FELTON, APPELLANT, v. FELTON, APPELLEE.
No. 96-198
SUPREME COURT OF OHIO
June 18, 1997
79 Ohio St.3d 34, 1997-Ohio-302
Submitted March 19, 1997. APPEAL from the Court of Appeals for Carroll County, No. 94CA646.
- A court is not precluded by statute or public policy reasons from issuing a protection order pursuant to Ohio‘s civil domestic violence statute,
R.C. 3113.31 , where the parties’ dissolution or divorce decree already prohibits the parties from harassing each other. - When granting a protection order, the trial court must find that petitioner has shown by a preponderance of the evidence that petitioner or petitioner‘s family or household members are in danger of domestic violence.
R.C. 3113.31(D) . - A pleading is not admissible into evidence at a hearing to prove a party‘s allegations and must not be considered as evidence by the court. (State ex rel. Copeland v. State Med. Bd. [1923], 107 Ohio St. 20, 1 Ohio Law Abs. 165, 140 N.E. 660, paragraph two of the syllabus; Hocking Valley Ry. Co. v. Helber [1915], 91 Ohio St. 231, 110 N.E. 481, paragraph three of the syllabus, applied and followed.)
{¶ 2} On September 9, 1994, the trial court issued a temporary protection order which enjoined appellee from approaching appellant, granted appellant exclusive temporary custody of the children, and set the matter for hearing on September 15, 1994. At the September 15, 1994 hearing, appellee requested a continuance until a verdict had been reached in the pending criminal charge of domestic violence against him. The trial court continued the prior visitation schedule and the temporary protection order and set the matter for a full hearing.
{¶ 3} On December 20, 1994, the court held a full hearing on the petition for a protection order, during which appellant testified that appellee‘s assaults upon her had inсreased during their marriage and continued after the dissolution. She told of a violent episode, occurring on July 26, 1994, in which appellee allegedly “hauled off and hit me in the back of my back, threw me down on the floor and started kicking and hitting me again, and then when I finally got up off the floor he took his hand and tried to strangle me up against the refrigerator and then our son intervened and that‘s when he stopped.” She stated that appellee would repeatedly call at night and keep her on the phone. If appellant terminated the phone call, appellee would immediately rush over to appellant‘s house and threaten her. She testified that she was afraid that if she did anything to anger appellee, he would actually try to kill her. Appellant testified that appellee stopped calling her at night after August 2, 1994 when she filed the criminal charges of domestic violence against him and the county court issued a temporary protection order.
{¶ 5} After appellant closed her presentation of evidence, appellee moved for a directed verdict. The court considered counsel‘s arguments regarding the standard of proof and subsequently determined that the correct standаrd was preponderance of the evidence. The court decided that appellant had presented a prima facie case that she had “been the victim of some domestic violence” and overruled the motion for a directed verdict. Appellee then rested his case without presenting any evidence. The court found that appellant had not met her burden of proving the domestic violence by a preponderance of the evidence and accordingly dismissed the action “for lack of evidence.”
{¶ 6} Upon appeal, the court of appeals held that because the parties’ decreе of dissolution included a provision which prohibited each party from harassing or interfering with the other party, a protection order issued pursuant to
{¶ 7} The cause is now before this court pursuant to the allowance of a discretionary appeal.
Southeastern Ohio Legal Services and Gregory Allen Tasker, for appellant.
ALICE ROBIE RESNICK, J.
{¶ 8} This case presents two issues. The first is whether a court may issue a domestic protection order pursuant to
I
{¶ 9} The court of appeals held that because the parties’ dissolution decree contained a no-harassment provision, a domestic violence protection order would be unnecessary and superfluous. We disagree.
{¶ 10} Initially we note that
{¶ 11} The court of appeals further held that the “provision in the final judgment entry [of the dissolution decree] is of much more force and effect than one which [the court] might issue in the domestic violence action for only a period of one year.” This is patently incorrect.
{¶ 12} The General Assembly enacted the domestic violence statutes specifically to criminalize those activities commonly known as domestic violence and to authorize a court tо issue protection orders designed to ensure the safety and
{¶ 13} The no-harassment provision, by contrast, contains only a general prohibition. As read by the trial court judge, the dissolution agreement states: “‘Each party shall hereafter continue to live separate and apart from the other and each shall go his or her own way without direction, control, or molestation from the other the same as though unmarried[.]’ * * * ‘Further, each shall not annoy, harass, or interfere with the other in any manner whatsoever.’ ”
{¶ 15} Additionally, with a protection order come several features not available with a dissolution or divorce decree. First, the results of violating the
{¶ 16} In contrast, a violation of a dissolution or divorce decree is subject to contempt of court for violating a court‘s final judgment entry.
{¶ 17} Second, the statutes provide for the preferred arrest of a violator of a protection order. No such policy applies to violators of a court order or judgment entry. The preferred-arrest policy states that if a peace officer has reasonable grounds to believe that a violation of a protection order has been committed and reasonable cause to believe that a particular person is guilty of committing the offense, “it is the preferred course of action in this state that the officer arrest and detain that person * * * until a warrant can be obtained.”
{¶ 18} Third,
{¶ 19} And, fourth, a protection order is easier for a petitioner to enforce than a “no-harassment” provision in a dissolution or divorce decree. As described above,
{¶ 20} Finally, the court of appeals appears to have been swayed by the temporary nature of a protection order. Pursuant to
{¶ 21} Last, we note that there are strong policy reasons for allowing a court to issue a protection order after a divorce or dissolution has become final. Violence against a former spouse does not stop with the separation:
“Women who are divorced or separated are at higher risk of assault than married women.3 The risk of assault is greatest when a woman leaves or threatens to leave an abusive relationship.4 Nonfatal violence often escalates once a battered woman attempts to end the relationship.5 Furthermore, studies in Philadelphia and Chicago revealed that twenty-five percent of women murdered by their male partners were separated or divorced from their assailants.6 Another twenty-nine percent of women were murdered during the separation or divorce process.7 State statutes need to protect women and children during and after the break-up of
{¶ 22} In Ohio, the domestic violence statutes grant police and courts great authority to enforce protection orders, and violations of those protection orders incur harsh penalties. Therefore, protection orders issued pursuant to
II
{¶ 23} We will now address the issue of the burden of proof to be used when issuing a protection order. The trial court requested arguments from the parties as to which standard of proof to apply and then decided upon the preponderance of the evidence.
{¶ 24}
{¶ 25} Courts applying a lesser standard of proof appear to base that standard upon the statutory language. Thomas v. Thomas (1988), 44 Ohio App.3d 6, 8, 540 N.E.2d 745, 746 (“The statutory criterion * * * is the existence or threatened existence of domestic violence.“). See, also, Deacon v. Landers (1990), 68 Ohio App.3d 26, 587 N.E.2d 395; Snyder v. Snyder (Aug. 15, 1995), Ross App. No. 94 CA 2068, unreported, at 10, 1995 WL 493998 (The court reviewed trial court record for “sufficient competent, credible evidence to support a finding that appellant committed domestic violence against appellee.“).
{¶ 26}
“The General Assembly, had it wanted to do so, knew how to specify a ‘clear and convincing’ standard. A review of the Revised Code reveals at least nineteen sections in which the General Assembly has specified a ‘clear and convincing’ standard by using the words ‘clear and convincing.’ See, e.g.,
R.C. 709.07(D) (petition to enjoin annexation);1533.92 (appeal from denial of fishing tournament permit);1701.59 (breadth of fiduciary duty by corporate directors);2307.80 (punitive damages in products liability actions);3111.03 (rebuttal of presumption of paternity);4731.22 (summary suspension of license to practice medicine);5122.15 (civil commitment of mentally ill person). Accordingly, it is clear that the General Assembly intended to apply the usual preponderance of the evidence standard to civil proceedings underR.C. 2305.02 .”
{¶ 27} The same reasoning applies to
{¶ 28} In the case sub judice, the trial court determined that after presenting her evidence, appellant had shown a prima facie case supporting a protection order. Subsequently, however, the court held in its final judgment that appellee‘s answer to appellant‘s petition for a protection order was evidence enough to controvert appellant‘s evidence, and the court dismissed the petition.8
{¶ 29} A pleading is not admissible into evidence at a hearing to prove a party‘s allegations and must not be considered as evidence by the court. State ex rel. Copeland v. State Med. Bd. (1923), 107 Ohio St. 20, 1 Ohio Law Abs. 165, 140 N.E. 660, paragraph two of the syllabus; Hocking Valley Ry. Co. v. Helber (1915), 91 Ohio St. 231, 110 N.E. 481, paragraph three of the syllabus. See, also, Farmers Prod. Credit Assn. of Ashland v. Stoll (1987), 37 Ohio App.3d 76, 523 N.E.2d 899. The trial court erred in considering appellee‘s answer as evidence in its decision of whether to grant the petition for a protection order. The only admissible evidence presented by the parties at the hearing that the court could consider in its decision was the testimony of appellant, Paul Long, and Stephanie Dover-Furgiuele. After full arguments from the parties’ attorneys about what standard of proof to use and after deciding that the proper standard is “preponderance of the evidence,” thе trial court clearly found appellant‘s testimony credible. When appellee‘s attorney
“Well, we‘ll assume for the sake of argument [the standard of proof] is [preponderance of evidence] and at this point in time there is at least prima facie evidence that the petitioner since the dissolution action was final has sustained some domestic violence, or has been the victim of some domestic violence sufficient to overcome a directed verdiсt at this time.”
{¶ 30} Thus, the court found appellant‘s evidence to be credible and to be sufficient to meet the requirements of
{¶ 31} Specifically, our review of the record shows sufficient, credible evidence to support a finding that appellant was in danger of domestic violence.
“* * * the occurrence of one or more of the following acts against a family or household member:
“(a) Attempting to cause or recklessly causing bodily injury;
“(b) Placing another person by the threat of force in fear of imminent serious physical harm * * *.”
R.C. 3113.31(A)(1) .
{¶ 32} Appellant testified that appellee‘s assaults upon her increased during her marriage, and continued after the divorce, culminating in a violent episode occurring on July 26, 1994 in which appellee attempted to strangle her. Moreover, she stated that appellee would harass her on the phone. She also testified that she was afraid that if she did anything to anger appellee, he would аctually try to kill her. Paul Long testified that approximately one to one and a half years prior to the hearing, at around the time of the Feltons’ dissolution, appellant told him that
“Advanced societies take intra-family violence seriously. Only in the last twelve years has this problem become a focus of attention and national concern. The Ohio Legislature has passed one of the most comprehensive * * * statutes authorizing Civil Protection Orders to combat domestic violence. Because the language of the statutes is broad, the response of the Court has a profound impact in protecting victims of domestic violence. Judges have the power and authority to implement the legislation. It is critical that Judges and Referees be aware of the severity of the domestic violence problem and make efforts to remain informed about the recent domestic violence legislation. Continuing education as to the realities of all forms of domestic violence will help to remove the shroud of secrecy and break the cycle of violence. Judges and Referees can play a leadership role in enlightening and educating attorneys, parties and the community in general about the severity of the domestic violence issues and the civil legal remedies that exist for victims of domestic violence. The Attorney General‘s Task Force on Family Violence urges Judges not to underestimate their ability to influence the respondent‘s behavior. Judges can communicate a powerful message about the justice system‘s view of domestic violence within their own courtrooms.
However,
“The Ohio Legislature has made a laudatory beginning in responding to the problems of domestic violence. The legislation that provides for Civil Protection Orders is responsive to the immediate needs of the victims and provides a necessary alternative and supplement to criminal legal remedies. However, the legislation cannot achieve its full potential without the careful and responsible utilization by Judges and Referees.” (Footnotes omitted.) Voris, The Domestic Violence Civil Protection Order and the Role of the Court (1990), 24 Akron L.Rev. 423, 432. See, also, Recommendations to the Supreme Court of Ohio, Goal 4, Report of the Supreme Court of Ohio Domestic Violence Task Force (1996), at 18.
{¶ 34} The consequences of domestic violence are serious and severe. Protection orders can be an effective tool when used in conjunction with provisions in divorce and dissolution decrees and other separation agreements. Ohio‘s courts must make themselves aware of the authority they have been granted by the legislation to implement all of these protection orders.
{¶ 35} Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for an order granting appellant‘s petition for a protection order and for the trial court to fashion that protection order pursuant to its authority as granted in
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.