Reising v. Reising
2017 Ohio 2859
| Ohio Ct. App. | 2017Background
- March 2013: Joseph Reising petitioned for a civil stalking protection order (CSPO) under R.C. 2903.214 against Kelly Reising; court granted ex parte temporary CSPO and scheduled a full hearing.
- April 2, 2013: After a full hearing the trial court granted the CSPO (finding by a preponderance that Kelly engaged in a pattern of conduct causing fear or mental distress) and set it to expire April 2, 2018.
- April 27, 2016: Kelly moved to terminate the CSPO, arguing changed circumstances and that continued enforcement prevented contact with her two daughters.
- August 3, 2016: Hearing held on Kelly’s motion; trial court later denied termination on August 4, 2016, stating Kelly failed to show by clear and convincing evidence that the order should be ended.
- Kelly appealed, arguing (1) the trial court applied the wrong evidentiary standard (clear and convincing instead of preponderance) and (2) the trial court abused its discretion by denying termination on the merits.
Issues
| Issue | Plaintiff's Argument (Reising) | Defendant's Argument (Kelly) | Held |
|---|---|---|---|
| Proper standard of proof to terminate/modify a CSPO | Trial court should apply clear and convincing to terminate protection | Termination requires only preponderance where statute silent; clear and convincing is too high | Court reversed: preponderance is the correct standard (trial court abused discretion by using clear and convincing) |
| Whether trial court abused discretion in denying termination on the merits | CSPO should remain because respondent still posed threat | Kelly: circumstances materially changed; order no longer equitable; termination warranted | Merits not decided (moot): court vacated denial and remanded for re-evaluation under preponderance standard |
Key Cases Cited
- Felton v. Felton, 79 Ohio St.3d 34 (Ohio 1997) (when a statute is silent on standard of proof, preponderance is proper)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition and meaning of clear and convincing evidence)
- Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83 (Ohio 1985) (definition of abuse of discretion)
- Berger v. Mayfield Heights, 265 F.3d 399 (6th Cir. 2001) (abuse of discretion exists when wrong legal standard is applied)