J.D. v. G.D., 2019 Ohio 4391

On July 27, 2017 J.D. obtained an ex parte domestic-violence civil protection order (DVCPO) against his brother G.D.; a full hearing was set for August 10, 2017.
G.D. says he first learned of the order on August 5 and filed a motion to continue on August 7 to obtain counsel; the magistrate denied the continuance on August 8.
The full hearing proceeded as scheduled (no attorneys for either side); the magistrate issued a full DVCPO and the trial court later overruled G.D.’s objections.
At the hearing J.D. testified (largely as to statements he was told by his adult son) that G.D. threatened to “destroy” the family at a bank; J.D.’s son did not testify, but a police report from the son was admitted as an exhibit.
The police report’s wording and G.D.’s denial created inconsistent accounts of what was said; the Ninth District reviewed both the continuance issue and the sufficiency/weight of the evidence and ultimately reversed as to manifest weight.

Issue	Plaintiff's Argument (J.D.)	Defendant's Argument (G.D.)	Held
Denial of continuance to obtain counsel	Denial was proper because respondent’s motion lacked proof of service, failed to state length or attempts to secure counsel, and respondent told the court he was ready	Denial was an abuse of discretion; motion was timely (filed 3 days before hearing) and sought time to obtain counsel after respondent first learned of the hearing	Denial was not an abuse of discretion; trial court permissibly relied on Civ.R. 5(B) service defect, lack of particulars, and respondent’s statement at the hearing that he was ready (first assignment overruled)
Sufficiency and manifest weight of evidence for DVCPO	Evidence (J.D.’s testimony recounting his son’s report and the son’s police report exhibit) established by a preponderance that petitioner/family were in reasonable fear of imminent harm	Evidence was hearsay and the son did not testify; police report was unauthenticated and contained wording that undermined J.D.’s testimony — evidence therefore insufficient and against manifest weight	Sufficiency: viewed in the light most favorable to petitioner, a reasonable trier of fact could find a preponderance supported issuance; Manifest weight: the court found the evidence (hearsay contradicted by the son’s statement and respondent’s testimony) so tenuous that the trier of fact lost its way — DVCPO vacated (second assignment sustained)

Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (standard for sufficiency review in civil cases)
Unger, 67 Ohio St.2d 65 (1981) (factors and abuse-of-discretion standard for continuance requests)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
Pons v. Ohio State Medical Bd., 66 Ohio St.3d 619 (1993) (appellate courts should not substitute their judgment for trial court on discretionary matters)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (manifest-weight standard)
Martin, 20 Ohio App.3d 172 (1983) (explanation of manifest-miscarriage-of-justice review)