[Cite as Wheeler v. Wheeler, 2015-Ohio-4206.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     SCIOTO COUNTY

Amanda Danyelle Wheeler,                        :

        Petitioner-Appellee,                    :         Case No. 14CA3663

        v.                                      :

Larry Calvin Wheeler,                            :   DECISION AND JUDGMENT ENTRY

        Respondent-Appellant.                   :         RELEASED: 10/6/2015

_______________________________________________________________________

                                           APPEARANCES:

Brigham M. Anderson, Anderson & Anderson Co., L.P.A., for appellant.

Lauren R. Weller, Southeastern Ohio Legal Services, for appellee.
_______________________________________________________________________
TYACK, J.

        {¶ 1} Larry Calvin Wheeler is appealing from the granting of a civil protection

order ("CPO") for the benefit of his wife, Amanda Danyelle Wheeler, and his

stepdaughter. He assigns a single error for our consideration:

                THE TRIAL COURT ABUSED ITS DISCRETION IN
                ISSUING A CIVIL PROTECTION ORDER AS THE
                OVERALL ATTITUDE OF THE TRIAL COURT IS
                UNREASONABLE, ARBITRARY AND UNCONSCIONABLE.

        {¶ 2} Counsel for Larry Wheeler submits a number of issues in support of his

assignment of error:

                [1.] THE TRIAL COURT CONDUCTED AN EX PARTE
                HEARING ON THE ISSUANCE OF A TEMPORARY CIVIL
                PROTECTION ORDER WHEN DEFENDANT APPELLANT
                WAS PRESENT FOR THE HEARING OUTSIDE OF THE
                COURTROOM.
Scioto App. No. 14CA3663                                                                       2



              [2.] THE TRIAL COURT ERRED IN INCLUDING THE
              PARTIES' CHILDREN IN THE CIVIL PROTECTION ORDER
              WHEN THE COURT IN 14-DR-278 HAD SUBJECT
              MATTER JURISDICTION.

              [3.] THE TRIAL COURT ABUSED ITS DISCRETION BY
              FAILING TO CONSOLIDATE THE CIVIL PROTECTION
              ORDER AND DIVORCE PROCEEDINGS.

              [4.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
              THE COURT ANSWERED QUESTIONS FOR THE
              PETITIONER.

              [5.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
              IT FAILED TO CONDUCT A FULL HEARING ON THE
              ISSUANCE OF AN EX PARTE ORDER WITHIN SEVEN
              DAYS AS REQUIRED BY OHIO LAW.

       {¶ 3} Counsel for Larry Wheeler does not argue that Amanda Wheeler was not

entitled to a CPO. Counsel's silence on this issue is understandable because Larry

Wheeler physically assaulted his wife on numerous occasions and caused her serious

injuries, including three broken ribs. Under the facts, Amanda was clearly entitled to

protection from Larry. Instead, counsel attacks the trial court judge's handling of the case,

including the trial judge's "attitude." Accordingly, we address the five points set forth in

appellant's brief and find the actions taken by the judge were well within his judicial

discretion.

       {¶ 4} The statute which allows for CPOs, R.C. 3113.31, clearly allows for an initial

ex parte hearing. The initial hearing does not require the presence of the abuser.

Indeed, when the abuser has engaged in repeated abuse and has often threatened a

spouse, excluding the abuser from the courtroom while the abused spouse is testifying

may be advisable. The need for immediate attention to the abusive relationship

necessitates procedures such as that provided by the Ohio Legislature. Counsel for Larry
Scioto App. No. 14CA3663                                                                       3



Wheeler asserts that Larry was present in the courthouse while the ex parte hearing was

proceeding. Nothing in the record before us supports that assertion. What counsel

asserts may be true; we must rely on the appellate record as opposed to the assertion of

counsel.

       {¶ 5} Minors were present for at least some of the abuse. The trial court had

every right to take steps to prevent them from witnessing any future incidents. The trial

court judge did not have to wait for the divorce case to proceed to the point of allocating

parental rights and responsibilities before taking steps to protect the wife and children.

       {¶ 6} For the same reason, the trial court judge was not required to consolidate

the two actions. CPO proceedings often require prompt action. Divorce cases can

extend for years. A trial court judge does not abuse his or her discretion by refusing to

consolidate the two.

       {¶ 7} Counsel for Larry Wheeler argues that a prior case in the Fourth Appellate

District mandates a consolidation of the divorce case. The case is Yazdani-Isfehani v.

Yazdani-Isfehani, 170 Ohio App.3d 1, 2006-Ohio-7105 (4th Dist.). The case cited

involves a totally separate issue; namely, the jurisdiction of a trial court to modify a CPO

after the CPO has been final. The Fourth District ruled that the CPO could not be

modified after it had been final. The Fourth District noted that the father never moved for

new or additional orders in the divorce case which was subsequently filed. The case

simply does not stand for the proposition that the CPO proceeding and the divorce under

the circumstances in this case must be joined into a single proceeding.

       {¶ 8} During the second hearing, Amanda Wheeler had been asked repeatedly

about her failure to take aggressive action through law enforcement and the courts when
Scioto App. No. 14CA3663                                                                       4



she was abused previously. She responded repeatedly that, because of the threats and

violence in her past with Larry, she was afraid. Finally, having admonished the two sets

of counsel for Larry Wheeler not to be repetitious in the cross-examination, the judge did

not wait for Amanda to repeat her answer again. The trial court judge simply inserted her

previous responses. The trial court judge did not commit reversible error by doing so.

       {¶ 9} As to the last issue, ideally, a full hearing will be conducted within seven

days following the ex parte hearing. Sometimes a trial court judge needs to extend that

time in order to be fair to one or both of the parties. Here, Amanda Wheeler's first lawyer

quit before the full evidentiary hearing. The judge was fully within his discretion to delay

the proceedings to allow her to obtain new counsel.

       {¶ 10} In summary, the single assignment of error is overruled, and the judgment

of the trial court is affirmed.

                                                                   JUDGMENT AFFIRMED.
Scioto App. No. 14CA3663                                                                   5



                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court, Domestic Relations Division, to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

* Brown, P.J., and Dorrian, J.: Concur in Judgment and Opinion.

                                    For the Court


                                    BY: ________________________________
                                        G. Gary Tyack, Judge*




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.



* G. Gary Tyack, Susan D. Brown and Julia Lillian Dorrian of the Tenth Appellate District
sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate District.
