2021 Ohio 4300
Ohio Ct. App.2021Background
- Petitioner B.L.L. (pro se) sought a domestic violence civil protection order (DVCPO) against former boyfriend/respondent M.T., alleging physical assault (held down, bruised arm) and a pattern of threatening texts/voicemails and excessive phone calls.
- Evidence at the July 17, 2020 videoconference hearing: petitioner’s voicemail, texts, photo of a bruise, a telephone log, and testimony that she feared respondent; sheriff present when respondent retrieved belongings on May 12, 2020.
- Respondent denied striking petitioner, offered contrary testimony (claimed petitioner fractured his hand), and disputed that voicemail/texts constituted physical threats or stalking.
- The magistrate found petitioner more credible and issued the DVCPO on July 24, 2020; the domestic relations court overruled respondent’s objections after procedural briefing and a 60(B) proceeding.
- On appeal, the sole issue was whether the record contained competent, credible evidence supporting the protective order given the opposing credibility versions. The Seventh District affirmed, deferring to the magistrate’s credibility findings and applying the preponderance/weight-of-evidence standards.
Issues
| Issue | Plaintiff's Argument (B.L.L.) | Defendant's Argument (M.T.) | Held |
|---|---|---|---|
| Whether the evidence met the preponderance standard for a DVCPO | Petitioner: testimony + voicemail, texts, photo, call log show pattern causing fear and physical harm | Respondent: denied assault, said messages weren’t threats, disputed dates/context of calls and exhibited injuries as his own; alleges petitioner’s testimony unbelievable | Court: Affirmed DVCPO — magistrate’s credibility finding favored petitioner; record contains competent, credible evidence |
Key Cases Cited
- Felton v. Felton, 79 Ohio St.3d 34, 649 N.E.2d 672 (Ohio 1997) (petitioner must prove danger of domestic violence by a preponderance of the evidence)
- Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517 (Ohio 2012) (appellate weight-of-evidence review; consider whether finder of fact clearly lost its way)
- State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (Ohio 1997) (reversal on manifest weight only in exceptional circumstances)
- Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (Ohio 1984) (presumption in favor of the finder of fact’s determinations)
- State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (Ohio 1967) (fact-finder best positioned to judge witness credibility)