McVean v. McVeanMcVean v. McVean
Cordell Law LLP, Mary C. Patton Coffman, 201 East Fifth Street, Suite 1410, Cincinnati, Ohio 45202, for respondent-appellant
HENDRICKSON, P.J.
{1} Respondent-appellant, Jason McVean, appeals from a decision of the Butler County Court of Common Pleas, Domestic Relations Division, granting a domestic violence civil protection order (“DVCPO“) against him in favor of petitioner-appellee, Kristin A. McVean. For the reasons set forth below, we affirm the trial court‘s decision.
{2} In November 2017, Jason and Kristin were in the midst of a divorce. The
{3} On November 7, 2017, Kristin petitioned for and was granted an ex parte protection order. In the petition, Kristin alleged that there had been an altercation between the parties on November 5, 2017, when Jason was returning the children to her home at the completion of his parenting time. Kristin stated Jason pushed her twice on this occasion, screamed in her face, and threw the children‘s belongings on the ground before driving away. In the petition, Kristin also described an incident that occurred “a couple months ago” when the parties’ oldest child came home with a bruise on her forearm that the child said occurred when Jason “squeezed her arm really hard” while he was angry. Kristin also alleged that while Jason had not physically “put his hands” on her prior to the November 5, 2017 incident, he was physically abusive to the family‘s dog for over a year. Finally, Kristin alleged that Jason had threatened to call children services on her at least three times during the course of the divorce proceedings, he “constantly” texted and called her phone, and he “pulled contacts from [her] phone records.”
{4} On December 13, 2017, a full hearing was held before a magistrate. At the hearing, both parties were represented by counsel. Kristin testified that at approximately 8:30 p.m. on November 5, 2017, Jason arrived at her house to return the children at the conclusion of his parenting time. There was a thunderstorm that evening and Jason, rather than getting the children out of his vehicle and walking them to the door, sat in the vehicle with the children while he waited for Kristin to come get the children out of the car. Jason texted Kristin “any day now” after she did not walk outside to get the children. He then texted Kristin that if she did not come get the children out of his car by 8:45 p.m., he was going to start honking his horn. When Kristin did not meet his demands, Jason proceeded to honk the horn for approximately ten minutes. Kristin still did not come outside to get the children, so Jason drove away from the residence.
{6} Kristin testified, “[Jason‘s behavior that day] made me feel very scared and I honestly was standing there with him in my face wondering, you know, if he was gonna punch me or what was coming next. And I‘ve seen violence from him before. He has never physically hit me before, but I have seen violence from him before.” According to Kristin, Jason physically abused a family pet, put doorknobs through walls, threw pillows across the room, and knocked over lights. Before he moved out of the family home, Jason left her notes stating that he never wanted to see her again, that he had video and audio cameras and was monitoring everything she did, and that he was depressed. Jason also had control over her cell phone records and was contacting people who appeared on her call logs. Kristin testified Jason directed violence and anger towards her and his actions made her “feel very concerned for [her] safety” as she “[didn‘t] know what he‘s capable of.” She stated that she “[p]otentially, yes” believed she would be in danger if the DVCPO was not granted. Finally, on cross-examination, she testified that other than pushing her twice on November 5, 2017, Jason did not make any threats of violence towards her.
{7} Kristin presented testimony from her neighbor, Melissa Haller, who witnessed a
{8} Jason‘s version of events differed from Kristin‘s and Haller‘s. Jason stated that when Kristin did not come to his vehicle to remove the children, he only beeped his horn “on and off” for two minutes. He also stated that it was Kristin‘s actions on November 5, 2017 that were threatening, not his own actions. Jason explained that when Kristin approached his vehicle and opened his driver-side door, it “made [him] feel very threatened.” He stated that while Kristin stood in between the door and car, she “exchang[ed] * * * her thoughts on [their] divorce case, as well as whether or not [he] was going to be a father,” which caused him to feel intimidated. Jason therefore “brushed [Kristin‘s] arm away” in an unsuccessful attempt to close his door. He then got out of the vehicle and, in that process, “may have brushed [against] Kristin.” He denied that he was angry with Kristin, that he towered over her while screaming at her, or that he pushed Kristin backwards or forcibly moved her in any way. He also denied making any threats towards her. Finally, he denied that he threw the children‘s belongings on the wet yard, stating that the children‘s belongings were thrown at the front
{9} Following Jason‘s testimony, the magistrate took the matter under advisement. On January 2, 2018, the magistrate granted Kristin a DVCPO, finding that Jason, by threat of force, had placed Kristin in fear of imminent serious physical harm. The trial court adopted the magistrate‘s decision that same day. Jason filed an objection, arguing that Kristin failed to prove he placed her in imminent serious physical harm as he “never made any physical (or other) threat” towards her. The trial court overruled Jason‘s objection, noting that the magistrate found Kristin and Haller credible and that the “[m]agistrate‘s decision is complete and is based on sound reasoning.”
{10} Jason timely appealed, raising two assignments of error. As they are related, we will address the assignments of error together.
{11} Assignment of Error No. 1:
{12} THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE‘S DECISION AS THE DECISION IS, ON ITS FACE, CONTRARY TO LAW.
{13} Assignment of Error No. 2:
{14} THE TRIAL COURT‘S FINDING THAT APPELLANT HAD COMMITTED DOMESTIC VIOLENCE PURSUANT TO
{15} In his first assignment of error, Jason contends that both the magistrate‘s decision and the trial court‘s decision are “on their face, contrary to law” as the magistrate‘s
{16} The procedures governing civil protection orders are set forth in
{17} A magistrate‘s order granting a protection order after a full hearing is not effective unless adopted by the trial court.
The objecting party “has the burden of showing that an error of law or other defect is evident
{18} Kristin was granted a protection order in accordance with
{19} “Under
civil protection order. See Wulf v. Opp, 12th Dist. Clermont No. CA2014-10-074, 2015-Ohio-3285, ¶ 17; Heimann v. Heekin, 1st Dist. Hamilton No. C-130613, 2014-Ohio-4276, ¶ 7; Isna v. Isna, 2d Dist. Montgomery No. 26909, 2016-Ohio-7425, ¶ 26; J.S. v. D.E., 7th Dist. Mahoning No. 17 MA 0032, 2017-Ohio-7507, ¶ 15; Martin v. Dockter, 10th Dist. Franklin Nos. 17AP-261 and 17AP-534, 2018-Ohio-858, ¶ 7.
{20} Threats of violence constitute domestic violence under
{21} “A trial court‘s decision to grant or deny a DVCPO will not be reversed where such decision is supported by the manifest weight of the evidence.” Barrett v. Barrett, 12th Dist. Warren No. CA2016-04-033, 2017-Ohio-250, ¶ 19. Under a manifest weight challenge, a judgment will not be reversed as long as the judgment is supported by some competent, credible evidence going to all essential elements of the case. Caramico v. Caramico, 12th Dist. Clermont No. CA2015-03-025, 2015-Ohio-4232, ¶ 26. “The appellate court must be guided by a presumption that the trial court‘s factual findings are correct because the trial judge is best able to view the witnesses and observe their demeanor and use these observations in weighing the credibility of the proffered testimony.” Barrett at ¶ 19, citing McBride v. McBride, 12th Dist. Butler No. CA2011-03-061, 2012-Ohio-2146, ¶ 11.
{22} We find that the trial court did not err in adopting the magistrate‘s decision granting the DVCPO as there was no error of law or other defect evident on the face of the decision. Moreover, a review of the record demonstrates that competent and credible evidence supports the court‘s decision to grant the protection order. The magistrate heard
{23} Haller‘s testimony about the events that transpired on November 5, 2017 corroborated Kristin‘s testimony. Haller stated Jason was “in [Kristin‘s] face * * * towering over her, pointing in her face, screaming.” Haller testified Jason‘s demeanor was “very aggressive” and so threatening that she found it necessary to predial 9-1-1 and have her cellphone in her hand when she approached Jason to tell him that she would call the police if he did not “get out of [Kristin‘s] face.” Haller and Kristin‘s testimony provide competent and credible evidence that Jason‘s aggressive conduct in pushing Kristin, towering over her, and pointing and screaming in her face was a threat of force. Furthermore, Kristin‘s testimony establishes that she was in fear of imminent physical harm and that such fear was reasonable under the circumstances.
{24} Although Jason disputes that he pushed Kristin, towered over her, or threatened her in any way on November 5, 2017, the magistrate found Jason‘s testimony was not credible. The magistrate specifically found Jason‘s threatening actions were
{25} Accordingly, for the reasons set forth above, we find that the trial court did not err in adopting the magistrate‘s decision as the decision was not, on its face, contrary to law and the decision to grant the DVCPO was supported by the manifest weight of the evidence. Jason‘s first and second assignments of error are therefore overruled.
{26} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.