Murral v. ThomsonMurral v. Thomson
DECISION AND JUDGMENT ENTRY
{¶ 1} Trаcy Thomson, Jr. (“Thomson“) appeals the judgment of the Hocking County Common Pleas Court granting Petitioner, Lynda Murral (“Murral“), a civil protection order. Thomson alleges that the trial court‘s grant of the civil protection order was against the manifest weight of the evidence, and that the trial court erred in ordering him to pay child support for the parties’ minor daughter without evidence of the factors required by
I.
{¶ 2} Thomson and Murral cohabited for some period ending in September 2001. Shortly thereafter, Murral gave birth to the parties’ daughter, Jazmin Danielle Thompson (DOB: November 24, 2001).1 Thomsоn‘s uncontroverted testimony reveals that, more or less, from the time of Jazmin‘s birth until some time in February 2003, Jazmin stayed with Murral for one week, and then with Thomson the next. In early February 2003, Thomson filed a motion in the Hocking County Court of Common Pleas, Juvenile Division, seeking custody оf Jazmin. Thereafter, on February 25, 2003, Murral filed a petition for a civil protection order. In her petition, Murral alleged that Thomson committed acts of domestic violence against her when she was seven months pregnant, that Thomson had threatened her, and that Thomson harassed her at her place of employment. Because of the petition, the trial court issued an ex parte civil protection order.
{¶ 3} At the full hearing on Murral‘s petition, the trial court heard the testimony of both parties, Murral‘s supervisor at her place of employment, Murral‘s husband, Murral‘s niece, Thomson‘s ex-wife, Thomson, and Thomson‘s mother. At the close of the hearing, the trial court indicated that it found Murral‘s testimony and that of her husband credible. Further, the trial court notеd that some things in Thomson‘s testimony “don‘t add up[.]” Accordingly, the trial court found that Murral had proven the elements of her case by a preponderance of the evidence and issued a civil protection order.
{¶ 4} Thomson appeals raising two assignments of error: “Assignment of error No. 1: the lower court‘s decision granting the civil protection order was against the manifest weight of the evidence. assignment of error No. 2: the lower court erred in ordering child support contrary to ohio revised code §
II.
{¶ 5} In his first assignment of error, Thomson argues that the trial court‘s finding that he engaged in domestic violence against a family member was against the manifest weight of the evidence and therefore that the trial court erred by issuing a civil protection order. The decision whether to grant a civil protection order lies within the sound discretion of the trial court. Parrish v. Parrish (2002), 95 Ohio St.3d 1201, 1204, citation omitted. We presume that the findings of the trial court are correct, because the trial court can view the witnesses and weigh the credibility of the proffered testimony. Seasons CoalCo. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Thus, we will not reverse the trial court‘s decision for being contrary to the manifest weight of the evidence if thеre is some competent, credible evidence going to the essential elements of the case. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus.
{¶ 6} A person seeking a civil protection order must prove domestic violence or threat of domestic violence by a preрonderance of the evidence. Felton v. Felton (1997), 79 Ohio St.3d 34.
{¶ 7} The parties do not dispute the fact that they meet the statutory definition of “family or household members” by virtue of the fact that they аre both the natural parents of Jazmin, and the fact that they cohabited until September 2001.
{¶ 8} At trial, Murral testified about a September 2001 incident in which she claimed that Thomson assaulted her by grabbing her, pushing her, and shoving her aside. She testified that she had visible scratсhes and bruises on her arms. Murral‘s niece testified that she went to Murral‘s home after the incident, and was there when the police arrived. She further testified that Murral had red marks on her wrists that looked like they were going to turn into bruises. Mr. Thomson‘s ex-wife also testified thаt she was at Murral‘s home after the incident while the sheriff was there. She further testified that she saw bruises on Murral‘s wrists, and on the top of one arm.
{¶ 9} Thomson testified that Murral initiated the assault, and that he only restrained her to keep her from hitting him. However, as we havе previously stated, the trial court is in the best position to determine the credibility of the witnesses. Here, the trial court determined that Murral‘s testimony regarding the September 2001 incident, and that of her witnesses, was more credible than Thomson‘s and appropriately issued a civil protection order.
{¶ 10} Thomson argues the trial court inappropriately issued a civil protection order based upon an act of domestic violence that occurred one and a half years before thе filing of the petition. However, we note that
{¶ 11} The trial court also based the issuance of the civil protection order upon Thomson‘s threats to cause Murral physical harm. Murral testified that Thomson threatened Jazmin with physical harm on several occasions by сalling her home, and demanding that she come pick Jazmin up from his home, or he would “go off on” Jazmin. Murral further testified that Thomson threatened her by telling her to watch her back, that she would get what was coming to her, and that he was going to do whatever it toоk to get custody of his daughter. Murral also testified that Thomson repeatedly called her at her place of employment, and came to her place of employment when he was not invited, although she admitted that only two of his visits were uninvited.
{¶ 12} Thomson argues that Murral offered no testimony or other proof that the threats or other behavior placed her in fear of eminent serious physical harm. We agree. While Murral testified regarding various threats made by Thomson, she did not testify that the threats placed her in fear of imminent serious physical harm as required by
{¶ 13} We will not reverse a correct judgment merely because the trial court has assigned erroneous reasons as a basis thereof. State ex re. Carter v. Schotten (1994), 70 Ohio St.3d 89, 92. Having found valid grounds to support the triаl court‘s issuance of the civil protection order, we must affirm the finding of domestic violence. See Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93, 96. Accordingly, we overrule Thomson‘s first assignment of error and affirm the judgment of the trial court issuing the civil protection order.
III.
{¶ 14} In his second assignment of errоr, Thomson argues that the trial court erred in ordering child support without considering all of the factors required pursuant to
{¶ 15} Murral argues that Thomson‘s second assignment of error is moot because the Hocking County Juvenile Court has since issued a child support order that supercedes the child support order contained in the civil protection order. Murral claims that after the trial court issued the civil protection order, the Hoсking County Juvenile Court has ruled upon Thomson‘s objections to the magistrate‘s recommendations regarding child support, affirmed the magistrates January 2003 recommendations, and ordered Thomson to pay child support in the amount of $241.45 per month plus a рrocessing charge, effective July 1, 2002.
{¶ 16} To prove her point, Murral attempted to add to the record on appeal by attaching unauthenticated copies of a September 10, 2003 entry on objections to recommendations of thе magistrate and a January 31, 2003 juvenile magistrate‘s decision to her brief. We find that this evidence was not before the trial court, and, therefore, we may not properly consider it. State v.Ishmail (1978), 54 Ohio St.2d 402. Additionally, we note that if we do not address Thomson‘s second assignment of еrror, there exists a possibility that he could be held liable for two separate child support orders for the same child from March 12, 2003 until September 10, 2003. Accordingly, we find that Thomson‘s second assignment of error is not moot and address it on its merits below.
{¶ 17} The Ohio Supreme Court has found that
IV.
{¶ 18} In conclusion, because the record contains some competent, credible evidence that Thomson committed domestic violence against Murral by recklessly causing her bodily harm, we overrule Thomson‘s first assignment of error and affirm the trial court‘s issuance of a civil protection order. Because we find that thе trial court failed to include a completed child support worksheet in the record as required by
Judgment Affirmed in part, Reversed in part, and Remanded.
Abele, J. and Harsha, J., concur in Judgment and Opinion.