2022 Ohio 647
Ohio Ct. App.2022Background
- D.K. and C.K. married in 1996 and have two children, W.K. and M.K. In June 2019, after C.K. filed for divorce, D.K. grabbed C.K.'s phone, retrieved a handgun from his vehicle, walked into nearby woods and fired a shot; he was later arrested.
- C.K. obtained an ex parte domestic violence civil protection order (CPO) and, after a full hearing at which D.K. did not appear, the court issued a five-year CPO listing C.K., W.K., and M.K. as protected parties.
- D.K. filed a motion to modify/terminate the CPO (denied), then a second motion (Nov. 2020) seeking to remove the children as protected parties; C.K. moved for sanctions. A Zoom hearing was held and the court denied both the modification and the sanctions motion.
- At the modification hearing, D.K. presented evidence he completed a four-hour domestic-violence class, was seeking treatment for depression/anxiety, and acknowledged a municipal conviction for violating the CPO; he argued W.K. is now an adult and the children should be removed.
- C.K. and W.K. testified they still feared D.K. and recounted alleged ongoing disruptive conduct (e.g., Alexa "drop-in," change-of-address/mail disruption, OnStar activation, account lockouts); the trial court credited that testimony, found D.K. had not complied with the CPO at times, and concluded D.K. failed to prove modification was warranted.
Issues
| Issue | D.K.'s Argument | C.K.'s Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying the motion to remove the children from the CPO | D.K.: He met the preponderance standard — time elapsed, W.K. is an adult, he completed a class and seeks treatment | C.K.: She and the children still fear D.K.; evidence of ongoing disruptive conduct and noncompliance supports keeping children protected | No abuse of discretion; trial court reasonably found D.K. failed to show modification appropriate |
| Whether denial was against the manifest weight or legally insufficient | D.K.: Evidence favored modification; inclusion of children lacks basis | C.K.: Credible, specific testimony shows continued fear and disruptive conduct; trial court resolved credibility | Not against manifest weight/sufficiency; abuse-of-discretion review controls and was satisfied |
| Whether the trial court erred as a matter of law in denying modification | D.K.: Legal error because only preponderance required and evidence met that standard | C.K.: Trial court correctly applied statutory factors and weighed evidence | No legal error; court applied R.C. 3113.31(E)(8) factors and reasonably concluded modification not shown |
| Whether inclusion of children in original CPO was error/plain error | D.K.: Children were not present at original incident and should not have been listed; asserts plain error | C.K.: Issues relating to initial issuance were litigated/appealable earlier; children’s continued fear supports inclusion | Court: Claims barred by res judicata; plain-error challenge to initial listing not considered on this appeal |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (establishes abuse-of-discretion standard in Ohio appellate review)
- Brooks v. Kelly, 144 Ohio St.3d 322 (res judicata bars issues that were or could have been raised on direct appeal)