2012 Ohio 3838
Ohio Ct. App.2012Background
- Cynthia filed for an ex parte domestic violence civil protection order (CPO) on behalf of herself and their three daughters while divorce proceedings were pending; Henry had pled guilty to sexually molesting their eldest daughter.
- The ex parte request was denied by a magistrate on August 10, 2011 for lack of immediate danger, and the matter was set for a full hearing on August 29, 2011.
- At the September 22, 2011 full hearing, Cynthia testified as the only witness, seeking protection for herself and the three daughters due to Henry’s criminal case and the prior guilty plea related to the oldest daughter.
- On September 27, 2011, the trial court granted the CPO for five years, protecting Cynthia and all three children from abuse or contact by Henry.
- Henry appeals, arguing (1) the court erred in granting a CPO based on danger to the parties’ children and (2) the court abused its discretion by the scope of who was protected under the CPO.
- The appellate court modifies the CPO to cover only the three daughters, affirming the remainder of the order as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion in including all three children in the CPO. | Albers argues the CPO was improper for the children beyond the oldest. | Albers contends there was evidence of danger to all children. | Affirmed as to the children; no abuse of discretion in covering three children. |
| Whether Cynthia herself should have been included in the CPO. | Albers argues Cynthia was not in danger and should not be covered. | Albers asserts safety concerns for Cynthia were present. | Sustained: CPO should not include Cynthia; order modified to cover only the three daughters. |
Key Cases Cited
- Felton v. Felton, 79 Ohio St.3d 34 (1997) (preponderance standard for domestic violence protection orders)
- Parrish v. Parrish, 95 Ohio St.3d 1201 (2002) (abuse of discretion standard for dissolution of orders)
- AAA Enterprises, Inc v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (1990) (abuse of discretion defined; reasonableness required)
- Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83 (1985) (abuse of discretion characterized as unreasonable, arbitrary, or unconscionable)