Tyler v. Tyler
2016 Ohio 7419
Ohio Ct. App.2016Background
- Ani Tsai Tyler sought a civil protection order (CPO) under R.C. 3113.31 in Jan. 2015 for herself and her two minor children, alleging past physical assaults and a recent threat via a phone call to the child.
- An ex parte CPO was entered; a full hearing occurred in April 2015. Ani testified about alleged incidents (mostly in 2013) and a Jan. 2015 phone statement in which Gregory allegedly told the child he would “get you all after the divorce.”
- Gregory did not testify at the hearing; defense counsel simply stated he would not call him. No on-the-record Fifth Amendment assertion by Gregory appears in the transcript.
- The magistrate issued a protective order for Ani but declined to include the children. The trial court adopted the magistrate’s decision and overruled Ani’s objections.
- Ani appealed, arguing (inter alia) that a negative inference should have been drawn from Gregory’s absence, that the children should have been included, and that the trial court improperly relied on facts outside the domestic-violence record.
Issues
| Issue | Plaintiff's Argument (Tyler) | Defendant's Argument (Tyler) | Held |
|---|---|---|---|
| Whether a negative inference may be drawn from Gregory’s refusal not to testify | Gregory declined to testify and therefore should be subject to a negative inference | Gregory simply was not called; no on-record Fifth Amendment claim | No negative inference — record shows he was not called; no on-record Fifth Amendment assertion |
| Whether the children should be included in the CPO | Past physical acts and the threat to the child show the children are in danger and need protection | Evidence does not show recent or sufficient abuse of children to meet domestic-violence standard | Court affirmed exclusion of children — decision not against manifest weight: no competent evidence of domestic violence against children |
| Whether alleged spankings amounted to abuse or reasonable corporal punishment | Spankings and incidents described showed abuse and need for protection | Testimony lacked detail and personal knowledge; no evidence of serious injury or excessive frequency/severity | Spankings deemed reasonable corporal punishment on this record; trial court’s finding not against manifest weight |
| Whether trial court erred by considering facts outside the record (post-hearing agreed parenting order) | Trial court improperly relied on an agreed parenting-time order entered after the CPO hearing | Trial court’s ultimate decision is supported by record evidence | Error found: trial court improperly considered matters outside the record; that portion of judgment reversed and remanded for further proceedings |
Key Cases Cited
- Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997) (petitioner must prove danger of domestic violence by a preponderance to obtain a CPO)
- Eichenberger v. Eichenberger, 82 Ohio App.3d 809, 613 N.E.2d 678 (10th Dist. 1992) (past acts may be considered to evaluate present fear and its reasonableness)
- Thomas v. Thomas, 44 Ohio App.3d 6, 540 N.E.2d 745 (10th Dist. 1988) (statutory focus is on existence or threatened existence of domestic violence)