[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 Appellee

v.

JILL E. FINKEL Appellant C.A. No. 25625

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

DECISION AND JOURNAL ENTRY Dated: August 17, 2011

WHITMORE, Judge. {¶1} Respondent-Appellant, Jill Fi nkel, appeals from the judgment of the Summit County Court of Common Pleas, Do mestic 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 c ourt for a domestic violence civil protection order against his estranged girlfriend, Fi nkel, 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] kitche n 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 th e matter for a full hearing on March 8, 2010. {¶3} Both Finkel and Staats attended the hearin g, though Finkel appeared pro se, while Staats had counsel present. The matter was hear d by a magistrate, but no testimony was taken2

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 Ag reement and Domestic Violence Civil Protection Order,” valid through March 8, 2015. The magist rate’s decision was approved and adopted by the trial court on March 10, 2010, and a co py 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 wa s “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 hear ing 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. Finke l further attested that she di d 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, belie ving that [she] had no other option and no right to counsel.” Second, she argued that she obtai ned 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 orde r in support of her asser tion 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 deni ed 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 ha d consented to avoid Staats pursuant to the same terms and conditions imposed in the original ex pa rte 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 ba sed 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 tr ial 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, ar bitrary, 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 entitle d 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 th e 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 gene rally 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 rais ed 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 de fenses 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 opport unity, she would have requested a continuance in5

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 pr ocess violation, however, could ha ve 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 appella nts’ 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 fina l 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 a buse 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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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.