[Cite as Harris v. Ross, 2011-Ohio-1075.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
JOHN B. HARRIS                                 :   Julie A. Edwards, P.J.
                                               :   W. Scott Gwin, J.
                      Petitioner-Appellant     :   Sheila G. Farmer, J.
                                               :
-vs-                                           :   Case No. 10-CAF-07-0057
                                               :
                                               :
ALANDA ROSS                                    :   OPINION

                   Respondent-Appellee




CHARACTER OF PROCEEDING:                            Civil Appeal from Delaware County
                                                    Court of Common Pleas Case No.
                                                    09 DVH 03-149

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             March 8, 2011

APPEARANCES:

For Petitioner-Appellant                            For Respondent-Appellee

ERIC W. BREHM                                       ALANDA ROSS
Brehm & Associates                                  762 Bovee Lane
604 E. Rich Street, Suite 2100                      Powell, Ohio 43065
Columbus, Ohio 43215
[Cite as Harris v. Ross, 2011-Ohio-1075.]


Edwards, P.J.

        {¶1}     Plaintiff-appellant, John Harris, appeals from the June 24, 2010, Judgment

Entry of the Delaware County Court of Common Pleas.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On March 26, 2009, appellant John Harris filed a petition for a domestic

violence civil protection order against appellee Alanda Ross pursuant to R.C. 3113.31.

On the same date, an ex parte civil protection order was granted. The order indicated

that appellee was to immediately vacate the parties’ residence and also granted

exclusive possession of the same to appellant.

        {¶3}     Subsequently, a consent agreement and domestic violence civil protection

order was filed on April 8, 2009. The same granted appellant exclusive possession of

the residence “contingent upon [appellant’s] securing [appellee’s] release from

mortgage within 90 days.”

        {¶4}     On August 11, 2009, appellee filed a Motion for Relief from Protection

Order. Appellee, in her motion, indicated that appellant had not made any attempts to

release her from liability on the mortgage. Appellee, in her motion, stated, in relevant

part, as follows: “The order states exclusive rights can only be maintained if the terms

are upheld which [appellant] did not do so. I am asking the court to grant me the same

time frame as [appellant] securing me exclusive rights to the property or relief from the

order of protection to return to my residence.” A hearing on such motion was scheduled

for September 14, 2009.

        {¶5}     On September 2, 2009, appellee filed a Motion for a Temporary

Restraining Order against appellant.
Delaware County App. Case No. 10-CAF-07-0057                                               3


       {¶6}   A hearing before a Magistrate was held on September 14, 2009. The

Magistrate, in his September 18, 2009 Order, stated, in relevant part, as follows:

       {¶7}   “John B. Harris [appellant] states that he could not secure the refinancing

because on March 27, 2009, Alanda [appellee] quit claimed her interest in the real

estate to Sonda Crawford.        Alanda states that Sonda Crawford quit claimed the

residence back to Alanda on April 24, 2009. John states that the quit-claim back was

forged by Alanda with a power of attorney. Alanda states that she needs possession of

the residence because she and her 2 children live in Marion at Turning Point and drive

every day so that the children can attend school in Olentangy School District. John

states that since the civil protection order was issued, Alanda has entered the residence

and broke the windows and that Alanda has called John in violation of the restraining

orders especially when John was in the police station. Alanda states that she has

received an offer to buy the residence and all that John has to do is go down to the

realtor and sign the acceptance. John states that the realtor is an old boyfriend of

Alanda.”

       {¶8}   The Magistrate set the matter for further hearing on October 29, 2009 and

stated that, if appellant could not prove his ability to refinance, the court would order the

residence sold and/or vacate the award of exclusive occupancy to appellant and/or

grant appellee exclusive occupancy. The Magistrate ordered appellee to bring proof of

the possible sale to the hearing. The hearing was later continued to May 28, 2010.

       {¶9}   Following a hearing held on May 28, 2010, the Magistrate, in a Decision

filed on June 1, 2010, recommended that appellant be ordered to vacate the residence

on or before June 11, 2010 and that exclusive possession of the same be granted to
Delaware County App. Case No. 10-CAF-07-0057                                                 4


appellee effective June 11, 2010. The Magistrate, in his Decision, noted that appellant

had not secured appellee’s release from the mortgage despite having being ordered to

do so within 90 days after April 8, 2009.

           {¶10} On June 11, 2010, appellant filed a Motion to Stay the Magistrate’s

Decision. Such motion was denied. On June 16, 2010, appellant filed objections to the

Magistrate’s Decision. As memorialized in a Judgment Entry filed on June 24, 2010, the

trial court found that there was no error of law or other defect on the face of the

Magistrate’s Decision and adopted the same.

           {¶11} Appellant now raises the following assignment of error on appeal:

           {¶12} “I. THE TRIAL COURT DID ERR BY ORDERING PETITIONER-

APPELLANT TO VACATE HIS RESIDENCE.

           {¶13} “II. THE TRIAL COURT DID ERR BY GRANTING RESPONDENT-

APPELLEE’S             REQUEST,          WHEN          RESPONDENT-APPELLEE   HAD   UNCLEAN

HANDS.1”

                                                            I

           {¶14} Appellant, in his first assignment of error, argues that the trial court erred

by ordering him to vacate the residence. Appellant specifically argues, in part, that the

trial court exceeded its jurisdiction by affecting title to the subject real estate via a Civil

Protection Order.

           {¶15} R.C. 3113.31 states, in relevant part, as follows: “(E)(1) After an ex parte

or full hearing, the court may grant any protection order, with or without bond, or

approve any consent agreement to bring about a cessation of domestic violence against

the family or household members. The order or agreement may:…
1
    ‘This error is being argued in the alternative.’
Delaware County App. Case No. 10-CAF-07-0057                                            5


       {¶16} “(b) Grant possession of the residence or household to the petitioner or

other family or household member, to the exclusion of the respondent, by evicting the

respondent, when the residence or household is owned or leased solely by the

petitioner or other family or household member, or by ordering the respondent to vacate

the premises, when the residence or household is jointly owned or leased by the

respondent, and the petitioner or other family or household member;.”…

       {¶17} “(5) No protection order issued or consent agreement approved under this

section shall in any manner affect title to any real property.” (Emphasis added).

       {¶18} In the case sub judice, the consent agreement filed on April 8, 2009,

provided that appellee would vacate the property on the condition that appellant

refinance the house within 90 days. The purpose of refinancing would be to remove

appellee’s name from the mortgage and/or note. This would inevitably affect title to the

real property, because no lending institution would permit appellant to assume the entire

obligation for the note, and pledge the subject property as security for the same, if

appellant were not the sole owner of such property. Moreover, the trial court, in its June

24, 2010, Judgment Entry, awarded exclusive possession of the residence to appellee

because appellant was unable to refinance the residence. By doing so, the trial court

sanctioned appellant for violation of the portion of the consent agreement which the trial

court had no authority to issue because such order violated R.C. 3113.31(E)(5) and

affected title to property.

       {¶19} Appellant’s first assignment of error is, therefore, sustained.
Delaware County App. Case No. 10-CAF-07-0057                                       6


                                              II

      {¶20} Appellant, in his second assignment of error, argues that the trial court

erred by granting appellee’s request when appellee had unclean hands.

      {¶21} Based on our disposition of appellant’s first assignment of error,

appellant’s second assignment of error is moot.

      {¶22} Accordingly, the judgment of the Delaware County Court of Common

Pleas is reversed and this matter is remanded for further proceedings.




By: Edwards, P.J.

Gwin, J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                              JUDGES

JAE/d1130
[Cite as Harris v. Ross, 2011-Ohio-1075.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


JOHN B. HARRIS                                  :
                                                :
                         Petitioner-Appellant   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
ALANDA ROSS                                     :
                                                :
                      Respondent-Appellee       :       CASE NO. 10-CAF-07-0057




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is reversed and this matter is

remanded to the trial court for further proceedings. Costs assessed to appellee.




                                                    _________________________________


                                                    _________________________________


                                                    _________________________________

                                                                 JUDGES
