CARLA A. CHARLES v. JOHN J. PETERS
Appellate Case No. 2015-CA-52
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
March 25, 2016
[Cite as Charles v. Peters, 2016-Ohio-1259.]
Trial Court Case No. 12-DV-162 (Civil Appeal from Common Pleas Court, Domestic Relations)
Rendered on the 25th day of March, 2016.
JENNIFER E. MARIETTA, Atty. Reg. No. 0089642, 77 West Main Street, Xenia, Ohio 45385 Attorney for Petitioner-Appellant
DAVID M. McNAMEE, Atty. Reg. No. 0068582, 2625 Commons Boulevard, Suite A, Beavercreek, Ohio 45431 Attorney for Respondent-Appellee
FAIN, J.
{¶ 1} Petitioner-appellant Carla A. Charles appeals from an order of the Greene County Common Pleas Court, Domestic Relations Division, overruling her motion to
{¶ 2} We conclude that the trial court did not abuse its discretion in sustaining the objections to the Magistrate‘s order. We conclude that the order of the trial court overruling the motion to extend the protection order is not against the manifest weight of the evidence. Consequently, the order from which this appeal is taken is Affirmed.
I. The Relationship of the Parties
{¶ 3} John Peters is the father of Charles‘s nine-year-old daughter. Charles has sole custody of their daughter pursuant to an order of the Greene County Juvenile Court. Peters exercises visitation with his child at the Greene County Visitation Center.
{¶ 4} At the hearing, Charles testified to six incidents that caused her to live in fear, “afraid of what actions [Peters] has done and what he is going to do.” Transcript at 15. First, Charles testified that she believed it was Peters who entered her garage and stole a copy of the protection order from her car, and left a single flower from her garden. She admitted that no one saw Peters enter her garage, and that the incident occurred more than a year prior to the filing of her petition to extend the order. Second, Charles testified that she believes Peters entered her home, when she was not present, based on her observation that the back door was left ajar, and a cigarette butt was left behind. She admitted that no one saw Peters enter her home, and that the incident occurred more than a year prior to the filing of her petition to extend the order. Third, Charles testified that a key to her home was missing from her daughter‘s backpack, after her daughter left
{¶ 5} Peters testified that the last time he was at Charles‘s residence was in 2012. He denied leaving her any notes, sending her any messages, making any drawings, or having any desire to see Charles. Peters acknowledged that the photograph Charles attempted to introduce into evidence did depict the car he owned for 7 or 8 years, and that he did drive it to her house many times before the protection order was issued, in 2012. Peters testified that he has never seen Charles at the visitation center. Peters
II. The Course of Proceedings
{¶ 6} In October 2012, Charles petitioned for a Domestic Violence Protection Order against Peters, alleging that Peters had verbally threatened her. Peters and Charles entered into a Consent Agreement, and an agreed Domestic Violence Protection Order was issued. The order specified a term of two years, with an expiration date of December 21, 2014. The child is not designated as a protected person under the terms of the Protection Order. The order prohibits Peters from abusing Charles by harming, attempting to harm, threatening, following, stalking, harassing, forcing sexual relations upon, or by committing sexually oriented offenses against, her. Peters was also prohibited from entering Charles‘s home, business, or place of employment, including the buildings, grounds or parking lots. Peters was required to stay at least 500 feet away from Charles, wherever she may be found. Peters was prohibited from having any contact with Charles, including any text, e-mail, writings or other communication. Peters was also prohibited from causing or encouraging any other person from doing anything prohibited by the order. The protection order recognized that Peters has certain limited rights to visitation with the child.
{¶ 7} Shortly before the Protection Order was scheduled to expire, Charles moved to modify the terms of the consent agreement, seeking to extend the order for an additional two years. The motion specified as grounds, “continued fear of the respondent
III. Standard of Review
{¶ 8} This court has applied an abuse-of-discretion standard in reviewing a trial court‘s decision whether to grant or terminate a civil protection order. Sweet v. Hunt, 2d Dist. Greene No. 2013-CA-37, 2014-Ohio-631, ¶¶ 13-14. Brown v. Naff, 2d Dist. Miami No. 2011-CA-17, 2012-Ohio-1770, ¶ 9. See also Walker v. Edgington, 2d Dist. Clark No. 07-CA-75, 2008-Ohio-3478, ¶ 24; Bryant v. Spear-Hardy, 2d Dist. Montgomery No. 23449, 2010-Ohio-1903, ¶ 23. While Charles argues that the standard of review in this appeal should be based on a determination whether the order overruling her motion to modify the protection order is based on sufficient evidence, Peters assumes that the standard of review is whether the trial court abused its discretion.
{¶ 9} We have joined other districts in recognizing a distinction between challenges to the scope or terms of a protection order and whether a protection order should issue at all or should be extended, in which case, our review is based on whether there is “sufficient competent, credible evidence” to support a finding that the respondent engaged in acts or threats of domestic violence. Young v. Young, 2d Dist. Greene No. 2005-CA-19, 2006-Ohio-978, ¶ 22. See also Schneider v. Razek, 2015-Ohio-410, 28 N.E.3d 591, ¶¶ 29-40 (8th Dist.); Abuhamda-Sliman v. Sliman, 161 Ohio App. 3d 541, 2005-Ohio-2836, 831 N.E. 2d 453, ¶¶ 8-10 (8th Dist.).
{¶ 10} A protection order, or an order extending a protection order, requires sufficient evidence. By contrast, no evidence is required to support an order overruling a motion for a protective order, or a motion to extend a protection order. In a hypothetical proceeding on a motion to extend a protection order in which no evidence is presented, the trial court would be required to overrule the motion. We conclude, therefore, that in reviewing an order overruling a motion to extend a protection order, the standard of review is not whether there is sufficient evidence to support the order of the trial court overruling the motion (no quantum of evidence is required for that order), but whether that order is against the manifest weight of the evidence. Under the manifest-weight-of-the-evidence standard the appellate court must review the entire record, weigh the evidence and all
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *
“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
(Citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21.
{¶ 11} We have also established that an abuse-of-discretion standard is to be applied upon appellate review of a trial court‘s decision to adopt, modify or vacate the order of the trial court‘s magistrate. L.L.L. v. Junies, 2d Dist. Greene No. 2013 CA 31, 2014-Ohio-141, ¶ 12, citing Proctor v. Proctor, 48 Ohio App.3d 55, 60-61, 548 N.E.2d 287 (3d Dist.1988). A court abuses its discretion by acting in a manner that is unreasonable, arbitrary or unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996). Decisions are unreasonable if they are not supported by a sound reasoning process. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 12} For her First Assignment of Error, Charles asserts as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN SUSTAINING RESPONDENT‘S OBJECTIONS AND DENYING PETITIONER‘S MOTIONS FOR MODIFICATION/EXTENSION OF THE CIVIL PROTECTION ORDER.
{¶ 13} Charles argues that the trial court abused its discretion by refusing to adopt the magistrate‘s decision to grant the extended protection order. When reviewing objections to a magistrate‘s decision, the trial court is not required to follow or accept the findings or recommendations of its magistrate. New Lebanon v. Krahn, 2d Dist. Montgomery No. 26659, 2015-Ohio-4791, ¶ 86, citing Breece v. Breece, 2d Dist. Darke No. 99-CA-1491, 1999 WL 999759 (Nov. 5, 1999); Seagraves v. Seagraves, 2d Dist. Montgomery Nos. 15047 and 15069, 1995 WL 559970 (Aug. 25, 1995). In accordance with
{¶ 14} An appellate court reviews a trial court‘s decision to adopt, modify, or vacate a magistrate‘s decision for an abuse of discretion, and that decision will only be reversed where it appears that the trial court‘s actions are arbitrary or unreasonable. L.L.L. v. Junies, 2d Dist. Greene No. 2013 CA 31, 2014-Ohio-141, ¶ 12, citing Proctor, 48 Ohio App.3d at 60-61. Claims of trial court error must be based on the actions taken by the trial court, itself, rather than the
{¶ 15} In its consideration of the objections to the magistrate‘s decision, the trial court reviewed the transcript, correctly applied the law, and concluded that the evidence did not prove the statutory requirements for a domestic violence protection order. We conclude that the trial court did conduct an independent de novo review and did not err in entering its own judgment.
{¶ 16} Charles‘s First Assignment of Error is overruled.
V. The Trial Court‘s Judgment Is Not Against the Manifest Weight of the Evidence
{¶ 17} For her Second Assignment of Error, Charles asserts:
THE MAGISTRATE CORRECTLY FOUND THAT THERE WAS SUFFICIENT CREDIBLE EVIDENCE AND THAT BY A PREPONDERANCE OF THE EVIDENCE, RESPONDENT COMMITTED A VIOLATION OF
{¶ 18} Charles argues that the trial court erred by failing to find sufficient evidence to support the issuance of the protection order. Although Charles admits that she did not present direct evidence that Peters was responsible for any of the incidents that caused her to fear him, Charles argues that she presented sufficient evidence to create an “assumption” that it is more likely than not that Peters perpetrated the conduct. We recognize that the trial court, as the trier of fact, is entitled to make reasonable inferences, not assumptions, from the facts shown with direct proof, but an “inference cannot be based upon evidence that is too uncertain or speculative or which raises merely a
{¶ 19} We have recently discussed the evidence necessary to meet the requirements of the domestic violence statute for a protection order:
Under
R.C. 3113.31(E)(1) , a court may grant a protection order to “bring about a cessation of domestic violence.” When a trial court grants a protection order, it must find that the “petitioner has shown by a preponderance of the evidence that petitioner or petitioner‘s family or household members are in danger of domestic violence.” Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), at paragraph two of the syllabus. Domestic violence is defined in pertinent part byR.C. 3113.31(A)(1) as “[p]lacing another person by the threat of force in fear of imminent serious physical harm or committing a violation ofsection 2903.211 or2911.211 of the Revised Code“.
Barton v. Barton, 2d Dist. Greene No. 2014-CA-21, 2015-Ohio-3869, ¶ 7.
{¶ 20} Therefore, a petitioner seeking a domestic violence protection order must produce evidence to meet the factors set forth in one of three statutes;
{¶ 21}
{¶ 22} In the case before us, Charles did not present sufficient evidence from
{¶ 23} The second ground for a protection order is set forth in the menacing by stalking statute,
- Any mental illness or condition that involves some temporary substantial incapacity; [or]
Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.
{¶ 24} In the case before us, the trial court‘s order is not against the manifest weight of the evidence. Charles contends that her testimony regarding a missing key, an open back door, an anonymous note and a drawing was sufficient to give rise to an inference that Peters was engaging in a pattern of conduct for the purpose of causing her harm. But although a finder of fact is permitted to draw reasonable inferences from proven facts, it is not required to do so. OJI-Civil, 305.01(5). Nash v. General Electric Company, 64 Ohio App.2d 25, 28, 410 N.E.2d 792 (1st Dist. 1979).
{¶ 25} The third ground for a domestic violence protection order is based on the Trespass statute,
{¶ 26} We conclude that the trial court‘s order overruling the motion to extend the protection order is not against the manifest weight of the evidence. There was no evidence of any physical contact between the parties for more than three years. There was no evidence of a past or present history of domestic violence. None of the incidents involved a threat of physical harm.
{¶ 27} Charles‘s Second Assignment of Error is overruled.
VI. Conclusion
{¶ 28} Both of Charles‘s assignments of error having been overruled, the order of the trial court overruling her motion to extend the protection order is Affirmed.
DONOVAN, P.J., and WELBAUM, J., concur.
Copies mailed to:
Jennifer E. Marietta
David M. McNamee
Hon. Steven L. Hurley