K.A. v. A.V.
Appellate Case No. 2018-CA-12
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
October 12, 2018
2018-Ohio-4144
FROELICH, J.
Triаl Court Case No. 2018-DR-18 (Domestic Relations Appeal from Common Pleas Court)
Rendered on the 12th day of October, 2018.
K.A., Petitioner-Appellee, Pro Se
MIRANDA A. WARREN, Atty. Reg. No. 0081103, 114 S. Main Street, P.O. Box 416, Bellefontaine, Ohio 43311 Attorney for Respondent-Appellant
{¶ 1} A.V. (“Father”) appeals from a domestic violence civil protection order (“CPO”) issued by the Champaign County Common Pleas Court, Domestic Relations-Juvenile-Probate Division, that bars Father from any contact with his minor child through March 14, 2023. For the reasons that follow, the trial court’s judgment will be affirmed.
Factual Background and Procedural History
{¶ 2} Father and his former girlfriend, K.A. (“Mother”), are the parents of an eight-year-old son (“Son”). After the relationship between Father and Mother ended, they reached an agreement that established their respective parental rights and responsibilities with respect to Son, including a shared parenting schedule. That agreement was filed with the Champaign Cоunty Common Pleas Court, Domestic Relations-Juvenile-Probate Division, on January 30, 2013.
{¶ 3} On February 2, 2018, while Son was with Father, Mother received a text message from Father that read:
Had to tap that ass with the belt tonight and he jumped but I told him a smart mouth with his parents telling you to shut up and having an attitude will never work.
{¶ 4} According to Mother, the text message referenced an incident that had occurred approximately thrеe weeks earlier, outside Father’s presence, when she had Son at a haircut appointment and Son told her to “shut up.” Because she agreed that Son “did need some discipline,” she was not immediately concerned about Father’s claim “that he had ‘tapped’ [Son’s] behind with the belt.”
{¶ 6} Officer Reаsor then interviewed Father. Father admitted that he had hit Son with a belt for being “mouthy and disrespectful,” but said that he used physical punishment as “the last resort.” He denied that the punishment was excessive in this instance; “I think he just moved and got the worst end of the deal.” Shown photographs of Son’s bruises, Father termed them “lightweight.” Father said that he had been “whipped” as a child, and “this right here ain’t nothing from what I got when I was little.” Officеr Reasor charged Father with misdemeanor offenses of domestic violence and endangering children.
{¶ 7} On February 5, 2018, Mother filed a petition for a domestic violence CPO against Father on behalf of Son. In conjunction with that petition, Mother produced copies of photographs of Son’s injuries, a screen shot of Father’s February 2 text message, a statement signed by Officer Reasor, the two misdemeanor complaints filed against Father, the police report prepared by Officer Reasor, and records from Son’s February 4, 2018 hospital visit. She also presented a screen shot of an additional text message received from Father after she went to the police, indicating that Father had “heard about
{¶ 8} Following an ex parte hearing held on February 6, 2018, the trial court issued an ex parte domestic violence CPO protecting both Mother and Son from Father. Based on Father’s request for a continuance of the full hearing to allow him to obtain counsel, the ex parte CPO was extended through March 14, 2018.
{¶ 9} At the full hearing held on March 14, 2018, Mother appeared pro se and Father appeared with counsel. Mother testified that Son still had bruises from Father’s use of the belt more than a month prior. She presented photographs that she said were “taken yesterday,” purporting to depict the then-current state of Son’s bruising. She also testified that shortly after the incident with Son, Father was arrested at the state prison where he works for having a gun and “several dozen rounds of ammunition” in his vehicle on prison property. She presented copies of the criminal indictment related to that arrest and of the police report, which referred to Father as “[a] suicidal employee.”
{¶ 10} Mother expressed concern that Father was acting irrationally and had reached “a breaking point.” She said that although she believed Father loves Son, she felt Father “needs some seriоus help before he is allowed to be around” Son. Mother admitted, however, that the only threat Father recently had directed toward her was that which she perceived in his text message about “a war.” All exhibits she presented were admitted into evidence without objection from Father’s attorney.
{¶ 11} Father testified that he, not Mother, acts as Son’s disciplinarian. He confirmed that he believes in using corporal punishment, but only as a “last resort.” He said that Son recently had been “very disrespectful,” saying things “that aren’t acceptable
{¶ 12} On March 15, 2018, the trial judge issued an order that cоntained the following findings:
Based upon the testimony and evidence presented, the Court finds by a preponderance of the evidence that [Son] is an abused child because [Father] administered corporal punishment excessive under the circumstances and created a substantial risk of serious physical harm to the child. Specifically, the Court finds that [Father] struck [Son] with a belt with such force that it left severe bruises to his buttocks and thigh that have lasted 5-1/2 weeks, and [Father] provided no reason for the discipline except disrespect.
Furthermore, [Father] committed Domestic Violence against [Son] * * * because [Father] recklessly caused [Son] bodily injury.
The Court finds insufficient evidence to grant a Civil Protection Order for [Mother].
The Domestic Violence Civil Protection Order will be issued by
(Emphasis sic.)
{¶ 13} By separate judgment entered on the same date, the trial court issuеd a domestic violence civil protection order that barred Father from any contact with Son through March 14, 2023.
{¶ 14} Father appeals from that judgment, setting forth two assignments of error:
- It was an abuse of discretion and against the manifest weight of the evidence when the trial court granted an order of protection to [Mother] for her minor child.
- It was an abuse of discretion when the trial court modified [Father’s] parental rights and visitation by granting an order of protection as the trial court lacked jurisdiction.
Standard of Review
{¶ 15} To assess whether a protection order should have been issued, “the reviewing court must determine whether there was sufficient credible evidence to prove by a preponderance of the evidence that the petitioner was entitled to relief.” Insa v. Insa, 2016-Ohio-7425, 72 N.E.3d 1170, ¶ 45 (2d Dist.), quoting Weismuller v. Polston, 12th Dist. Brown No. CA2011-06-014, 2012-Ohio-1476, ¶ 19. “Under the civil manifest-weight standard, ‘[i]f competent, credible evidence exists to support the trial court’s decision, it must be affirmed.’ ” Id., quoting Wise v. Wise, 2d Dist. Montgomery No. 23424, 2010-Ohio-1116, ¶ 9. To perform a civil manifest-weight analysis, the appellate court reviews the trial court’s rationale and the evidence cited in support of its decision, remaining mindful of the trial court’s primary role in evaluating evidence and assessing witness
Law Concerning Domestic Violence Civil Protection Orders
{¶ 16}
{¶ 17} Among the types of conduct defined as domestic violence are “[a]ttempting to cause or recklessly causing bodily injury,”
{¶ 18} The statutory definition of “abused child” includes an exception, however, for “corporal punishment or other physical disciplinary measure” imposed by a parent, sо long as such punishment “is not prohibited under”
{¶ 19} Beyond that statutory exception, case law also recognizes that “the domestic violence statute does not prohibit a parent from properly disciplining his or her child.” State v. Thompson, 2d Dist. Miami No. 04CA30, 2006-Ohio-582, ¶ 28, citing State
{¶ 20} Accordingly, “proper and reasonable parental discipline” is an affirmative defense to domestic violence under both
{¶ 21} Determining whether particular conduct constitutes proper and reasonable parental discipline requires consideration of “the totality of all of the relevant facts and circumstances.” Woodruff at ¶ 19, quoting Phillips at ¶ 18. “In analyzing the totality of the circumstances, a court should consider: (1) the child’s age; (2) the child’s behavior leading up to the discipline; (3) the child’s response to prior non-corporal punishment; (4) the location and severity of the punishment; and (5) the parent’s state of mind while administering the punishment.” Id.
{¶ 22} “[T]he nature of any physical injury inflicted * * * may be evidence demonstrating that the actor’s conduct was not proper and reasonable parental
{¶ 23} Under the relevant statute, a trial court issuing a CPO also may “temporarily allocate parental rights and responsibilities for the care of, or establish temporary parenting time rights with regard to, minor children,” but only “if no other court has determined, or is determining, the allocation of parental rights and responsibilities for the minor children or parenting time rights.”
First Assignment of Error
{¶ 24} In his first assignment of error, Father contends that the trial court both abused its discretion and ruled against the manifest weight of the evidence by granting Mother a domestic violence CPO on behalf of Son. However, because Father challenges the very grant of a CPO, not the scope of that order, the abuse of discretion standard does not apply. See Weber v. Weber, 2d Dist. Greene No. 2010-CA-40, 2011-Ohio-2980, ¶ 31. Rather, the relevant inquiries are: 1) whether sufficient credible evidence was presented to prove by a preponderance of the evidence that Father “attempt[ed] to cause or recklessly caus[ed] bodily injury” to Son or engaged in abuse of a child, see Insa, 2016-Ohio-7425, 72 N.E.3d 1170, at ¶ 45;
{¶ 25} We conclude that the trial court did not err in finding that a preponderance of competent, credible evidence supported the issuance of a CPO. The trial court found that Father recklessly caused bodily injury to Son, in violation of
{¶ 26} Significantly, Father admitted striking Son with a belt and leaving the bruises depicted in the police photographs. Considering the factors enumerated in Woodruff at ¶ 19, a reasonable trier of fact could conclude that Father’s actions toward Son did not constitute “proper and reasonable parental discipline.” The trial court implicitly determined that Son’s аge did not justify the degree of physical punishment inflicted. Despite Father’s observation that Son “is not an infant,” neither was he nearing adulthood at the age of eight. A rational finder of fact could find a violation of
{¶ 27} Father’s description of Son’s behavior that led to the discipline in question also does not overcome the trial court’s conclusion that such discipline was not proper and reasonable. See Woodruff at ¶ 19. Father testified that the discipline was provoked when he learned that Son had been “disrespectful” to Mother some three weeks prior, as well as by instances of Son’s being “mouthy and disrespectful,” “using his middle finger,” or saying things “that aren’t acceptable for a young child.” Father identified no drastic circumstances, such as Son displaying physical aggression, engaging in illegal conduct, or endangering himself or others, as warranting resort to what Father himself characterized as a “last resort” form of parental control. Compare Hause, 2d Dist. Montgomery No. 17614, 1999 WL 959184 (where father struck 17-year-old son who previously threatened father with hedge trimmers and threatened to kill father for disciplining him). Moreover, although he alluded to preferring to discipline his children by “talk[ing] to” and “guiding” them, Father did not indicate what lesser means of discipline he had tried with Son before resorting to the physical punishment applied in this instance.
{¶ 28} Father’s additional arguments as to this assignment of error offer nothing to
{¶ 29} Because the trial court’s reference to “severe bruises * * * that have lasted 5-1/2 weeks” is supported by a preponderance of competent, credible evidence in the record, as are the court’s other findings, and because Father failed to show that such bruises were the product of proper and reasonable parental discipline, Father’s first assignment of error is overruled.
Second Assignment of Error
{¶ 30} Father’s second assignment of error contends that the Domestic Relations Division of the Champaign County Common Pleas Court lacked jurisdiction to issue a
{¶ 31} Father advances decisions from other Ohio appellate courts as support for the proposition that under
{¶ 33} Given that the trial court that entered the CPO at issue was the same court that presidеd over Father’s 2013 parenting agreement with Mother, Father’s assignment of error based on the trial court’s purported lack of jurisdiction is overruled.
Conclusion
{¶ 34} The judgment of the trial court will be affirmed.
HALL, J. and TUCKER, J., concur.
Copies mailed to:
K.A.
Miranda A. Warren
Hon. Lori L. Reisinger