DBA ANNUAL HOLIDAY LUNCHEON Join us on December 13th

from Dayton Bar Briefs Digital | NOV/DEC 2022 Vol. 72 No. 2

2023 DBA DISTRICT MOCK TRIAL COMPETITION Volunteers Needed

Synopsis of Legal Remedies Available to Domestic Violence Survivors in Domestic Relations Court

By Magistrate Jacqueline V. Gaines, Co-Chair | Montgomery County Domestic Relations Court | GainesJ@mcohio.org

On the eve of National Domestic Violence Awareness Month, on September 21, 2022, the United States District Court for the Southern District of Ohio partnered with the Dayton Bar Association and presented a free Pro Bono Work to Empower and Represent Act of 2018 (“POWER Act”) CLE.1 The POWER Act mandates that each year, the chief judge of each federal judicial district hold at least one public event with state and local domestic violence service providers or a local volunteer lawyer project to promote “pro bono legal services as a critical way in which to empower survivors of domestic violence, dating violence, sexual assault, and stalking and engage citizens in assisting those survivors.”2 The September 21 event was held virtually, with over 70 people in attendance. The Honorable Chief Judge Algenon L. Marbley welcomed the attendees and District Judge Michael J. Newman introduced the POWER Act. The event included panelist: Summer Hawks, Executive Director of the Greater Dayton Volunteer Lawyers Project; Carl Anderson, Senior Attorney at Legal Aid of Western Ohio; Jane M. Keiffer, Executive Director of Artemis Center; and me, Montgomery County Domestic Relations Court Magistrate and Co-Chair of the DBA’s Domestic Relations Committee. Here is a summary of the legal remedies survivors can obtain from the Domestic Relations Court.

DOMESTIC VIOLENCE CIVIL PROTECTION ORDERS

Survivors of domestic violence or dating violence can obtain a domestic violence civil protection order (“dvcpo”) from the Domestic Relations Court pursuant to R.C. 3113.31. A protection order provides a plethora of protections such as removal of the perpetrator from the home; no contact order; requirement that the perpetrator stay at least 500 feet from the petitioner at all times; orders that the perpetrator not destroy the survivor’s property or pets; exclusive use of the vehicle for the survivor; child support; prevention of the perpetrator from shutting off the utilities or phone; custody and parenting time orders if no other court has exercised jurisdiction; and orders allowing the perpetrator to pick up personal property from the home only in the presence of a uniformed police officer within a specified timeframe. The protection orders can last up to five years, and can be renewed upon proof of a new incident of domestic violence. As of October 6, 2022, a total of 1,625 dvcpo petitions have been filed in the Montgomery County Domestic Relations Court. In contrast, six years ago, 1,463 dvcpo petitions were filed in the entire year. DVCPO cases are the Montgomery County Domestic Relations Court’s largest case type. More dvcpos are filed than divorces, dissolutions, legal separations, annulments, custody motions, parenting time motions, support motions, or property motions! Many of the dvcpos are filed pro se. Programming like the POWER Act presentation are critically important to recruit and educate attorneys on ways they can help survivors. Survivors have a higher success rate in obtaining a dvcpo when they have counsel.3 A well-prepared attorney can help a petitioner determine if filing a dvcpo is the right course of action for their situation. Research shows the lethality threat level increases when the petitioner leaves the abuser. A lawyer can also help a petitioner: develop a safety plan; determine whether alternative legal avenues should be explored; navigate the legal system; and focus their testimony and evidence on events that meet the statutory definition of domestic violence.

Often in dvcpo hearings, petitioners will state the respondent has engaged in emotional abuse, mental abuse, psychological abuse, or name calling. However, under Ohio law: (1) “Domestic violence” means any of the following: (a) The occurrence of one or more of the following acts against a family or household member; (i) Attempting to cause or recklessly causing bodily injury; (ii) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of sections 2903.211 [menacing by stalking] or 2911.211 [aggravated trespass] of the Revised Code; (iii) Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Revised Code; (iv) Committing a sexually oriented offence. (b) The occurrence of one or more of the acts identified in divisions (A)(1)(a)(i) to (iv) of this section against a person with whom the respondent is or was in a dating relationship.4

Emotional abuse, mental abuse, psychological abuse, or name calling without physical abuse or a threat of physical harm will not result in the issuance of a dvcpo. While financial abuse has been recognized by leading domestic violence advocacy groups, it is not included as a type of domestic violence recognized in the dvcpo statute.5

ENDNOTES:

1. 115 P.L. 237, 132 STAT. 2447 2. 115 P.L. 237, 132 STAT 2448, Section 3(a) 3. 115 P.L. 237, 132 STAT 2448, Section 2(8) 4. R.C. 3113.31(A)(1). 5. The National Domestic Violence Hotline explains, that “financial or economic abuse occurs when an abusive partner extends their power and control into your financial situation,” and can include stealing from the victim, preventing the victim from working, not paying bills, taking victim’s paycheck and depositing it into an account the victim cannot access, or maxing out credit cards without permission. https://www.thehotline.org/resources/types-of-abuse/ (last visited Oct. 5, 2022). 1.

HOW DOMESTIC VIOLENCE IMPACTS DIVORCE PROCEEDINGS

If the parties are married, a survivor’s concerns about emotional abuse, mental abuse, psychological abuse, name calling, and financial abuse may be addressed in a divorce action. In the majority of divorce cases, the grounds for divorce is incompatibility. However, a survivor may seek grounds based on extreme cruelty, which can include physical violence or reasonable apprehension of it, but also acts and conduct that the effect of which is calculated to permanently destroy the peace of mind and happiness, rendering the marital relationship intolerable.6 And when the Court is evaluating a child’s best interest for purposes of allocating custody and parenting time, the Court must consider domestic violence convictions and guilty pleas.7

In a divorce action, the Court can consider a party’s financial misconduct when dividing the marital property and awarding spousal support.8 Under Ohio law, financial misconduct includes, but is not limited to: “the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets.”9 “Although the statute ‘does not set forth an exclusive listing of acts constituting financial misconduct, those acts that are listed *** all contain some element requiring wrongful scienter. Typically, the offending spouse will either profit from the misconduct or intentionally defeat the other spouse’s distribution of marital assets.’” 10

The DBA’s Domestic Relations Committee discusses domestic violence and other timely domestic relations issues. It is cochaired by Attorney Kristie Gotwald and Magistrate Gaines. It meets once a month at noon at the Domestic Relations Court in Judge Wood’s courtroom. Free CLE is offered at most meetings. The upcoming meetings will address: DR 101 Basics presented by Gary C. Schaengold, Esq. on October 26, 2022 and Financial Considerations of Divorce presented by Beth Handwerker, CFP, JD, CDFA, CKA on November 30, 2022.

ENDNOTES:

6. R.C. 3105.01(D). Buess v. Buess, 89 Ohio App. 37, 100 N.E.2d 646 (3d Dist. Hardin County 1950); Warrick v. Warrick, 2d Dist. No. 1246, 1990 Ohio App. LEXIS 879, 1990 WL 26093 (March 2, 1990); Verplatse v. Verplatse, 17 Ohio App. 3d 99, 477 N.E.2d 648, 1984 Ohio App. LEXIS 12441 (Ohio Ct. App., Hancock County 1984). Ginn v. Ginn, 112 Ohio App. 259, 16 Ohio Op. 2d 164, 175 N.E.2d 848, 1960 Ohio App. LEXIS 663 (Ohio Ct. App., Lawrence County 1960). 7. R.C. 3109.04(F)(1)(h); R.C. 3109.051(D)(11). 8. Blanchard v. Blanchard, 11th Dist. No. 2021-A-0003, 2022Ohio-162, ¶ 27 (applying R.C. 3105.171E(4)); Kirkpatrick v. Kirkpatrick, 11th Dist. No 2020-T-0078, 2021-Ohio-4260 (applying R.C. 3105.18(C)). 9. R.C. 3105.171(E)(4) 10. Blanchard v. Blanchard, 11th Dist. No. 2021-A-0003, 2022Ohio-162, ¶ 27 (quoting Calkins v Calkins, 2016-Ohio-1297, 62 N.E.3d 686 ¶ 15 (11th Dist.)).

October 13: DBA 50-Year Honoree Luncheon

Moderator Dave Greer with honorees Judge Jeff Froelich; Judge Alice McCollum; Prosecuting Attorney, Mathias Heck Jr.; and Peter F. vonMeister. Not in attendance, Richard Broock, Judge Robert Messsham Jr. and JohnMohr.