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Peterson v. Butikofer

Court of Appeals of Ohio, Tenth District

June 20, 2019

Sarah J. Peterson, Petitioner-Appellee,
v.
Aaron D. Butikofer, Respondent-Appellant.

          APPEAL 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.

          DECISION

          BROWN, J.

         {¶ 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 court.

         {¶ 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 DOMESTIC VIOLENCE.

         {¶ 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 Division.

         {¶ 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:

         (C) Service.

(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 docket.
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 part:

         (B) ...


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