J.S. v. L.S.J.S. v. L.S.
Rendered on July 19, 2022
On brief: Grossman Law Offices, LLC, and John H. Cousins IV, for appellee. Argued: John H. Cousins IV
On brief: Trolinger Law Offices, LLC, and Christopher L. Trolinger, for appellant. Argued: Christopher L. Trolinger
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch
MENTEL, J.
{1} Respondent-appellant, [L.S.], appeals from the December 14, 2020 order of the Franklin County Court of Common Pleas, Domestic Relations Division, granting the petition for a domestic violence civil protection order of petitioner-appellee, [J.S.].
{2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{3} On May 1, 2019, appellee filed a petition for a domestic violence civil protection order against her former boyfriend, appellant. The petition identified two minor children as family members to be protected by the order. According to the addendum included in the petition, appellant had threatened appellee over the telephone and text
{4} This matter was first heard on June 3, 2019. The trial court granted appellee‘s petition for domestic violence civil protection order as to the protected persons and added appellee‘s newborn child to the order who was born after the petition was filed but before the full hearing. On June 25, 2019, appellant filed a timely appeal. On March 26, 2020, this court reversed and remanded the case concluding that the trial court had failed to afford appellant a “full hearing” within the meaning of
{5} Appellee and appellant dated on and off in 2018. (Oct. 26, 2020 Tr. at 7.) Appellee testified that when she first started dating appellant, he “grabbed [her] around [the] neck and held [her] to the bed and when [she] passed out, he choked [her], he said he was sorry that he took it too far.” (Tr. at 10.) According to appellee, in August 2018, she broke up with appellant after he gave her two-year-old son a black eye. Appellee stated that appellant admitted to hitting her son purportedly because the child was acting up in the store. Appellee did not call the police about the incident out of fear of retaliation. (Tr. at 7, 11.) According to appellee, appellant threatened her over the telephone, text message, and in person. (Tr. at 13.) Appellee told appellant for months that she was afraid of him and did not want any contact with him going forward. (Tr. at 8.) Appellant sent her messages that she was “just a whore, you are not getting away from me, no matter where you go, I will be there.” (Tr. at 8.) Appellee testified, “[appellant] told me one day that he was going to burn me and I wasn‘t going to be a pretty face much longer after showing up to my house screaming at me from the road.” (Tr. at 9.) According to appellee, in April 2018, appellant
{6} In April 2019, appellant drove by appellee‘s home and yelled that she was not going to be a pretty face much longer. (Tr. at 11.) Appellee interpreted this to mean, based on the prior comments, he was going to burn her face. “I don‘t know how to feel other than you were going to seriously hurt me.” (Tr. at 11.) Appellee testified to several text messages she exchanged with appellant. Appellee read a message that appellant would see her at the hospital, which she took to mean he was going to hurt her. (Tr. at 16.) Appellee testified to a picture appellant sent her of a jump rope tied to the banister with the message, “if I want to keep not taking him seriously, he hoped it was on my conscious forever.” (Tr. at 18.) Appellee stated that appellant would regularly make threats that he would harm himself and these messages made her “afraid that if he did -- if he did follow through with it, what it would mean to his girls and how I would be responsible, and that if he didn‘t follow through and I didn‘t contact him, that he would come after me and harm me because I didn‘t respond in the way that he felt was appropriate.” (Tr. at 17-18.) Appellant had sent appellee a video of him attempting to hang himself and a message that said, “I‘m serious [appellee], I will be dead by morning.” (Tr. at 17.) Appellee stated the text message was a separate threat from the video. (Tr. at 17.) The video was played for the court. Appellee testified that approximately 18 seconds into the video, appellant is standing with a rope around his neck. At or around 48 seconds into the video, appellant‘s daughter walked out of her room when the appellant exclaimed “shit.” (Tr. at 21.) Appellee testified that she
{7} Appellee testified she could not get out of bed and could not focus or live her life without thinking appellant was going to “make good on the threat that he was going to burn me.” (Tr. at 10.) Appellee started seeing a psychiatrist and taking medication because she could not sleep for weeks at a time. Appellee testified that she now takes anxiety and nausea medicine. (Tr. at 23.) “I would wait out by the front door waiting for him to show up to hurt me or my kids.” (Tr. at 23.) Appellee changed jobs out of fear that appellant would hurt her at work. (Tr. at 23.) According to appellee, she urinated in her pants when appellant walked by her during a court hearing. (Tr. at 23-24.) Appellee testified that she is fearful of appellant causing her imminent serious bodily harm. (Tr. at 24.)
{8} On cross-examination, appellee was asked about her previous petitions for a domestic violence protection order against her ex-husband, Andrew Cunningham, and Zach Riehl, the father of one of her children. (Tr. at 29, 32.) Appellee stated that neither case went to a hearing. Appellee testified that she had previously informed appellant that he was not the father of her newborn child. (Tr. at 36.) According to appellee, appellant said he was going to burn her on multiple occasions but the one instance that stood out was in the street. (Tr. at 39.) While appellee acknowledged that there is more than one meaning to someone saying they are going to “burn you,” she testified, “I took it like he was going to burn me; and when he followed it up with I wasn‘t going to be a pretty face, I felt like he was going to catch me on fire and burn me.” (Tr. at 39.) Appellee stated that appellant sent text messages that “he was going to burn me, he was going to come to my work, he was going to contact my friends and family, which he had already had done. And then he would say it was all in the name of protecting his children because he believed I would reach out and get them help, and he didn‘t want them taken away from him.” (Tr. at 42-43.) Appellee conceded there were no text messages about appellant “burning” her before the court.
{9} Appellee testified that appellant gave her son a black eye in 2018. Appellee acknowledged she did not witness appellant hit her son. Appellee initially heard about it through appellant‘s daughter but testified appellant later admitted to the incident. (Tr. at 49.) Appellee could not initially identify a direct threat in Exhibits 1 or 2 but stated that a video of appellant trying to kill himself “made [her] feel like there was a threat.” (Tr. at 51-52.) Appellee conceded that she continued to text appellant after the incident. “I did. I wouldn‘t want anybody to die.” (Tr. at 52.) Appellee acknowledged that she continued to text appellant up until she filed the civil protection order. Appellee testified that, two days before she filed the protection order, she told appellant if he did not stop texting her, she would file a protection order. (Tr. at 52-53.)
{10} On redirect examination, appellee testified that she believed appellant‘s text message that law enforcement “can‘t keep me forever” was a threat. Appellee stated that appellant‘s text messages that he would “see [her] at the hospital,” and she was a “white trash whore” were threats. (Ex. 1 at 8.) Appellee testified that she wanted her children included as protected parties in the order. (Tr. at 66.) Appellee explained she interpreted the question regarding her prior petitions for protection orders as whether she had filed a standalone petition, which did not involve custody or part of her divorce. (Tr. at 66.)
{11} Appellant was the only other witness to testify at the hearing. Appellant has sole custody of two children unrelated to this case. (Tr. at 72.) Appellant testified that he started dating appellee in 2018. Appellant denied ever having a physical altercation with appellee. According to appellant, the text message about the hospital concerned his desire to be at the hospital for the birth of appellee‘s youngest child. Appellant stated his comment about appellee not being a pretty face anymore was referring “to aging, the way she was living her life, the lives she was destroying, anyone that had a possible child with her, just the evil, pure evil of the things she does is what I was referring to.” (Tr. at 77.)
{12} Appellant admitted to attempting suicide 11-12 years ago by shooting himself in the chest. (Tr. at 78.) Appellant testified that he engaged in inpatient treatment and has been in counseling. As for the suicide video, appellant testified that appellee “had previously been telling me it was my kid, and then she told me the kid passed away, and
{13} Appellant stated that he repeatedly asked appellee to leave him alone. (Tr. at 81.) Appellant rarely spoke with appellee over the telephone and primarily communicated over text message. (Tr. at 84.) According to appellant, the last time he saw appellee was when she “brought over a due date from a doctor with the baby. She showed up eight months pregnant roughly and at that point was telling me it was mine.” (Tr. at 84.) Appellant testified that appellee was concerned with a potential custody battle. (Tr. at 93.) Appellant believed appellee was “playing games” regarding the paternity of the baby. (Tr. at 95.) Appellant had bought a paternity test and asked appellee to meet at the police station. (Tr. at 96.) Appellant testified he hit a breaking point as to the paternity of the child. Appellant did not recall a time when appellee‘s two-year-old son had a black eye and denied that it ever happened. (Tr. at 104.)
{14} According to appellant, he met appellee at her children‘s daycare once at her request. They went into the building and loaded the kids into the vehicle without incident. Appellant stated, in 2018, he stopped by the daycare on two other occasions to pay appellee‘s bill because “she had lost her job -- or I thought she had lost her job.” (Tr. at 85-86.) Appellant had previously given the kids hot wheels and admitted that he threatened to take the gifts back. Appellant denied ever screaming outside appellee‘s residence or threatening to burn appellee‘s face. (Tr. at 89, 108.)
{15} On cross-examination, appellant testified to telling appellee, at the end of the relationship, that he would call the cops to get his stuff. (Tr. at 109.) Appellant did not “bring the cops,” and it was a just a threat. (Tr. at 110.) Appellant denied screaming at appellee during this interaction. Appellant conceded this conversation was over the telephone but there were no threats. Appellant also conceded he has not filed a complaint to establish paternity as the biological father of the child. (Tr. at 113.) Appellant acknowledged that when one of the DNA companies contacted him about completing a paternity test, he answered the telephone in Japanese believing it was a bill collector. (Tr. at 113-14.)
{16} When asked about the text message that read, “I would be dead right now if [my daughter] didn‘t wake up. [* * *] This is serious now[,]” appellant stated that was in
{17} On redirect examination, appellant denied being present at the hospital when appellee‘s child was born. (Tr. at 122.) Appellant denied ever seeing appellee urinate on herself, and appellee appeared calm at the hearing. (Tr. at 123.)
{18} At the conclusion of the case, the trial court found that petitioner had met her burden of proof and granted the petition for a domestic violence protection order. On December 14, 2020, the trial court issued an order of protection against appellant. The order included appellee‘s three minor children as protected parties.
{19} Appellant filed a timely appeal.
II. ASSIGNMENT OF ERROR
{20} Appellant assigns the following as trial court error:
- [1] THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S PETITION FOR A CIVIL PROTECTION ORDER WITHOUT CONDUCTING A “FULL HEARING” AS REQUIRED BY
R.C. § 3113.31 BY DISSALLOWING [SIC] RELEVANT, CREDIBILITY AND IMPEACHMENT TESTIMONY. - [2] THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY FINDING EVIDENCE OF PREVIOUS COURT PROCEEDINGS REGARDING PETITIONER‘S VERASITY [SIC.], MENTAL HEALTH, AND SIMILAR CONDUCT IRRELEVANT WHEN PETITIONER MADE INCONSISTENT STATEMENTS.
- [3] THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSE ITS DISCRETION BY FINDING TESTIMONY AND
DOCUMENTARY EVIDENCE OF PREVIOUS CIVIL PROTECTION ORDER FILINGS BY PETITIONER IRRELEVANT WHEN PETITIONER HAD PREVIOUSLY TESTIFIED THAT SHE HAD NOT FILED ANY PRIOR PETITIONS FOR CIVIL PROTECTION ORDERS. - [4] THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO ADMIT EXHIBITS AND TESTIMONY RELATED TO PREVIOUS CIVIL PROTECTION ORDERS AND OTHER CERTIFIED COURT ORDERS BASED ON RELEVANCY WHEN SUCH WERE DIRECTLY RELATED TO IMPEACHMENT, CREDIBILITY, TRUTHFULNESS, AND PRIOR CONDUCT IN CONTRAVENTION OF
EVID.R. 608 ,613 , AND616 . - [5] THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY FINDING THAT THE MENTAL HEALTH OF THE PETITIONER IS IRRELEVALNT [SIC] TO THE OBJECTIVE REASONABLENESS OF THE PETITIONER‘S FEAR AND CREDIBILITY.
- [6] THE TRIAL COURT ERRED AND FAILED TO MAKE ANY FACTUAL FINDINGS TO JUSTIFY THE GRANTING OF THE PETITION FOR A CIVIL PROTECTION ORDER UNDER
R.C. § 3113 . - [7] THE TRIAL COURT ERRED AS THE GRANTING OF A CIVIL PROTECTION ORDER WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
- [8] THE TRIAL COURT ERRED IN ORDERING THE MINOR CHILDREN AS PROTECTED PERSONS UNDER THE CIVIL PROTECTION ORDER AS THERE WAS NO EVIDENCE TO JUSTIFY THEIR BEING PROTECTED UNDER THE CIVIL PROTECTION ORDER AND THE PETITION WAS NEVER AMENDED TO REQEUST [SIC] PROTECTION FOR THE CHILD BORN AFTER THE PETITION WAS FILED.
III. LEGAL ANALYSIS
A. Appellant‘s Second, Third, Fourth, and Fifth Assignments of Error
{21} For harmony of analysis this court will address appellant‘s second, third, fourth, and fifth assignments of error together. In appellant‘s second assignment of error, appellant argues the trial court erred by excluding evidence of prior court proceedings based on petitioner‘s veracity, mental health, and similar conduct when appellee made
{22} As an initial matter, we note that appellant‘s brief fails to comply with App.R. 16 as he failed to separately argue each assignment of error. App.R. 16(A)(7) requires each assignment of error to include “[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review.” While it is within the reviewing court‘s discretion to consider assignments of error together, the parties do not have this choice and are obligated to argue each assignment of error separately in their brief. Fiorilli Constr., Inc. v. A. Bonamase Contracting, Inc., 8th Dist. No. 94719, 2011-Ohio-107, ¶ 30. While App.R. 12(A) allows this court to disregard an assignment of error not separately argued in its brief, in the interests of justice, we will address appellant‘s arguments to the extent they contend that the trial court abused its discretion in excluding testimony and exhibits as to the prior court documents and appellee‘s mental health.
{23} The admissibility of evidence falls within the trial court‘s broad discretion. Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, ¶ 20, citing State v. Hymore, 9 Ohio St.2d 122, 128 (1967). A trial court‘s ruling on evidentiary issues will not be disturbed absent an abuse of discretion that has resulted in materially prejudice. Beard at ¶ 20. Abuse of discretion is a determination by the court that is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The Supreme Court of Ohio, however, has recently clarified this standard of review noting that all “courts lack the discretion to make errors of law, particularly when the trial court‘s decision goes against the plain language of a statute or rule.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 39. ” ‘Even in the event of an abuse of discretion, a judgment will not be disturbed unless the abuse affected the substantial rights of the adverse party or is inconsistent with substantial justice.’ ” Maiorana v. Walt Disney Co., 10th Dist. No. 20AP- 207, 2021-Ohio-4530, ¶ 49, quoting Beard at ¶ 20, citing O‘Brien v. Angley, 63 Ohio St.2d 159, 164-65 (1980).
1. Court Documents
{24} Appellant argues that the trial court erred by excluding exhibits and certain testimony as appellee had made inconsistent statements regarding her previously filed protection orders. The trial court excluded the exhibits as irrelevant.
{25}
(1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under
Evid.R. 608(A) ,609 ,616(A) , or616(B) ;(c) A fact that may be shown by extrinsic evidence under the common law of impeachment if not in conflict with the Rules of Evidence.
When concerning the introduction of extrinsic evidence of prior inconsistent statement this court has previously stated:
Evid.R. 613(B) , thus, allows introduction of extrinsic evidence of a prior statement only after a proper foundation has been laid through direct or cross-examination in which: ” ’ “(1) the witness * * * is presented with the former statement; (2) the witness is asked whether he made the statement; (3) the witness is given an opportunity to admit, deny or explain the statement; and (4) the opposing party is given an opportunityto interrogate the witness on the inconsistent statement.” ’ ” State v. Kulasa, 10th Dist. No. 11AP-826, 2012-Ohio-6021, ¶ 12, quoting State v. Mack, 73 Ohio St.3d 502, 514-15 (1995), quoting State v. Theuring, 46 Ohio App.3d 152, 155 (1st Dist.1988). If a witness denies making a prior inconsistent statement, a proper foundation has been laid, and if, in addition, the prior inconsistent statement does not relate to a collateral matter, extrinsic evidence is admissible. Kulasa at ¶ 19. If a witness admits having made the contradictory statements, however, then extrinsic evidence of the prior inconsistent statement is not admissible. In re M.E.G., 10th Dist. No. 06AP-1256, 2007-Ohio-4308; State v. Hill, 2d Dist. No. 20028, 2004-Ohio-2048, ¶ 40.
State v. Ollison, 10th Dist. No. 16AP-95, 2016-Ohio-8269, ¶ 60, quoting State v. Ferguson, 10th Dist. No. 12AP-1003, 2013-Ohio-4798, ¶ 15.
{26} Upon review, Exhibit A is a 2012 civil protection order petition by appellee against her ex-husband, Andrew Cunningham purportedly as part of a divorce filing. Similarly, Exhibit B is a 2015 petition for a domestic violence civil protection order by appellee against the father of one of her minor children. These documents also include various orders and entries from the magistrate and statements from the parties in the respective cases. After consideration of the evidence, we find the trial court‘s ruling was not an abuse of its discretion that resulted in material prejudice to appellant. It is not unreasonable to find that the petition filed by appellee against her ex-husband in a divorce proceeding was irrelevant as it involved an unrelated matter and a different respondent from the case at issue. Similarly, the exclusion of the petition and filings by appellee against her child‘s father in a custody matter as irrelevant is also not unreasonable. While appellee did initially testify that she had not previously filed a protection order, appellee explained she interpreted the question as asking whether she had filed a standalone petition like this proceeding and not as part of custody or divorce matter. (Tr. at 66.) There is no doubt from the transcript that appellee acknowledged that she had made these two filings. Therefore, appellee admitted and explained the contradictory statement.
{27} Regardless, even if these documents were relevant and had been admitted as exhibits, appellant fails to demonstrate how their exclusion materially prejudiced his case. Appellee initially testified that she had not filed a protection order, when she had, in fact,
{28} Appellant next argues the trial court erred by excluding a decision by a Licking County magistrate from her custody case. The trial court denied the admission of the exhibit as irrelevant. Pursuant to
{29} We find the trial court‘s exclusion of the exhibit was not an abuse of discretion. Here, appellant attempted to utilize the magistrate‘s ruling in the custody case to demonstrate appellee is untruthful. The trial court is entitled to the same opportunity to determine credibly as the magistrate in the Licking County proceeding. The trial court is under no obligation to accept another trier of fact‘s credibility determination in a wholly unrelated matter. One does not inform the other. It is not inconsistent for one court to determine an individual is not credible in one case, and credible in another. As such, the appellant has failed to demonstrate how this decision is relevant to the instant case or that he was materially prejudiced by the exclusion of the Licking County decision.
{30} Appellant also argues that the trial court erred excluding Exhibits A and B in violation of
{31} “An appellate court recognizes plain error with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice.” State v. Mankin, 10th Dist. No. 19AP-650, 2020-Ohio-5317, ¶ 15, citing State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139. “For an error to be a ‘plain error’ under
{32} Upon review, we decline to further expand our discussion as to the merits of the evidentiary arguments as, regardless of appellant‘s argument, even if the error was clear, the exclusion of these exhibits and testimony did not affect appellant‘s substantial rights as to affect the outcome of the hearing. The trial court was aware of the prior court proceedings based on testimony at the hearing. Again, appellant has failed to persuade this court that the inclusion of this testimony would have changed the outcome in this case.
2. Mental Health
{33} Next, appellant argues that the trial court erred in sustaining an objection regarding appellee‘s mental health and exclusion of the magistrate‘s decision in the Licking County matter. Appellant contends this evidence shows appellee‘s propensity for dishonesty and concerns about her mental health. Appellant also argues the mental health testimony was permissible because appellee admitted to seeing a psychiatrist and taking anxiety medicine.
{34} Appellant asked at trial if appellee had a mental health diagnosis, which the trial court sustained as irrelevant. Regardless of the merits of appellant‘s argument, appellant fails to demonstrate how the exclusion of this single question resulted in material prejudice. First, appellee admitted to seeing a psychiatrist and taking medication for anxiety as well as issues with sleep from appellant‘s behavior. It is reasonable to believe that the answer to this question would have largely repeated testimony already in the record. Moreover, there is significant evidence presented in this case as to the actions of appellant that are not in dispute unrelated to any potential mental diagnosis of appellee. There is no dispute as to much of the evidence before the court, most notably the text messages sent to appellant, the image of the jump rope tied to a banister, and video of appellant attempting suicide. Regardless of any further examination of appellee‘s mental health, the actions of appellant were obvious.
{36} Appellant‘s second, third, fourth, and fifth assignments of error are overruled.
B. Appellant‘s First Assignment of Error
{37} In appellant‘s first assignment of error, he argues the trial court erred by not allowing him a “full hearing,” as defined under
{38} “The decision to grant a civil protection order lies within the sound discretion of the trial court.” Martin v. Martin, 10th Dist. No. 13AP-171, 2013-Ohio-5703, ¶ 6, quoting Daughtry v. Daughtry, 10th Dist. No. 11AP-59, 2011-Ohio-4210, ¶ 5, citing Parrish v. Parrish, 95 Ohio St.3d 1201, 2002-Ohio-1623 (2002). Here, however, appellant alleges the trial court did not allow him a “full hearing” within the meaning of
{39} Pursuant to
{40} Appellant argues that the trial court‘s evidentiary determinations, set forth in assignments of error two through five, precluded him from receiving a “full hearing” under
{41} In the case sub judice, there is no dispute that appellant was served with a copy of the petition and was given an opportunity to be heard and present evidence at the
{42} Appellant‘s first assignment of error is overruled.
C. Appellant‘s Sixth Assignment of Error
{43} In appellant‘s sixth assignment of error, appellant argues that the trial court erred in failing to include any findings of fact to justify the granting of the petition for a civil protection order under
{44} Effective June 1, 2012,
{45} Generally, a court will only speak through its entries, as “[n]either the parties nor a reviewing court should have to review the trial court record to determine the court‘s intentions. Rather, the entry must reflect the trial court‘s action in clear and succinct
{46} Appellee contends that appellant failed to request findings of fact in this case and, as such, may not assert this argument on appeal. Appellee‘s argument fails in this regard as
The motive behind the civil protection order for public policy is to protect petitioners from domestic violence, and after looking at the scope of testimony as it originally occurred, I do believe that at the hearing, petitioner provided the Court with enough credible testimony and/or evidence which did not significantly deviate from the original petition reviewed and approved by this Court on June 3rd, 2019, to substantiate her reasonable fear and justify an award of a civil protection order.
Again, looking at the evidence, it is a preponderance of the evidence, and I have considered all the evidence of the parties, the testimony of both witnesses, and the demeanor of both witnesses in the courtroom. And I do believe that the threshold of the preponderance of the evidence has been met.
Specifically this Court finds that petitioner was placed in fear of imminent serious physical harm by the threats and/or action by the respondent, and this fear is objectively reasonable given the circumstances of the case. I do not find the pattern of stalking.
The Court finds by a preponderance of the evidence that the petitioner has been the victim of domestic violence as defined by Ohio Revised Code 3113.31(A) committed by the respondent, and that the following orders are equitable, fair and necessary to protect the person‘s name in this order from domestic violence.
(sic passim.) (Tr. at 134-36.)
{47} Here, the findings of fact, in conjunction with the trial court‘s oral pronouncements at the conclusion of the trial, established as fact the evidence offered by appellee that she is in danger of or has been victim of domestic violence as defined under the statute. Besman at ¶ 101 (finding the trial court‘s findings of fact, while not
{48} Appellant‘s sixth assignment of error is overruled.
D. Appellant‘s Seventh Assignment of Error
{49} In appellant‘s seventh assignment of error, he argues that the trial court‘s ruling granting appellee‘s petition for a civil protection order was against the manifest weight of the evidence.
{50} This court will review a trial court‘s grant of a civil protection order to ” ’ “determine whether sufficient, credible evidence supports a finding that the respondent had engaged in acts or threats of domestic violence.” ’ ” T.S. v. B.S., 10th Dist. No. 18AP-302, 2018-Ohio-4987, ¶ 21, quoting Fleckner v. Fleckner, 177 Ohio App.3d 706, 2008-Ohio-4000, ¶ 15 (10th Dist.), quoting Kabeer v. Purakaloth, 10th Dist. No. 05AP-1122, 2006-Ohio-3584, ¶ 7. A reviewing court will not reverse the trial court‘s award of a civil protection order as being against the manifest weight of the evidence absent a finding that there was not “some competent, credible evidence [that] goes to the essential elements of the case.” Id. If the evidence is susceptible to more than one interpretation, a reviewing court must construe the evidence consistent with the trial court‘s order. Id. An appellate court presumes that the trial court‘s findings are accurate as it was best positioned to view the witnesses and weigh the credibility of their testimony. Dennison v. Dennison, 10th Dist. No. 19AP-335, 2020-Ohio-2800, ¶ 28.
{51} As set forth in
{52} For the purposes of
{53} While the trial court ” ‘may consider past acts to determine whether the incident at issue constitutes domestic violence, the issuance of a civil protection order
{54} There is no dispute that appellant stated that he would “burn” appellee. While appellant contends that this was stated in a different context, appellee testified she interpreted the phrase, in conjunction with appellant‘s prior statements that she would not be a pretty face anymore, that appellant was going to bring her harm. “I don‘t know how to feel other than you were going to seriously hurt me.” (Tr. at 11.) Appellee also testified that she believed appellant‘s text message “they can‘t keep me forever,” that appellant would see her “at the hospital,” and that she was a “white trash whore” were threats. Appellant does not dispute these text messages were sent but contends they were sent in a different context and were not threats.
{55} Appellee also testified as the video and accompanying text messages related to appellant‘s suicide attempt. Appellant texted appellee, “I‘m serious [appellee], I will be dead by morning.” (Tr. at 17.) Appellee testified to a picture from appellant of a jump rope tied to the banister with the message, “if I want to keep not taking him seriously, he hoped it was on my conscious forever.” (Tr. at 18.) Appellee stated that appellant would consistently make threats that he would harm himself and these messages made her “afraid that if he did--if he did follow through with it, what it would mean to his girls and how I would be responsible, and that if he didn‘t follow through and I didn‘t contact him, that he would come after me and harm me because I didn‘t respond in the way that he felt was appropriate.” (Tr. at 17-18.) Appellee testified that she watched the video before reading the text message and believed appellant was dead. (Tr. at 18-19.) Appellee testified the
{56} Regarding the text message, “You don‘t want to be with me that‘s fine, but not knowing is going to kill me tonight,” appellant stated that he was “trying to get her to give me some answers” but he was not suicidal. (Tr. at 115.) When appellant was asked if this was trying to “send [appellee] a message,” appellant responded “yes, sir.” (Tr. at 116.) Appellee testified that she is fearful of appellant causing her imminent serious bodily harm. Despite knowing that appellee referred to his messages as threatening, appellant said he kept texting appellee because he “explained to her that [he] wasn‘t threatening.” (Tr. at 116.) Appellee stated that she experienced mental distress from the video and reading the text messages. Appellee could not get out of bed and could not focus or live her life without thinking appellant was going to bring her harm. Appellee testified that she is now seeing a psychiatrist and taking medication because she could not sleep. Appellee changed jobs out of fear that appellant would hurt her at work. Appellee also alleged that she urinated in her pants when appellant walked by her during a court hearing. (Tr. at 24.) Moreover, there is no dispute appellee has previously shot himself and has a felony conviction on his record involving an element of violence.
{57} After review of the hearing transcript and relevant evidence, the trial court‘s ruling was not against the manifest weight of the evidence. The trial court is best positioned to observe the parties and their testimony and make a determination as to their credibility. Nkurunziza v. Nyamusevya, 10th Dist. No. 10AP-134, 2010-Ohio-5966, ¶ 10. “We will not second-guess those credibility determinations on appeal.” Id. Given the turbulent history between the parties, text messages, and suicide video, there was sufficient competent, credible evidence to support the trial court granting the civil protection order.
{58} Appellant‘s seventh assignment of error is overruled.
{59} In appellant‘s eighth assignment of error, he argues the trial court erred in including the minor children as protected persons as there was no evidence to justify their inclusion in the protection order. Appellant also argues that the petition was never formally amended to request the protection of the third child born after the petition was filed.
{60}
{61} There was sufficient testimony at trial to support the inclusion of appellee‘s minor children as protected parties. Appellee testified that appellant struck her two-year-old son. Appellee testified that appellant admitted to the incident stating that the child was acting up in a store. Appellant denied the incident ever happened. Appellee also alleged that appellant visited her children‘s daycare on multiple occasions without invitation. Appellant testified that he once visited the daycare at appellee‘s invitation and on two other occasions went to the daycare to pay part of appellee‘s bill. In its December 14, 2020 order, the trial court found, “by a preponderance of the evidence: 1) that the Petitioner or Petitioner‘s family or household member (s) (sic) are in danger of or have been a victim of domestic violence or sexually oriented offenses as defined in
{62} Regarding the inclusion of the newborn child as a protected party, appellee was pregnant at the time she filed her petition for a protection order. Before the full hearing commenced, appellee had given birth to the child. There is no dispute that appellee testified that she wanted her children included in the order as protected parties. (Tr. at 66.) This would logically include the newborn not initially identified in the petition as a protected person. Ohio courts have found a trial court may exclude individuals that a petitioner asked to be included in the order if the evidence does not support their inclusion as a protected party. See, e.g., Hyde v. Smith, 12th Dist. No. CA2014-09-193, 2015-Ohio-1701 (finding the trial court erred including petitioner‘s father, mother, and brother as additional protected parties as they, despite their inclusion in the petition, did not meet the definition of “family or household members” under
IV. CONCLUSION
{63} Having overruled appellant‘s eight assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch.
Judgment affirmed.
KLATT, J., concurs.
DORRIAN, J., concurs in judgment only.
Notes
Petitioner was sworn and gave testimony that supports finding that Respondent committed domestic violence as defined in O.R.C. §3113.31 and that the Petitioner is in danger of Domestic [sic] violence. Her testimony is found to be credible. Sgt. Lesner and Matthew Besman are found to be credible. Dr. Horowitz testimony was minimal. Respondent was obstreperous throughout the trial and his testimony is found to be both evasive and self-serving.
The Court further finds by a preponderance of the evidence: 1) that the Petitioner or Petitioner‘s family or household members are in danger of or have been a victim of domestic violence or sexually oriented offenses as defined in R.C. 3113.31(A) committed by Respondent; and 2) the following orders are equitable, fair, and necessary to protect the persons named in this Order from domestic violence.
Besman at ¶ 8.(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.