2023 Ohio 1870
Ohio Ct. App.2023Background
- On Feb. 9, 2022 B.B. filed for an ex parte domestic-violence civil protection order (CPO) for herself and five minor children against husband J.B.; a temporary order issued and a full hearing was scheduled.
- The court held a five-day evidentiary hearing (Mar.–Apr. 2022) and issued a final protection order on May 9, 2022.
- Evidence included: audio recording of a Feb. 2, 2022 argument with explicit death threats; threatening and violent text messages; testimony of an Aug. 28, 2021 incident where J.B. loaded a gun and threatened family members; and testimony about daily heavy alcohol use and unsecured firearms in the home.
- Witnesses (B.B., two adult children, and others) testified to physical abuse of B.B. and physical/rough conduct toward children, corroborating fear of imminent harm and statements idolizing Joseph Goebbels and threatening to kill the family rather than allow CPS involvement.
- The trial court found the petitioner and certain children credible, concluded J.B. committed/ threatened domestic violence, and entered a CPO protecting B.B. and the five minors.
- J.B. appealed to the Tenth District Court of Appeals, arguing the CPO was against the manifest weight of the evidence and that the children were not victims warranting protection; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (B.B.) | Defendant's Argument (J.B.) | Held |
|---|---|---|---|
| 1. Was granting a domestic-violence CPO against J.B. against the manifest weight of the evidence? | Preponderance of evidence: threatening texts, audio recording, loaded-gun incident, prior physical abuse, and ongoing conduct put B.B. in reasonable fear of imminent serious harm. | Challenges witness credibility; contends texts were ambiguous or bluster, appellee's loving texts show no real fear, and he exaggerates. | Affirmed. Court found competent, credible evidence of threats/acts; trial court credibility findings sustained; CPO not against manifest weight. |
| 2. Did the five minor children qualify as victims in need of a domestic-violence CPO? | Children testified to controlling, violent, and intimidating conduct (physical roughness, being held upside down, squeezing to point of not breathing) and fear that J.B. might kill the family. | Argues children's fears are speculative, exaggerated, and insufficient to show imminent danger. | Affirmed. Appellate court found credible testimony and evidence that a reasonable person would fear imminent serious harm to the children; CPO for minors upheld. |
Key Cases Cited
- Felton v. Felton, 79 Ohio St.3d 34 (1997) (petitioner must prove by a preponderance that petitioner, family, or household members are in danger of domestic violence)
- Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77 (1984) (trial court, having observed witnesses, is best positioned to assess credibility)
- Solomon v. Solomon, 157 Ohio App.3d 807 (2004) (court may consider past acts in assessing domestic-violence threat but past acts alone cannot be the sole basis for a CPO)