Calzo v. LynchCalzo v. Lynch
Case Information
*1
[Cite as
Calzo v. Lynch
,
COURT OF APPEALS
RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT KARRIE J. CALZO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Petitioner-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Case No. 11CA45 TIMOTHY J. LYNCH :
:
:
Respondent-Appellant : O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2011-CPO-0319 JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 20, 2012
APPEARANCES:
For Appellant: For Appellee: JEFFREY S. REAM KARRIE J. CALZO, Pro Se Benham & Ream Co., L.P.A. Address Not Available 150 Mansfield Ave.
Shelby, Ohio 44875
[Cite as
Calzo v. Lynch
,
Delaney, J.
{¶1} Respondent-Appellant Timothy J. Lynch appeals the April 19, 2011 Order of Protection granted by the Richland County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Petitioner-Appellee Karrie J. Calzo were involved in a romantic relationship from April 2007 until December 1, 2010. Appellant and Appellee were not married but lived together at Appellant’s residence with Appellee’s daughter, K.C. (DOB Jan. 29, 2004). Appellant is not the biological or adoptive father of K.C.
{¶3} On March 28, 2011, Appellee filed a Petition for a Domestic Violence
Civil Protection Order pursuant to
{¶4} Appellant and Appellee appeared for the full hearing represented by counsel. The hearing was held before the magistrate. The following evidence was adduced at the hearing.
{¶5} Appellee testified in June 2010, Appellant was working in his barn and K.C. was outside riding her bicycle. Appellant called to K.C. and K.C. parked her bike in the driveway and went to Appellant. Appellant told K.C. to stay where she was and Appellant proceeded to pull his truck out of the barn, running over K.C.’s bicycle. Appellee alleged Appellant knew K.C.’s bicycle was in the driveway before he pulled out of the barn and he refused to purchase K.C. a new bicycle to teach her a lesson about leaving her bicycle in the driveway. Appellee stated Appellant was angry with her for purchasing K.C. a new bicycle.
{¶6} Appellant admitted he ran over K.C.’s bicycle, but denied running over the bicycle on purpose. He did not know K.C.’s bicycle was in front of the truck when he pulled it out of the barn.
{¶7} In November 2010, Appellee testified she and Appellant got into an argument about putting new rotors on Appellee’s car. At dinner, Appellee asked Appellant if he could put new rotors on her car or if she should have someone else change them. Appellee stated Appellant stood up from the table, threw his plate down, and started screaming that he hated Appellee. He went out to the garage, picked up the jack, and began repeatedly slamming the jack under the car while screaming he hated Appellee and he hated their relationship. K.C. witnessed the incident and brought out her own suitcase because she wanted to leave the home.
{¶8} Appellant denied Appellee’s version of that night’s events. He stated Appellee and Appellant possibly had an argument that night. However, he did not repeatedly slam the jack under Appellee’s car. Appellant stated that while the car was on the jack, Appellee got into the car and drove the car off the jack. Appellant testified he left that night for a short period of time.
{¶9} On November 26, 2010, Appellee met Appellant for dinner at the Mansfield Restaurant. Appellee told Appellant she was ending the relationship and was moving out. Appellee states after she told this to Appellant, Appellant “bent across the table and looked at me, and he said, Karrie, you don’t care about me. You just care whether you’re going to get hurt tonight or I’m going to get hurt tonight. And you go home and you wait for me, and I’ll be there in a little while.” (T. 24.) Appellee did not return to the home that night out of fear for herself and her daughter. Appellant denied making that statement.
{¶10} Appellee and her daughter returned to the home on December 1, 2010, to retrieve their belongings. Appellant was present when she and her daughter went to the home.
{¶11} Appellee also testified while she considered Appellant and Appellee to have terminated their relationship, Appellant continued to contact Appellee. Appellant went to see K.C. at the Christmas program at K.C.’s elementary school. Appellant did not feel he needed to be invited to the Christmas program because it was an open program in a school within his district. On December 25, 2010, Appellant appeared at the home of Appellee’s mother. Appellee and Appellant spoke outside and Appellant proposed marriage to Appellee. Appellee states Appellant also presented her with a clock wrapped in a towel. Appellee testified Appellant stated he was there to take back control of the relationship, she had long enough to do what she needed to do, and it was time for her to come home. Appellant agreed he asked her to marry him and returned Appellee’s clock to her, but denied making those statements to Appellee.
{¶12} Appellant also went to the home of Appellee’s babysitter. On March 19, 2011, Appellant went to the babysitter’s home and no one answered the door. He returned on March 21, 2011 and spoke to the babysitter. Appellant first stated he was visiting a neighbor, but then stated the neighbor had been Appellee’s babysitter for over a year while Appellant and Appellee were dating. He stated he went to the neighbor to make sure Appellee and her daughter were okay. Appellant then called the babysitter on March 22, 2011 to tell her she was a liar and he would never contact her again.
{¶13} Appellee testified she has saved 53 text messages and email messages from Appellant. Appellee has also received phone calls from Appellant’s sister.
{¶14} On March 21, 2011, Appellee contacted the Richland County Sheriff’s Department. The Sheriff’s Department contacted Appellant to tell him to stop contacting Appellee. (Appellee’s Exhibit 1.) Since the Sheriff’s Department communicated with Appellant, Appellee testified Appellant has ceased contacting her.
{¶15} Appellee stated Appellant never physically harmed her or her daughter. She did consider Appellant’s statement and demeanor on November 26, 2010 to be a threat to Appellee. Appellee filed for the CPO because Appellant would not stop contacting her even though she has asked him to stop. Appellee is afraid Appellant will come by her house or will make physical contact with her daughter. Appellee’s daughter requests that Appellee put chairs under the locked doors because she is concerned can break through the door if he is angry. Appellee’s daughter is afraid to participate in school activities because she is fearful Appellant will come to the activity and take her.
{¶16} At the conclusion of the hearing, the magistrate notified the parties on the record they would receive a magistrate’s decision. The parties would have fourteen days to file written objections.
{¶17} On April 19, 2011, the trial court granted Appellee a Domestic Violence Civil Protection Order against Appellant for five years. The trial court utilized Form 10.01-I, authorized by Sup.R.10.01, as the Order of Protection. The order states the court made findings of fact and refers to Exhibit A, attached. Attached to the Order of Protection is “Exhibit A: Findings of Fact and Conclusions of Law.” Form 10.01-I provides a space for the signature of the magistrate and to the right of the magistrate’s signature line, there is a second signature line for the judge beneath the phrase “APPROVED AND ADOPTED.” In this case, the magistrate and the judge both signed the Order. Form 10.01-I also includes a section entitled, “NOTICE OF FINAL APPEALABLE ORDER.”
{¶18} Appellant did not file objections to the Order of Protection, but rather filed an immediate appeal of the April 19, 2011 Order.
ASSIGNMENTS OF ERROR
{¶19} Appellant raises five Assignments of Error:
{¶20} “I. THE MAGISTRATE’S DECISION AND THE JUDGMENT ENTRY ADOPTING SAME ARE DEFECTIVE AND REQUIRE REVERSAL AND REMAND FOR THE PURPOSE OF ISSUING A MAGISTRATE’S DECISION THAT COMPLIES WITH CIVIL RULE 53 AND PROVIDES THE PARTIES WITH A MEANINGFUL OPPORTUNITY TO FILE OBJECTIONS.
{¶21} “II. THE COURT ERRED IN FINDING BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT HAS ENGAGED IN THE OFFENSE OF MENACING BY STALKING AGAINST APPELLEE AND HER DAUGHTER AND THE FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶22} “III. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT
COMMITTED DOMESTIC VIOLENCE WITHIN THE MEANING OF
{¶23} “IV. THE COURT COMMITTED ERROR IN GRANTING THE EX PARTE
ORDER, AS THERE WAS NO GOOD CAUSE SHOWN AND THE PROVISIONS
UNDER
{¶24} “V. THE MAGISTRATE’S FINDINGS IN FAVOR OF THE CPO AND THE TRIAL COURT’S IMMEDIATE ADOPTION OF THE SAME CONSTITUTE REVERSIBLE ERROR UNDER THE ABUSE OF DISCRETION STANDARD.”
ANALYSIS
I.
{¶25} Appellant argues in his first assignment of error the issuance of the
Order of Protection on April 19, 2011 does not comply with
{¶26} Appellant’s first assignment of error raises the question as to the
applicability of
{¶27}
{¶28} The Supreme Court of Ohio, in consultation with the Domestic Violence
Task Force and by request from the General Assembly under H.B. 335, developed
forms to allow a petitioner to file a petition for a civil protection order without the
assistance of an attorney. Sup.R. 10.01(C). The further goal of the creation of the
forms was to create uniform protection orders that were easily recognizable to law
enforcement agencies across the state. Id . Under Sup.R. 10.01(C), the courts of
common pleas are required to use forms provided by the Supreme Court of Ohio or
substantially similar forms to issue civil protection orders. The rule states, “In every
case in which the domestic relations division of a court of common pleas issues or
approves an ex parte civil protection order, a full hearing civil protection order, or a
consent agreement pursuant to
{¶29} With this background, the Ninth District Court of Appeals in Tabatabai v.
Tabatabai , 9th Dist. No. 08CA0049-M,
Form 10.01-I, authorized by Rule 10.01, is the Order of Protection
recommended by the Supreme Court of Ohio. It consists of four pages,
on which the court of common pleas must fill in all appropriate blanks
and check all boxes that apply to the petition at hand. These options
reflect the restrictions that may be imposed by the court of common
pleas pursuant to
The form contains three notice components: (1) notice to the respondent of the consequences of violating the order; (2) notice to the petitioner that the terms of the order can only be changed by order of the court; and (3) notice to law enforcement agencies that the terms of the protection order must be enforced. In this respect, use of the form adopted by the Supreme Court of Ohio is especially significant because the concise, uniform nature of the document enables agencies that receive notice to verify the validity and terms of a civil protection order efficiently and to act in furtherance of the order without unnecessary delay or confusion.
We conclude that a civil protection order that is entered on Form
10.01-I, or such other form approved by the Supreme Court of Ohio, and
signed by a magistrate and a judge is, pursuant to
{¶30} In making this decision, the Ninth District overruled its earlier holding in
Mills v. Mills, supra , where a CPO was signed by the magistrate and the trial court
judge before objections were filed.
[1]
Tabatabai at ¶ 5. In Mills , the court held that
because it appeared the trial court judge did not make an independent review of the
order granting the CPO, the appellate court lacked jurisdiction over the appeal. Id .
Based on
{¶31} In summary, it was the decision of the Ninth District Court of Appeals in
Tabatabai that an Order of Protection using Form 10.01-I, granted by a magistrate and
approved and adopted by the judge on the same day, is a final, appealable order
pursuant to
{¶32} In Larson , the magistrate granted a CPO using Form 10.01-I. The trial
court signed the order the same day. The appellant filed a motion for a magistrate’s
decision and requested the magistrate issue findings of fact and conclusions of law.
The magistrate denied the motion. Larson at ¶ 4-5. The appellant appealed, arguing
the magistrate must still proceed under
{¶33} The Larson court recognized Form 10.01-I contemplated magistrates
hearing petitions for civil protection orders because the form provided a space for the
magistrate’s signature. Id . at ¶ 11 citing Tabatabai ,
A magistrate's decision shall be in writing, identified as a magistrate's
decision in the caption, signed by the magistrate, filed with the clerk, and
served by the clerk on all parties or their attorneys no later than three
days after the decision is filed. A magistrate's decision shall indicate
conspicuously that a party shall not assign as error on appeal the court's
adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under
{¶35} In reviewing the CPO on appeal, the Larson court found the CPO failed
to comply with
{¶36} We reconcile the holdings of Tabatabai and Larson to find pursuant to
{¶37} In our case, the April 19, 2011 Order of Protection does not contain language stating it was a magistrate’s decision or give notice to the parties of the requirement to file objections. As such, we find Appellant is relieved of the waiver rule and is permitted to raise his arguments for the first time on appeal. Further, the magistrate issued findings of fact and conclusions of law with the Order of Protection, obviating the need to remand the decision for further proceedings as was required in Larson .
{¶38} Appellant’s first assignment of error is overruled.
II., V.
{¶39} Appellant argues in his second assignment of error the trial court erred in
finding Appellant committed domestic violence in violation of
{¶40}
{¶41} The statute further defines “pattern of conduct” as two or more actions or
incidents closely related in time, whether or not there has been a prior conviction
based on any of those actions or incidents.
{¶42} The decision whether to grant a civil protection order lies within the
sound discretion of the trial court. Halton v. Crossley , 5th Dist. Nos. 11CA10,
11CA11,
{¶43} We further note a judgment supported by some competent, credible
evidence will not be reversed by a reviewing court as against the manifest weight of
the evidence. C.E. Morris Co. v. Foley Construction Co. ,
{¶44} The weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact, in this case, the trial court. State v. Jamison ,
{¶45} Appellant contends in this case Appellee has failed to establish a pattern of conduct or that Appellee suffered mental distress. We disagree. The trial court’s decision to issue a protection order was not against the manifest weight of the evidence nor did the trial court abuse its discretion in issuing the order. The record shows Appellant’s behavior in sending Appellee at least 53 text messages and emails, appearing at the Christmas program of Appellee’s daughter, appearing at Appellee’s mother’s home on Christmas day, and twice coming to Appellee’s babysitter’s home all after Appellee had broken off their relationship establishes a pattern of conduct. Appellee further testified to the mental distress suffered by Appellee and her daughter by Appellant’s appearances. Appellee’s daughter asks that her mother place a chair under the locked doors in case Appellant breaks down the door. Appellee’s daughter is concerned Appellant will take her from her mother and avoids participating in school activities.
{¶46} We find the record establishes Appellant, by continuously contacting Appellee after the termination of their relationship, has knowingly caused Appellee and her daughter mental distress. The magistrate, who was in the best position to observe the witnesses, noted often in her findings of fact she determined Appellee’s testimony was more credible than Appellant is based upon the parties’ demeanor in the courtroom. This court has previously noted that in civil protection order cases, demeanor and attitude are very important but do not translate well on the written page. Halton v. Crossley, supra at ¶ 56.
{¶47} Upon these facts, we find the trial court’s decision to grant the Order of Protection was based on competent, credible evidence and was not an abuse of discretion. Appellant’s second and fifth assignments of error are overruled.
III.
{¶48} Appellant contends in his third assignment of error the trial court erred in
finding Appellant committed domestic violence pursuant to
{¶49}
{¶50} Appellant argues Appellee could not have perceived Appellant’s statement as a threat of imminent serious physical harm because Appellee came to Appellant’s home unescorted on December 1, 2010 to retrieve her belongings. Upon our review of the record, we find there was competent, credible evidence upon which the trial court could support its decision that on November 26, 2010, Appellant’s statement to Appellee was a perceived threat of force placing Appellee in fear of imminent serious physical harm to herself or her daughter that evening. As stated above, the trial court is in the best position to determine the credibility of the witnesses. Appellee may have returned to Appellant’s home on December 1, 2010, but the record shows on November 26, 2010, Appellant’s statement caused Appellee to be in fear of imminent serious physical harm.
{¶51} Appellant’s third assignment of error is overruled.
IV.
{¶52} Appellant’s fourth assignment of error contends the trial court erred in granting Appellee’s petition for an ex parte civil protection order.
{¶53} On March 28, 2011, Appellee filed a petition for an ex parte domestic violence civil protection order. The trial court granted the ex parte civil protection order after finding Appellee was in immediate and present danger of domestic violence and for good cause shown. The ex parte order was set for a full hearing on April 11, 2011. After the full hearing, the trial court granted the Order of Protection.
{¶54} Based on our findings that the Order of Protection was supported by competent and credible evidence, we find no error in granting the ex parte civil protection order.
{¶55} Appellant’s fourth assignment of error is overruled.
CONCLUSION
{¶56} For the reasons stated herein, Appellant’s five assignments of error are overruled. The judgment of the Richland County Court of Common Pleas is affirmed. By: Delaney, P.J.
Farmer, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS
*22
[Cite as
Calzo v. Lynch
,
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KARRIE J. CALZO :
:
:
Petitioner-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TIMOTHY J. LYNCH :
:
: Case No. 11CA45 Respondent-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant. HON. PATRICIA A. DELANEY HON. SHEILA G. FARMER HON. JULIE A. EDWARDS
Notes
[1] Judge Whitmore dissented in Tabatabai , stating she could not agree with the majority’s departure from the precedent set in Mills , supra .