[Cite as Staats v. Finkel, 2011-Ohio-4063.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

RYAN T. STAATS                                       C.A. No.       25625

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JILL E. FINKEL                                       COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2010-03-0559

                                  DECISION AND JOURNAL ENTRY

Dated: August 17, 2011



        WHITMORE, Judge.

        {¶1}     Respondent-Appellant, Jill Finkel, appeals from the judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, denying her motion to vacate the

civil protection order sought by Petitioner-Appellee, Ryan Staats. This Court affirms.

                                                 I

        {¶2}     On March 1, 2010, Staats petitioned the court for a domestic violence civil

protection order against his estranged girlfriend, Finkel, based on an incident that occurred in

their Pennsylvania apartment in late February. According to Staats’ petition, Finkel “threatened

to shoot [and] kill [him,] *** [g]rabbed [a] kitchen knife [and] said she was going to stab [him,]

*** and was commit[t]ed to [a] mental institution after a short police chase.” The trial court

granted the petition ex parte and scheduled the matter for a full hearing on March 8, 2010.

        {¶3}     Both Finkel and Staats attended the hearing, though Finkel appeared pro se, while

Staats had counsel present. The matter was heard by a magistrate, but no testimony was taken
                                                2


from either witness, as the parties reported to the court that they had entered into a consent

agreement whereby Finkel agreed to avoid future contact with Staats or his family. Finkel

acknowledged, on the record, that she had entered into to the foregoing consent agreement. The

magistrate subsequently issued a “Consent Agreement and Domestic Violence Civil Protection

Order,” valid through March 8, 2015. The magistrate’s decision was approved and adopted by

the trial court on March 10, 2010, and a copy was sent to both parties.

       {¶4}    On May 18, 2010, Finkel, through her counsel, filed a motion for relief from

judgment. In her motion, she alleged that she had two meritorious defenses. First, she argued

that she was severely hearing impaired and was “unable to fully comprehend the nature and

substance of the [March 8th] proceedings.” Finkel went on to explain by way of an affidavit in

support of her motion that she appeared at the hearing with the intent of requesting a continuance

in order to obtain counsel. According to Finkel, she was told by the court bailiff that she needed

to discuss her request for a continuance with Staats’ counsel, which she did, however, Staats’

counsel opposed her request. Finkel further attested that she did not understand that she needed

to request a continuance from the magistrate. She attested that, because she “did not understand

[she] had the right to request a continuance from the magistrate, [she] proceeded with the hearing

and with the Consent Decree in open court, believing that [she] had no other option and no right

to counsel.” Second, she argued that she obtained a Protection From Abuse order against Staats

in Pennsylvania on April 12, 2010, following a full hearing based on the same incident that

occurred in February. She points to that order in support of her assertion that Staats was the

aggressor in the incident, and she was the victim.          Though her motion stated that the

Pennsylvania order was attached, there is no such order contained in the record. In closing,
                                                 3


Finkel stated, without any argument in support, that the civil protection order entered by the trial

court should be vacated on the grounds of “mistake and inadvertence.”

       {¶5}    On September 13, 2010, the trial court denied her motion. Finkel timely appealed

from the denial of her motion to vacate and asserts one assignment of error for our review.

                                                 II

                                       Assignment of Error

       “THE TRIAL COURT ERRED IN OVERRULING A 60(B) MOTION TO
       VACATE WHERE UNCONTESTED AFFIDAVIT STRENGTH EVIDENCE
       ESTABLISHED THAT APPELLANT WAS SIGNIFICANTLY HEARING
       IMPAIRED AND WAS UNREPRESENTED BY COUNSEL[.]”

       {¶6}    In her sole assignment of error, Finkel argues that the trial court erred in denying

her motion to vacate the civil protection order. We disagree.

       {¶7}    As a preliminary matter, we note that the record reveals that, in the protection

notice issued to the National Crime Information Center in conjunction with the initial ex parte

order, the trial court included that Finkel “is hard of hearing” and that she “reads lips.” Staats

also recorded in the “special instructions” section of his service request to the sheriff’s

department that Finkel “has hearing loss, but reads lips.” Thus, there is evidence in the record

that the trial court was aware, and had made others aware, of Finkel’s hearing difficulties.

Further, we note that the transcript from the March 8th hearing demonstrates that the trial court

clarified with Finkel, on the record, that she had consented to avoid Staats pursuant to the same

terms and conditions imposed in the original ex parte order, and that Finkel affirmed that was the

parties’ agreement. At no point did she suggest to the trial court that she required assistance in

order to properly understand the proceedings based on her hearing difficulties. See R.C. 2311.14

(requiring the court to provide a qualified interpreter to assist in the event a person cannot

understand a proceeding based on a hearing impairment).
                                                 4


       {¶8}    The decision to grant or deny a motion for relief from judgment pursuant to

Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an

abuse of that discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. An abuse of discretion

means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore

v. Blakemore (1983), 5 Ohio St.3d 217, 219. Civ.R. 60(B) states, in relevant part,

       “To prevail on a motion brought under Civ.R. 60(B), the movant must
       demonstrate that: (1) the party has a meritorious defense or claim to present if
       relief is granted; (2) the party is entitled to relief under one of the grounds stated
       in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable
       time[.]” GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio
       St.2d 146, paragraph two of the syllabus.

The denial of a Civ.R. 60(B) motion is proper if the moving party fails to satisfy any one of the

foregoing requirements. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20.

       {¶9}    The Supreme Court has held “that Civ.R. 60(B) may not be used as a substitute

for appeal.” Doe v. Trumbull Cty. Children Servs. Bd. (1986), 28 Ohio St.3d 128, 131. That is,

“the availability of Civ.R. 60(B) relief is generally limited to issues that cannot properly be

raised on appeal.” Haas v. Bauer, 9th Dist. No. 02CA008198, 2004-Ohio-437, at ¶25, citing

Yakubik v. Yakubik (Mar. 29, 2000), 9th Dist. No. 19587, at *2. Therefore, the trial court acts

within its discretion in denying a motion to vacate where the movant attempts to raise matters

that should have been raised in a direct appeal. Spano Brothers Const., Inc. v. Leisinger (July

24, 1996), 9th Dist. No. 17438, at *2.

       {¶10} Though cast as two separate meritorious defenses in her motion to vacate, Finkel

essentially argues that her due process rights were violated at the March 8th hearing. That is, she

argues that because of her hearing difficulties, she was unable to appreciate the substance of the

proceeding, and therefore, alleges she was denied a meaningful opportunity to be heard by the

trial court. Had she been afforded that opportunity, she would have requested a continuance in
                                                5


order to secure counsel. Upon obtaining counsel, she then maintains that she would have been

able to successfully defend against Staats’ claim and demonstrate that she was the victim of

domestic violence, not the perpetrator. Hence, her ability to assert that she had a meritorious

defense stems from her alleged due process violation.

       {¶11} Finkel’s alleged due process violation, however, could have been raised by way of

a direct appeal. Accordingly, that argument is not the proper subject of a motion to vacate under

Civ.R. 60(B). Haas at ¶25. See, also, Jizco Enterprises, Inc. v. Hehmeyer, 9th Dist. No. 24803,

2010-Ohio-349, at ¶4-11 (concluding that appellants’ 60(B) arguments were essentially

challenges to the underlying merits of the trial court’s decision). Finkel did not need to rely on

evidence outside the record to allege that she was denied her due process rights at the March 8th

hearing, and she could have properly challenged the trial court’s decision on such constitutional

grounds at the time the trial court issued its final order on March 10th. Moreover, as previously

noted, Finkel’s motion to vacate failed to include any discussion of, or legal support for, her

assertion that she was entitled to relief on the basis of mistake or inadvertence, as the motion

focused solely on whether she could establish a meritorious defense to Staats’ petition. See Rose

Chevrolet, Inc., 36 Ohio St.3d at 20 (acknowledging that the failure to satisfy any one of the

three requirements set forth in GTE Automatic Electric is fatal to a motion filed pursuant to

Civ.R. 60(B)).

       {¶12} Because the issues raised by Finkel were not the proper subject of a Civ.R. 60(B)

motion, the trial court did not abuse its discretion in denying her motion to vacate the consent

agreement and civil protection order. Spano Brothers Const., Inc., at *2. Accordingly, Finkel’s

sole assignment of error is overruled.
                                                 6


                                                III

       {¶13} Finkel’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                      BETH WHITMORE
                                                      FOR THE COURT


BELFANCE, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

EDMUND M. SAWAN, Attorney at Law, for Appellant.

EDWARD BONETTI, Attorney at Law, for Appellee.
