MEMORANDUM IN SUPPORT OF JURISDICTION

IN THE SUPREME COURT OF OHIO

SHARON M. DOWHAN

APPELLEE

V.

TERRANCE DO'W'HAN

APPELLrNNT

ON APPEAL FROM THELAKE COUNTY COURTOF APPEALS, ELEVENTHAPPELLATE DISTRICT

COURT OF APPEALSCASE NO. 2012-L-065

MEMORANDUM IN SUPPORT' OF Jt7RISDICTIONOF APPELLANT' 'I'ERRANCE DOWHAN

Edwin V. Hargate (0017239))(COUSEL OF RECORD)Attorney at Law18519 Underwood Ave.Cleveland, Ohio 44119(216) 531-7000Fax No. (440) 473-5476

COLINSEI, FOR APPELLANT, TERRANCE DOWI-IAN

Pamela D. Kurt, Esq. (0083454)(COUN$EL OF RECORD)Randy A. Vermilya, Esq. (0070617)Kurt & Vermilya Law, Iilc.30432 Euclid Ave., Suite 101Wickliffe, Ohio 44092(440) 516-1010Fax No. (440) 516-1011

COUNSEL FOR APPELLEE, SHARON M. DOWI3AN

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TABLE OF CONTENTS

PameEXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC -3-OR GREAT GENERAL INTEREST AND INVOLVES A SIJBSTANTIALCONSTITUTIONAL QUESTION

STATEMENT OF THE CASE AND FACTS-6-

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW -7-

Proposition of Law No. 1: The trial court cannot summarily deny -7-Appellant's long pending Motion to Modify Custody and EstablishVisitation without a hearing.

Proposition of Law No. 2: Under Evidence Rule 201(B) a trial court cannot -$-take judicial notice of proceedings in a separate action., evem. if the prioraction was between the same parties and was tried before the same judge.

Proposition of Law No. 3: The court's allocation of parental rights and _g-respon.sibilities in the context of a civil protection order are alwaystemporary, and the statute 31.13.31 expressly contemplates that ordersin a divorce, legal separation, or juvenile court proceeding shouldsupersede a civil protection order as it applies to the minor children.

CONCLUSION

PROOF OF SERVICE

APPENDIX

Opinion of the Lake County Court of Appeals, Eleventh AppellateDistrict (September 23, 2013)

Judgment Entry of the Lake County Court of Appea:l.s, EleventhAppellate District (September 23, 2013)

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EXPLANATION OF WHY THIS CASE IS A CASE OFPIJBLIC OR GREAT GENERAL INTEIZEST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUES'TION

This cause presents a critical issue for the future of natural parents'

constitutionally protected liberty interests in the care and custody of their children. The

issue is whether Appellant's due process rights were violated when the trial court

suddenly and summarily denied Appellap.t's long pending Motion to Modify Custody and

Establish Visitation without a hearing. The Trial Court reasoned that it could deny

Appellant's long pending motion because it had denied his Motion to Modify a Civil

Protection Order regarding his children in a separate and distinct case. However, the trial

court's denial of his pending Motion to Modify Custody and Establish Visitation in the

divorce case was based upon the intake of evidence adduced in the trial of the civil

protection order action. The trial court improperly relied on testimony and evidence from

the civil protection order action which was not part of the record in the underlying matter

involving custody and visitation (in the separate and distinct divorce action).

In this case, the court of appeals in a split decision held that Appellant's due

process rights where not denied because he had a opportunity to be heard on the Motion

to Modify the Civil Protection Order. Abearing on the subsequent case was not necessary

because "due process..... expresses the requirement of `fundamental fairness,' a

requirement whose meaning can be as opaque as its importance is lofty." The majority

further argued that "the concept of due process is flexible and varies depending on the

importance attached to the interest annd the particular circumstances under which the

deprivation may occur:"

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The implications of the split decision of the court of appeals are far reaching

and affect and touch the lives of tens of thousands of parents in this state. Thousands

of parents in this state are involved in custody and visitation disputes each year. The

process needs to be clear. The majority opinion argues that the temporary provision for

child custody and visitation under a civil protection order are only temporary pending the

final allocation of parental rights and responsibilities and are not temporary in civil

protection orders issued after the final divorce decree. It is interesting to note that the civil

protection order issued here clearly states that the allocation is only temporary.

Consequently, the trial court concluded that "Modification of the protection order is a

necessary prerequisite to the establishment of parenting time with the children. i=towever,

the Ohio courts have held that "the statute does not.... vest the court (that issues the CPO)

with authority to modify the allocation of parental rights and responsibilities in the CPO

(Civil Protection Order) proceeding." Only the domestic relations court in the underlying

divorce case can modify the allocation of parental rights and responsibilities. The court of

appeals interpretation is inconsistent with the clear drafting of O.R.C. 3113. The court of

appeals distinction does not appear in the Ohio Revised Code. The court of appeals

offered no case authority for this distinction and its decision is inconsistent with a number

of cases on point. This urgently needs to be corrected by this Court. The determination of

clear procedures for determining the care and custody of children as envisioned by the

General Assembly is one of great public interest.

This case also involves a substantial constitutional question. The majority

decision of the court of appeals threatens the constitutionally protected liberty interests of

natural parents in the care and custody of their children as set forth by the U.S. Supreme

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Court in Santosky v. Kramer, (1982), 445 U.S. 745, 753. The court of appeals majority

opinion argues that "the concept of due process is flexible and varies depending on the

importance attached to the interest.... " It is hard to image an: "interest" more important to

residents of this state than the care and custody of their children. If due process depends

on the importance attached to the interest, Appellant's due process rights have clearly

been violated. Appellant is entitled to notice and an opportunity for a hearing. T'his

urgently needs correction by this Court.

As the dissenting opinion indicates, the trial court's denial of Appellant's

Motion to Modify Custody and Establish Visitation is predicated upon its review of

testimon.y and evidence which had been presented in a separate action. The trial court

relied on improper evidence in makin.g its ruling because that evidence was not part of the

record in the underlying matter involving custody and visitation. This is inconsistent with

Evid. R. 201(B) which has been applied by the courts of this state to prohibit trial courts

from taking judicial notice of proceedings in a separate action, even if the prior action

was between the same parties and was tried before the same judge. The court of appeals

decision urgently needs to be corrected by this Coun

In sum, this case puts in issue the constitutionally protected liberty interest of

parents in the care and custody of their children. The Appellant's due process right to be

heard is in jeopardy. Appellee wi11 likely spend a lot of time arguing that Appellant is not

entitled to the same due process rights as oth.er parents because of domestic violence

problems caused by his alcoholism. However, all parents are entitled to the same due

process rights in the care and custody of their children. The clear procedure for the

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determination of the custody and visitation rights of Ohio parents as set forth in O.R.C.

needs to be clearly stated by this Court. The Court should grant jurisdictioal to

hear this case and review the erroneous and dangerous decision of the court of appeals.

STATEMENT OF THE CASE AND FACTS

The Plaintiff-Appellee filed a complaint for Divorce and related relief on October

21, 2008 in the Lake County Court of Common Pleas, Domestic Relations Division, Case

No. 08 DR 652. The parties' marriage wa:s terminated by Decree issued from the Court on

April 1, 2009. The Court named mother as the residential parent and legal custodian of

the minor children, Terrance, dob 9/30/93, Danni, dob 12/27/97 and Sean, dob 2/13/00.

On February 8, 2011, Petitioner-Appellee filed her Petition for Domestic Violence

Civil Protection Order pursuant to R.C. 3113.31 (Case No. 11DV 000019). Petitioner-

Appellee and her witnesses testified at trial .regarding incidents of domestic violence by

the Respondent-Appellant. These incidents were the result of Respondent's alcoholism,

which Respondent-Appellant has addressed and he has been sober for the last five years.

He testified that he had a long standing alcohol problem which resulted in numerous DUl

convictions from 1998 to 2006. He spent time in jail as a result of these convictions.

The Defendant-Appellant filed his Motion to Modify Custody and Establish

Visitation in the Lake County Court of Conn.non Pleas, Domestic Relations Division on

July 1, 2011 (08 DR 652). The txiai coui-t appointed Attorney John W. Shryock as

Guardian-ad-Litem for the minor children on September 2, 2011. The Guardian-ad-Litem

proceeded with his duties including interviewing the parties in this case. However, the

trial court on May 5, 2012, suddenly on its own motion, summarily dismissed Appellant's

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Motion witliout a hearing. The trial court reasoned that because it had denied Appellant's

Motion to Modify its Civil Protection Order in 11 DV 00019, which had prohibited him

from any contact with his children, that his long pending Motion to Determine Custody

and Visitation should be denied. The Appellant filed his Notice of Appeal in May 2012.

One year after the last brief was filed in September 2012, the court of appeals entered its

split decision in September 2013 affzrmiaxg the decision of the trial court.

In support of his position on these issues, the Appellant presents the following

argument.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proj2psition of Law No. 1: The trial court cannot summarily deny Appellant'slong pending Motion to Modify Custody and Establish Visitation withouta hearing.

The action of the trial court to suddenly and summarily deny Appellant's Motion to

Modify Custody and Establish Visitation violates Appellant's constitutional rights.

Regarding custody and visitation, R.C. Section 3109.051(D) provides that "In

determin3ng whether to grant parenting time to a parent pursuant to this section, the court

shall consider all of the factors set forth in Sections(1)-(16).

A. APPELLANT HAS A CONSTITUTIONAL PROTECTEDLIBERTY INTEREST II?•1 THE CARE AND CUS'I'ODYOF t-IIS CI-IILDREN

"At a minimum, due process of law requires notice and opportunity for a hearing,

that is, an opportunity to be heard." Shell v, Shell, 2010-Ohio-5813, citing Mathews v.

Eldridge (1976), 424 U.S. 319, See a1so, Vocaire v. Beltz , 2003-Ohio-6015. Natural

parents have a constitutionally protected liberty interest in the care and custody of their

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children. Id. See Santosky v. Kramer (1982), 445 U.S. 745, 753.

tJnder the facts and circumstances of this case, wherein the motion had been

pend.ing for almost a year and the trial court had already appointed a guardian-ad-litem

who had done extensive work on the case, due process requires that Appellant, because of

his interest in the care and custody of his children, have an opportunity to be heard.

B. IF THE CONCEPT OF DUE PROCESS IS FLEXIBLE AND VARIESDEPENDING ON THE IMPORTANCE OF THE INTEItI;ST, WI-IATCOULD BE MORE IMPORTANT TIIAN "TIIE DETERMINATIONOF TI-IE CARE AND CUsTODY OF HIS CHILDREN?

If as the court of appeals argues in this case, that "the concept of due process is

flexible and varies depending on the importance attached to the interest and the particular

circumstances under which the deprivation may occur" State v. I-Iochhausler, (1996), 76

Ohio St. 3d 455, 459, what "interest" and "deprivation" could be more important than the

determination of the care and custody of his children?

Proposition of La--A- No. 2: Under Evidence Rule 2(} 1(B) a trial court cannottake judicial notice of proceedings in a separate action, even if the prioraction was between the same parties and was tried before the same judge.

Evidence Rule 201(I3) provides that judicial notice may be taken of any fact which

is not in dispute and which is capable of ready determination by resort to certain sources.

As the dissent in this case points out, "In applying this rule, the courts of this state llave

consistently held that a trial court cannot take judicial notice of proceedings in a separate

action, even if the prior action was between the same parties and was tried before the

same judge." Page 7 The rationale for this holding is that (as it is in this case) the record

of a prior action (CPO) is not part of the record in the action to modify custody and

visitation. The dissent is correct that the trial court relied on improper evidence in making

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its ruling because the evidence was not part of the record in the underlying matter

involving custody and visitation. Page 8

Proposition of Law No. 3: The court's allocation of parental rights andresponsibilities in the context of a civil protection order are always temporary,and the statute 3113.31 expressly contemplates that orders in a divorce, legalseparation, or juvenile court proceeding should supersede a civil protectionorder as it applies to the minor children.

The Ohio courts have made it crystal clear that "a DVCPO is not a custody

proceeding." Tabler v. Myers, 173 Ohio App. 3d 657, 2007-Ohio-6219. "Any rulings in a

DVCPO dealing with the custody of a minor child are only temporary orders that last

until the custody matter is litigated in a domestic relations or juvenile court." Id.; McCue

v. Martin, 187 Ohio App. 3d 1, 2010-Ohio-1298, paragraph 26.

A. THE DOMESTIC RELATIONS COURT HA:S TIIE AUTHORITYIN THE DIVORCE CASE TO MODIFY THE ALLOCATION OFPARENTAL RIGHTS AND RESPONSIBILITIES AS SET FORTHIN A CIVII, PROTECTION ORDER IN ANY StJBSEQUENTDIVORCE PROCEEDINfa

A court's allocation of parental rights and responsibilities in the context of a civil

protection order are always temporary, and the statute expressly contemplates that orders

in a divorce, dissolution, legal separation, or juvenile court proceeding should supersede a

civil protection order as it applies to the minor children. Delmatto v. Hamed, 2008-Ohio-

6375, paragraph 22. See also, Yazdani-Isfekani v. Yazdani-Isfekani, 170 Ohio App. 3d 1,

2006-Ohio-7105, at paragraph 23. The Yazdani-Isfekani court took the argument one step

fiirther when it held:

"In the absence of any statuton, grant of continuing jurisdiction that wouldpermit the modification of the allocation of parental rights and responsibilitiesonce a CPO has issued, and in Iight of the general Assembly's express

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intention that a domestic court have the authority to modify such orders in thecontext of a later divorce, dissolutipn, or legal separation proceeding (emphasisadded)... ..." Id., at page 9, paragraph 25.

B COURT OF APPEALS DECISION IS INCONSISTENTWITH THF, EXISTINC; STATUTE AND CASE LAW

The domestic relations court in this case has the authority to modify the allocation

of parental rights and responsibilities as set forth in the CPO. The court in the CPO case

does not have the authority to modify the allocation of parental rights and responsibilities

once it is issued in the divorce case. The eourt of appeals decision in this case is

inconsistent with this case authority. The court of appeals held that the allocation of

parental rights and responsibilities in the CPO case are only temporary in regards to the

initial proceeding of the domestic relations court and not any subsequent proceeding

(Page 5). However, 'The court of appeals does not cite any section of the ORC or any case

law in support of its decision. The court of appeals also fails to cite any statute or case

law in support of its conclusion that "Modification of the protection order is a necessary

prerequisite to the establishment of parenting time with the children:" (Page 6). The

court's decision is inconsistent with all of the case authority on point. The case authority

is all contrary to the court of appeals decision in this case. It is interesting to note that the

civil protection order in the CPO proceeding indicates that it is temporary.

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CONCLUSION

For the reasons discussed above, this case involves matters of public and great

general interest and a substantial constitutional question. The Appellant requests that this

Court grant jurisdiction and allow this case so that the important issues presented in this

case will be reviewed on the merits.

Respectfully submitted,

, , ..

By: ^ ^Edwin V. Hargate, Co.' el of Record

COUNSEL FOR APPELLANTTERRANCE DOWHAN

PROOF OF SERVICE

I certify that a copy of this memorandum in Support of Jurisdiction was sent byregular U.S. mail to counsel for Appellee, Pamela D. Kurt, Att rney at Law, 30432Euclid Avenue, Suite 101, Wickliffe, Ohio 44092, this ^ j^^ day of October, 2013.

40^'-Edwin V. Ilargat

COUNSEL FOR APPELLANTTERRA^NCE DOWHAN

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IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

SHARON M. DOWHAN,

Plaintiff-Ap

vs-

TERRANCE DOWHAN,

Defendant-

OPINION

F1L.^D ^ NO. 2012-L-065COURT OF: APPEA^^ I

S-p 2:3 ?0t3N4r^,URF6N G. KELLY

lant. + a^^ coU^^^, o^i®

Civil Appeal from the Lake County Court of Common Pleas, Domestic RelationsDivision, Case No. 08 DR 000652.

Judgment: Affirmed.

Pamela D. Kurt and RandyA. Vermilya, 30432 Euclid Avenue, Suite 101, Wickliffe, OH44092 (For Plaintiff-Appellee).

Edwin V. Hargate, 18519 Underwood Avenue, Cleveland, OH 44119 (For Defendant-Appellant).

DIANE V. GRENDELL, J.

{¶1l Defendant-appellant, Terrance Dowhan, appeals the Judgment of the

Lake County Court of Common Pleas, Domestic Relations Division, denying his Motion

to Modify Custody and Establish Visitation. The issue before this court is whether a

court may adjudicate a motion to modify visitation based on the outcome of a related

proceeding to establish a civil protection order. For the following reasons, we affirm the

decision of the court below.

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J¶2} On April 1, 2009, the Lake County Court of Common Pleas, Domestic

Relations Division, granted a divorce to plaintiff-appellee, Sharon M. Dowhan, and

Terrance Dowhan. At the time of the divorce, the parties were the parents of three

minor chiidren. The Judgment Entry of Divorce provided, in relevant part, that Terrance

.l6shalf not have parenting time until further order of court or upon motion filed by

defendant."

{13} At the time of the divorce, Terrance was serving a thirty-month prison

sentence for Operating a Vehicle under the Influence of Alcohol. State v. Dowhan, 11th

Dist. Lake No. 2008-L-064, 2009-Ohio-684, ¶ 3-4.

{¶4} On February 8, 2011, Sharon filed a petition for a Domestic Violence Civil

Protection Order, docketed as Lake County Court of Common Pleas, Domestic

Relations Division, Case No. 11 DV 000019, after receiving a letter from Terrance

threatening her with serious physical injury. Dowhan v. Dowhan, 11th Dist. Lake No.

2012-L-037, 2012-Ohio-5830, 14 and 26 ("my aim is to hurt you for doing all you have

done to me").

(¶5) On April 18, 2011, Terrance was released from incarceration. Id. at ¶ 5.

{¶b) On April 25, 2011, the domestic relations court, in Case No. 11 DV

000019, granted Sharon a protection order, ordering Terrance to maintain a distance of

1,006 feet from her and the children, effective until April 22, 2016. This order was not

appealed. !d at ¶ 5-6.

(¶7) On July 1, 2011, Terrance filed a Motion to Modify Custody and Establish

Visitation. Terrance argued that, at the time of the divorce, he "was incarcerated and

undergoing alcohol treatment." Since that time, "[hJe has completed all his treatment

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and * * * is complying well with all terms of probation." Terrance further asserted that he

"is clean and sober, and he has all precautions in place to make sure that he maintains

that lifestyle."

{¶8} On November 17, 2011, in Case No. 11 DV 000019, Terrance filed a

motion to modify the protection order by removing the children as protected persons,

ld. at % 6.

f¶9} On Apri14, 2012, the domestic relations court, in Case No. 11 DV 000019,

denied the motion to modify the protection order and this court, in Dowhan v. Dowhan,

11th Dist. Lake No. 2012-L-037, 2012-Ohio-5530, affirmed.

{¶10} This court recognized that "[t]here is no dispute that Sharon was the victim

of unabated physical abuse at the hands of appellant for 15 years," during which time

she witnessed "countless acts of physical abuse committed by appellant against the

children." Id. at ¶ 49. One of the children (now emancipated) and Terrance's step-

daughter testified in support of the protection order, noting that life with Terrance was "a

living hell" and detailing various acts of physical and mental abuse committed by

Terrance against them, Sharon, and their younger siblings. Id. at ¶ 12-20.

{¶I1{ On May 16, 2012, the domestic relations court denied Terrance's Motion

to Modify Custody and Establish Visitation. The court acknowledged that, in the

"companion case," Case No. 11 DV 000019, "[a] day of trial was held on [the motion to

modify the protective order] before the undersigned Judge," in which "[t]he undersigned

Judge found Mother and the children were in fear of imminent physical harm from

Father."

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{¶12} On June 11, 2012, Terrance filed a Notice of Appeal. On appeal,

Terrance raises^ the following assignment of error:

{93} "[1.] The trial court erred when it summarily denied appellant's long

pending motion to modify custody and establish visitation without a hearing on the basis

of its denial of appellant's motion to modify a civil protection order in 11 DV 000019,

which violates appellant's constitutional rights and is contrary to law and is an abuse of

discretion."

{¶i4) Terrance asserts that the domestic relations court's refusal to consider his

Motion to Modify Custody based on civil protection order proceedings violates the

statutory provisions governing protection orders. Under these provisions, a protection

order "may "` * * (tJemporarily allocate parental rights and responsibilities for the care of,

or establish temporary parenting time rights with regard to, minor children, if no other

court has determined, or is determining, the allocation of parental rights and

responsibilities for the minor children or parenting time rights." R.C. 3113.31(E)(1)(d).

Such an order "shall terminate on the date that a court in an action for divorce,

dissolution of marriage, or legal separation brought by the petitioner or respondent

issues an order allocating parental rights and responsibilities for the care of children."

R.C. 3113.31(E)(3)(b). "(Wjjhile the statute permits a court to issue temporary orders

allocating parental rights and responsibilities in order to stop domestic violence, it does

not vest the court with authority to modify the allocation of parental rights and

responsibilities in the CPO proceeding." Yazdani-lsfehani V. Yazdani-isfehani, 170 Ohio

App,3d 1, 2006-Ohio-7105, 865 N.E.2d 924, ¶ 23 (4th Dist.).

4

}¶ls} The statutes and authorities relied upon by Terrance are inapposite to the

present situation. The statutes and case law contemplate the situation where a

protection order is issued pending the final allocation of parental rights and

responsibilities in a divorce or dissolution proceeding. In the present case, parental

rights and responsibilities were determined in the April 2009 Judgment Entry of Divorce,

almost two years before Sharon applied for a protection order. Sharon was awarded

custody of the children and Terrance received no parenting time. The subsequent

protection order, preventing Terrance from coming within 1,000 feet of Sharon or the

children, is wholly consistent with the allocation of parental rights and responsibilities set

forth in the divorce decree.

{¶16} Terrance further argues that he was deprived of procedural due process,

i.e., the opportunity to be heard, by the domestic relations court denying his Motioh to

Modify Custody without a hearing. State v. Hochhausler, 76 Ohio St.3d 455, 459, 668

N.E.2d 457 (1996). We disagree.

{¶17} Due process "is not a technical conception with a fixed content unrelated

to time, place and circumstances," but rather "expresses the requirement of

'fundamental fairness,' a requirement whose meaning can be as opaque as its

importance is lofty." (Citations omitted.) State v. Warren, 118 Ohio St.3d 200, 2008-

Ohio-2011, 887 N.E.2d 1145, ¶ 28. In other words, "the concept of due process is

flexible and varies depending on the importance attached to the interest and the

particular circumstances under which the deprivation may occur." Hochhausler at 459.

{118} In the present case, the same judge and court conducted a hearing on the

motion to modify the protection order, filed only four months after the Motion to Modify

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Custody. The domestic relations court affirmed the terms of the protection order that

prohibited Terrance from coming within 1,000 feet of the children. The court found that

Terrance's desire to have a relationship with his children "cannot overcome the

testimony of Mother, [adult child, and step-child] as to the brutality the children have

experienced along with their present fear of a reoccurrence of imminent physical harm

from Father as to Mother and their siblings." Dowhan, 2012-Ohio-5830, at ¶ 28.

{99} The fact that Terrance cannot come within 1,000 feet of the children

renders a hearing on his Motion to Modify Custody, unnecessary. We need not notice

the underlying factual basis for the protection order, since it is the fact of the protection

order and its terms which preclude the possibility of Terrance exercising visitation with

his children. The failure to hold a hearing on the Motion to Modify did not deprive

Terrance of the opportunity to be heard, as Terrance had fully exercised that right in the

proceeding to modify the protection order and the appeal thereof. Modification of the

protection order is a necessary prequisite to the establishment of parenting time with the

children.

{¶20} The sole assignment of error is without merit.

{¶21} For the foregoing reasons, the Judgment of the Lake County Court of

Common Pleas, Domestic Relations Division, denying Terrance's Motion to Modify

Custody and Establish Visitation, is affirmed. Costs to be taxed against appeilant.

TIMOTHY P. CANNON, P,J., concurs,

THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.

..,

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THOMAS R. WRIGHT, J., dissents with Dissenting Opinion.

{Ir22} Essentially, the court's denial of the motion was based upon the intake of

evidence adduced in the trial of the civil protection order action. I agree with appellant

that this constitutes error.

{¶23} As a threshold matter, "when reviewing the propriety of a trial court's

determination in a domestic relations case, [the Ohio Supreme Court] has always

applied the `abuse of discretion' standard." Lake v. Lake, 11th Dist. Portage No. 2009-

P-0015, 2010-Ohio-538, ¶66, citing Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). An

abuse of discretion is "the trial court's `failure to exercise sound, reasonable, and legal

decision-making.' State v. Beechler; 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62,

quoting Black's Law Dictionary (8 Ed. Rev. 2004) 11." Sertz v. Sertz, 91th Dist. Lake

No. 2011-L-063, 2012-Ohio-2120, ¶31. "[W]hen an appellate court is reviewing a pure

issue of law, `the mere fact that the reviewing court would decide the issue differently is

enough to find error.'" Id.

{¶24} "Evid.R. 201(B) provides that judicial notice may be taken of any fact

which is not in dispute and which is capable of ready determination by resort to certain

sources. In applying this rule, the courts of this state have consistently held that a trial

court cannot take judicial notice of proceedings in a separate action, even if the prior

action was between the same parties and was tried before the same trial judge. See

State v. Raymundo, 1995 Ohio App. LEXIS 3395 (Aug. 18, 1995), Trumbull App. No.

94-T-5025, unreported, ***; Phillips v. Rayburn, 1996 Ohio App. LEXIS 3570 (Aug. 9,

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1996), Hocking App. No. 95CA26, unreported. The rationale for this holding is that, if a

trial court tries to take notice of a prior proceeding, the appellate court cannot review the

propriety of the trial court's reliance on the prior case because the record of the prior

case is not before the appellate court. Id." (Emphasis added). Deli Table, Inc. v. Great

Lakes Mall, 11th Dist. Lake No. 95-L-012, 1996 Ohio App. LEX1S 5930, *31-32 (Dec.

3'1, 1996).

{¶25} Although this court previously reviewed the record from the trial court's

denial of appellant's motion to modify the civil protection order, that record is still not

part of the record currently before us. Accordingly, the above rationale applies.

{1126} Similarly, in the instant matter, the trial court's denial of appellant's motion

to modify custody and establish visitation is predicated upon its review of testimony and

evidence which had been presented in a separate action. Thus, the trial court relied on

improper evidence in mafcing its ruling because that evidence was not part of the record

in the underlying matter involving custody and visitation. See also Yannitefl v. Oaks, 4th

Dist. Washington No. 07CA63, 2008-Ohio-6271, 1131 (Appellant failed to make the CPO

order part of the record in the motion for reallocation of parental rights and

responsibilities or motion for modification of parenting time such that trial court would

have been bound to another court's determinations regarding credibility of witnesses). I

therefore dissent.

8

STATE OF OHIO

COUNTY OF LAKE

SHARON M. DOWHAN,

Plaintiff-Appellee,

-vs-

TERRANCE DOWHAN,

Defendant-Appella

IN THE COURT OF APPEALS

ELEVENTH DISTRICT

^)SS.^

JUDGMENT ENTRY

FiLEDCOURT OF APPEALS

SLP 2 3 2013

2a12-L-065

MAUREEN C. KELLYCLEr^i- i< OF COURT

LAKE CCtJNTY. OHIO

For the reasons stated in the Opinion of this court, the assignments of

error are without merit. The order of this court is that the judgment of the Lake

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

to be taxed against appellant.

l^r^C

JUDGE DIANE V. GRENDELL

TIMOTHY P. CANNON, P.J., concurs,

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

I CERTIFY THIS TO BE A"IRt3E .Y OFTHE RECORDS ON FILE IN THE 'COUNTY CLERK OF ^OURT OFFICE.

DEPUTYMAUREEN G. KELLY, CLERK OF COURTS