
appropriate entry on the appearance docket. In the event of
failure of service, the clerk shall follow the notification
procedure set forth in division (A)(2) of this rule. Failure
to make service within the twenty-eight day period and
failure to make proof of service do not affect the validity
of the service.
10} Civ.R. 4.3(B)(2), "Process;
Out-of-state service," provides, in pertinent