Calicoat v. CalicoatCalicoat v. Calicoat
Rendered on the 6th day of November, 2009.
Jаy M. Lopez, Atty. Reg. No.0080819, 18 East Water Street, Troy, OH 45473
Attorney for Plaintiff-Appellee
Jeremy M. Tomb, Atty. Reg. No. 0079664, 124 W. Main Street, Troy, OH 45473
Attorney for Defendant-Appellant
GRADY, J.:
{¶ 1} Timothy Calicoat, Jr., appeals from a domestic violence civil protection order (CPO) issued pursuant to
{¶ 3} A magistrate of the common pleas court entered a CPO, ex parte, on Megan’s petition on the date it was filed. (Dkt. 5). The matter was set fоr a hearing on August 5, 2008. After several continuances the matter was heard by a magistrate on August 12, 2008.
{¶ 4} The evidence the parties presented portrayed a marital relationship that is stormy and difficult. Megan testified that, in 2000, Timothy held a gun to her head and said he would kill her if she left him. (T. 25). In August of 2007, according to Megan, Timothy choked her and pushed her аround. (T. 24). Megan testified that during the following month, in September of 2007, Timothy assaulted her on their trip home from his sister’s wedding, inflicting two black eyes and bruises to her arms. (T. 23).
{¶ 5} Concerning the events of July 31, 2008, alleged in her petition, Megan testified that she spent the night before at the
{¶ 6} Matthew North corroborated Megan’s testimony concerning the car chase, saying that Timothy “pretty much tried to run me into the curb.” (T. 10). North said that when he tried to get away, “it just turned into a little chase” in which Timothy kept “coming at me when he was beside me.” (Id.) North said that Megan “was scared, just freakin’ out a little bit. . .” (T. 11). North testified that during the chase their speeds “could have been close to seventy miles an hour,” and possibly as much as ninety miles per hour. (T. 12).
{¶ 7} Timothy testified and denied Megan’s claims of abuse. He stated that Megan had assaulted him in the incident following his sister’s wedding. Timothy generally concedеd to the facts of the chase that Megan and Matthew North described. Timothy said that he had moved out of the marital residence because “I kept
{¶ 8} Timothy’s father testified that he had observed several other altercations between Timothy and Megan. (T. 48). Concerning the fight that occurred on the trip home from his daughter’s wedding, Timothy’s father accused Megan of starting the fracas. (T. 49). He saw no bruises or black eyes on Megan. (T. 50). Timothy’s mother testified that she likewise saw no bruises on Megan several days later, and saw no marks on Megan in the years she and Timothy were married. (T. 55-57).
{¶ 9} Megan’s mother, Sandy Walker, testified that she saw bruises оn Megan on at least three occasions during the years of her marriage to Timothy (T. 79), but conceded that she does not know who caused them. (T. 78). Walker speculated that the marks were caused by Timothy, and attributed that allegation to what she had been told by Timothy and Megan’s son. (T. 77). Timothy objected to that testimony, but the court overruled the objection.
{¶ 11} “On July 31, 2008, respondent chased petitioner at a high rate of speed, attempting to run her off the road. Respondent has engaged in previous acts of domestic violence directed at petitioner, including choking her, striking her, pushing her and holding a loaded gun to her head. He has also threatened to kill the petitioner, and petitioner is in fear of further violence from respondent.”
{¶ 12} The CPO the magistrate recommended prohibits Timothy from coming within three blocks of Megan and/or abusing her further. Megan is granted exclusive use оf the marital residence, “subject to subsequent orders in pending divorce pertaining to disposition of residence.” The terms of CPO remain in effect for five years, or until July 31, 2013, unless earlier modified.
{¶ 13} Timothy filed objections to the magistrate’s decision. (Dkt. 27). The trial court overruled Timothy’s objections and adopted the magistrate’s decision as an order of the court. (Dkt. 31). Timothy filed a notice of appeal from that final judgment.
FIRST ASSIGNMENT OF ERROR
{¶ 14} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ADOPTED THE MAGISTRATE’S DECISION SINCE THERE WAS INSUFFICIENT
{¶ 15} When an appellant argues that a finding of domestic violence on which a CPO was issued is against the manifest weight of the evidence, “we must decide whether the court’s decision was supported by sufficient competent, credible evidence.” Young v. Young, Greene App. No. 2005-CA-19, 2006-Ohio-978, at ¶22. “Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus. “Weight” of the evidence refers to the inclination of the greater amount of credible evidence оffered in a trial to prove the issue established by the verdict that was reached. State v. Thompkins (1997), 78 Ohio St.3d 380.
{¶ 16} Where there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court. Jenkins v. Eagle Twp. Trustees, Vinton App. No. 01CA557, 2002-Ohio-2154. “The underlying rationale {¶ 17} of giving deference to the findings of thе trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice
{¶ 18}
{¶ 19} “As used in this section:
{¶ 20} “(1) ‘Domestic violence’ means the occurrence of one or more of the following acts against a fаmily or household member:
{¶ 21} “(a) Attempting to cause or recklessly causing bodily injury;
{¶ 22} “(b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of
section 2903.211 [2903.21.1] or2911.211 [2911.21.1] of the Revised Code.”
{¶ 23} Timothy argues that at the hearing on her petition Megan “was unable to relate one credible incident of domestic violenсe.” (Brief, p. 10). That claim is made with reference to events that Megan said had occurred in years past. It wholly ignores the evidence that Megan offered, through her own testimony and that of Matthew North, concerning the high-speed car chase of July 31, 2008. Megan was then a member of Timothy’s family. The evidence supports a finding that Timоthy attempted to cause bodily harm to Megan and/or placed her by the threat of force in fear of serious physical harm.
{¶ 24} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 25} “THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S DECISION BECAUSE THE MAGISTRATE’S DECISION WAS BASED ON HEARSAY EVIDENCE.”
{¶ 26} Sandy Walker, Megan’s mother, testified that she had seen bruises on Megan “[a]t least three times” and that Megan “doesn’t discuss it with me. Her son does.” Megan’s attorney then inquired whether “based on this discussions you are currently concerned for your daughter?” Timothy objeсted to the question as calling for hearsay evidence. The magistrate overruled the objection. Walker responded that “I’ve been concerned about her safety . . . and my grandson’s safety since around 2000. I don’t sleep well.” (T. 77).
{¶ 27} Timothy objected that the magistrate erred in overruling his objection. The trial court overruled the objection, finding that the objection Timothy made in the proceedings before the magistrate was properly overruled as untimely because “[t]he
{¶ 28} Timothy repeats his argument on appeal that the question asked of Walker elicitеd hearsay testimony, which is inadmissible.
{¶ 29} The question asked of Walker pertained to Walker’s state of mind concerning her daughter’s safety. Walker’s belief that Megan was at risk of harm by Timothy was merely a conclusion, and was objectionable as such. However, on the tests for relevance in
THIRD ASSIGNMENT OF ERROR
{¶ 31} “THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S DECISION SINCE THE MAGISTRATE’S DECISION IS BASED UPON AN UNCONSTITUTIONAL STATUTE AND APPELLANT WAS NOT AFFORDED ADEQUATE DUE PROCESS OF LAW.”
{¶ 32} “A. THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S DECISION SINCE THE MAGISTRATE’S DECISION RESULTED IN AN IMPROPER TAKING OF PROPERTY IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS.”
{¶ 33} A CPO granted on a finding that the respondent engaged in domestic violence against the petitioner may grant possession of the marital residence to the petitioner to the exclusion of the respondent, and may also prohibit the respondent from rеturning to the residence,
{¶ 34} The CPO the trial court approved on August 21, 2008, grants Megan the right to exclusive possession of the marital residence and prohibits Timothy from interfering with her right and/or entering the residence, subject to orders issued
{¶ 35} Timothy argues that excluding him from the real property he owns and for which he must make mortgage payments while Megan has the exclusive right to its use constitutеs a taking of his private property for a public purpose without just compensation, in violation of the
{¶ 36} “Laws enacted in the рroper exercise of the police power . . . even though they result in the impairment of the full use of property by the owner thereof, do not constitute a ‘taking of private property’ . . .” State ex rel Taylor v. Whitehead (1982), 70 Ohio St.2d 37, 40, quoting from Pritz v. Messer (1925), 112 Ohio St.628, paragraph one of the syllabus. The property rights guaranteed by the Ohio Constitution are likewise subject to a proper exercise of the police power. See Ghaster Properties, Inc. v. Preston (1964), 176 Ohio St.425. As Ghaster pointed out, the fallacy of a contention that ownership of land includes an unrestricted right to its use “is demonstrated by the words of
{¶ 37} The police power is the authority of government to adopt and enforce measures to protect the public health, safety, morals, and general welfare, and to the extent that the exercise of the police power is reasonable and has a real relationship to a legitimate governmental purpose, it has been held not to infringe constitutional rights, despite some incidental interference with individual rights. See State v. Martin (1958), 168 Ohio St. 37.
{¶ 38} The protection of victims of domestic violence from further harm has as its purpose the protection of the public welfare, which is a proper exercise of the police power conferred on the General Assembly by Seсtion 1, Article II of the Ohio Constitution. The provisions of
{¶ 39} “B. THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S DECISION BECAUSE THE STATUTE UPON WHICH THE CPO WAS ISSUED IS VOID FOR VAGUENESS.”
{¶ 40} Timothy argues that
{¶ 41} The void for vаgueness doctrine is embodied in the Due Process Clauses of the
{¶ 42}
{¶ 43} Taken together, the elements of domestic violence as defined by
{¶ 44} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 45} “THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S DECISION BECAUSE THE CPO HEARING VIOLATED THE FIFTH AND FOURTEENTH AMENDMENTS BECAUSE RESPONDENT WAS NOT GIVEN ADEQUATE NOTICE OF THE CLAIMS AGAINST HIM AND WAS NOT GIVEN ADEQUATE OPPORTUNITY TO PREPARE A DEFENSE.”
{¶ 46} The amended petition that Megan filed (Dkt. 2) speсifically alleged the facts of the car chase of July 31, 2008, as the grounds for Megan’s domestic violence claim and her need for a CPO. A return of service attached to the ex parte CPO (Dkt. 6) states that the amended petition and CPO were personally served on Timothy by the Sheriff of Miami County on July 31, 2008. At the evidentiary hearing that was held оn August 19, 2008, both parties were heard concerning the facts of the alleged car chase that occurred and which constituted an act of domestic violence.
{¶ 47} Timothy’s contention that he lacked notice and an opportunity to be heard in relation to the allegations regarding the car chase on which the CPO was granted is meritless. To the extent that Timothy’s argument concerns evidence of other, past events, it likewise lacks merit. Megan’s amended petition alleged that Timothy had physically abused her in the past. Timothy
{¶ 48} The fourth assignment of error is overruled. The judgment of the trial court will be affirmed.
FROELICH, J., And FRENCH, J., concur.
(Hon. Judith L. French, Tenth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Jay M. Lopez, Esq.
Jeremy M. Tomb, Esq.
Hon. Jeffrey M. Welbaum