KRISTEN L. LOZADA v. RICARDO LOZADA
CASE NO. 2012-G-3100
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
2014-Ohio-5700
[Cite as Lozada v. Lozada, 2014-Ohio-5700.]
CYNTHIA WESTCOTT RICE, J.
Appeal from the Geauga County Court of Common Pleas, Domestic Relations Division, Case No. 10DV001365. Judgment: Affirmed.
Petitioner-Appellant/ : Cross-Appellee,
: CASE NO. 2012-G-3100
- VS -
:
RICARDO LOZADA,
:
Respondent-Appellee/ : Cross-Appellant.
Appeal from the Geauga County Court of Common Pleas, Domestic Relations Division, Case No. 10DV001365.
Judgment: Affirmed.
Randy A. Vermilya and Pamela D. Kurt, 30432 Euclid Avenue, Suite 101, Wickliffe, OH 44092 (For Petitioner-Appellant/Cross-Appellee).
Richard C. Rieth and Kristen A. Crane, 1406 W. 6th Street, 2nd Floor, Cleveland, OH 44113, and Victoria N. Smith, Victoria Nagy Smith & Co. L.P.A., P.O. Box 141, Newbury, OH 44065 (For Respondent-Appellee/Cross-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant/cross-appellee, Kristen L. Lozada (“wife“), appeals from the judgment of the Geauga County Court of Common Pleas, Domestic Relations Division, awarding appellee/cross-appellant Ricardo Lozada (“husband“) attorney fees, pursuant to
{¶2} On November 16, 2010, wife filed a petition for domestic violence civil protection order (“CPO“). Generally, the petition alleged that husband had engaged in acts of domestic violence by threatening wife, threatening to take custody of the parties’ child, and that wife was in fear of husband. On the same date, the magistrate entered an ex parte CPO.
{¶3} A full hearing was held before the magistrate who, on February 8, 2011, entered his decision denying the petition for a CPO. The magistrate found that wife had made materially false statements in her affidavit with the intent of causing the court to believe husband was harassing her. The magistrate further found that wife was not a credible witness and virtually all the evidence she presented in support of the CPO was based upon unclear generalizations and unspecified claims. The magistrate determined that, in light of both parties’ testimony, wife filed the petition not to obtain relief from husband‘s behavior and protect herself, but merely as a means of retaliation for husband ending a sexual relationship the parties had maintained off-and-on since their divorce. Finally, the magistrate recommended that the court make an express finding that husband did not commit any acts of domestic violence on wife or the parties’ child because wife‘s case was “so utterly devoid of merit, and the contrary evidence against her case is so strong.”
{¶4} Neither party filed objections to the magistrate‘s decision and, on March 4, 2011, the trial court entered judgment approving and adopting the decision. No appeal was taken from this judgment. On March 8, 2011, husband filed a “Motion for Attorney Fees, Court Costs, and Other Reasonable Expenses Pursuant to
{¶5} On August 16, 2011, husband, through counsel, moved to dissolve the stay. The motion asserted that, upon investigation, counsel determined husband‘s claim was neither listed nor scheduled in the bankruptcy petition. And, because husband did not have actual knowledge of the bankruptcy proceedings until after the discharge was entered, counsel asserted the claim was not discharged. The motion asked the court to return the matter to the active docket, proceed with a hearing on the
{¶6} On November 8, 2011, a hearing on the motion was held and the magistrate issued his decision on December 9, 2011. Based upon the evidence heard at the CPO hearing, which was the basis of husband‘s frivolous conduct argument, the magistrate concluded that wife engaged in frivolous conduct in filing and prosecuting the petition for CPO as defined under
{¶7} Wife filed objections to the magistrate‘s decision and husband duly responded to the objections. On August 8, 2012, the trial court adopted the magistrate‘s decision in part, modified it in part, and approved it as modified. In particular, the trial court adopted the magistrate‘s findings and conclusions that wife engaged in frivolous conduct as defined by
{¶8} Wife filed a timely appeal from this judgment and husband filed a timely cross-appeal.
{¶9} For her first assignment of error, wife asserts:
{¶10} “The trial court‘s finding of a sanction of attorney fees is against the manifest weight of the evidence.”
{¶11} Pursuant to
{¶12} “Since ‘willfulness’ is not a prerequisite for relief” under
{¶13} No single standard of review applies in
{¶14} Finally, where a trial court has determined a party has engaged in frivolous conduct, the decision to assess a penalty lies within the sound discretion of the trial court. See e.g Edwards v. Livingstone, 11th Dist. Ashtabula Nos. 2001-A-0082 and 2002-A-0060, 2003-Ohio-4099, ¶17.
{¶15} In this case, the magistrate found that wife engaged in frivolous conduct in three separate ways: (1) by filing the petition for a domestic violence civil protection order to merely harass or maliciously injure husband. See
{¶16} With respect to the conclusion that wife filed the CPO merely to harass or maliciously injure husband, the magistrate found that wife made materially false statements in the affidavit supporting the ex parte CPO “with the intent and purpose of causing the Court to believe that [husband] was harassing and bombarding her with unwanted telephone calls and text messages.” The magistrate also found that nearly all of the testimony relevant to proving wife‘s allegations was “distorted, exaggerated, or simply false.”
{¶18} [Wife‘s] domestic case is ultimately and inherently self-contradictory. She claims that for three or more years, [husband] kept her in a constant state of fear. Solely because of that, according to her, she had sex with him, sent him nude pictures, went to birthday parties and movies with him and [their child], exchanged hundreds of text messages and phone calls, went to dinner, invited herself to his house, and so on - in short, carried on what the objective evidence shows was a remarkably casual, friendly, and intimate relationship with her former husband. But, she claims, this was all pretense, a façade built of desperation. She claims that she did all those things because she feared that if she didn‘t, he would take [their child] away from her by some unspecified means. Yet when, on November 13, 2010, he told her that their relationship was over and that after that she should communicate with him only about [their child], she reacted not with joy and relief that a terrible burden of dread had been lifted from her life, but by filing this case.
{¶19} [Wife] had no legitimate basis or reason for filing, and then continuing to prosecute, the domestic violence petition in this case. The moment she got what she claims she wanted - for [husband] to leave her alone - she struck back at him. Her theory of this case is absurd. First, even if the Court had granted her request for a
{¶20} The magistrate further found that wife did not file the CPO petition to “get relief from [husband‘s] behavior and to protect herself, but to retaliate against him for ending their intimate relationship of over three years.” In filing the petition for CPO, the magistrate noted that wife was attempting to deprive husband access to their child without any legal justification. The magistrate therefore concluded that the petition was filed to merely harass or maliciously injure husband, in violation of
{¶21} The foregoing determinations were premised upon the magistrate‘s decision in the underlying CPO case. Those findings were not objected to and were eventually adopted by the trial court. Because the trial court‘s findings and conclusions in the instant matter were based upon its conclusive determinations in the judgment
{¶22} Notwithstanding the foregoing, wife contends that conduct only becomes frivolous when the expectation of finding evidence in support of an action is unreasonable. Because, she asserts, she had a concern for her safety that prompted her to seek the CPO, she provided reasonable evidence for the petition. Given our conclusion that the trial court did not err in finding frivolous conduct pursuant to
{¶23} Wife‘s argument is a challenge to the trial court‘s conclusion that she violated
{¶25} Despite the conspicuous absence of any argument from appellant, the dissent also contends the frivolous conduct finding is against the manifest weight of the evidence because the trial court‘s determination that appellant was not entitled to the CPO was unreasonable. It is unclear, however, how the original judgment can be deemed unreasonable when there is no transcript of those proceedings in this court‘s record. While the record includes transcripts from appellant‘s ex parte hearing and her deposition, these items do not provide any insight into the testimony taken at the full hearing.
{¶26} The only facts available to this court from the full hearing on the CPO are contained in the magistrate‘s decision and the trial court‘s adoption of that decision. In that decision, the magistrate specifically finds appellant possessed no colorable basis in fact or law for filing the petition, but did so merely to retaliate, harass, or maliciously
{¶27} Furthermore, the dissent considers multiple sources outside this court‘s record in an attempt to impugn the magistrate‘s denial of the CPO.
{¶28} “The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.”
{¶29} As indicated above, even if the issues were not barred by res judicata or otherwise waived, appellant did not provide a copy of the CPO hearing transcript in the appellate record. Undiscouraged, the dissent resorts to various sources dehors the appellate record in an apparent effort to paint appellee as an unstable and violent individual. It is axiomatic that “* * * [a] reviewing court cannot add matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus.
{¶30} Because there was no transcript prepared, the dissent attempts to create its own tendentious version of the evidence by selectively identifying information outside the record to support its one-sided conclusion. The dissent does not know and has no
{¶31} The record before this court is clear: The magistrate found, in a very detailed decision, that appellant was not entitled to a CPO. And, after holding a hearing on sanctions, based upon its previous decision, found appellant had engaged in frivolous conduct. As discussed above, the record supports this decision and the trial court did not abuse its discretion in adopting that decision.
{¶32} Wife‘s first assignment of error lacks merit.
{¶33} For her second assignment of error, wife alleges:
{¶34} “The trial court erred by assessing attorney fees against petitioner under
{¶35} Wife contends that
{¶36} The Supreme Court of Ohio has recently commented that “[a] ‘civil action’ has been defined as an ‘[a]ction brought to enforce, redress, or protect private rights. In general, all types of actions other than criminal proceedings.‘” Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, ¶15, quoting Black‘s Law Dictionary 222 (5th Ed.1979). This definition envelops the relief sought in a petition for a domestic violence civil protection order; namely, protection of the person, oneself, or one‘s child.
{¶37} Moreover, courts have specifically stated that “a domestic violence civil protection order is a civil proceeding.” Luna-Corona v. Esquivel-Parrales, 12th Dist. Butler No. CA2008-07-175, 2009-Ohio-2628, ¶42, citing Moore v. Moore, 5th Dist. Licking No. 02CA0037, 2003-Ohio-1382, ¶26. And,
{¶38} The General Assembly‘s purpose in enacting
{¶39} The dissent maintains that because the petition filed pursuant to
{¶40} Additionally, the dissent‘s reading would require a trial court to tolerate such abuses where, in “ordinary” proceedings, such actions would be subject to greater court regulation. It would be incongruous to divest the trial court of the authority, inherent or otherwise under statute and the rules applicable to ordinary civil actions, to discourage and sanction frivolous conduct simply because a matter falls under the rubric of a special proceeding. We recognize the conceptual point made by the dissent, but maintain the remedial purpose behind
{¶41} The dissent further asserts
{¶42} For the reasons discussed above, we hold that an
{¶43} Wife‘s second assignment of error lacks merit.
{¶44} For her third assignment of error, wife asserts:
{¶45} “The trial court erred in deciding the question of the dischargeability of a debt under section 523(a)(6) of the Bankruptcy Code as that question was not properly before the court.”
{¶46} Wife contends that the issue of the dischargeability of attorney fees relating to the proceedings leading to the denial of her petition for a CPO was not properly before the trial court. Furthermore, wife‘s argument suggests that she experienced a due process violation because, with no motion before the court, she had no opportunity to research, respond, or reply to the issue of dischargeability. Thus, she claims, the court exceeded its jurisdiction and violated her right to be heard in addressing the question of dischargeability. We do not agree.
{¶47} On August 16, 2011, counsel for husband filed a “Motion to Dissolve Stay of the Court and Restore Case to Active Docket.” In that motion, counsel asserted that husband‘s claim for attorney fees was neither listed nor scheduled and husband did not
{¶48} Furthermore, at the hearing on attorney fees, the magistrate acknowledged that wife‘s
{¶49} The record demonstrates that counsel for husband raised the issue of dischargeability, set forth the governing law on the court‘s jurisdictional ability to resolve the issue, and requested the court make a determination that the debt was not dischargeable, in the August 16, 2011 motion to dissolve the bankruptcy stay. Wife was consequently on notice that the issue was before the court well before the November 8, 2011 hearing on the
{¶50} Wife‘s third assignment of error lacks merit.
{¶51} For her fourth assignment of error, wife argues:
{¶53} In an action for attorney fees, the burden of proving the time billed was fairly and properly used as well as the burden of showing the reasonableness of work hours devoted to the case rests on an attorney. In re Guardianship of Spagnola, 195 Ohio App.3d 719, 2011-Ohio-5602, ¶14 (11th Dist.) A trial court is required to base its reasonableness analysis upon the actual value of the necessary services performed, and the record must disclose some evidence to support the court‘s decision. Id. citing Climaco, Seminatore, Delligatti & Hollenbaugh v. Carter, 100 Ohio App.3d 313, 323 (10th Dist.1995).
{¶54} When awarding attorney fees, the trial court should first calculate the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 145, (1991). Once the court has arrived at a “lodestar” amount, it may modify that amount by application of the reasonableness factors listed in
{¶55} (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by
{¶56} Where a court is empowered to award attorney fees, an appellate court will not interfere with the decision “[u]nless the amount of fees determined is so high or so low as to shock the conscience[.]” Bittner, supra, at 146; see also Brancatelli, supra.
{¶57} In this matter, wife contends husband‘s counsel failed to set forth sufficient evidence that the services they performed were reasonable and necessary. Thus, she maintains, the trial court did not have a proper basis for granting the award.
{¶58} In his decision, the magistrate identified all applicable Rule 1.5 factors, discussed their relevance to the case, and, from this, the magistrate determined husband‘s counsel was entitled to fees generated from all billed hours, set forth on his fee statement, at the rate to which counsel testified he charged, for work he did defending the CPO.4 To wit, $22,852.50.
{¶59} The fee statement provided by husband‘s counsel set forth general information regarding counsel‘s work and a designation of the time spent for such work. And, at the motion hearing, counsel testified to his hourly fee ($300 per hour), his significant experience as an attorney practicing primarily in the area of domestic relations law (32 years with 95% of his practice dealing with domestic matters).
{¶60} We acknowledge that, generally, merely submitting an attorney‘s itemized bill is insufficient to establish the reasonableness of the amount of work billed. United Assn of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry, Local Union No. 776 v. Jack‘s Heating, Air Conditioning & Plumbing, Inc., 3d Dist. Hardin No. 6-12-06, 2013-Ohio-144, ¶25; Whitaker v. Kear, 123 Ohio App.3d 413, 424, (4th Dist.1997); Climaco, Seminatore, Delligatti & Hollenbaugh, supra, at 324. And, frequently, a party will offer expert testimony to establish that the hours charged were reasonable in light of the litigation‘s particular facts. See e.g. Hawkins v. Miller, 11th Dist. Lake No. 2011-L-036, 2011-Ohio-6005, ¶28 (affirming award of attorney fees where expert testified to the amount of time and hourly rate charged); Whitaker, supra, at 424-25 (affirming trial court‘s finding that evidence was sufficient to prove reasonableness of fee request where expert testified to the reasonableness of the time spent on the litigation).
{¶61} In this case, however, counsel did not merely submit a fee statement relating to the hours spent; rather, counsel‘s statement included itemized notations of the activities for which he was billing, all of which related to the defense of the petition for a CPO. The details in the fee statement were sufficient to permit the magistrate to render an informed opinion regarding the reasonableness of the fees. This, in
{¶62} Wife‘s fourth assignment of error lacks merit.
{¶63} For his assignment of error on cross-appeal, Husband asserts:
{¶64} “The trial court committed prejudicial error in overruling the Magistrate‘s Decision and decreasing the attorney fee award granted to Ricardo Lozada in the Magistrate‘s Decision of December 9, 2011 upon a finding that Appellant/Cross Appellee, Kristen Lozada, engaged in frivolous conduct within the meaning of
{¶65} As indicated above, the trial court is vested with considerable discretion in awarding attorney fees. See e.g. Bittner, supra. Save a clear abuse of discretion, an appellate court may not reverse the trial court‘s judgment on attorney fees. Sertz v. Sertz, 11th Dist. Lake No. 2011-L-063, 2012-Ohio-2120, ¶48.
{¶66} In this case, the trial court reduced the reasonable amount of attorney fees awarded by the magistrate from $22,852.50 to $15,000. The trial court decreased the amount based upon its conclusion that the award was “too much for a case of this nature.” Given the considerable discretion a trial court possesses in determining reasonable attorney fees, we find no error.
{¶67} This case was a domestic violence CPO, certainly not an uncommon form of litigation to defend. Further, the record demonstrates that counsel‘s fee-per-hour rate was higher than the fee charged for similar services in this locality. There was no indication that counsel was under any time limitations or that he was precluded from
{¶68} Both the magistrate‘s decision and the trial court‘s judgment comported with reason as well as the record. Neither the magistrate nor the trial judge, consequently, transcended the considerable discretion possessed by each in drawing their respective conclusions. Hence, both decisions, although substantively disparate, were individually and independently reasonable in the context of the proceedings sub judice.
{¶69} Husband‘s assignment of error on cross-appeal is without merit.
{¶70} For the reasons discussed in this opinion, the trial court‘s judgment adopting the magistrate‘s decision is affirmed.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
{¶71} Finding merit in wife‘s first and second assignments of error, I would reverse on that basis, and deem her remaining assignments of error, and husband‘s cross assignment of error, moot.
{¶72} The issue in the case is one of first impression in Ohio and perhaps throughout the country. The majority is upholding a lower court‘s award of attorney fees to be paid by appellant wife in a civil domestic violence proceeding to her ex-husband.
{¶73} Ohio created
{¶74} It goes without saying that victims of domestic violence should not fear punishment or humiliation by the legal system supposedly designed to protect them. They cannot fear reprisal when coming forward to file a petition after having already been victimized. The entirety of
{¶75} I commence with wife‘s second assignment of error, finding it dispositive. It reads: “The trial court erred by assessing attorney fees against petitioner under
{¶76} As noted by the majority, we address questions of law de novo. Therefore, whether the statute allows for fees to be awarded is a legal question subject
{¶77} The General Assembly, in drafting
{¶78} This legislation is not merely an “ordinary” civil proceeding as determined by the trial court and the majority. This writer asserts the holding of the majority violates the law and public policy promulgated to protect victims of domestic violence. The award of attorney fees, despite an obvious lack of a provision for them in the statute, is without legal support under
{¶79}
{¶80} “Because an action/civil action is an ‘ordinary proceeding‘, it is distinguishable from ‘special proceedings‘, which continue to exist in spite of the adoption of
{¶81} “A special proceeding is one specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity. See,
{¶82} “The General Assembly enacted the domestic violence statute
{¶83} Thus, a
{¶84} The filing of a domestic violence petition is a statutorily defined cause of action which prohibits the court from assessing fees. The issue is not whether a petitioner has probable cause to file the complaint because the statute, as written, allows everyone to file under a subjective feeling of duress or fear. It is then up to the trial court whether it will grant the relief requested based upon an imminent threat. The statute does not allow the trial court to read the mind of the petitioner at the time of the filing, but to take ex-parte testimony and supporting affidavits to make its own determination. The petitioner does not invent the cause of action as it is already in statute. The procedure and the standards are statutorily defined by law.
{¶85} I agree the statute sets a low bar for petitioners, and this has caused consternation and comment in the literature, as it may give respondents little remedy to redress issues, including eviction from joint premises or denial of child companionship rights. The legislature has not seen fit to address these disparities. The trial court‘s only remedy under the statutory scheme, if the court finds a petitioner‘s testimony and evidence unworthy or untruthful, is denial of the order, not granting sanctions or putting the petitioner on trial which would defeat and deter victims coming forward. The purpose of the statute is not to punish petitioners, unlike the finding of the trial court, but to prevent further harm to them. The majority‘s decision further punishes the alleged victim.
{¶87} There is no basis in law for awarding attorney fees under
{¶88} While I believe wife‘s second assignment of error dispositive, I must also respectfully disagree with the majority‘s conclusion the first assignment of error lacks merit. It reads: “The trial court‘s finding of a sanction of attorney fees is against the manifest weight of the evidence.”
{¶89} I disagree with the majority‘s conclusion that wife‘s failure to object to the findings made in the magistrate‘s decision of February 8, 2011 waived this issue, or moves it to the realm of res judicata. The magistrate‘s initial decision was interlocutory, until all issues were resolved – i.e., whether husband should be awarded attorney fees. “The doctrine of res judicata does not apply to interlocutory orders.” Beck-Durell Creative Dept., Inc. v. Imaging Power, Inc., 10th Dist. Franklin No. 02AP-281, 2002-Ohio-5908, ¶16, citing Duff v. Donald M. Colasurd Co. L.P.A., 10th Dist. Franklin No. 91 AP-316, 1991 Ohio App. LEXIS 4421 (Sept. 19, 1991). The finding of frivolous conduct, allegedly justifying the award of attorney fees to husband, was first made by the magistrate in his decision filed December 9, 2011, not in the February 8, 2011 decision. Wife properly objected to the latter decision, which the trial court approved and adopted,
{¶90} The finding of frivolous conduct, upon which the award of attorney fees is primarily based, arises from her ultimate failure to obtain the civil protection order. In considering this assignment of error, I agree with the majority that we are largely confined to the assignment of error, as well as the pleadings and other materials contained in the record, since wife failed to file any transcript of the hearing. However, I respectfully conclude there is sufficient information contained therein to undermine the conclusion that wife‘s conduct in seeking the civil protection order was frivolous.
{¶91} The magistrate refers to the necessity of incurring physical injury and mentions that, “since the divorce the respondent has not threatened any physical violent act against the petitioner.” This appears to be tacit acknowledgement of past violence. Furthermore, the finding assumes physical violence is a requirement for obtaining an order. It is not. However, a prior finding of domestic violence would explain why wife might be afraid of husband. She testified to physical abuse “during the marriage” and “her continual fear.” In fact, there was a prior finding of domestic violence by husband against wife. Lozada v. Lozada, Cuyahoga C.P. No. DR-01-283747 (Dec. 19, 2001).5
{¶93} The magistrate cites at one point that the wife “never asked the respondent to stop contacting her,” evidently as justification for the view she welcomed her treatment. A petitioner for a civil protection order does not have to give the respondent notice his or her behavior is unacceptable or threatening before filing the complaint. Further, the record reflects the parties have a shared parenting plan requiring them to communicate for the child‘s best interest. Why would either of them, as suggested by the magistrate, not communicate with the other? They were under court ordered parenting plan to communicate.
{¶94} The record before us does indicate that husband, as a retired police officer, was trained in the use of force, and owned several guns. During one confrontation in wife‘s driveway she stated, “Are you going to get your gun and shoot me like you shot those kids?” The magistrate justifies and minimizes an incident where husband, after his retirement, appears to have brought a gun to a Cleveland bar at around 11:30 p.m. on September 28, 2009. Reports stated that he and the bar owner opened fire on two men trying to rob the bar. See, e.g., John Caniglia, Former Cleveland cop shoots teen robbers at bar, http://www.cleveland.com (accessed May 27, 2014); Donna J. Miller, Robbery suspects shot by ex-cop and bar owner identified,
{¶95} A useful reference in these cases is Brigner, The Ohio Domestic Violence Benchbook: A Practical Guide to Competence for Judges & Magistrates (2d Ed.2003) released by the Family Violence Prevention Center at the Ohio Office of Criminal Justice Services. Contained within the benchbook is a lethality check list for domestic relations proceedings. Id. at 65. Of note, the following behaviors – also described under oath in the record – are predictive of future violence: past use of weapons; threats to abduct a child; assaults on others; violence or threats in public; prior arrests for domestic violence; prior findings for domestic violence; the victim is separated or recently separated from the partner; the defendant has access to weapons and weapons’ training. Several of these factors are present in this case, yet were disregarded and ignored by the trial court and the majority.
{¶96} Ultimately, the issue is not whether wife was correct in her fear of potential domestic violence: it is whether there was some reasonable basis for her fear. The magistrate‘s own decision, matters which this court can take judicial notice of, and which relate to items referenced in the record, and the extensive but incomplete record, including wife‘s affidavit and deposition, the pleadings, and the transcript of the ex parte hearing, indicate her fear was not baseless. Thus, her conduct in seeking a civil protection order should not have been deemed frivolous, and this finding further punishes wife.