PARRISH, APPELLANT, v. PARRISH, APPELLEE.
No. 00-1963
Supreme Court of Ohio
Submitted October 2, 2001—Decided April 10, 2002.
95 Ohio St.3d 1201 | 2002-Ohio-1623
APPEAL from the Court of Appeals for Ross County, No. 98CA2470.
{¶ 1} The cause is dismissed, sua sponte, as having been improvidently allowed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
RESNICK and LUNDBERG STRATTON, JJ., dissent.
LUNDBERG STRATTON, J., dissenting.
{¶ 2} Because I believe that there is a critical issue at stake, I dissent from the majority‘s judgment to dismiss this case as having been improvidently allowed.
{¶ 3} Mary R. Parrish, petitioner-appellant, and Royce L. Parrish, respondent-appellee, were married on March 16, 1996. Two children were born to the couple during their marriage, Brooke Anne, born July 14, 1996, and Troy James, born October 18, 1998. On October 30, 1998, Mary filed for divorce. She also requested a
{¶ 4} In her complaint, Mary sought a civil protection order, alleging domestic violence. Attached to the complaint were photographs depicting damage to the parties’ marital home, as well as four supporting affidavits. The trial court issued an ex parte civil protection order on October 30, 1998, and set the matter for a full hearing on November 5, 1998, in accordance with
{¶ 5} On November 18, 1998, a magistrate issued
{¶ 6} The trial court held a full hearing on the domestic violence complaint on November 24, 1998. Mary testified and presented the testimony of five witnesses. The first witness to testify was Clint J. Ford, Mary‘s father, who lived next door to Mary and Royce and had been acquainted with Royce for about five years. Mr. Ford stated that Royce had a child named B.J. from a previous relationship, who at that time lived with his mother in Circleville, Ohio. According to Mr. Ford, in the spring of 1997, he observed B.J., who was then approximately three years old, with bruises over the biggest part of his buttocks. Later in the fall of 1997, Ford testified, he again observed bruises on B.J.‘s buttocks. Mr. Ford testified that he knew that B.J. was potty training at the times that he saw the bruises.
{¶ 7} Mr. Ford testified that Royce was quick to anger with B.J. and Brooke, the two oldest children. According to Mr. Ford, Royce damaged the walls and cabinets of the marital residence when he was angry. Mr. Ford testified that on one occasion, Royce kicked down the door of the couple‘s home. Mr. Ford testified that Mary called him to repair damage that Royce did to the home.
{¶ 8} Mr. Ford further testified that in January 1997, he was out in front of his house when Royce and Mary were in his driveway, and he observed Royce kick the window out of Mary‘s car. On cross-examination, Mr. Ford testified that he saw Mary toss a C.B. radio toward Royce that day.
{¶ 10} Mary‘s counsel asked Pardue about Royce‘s alleged violence toward B.J., but Royce‘s counsel objected on the basis that the testimony was irrelevant because B.J. was not a party to the case. The trial court sustained the objection. Although Ms. Pardue was not permitted to testify further regarding this matter, Mary‘s counsel proffered Pardue‘s testimony that in 1996, she observed a bruise or a red mark in the shape of a handprint on B.J.‘s face. Jerry Pardue, a friend of the Ford family and husband of witness Linda Pardue, testified that he had seen Royce lose his temper and get angry and that Royce has a “relatively short” fuse.
{¶ 11} Mary‘s mother, Judy Ford, testified on her daughter‘s behalf. Mrs. Ford testified about the incident in which Royce kicked the window out of Mary‘s car. According to Mrs. Ford, Royce wanted the C.B. radio, and Mary tossed it to him. Mrs. Ford testified that in the summer and fall of 1998, Royce would call Mary and would “holler and scream” on the answering machine and “would holler at her and tell her to pick the phone up and he would use the ‘F’ word all the time on it.”
{¶ 12} Mary‘s counsel asked Mrs. Ford about injuries she had observed on B.J., but the trial court again sustained an objection. Mary‘s counsel proffered Mrs. Ford‘s testimony that B.J.‘s back, legs, and bottom were covered with bruises in the spring of 1997.
{¶ 13} Mary‘s counsel also proffered Mrs. Ford‘s testimony that when she confronted Royce about B.J.‘s injuries, Royce‘s answer was to the effect that “he‘s my kid and I‘ll do whatever I want to to him,” and that “he would be willing to do the same thing to Brooke.” Mrs. Ford also would have testified that in the fall of
{¶ 14} Finally, Mary testified. First, she testified about the damage to the walls of the couple‘s home. Mary stated that when Royce would get angry with her, he would punch the walls or throw something. She further stated that he once threw their coffee table through one of the walls in their home.
{¶ 15} In describing the incident where Royce kicked the window out of the car in January 1997, Mary testified that Royce wanted to take the car. Mary stated that she was sitting in the driver‘s seat when Royce kicked out the rear driver‘s side window, shattering the glass. She admitted that she had tossed the C.B. radio to Royce.
{¶ 16} At the close of Mary‘s evidence, Royce moved the court to dismiss the request for the civil protection order. The trial court stated that the burden of proof was by clear and convincing evidence. The court concluded that it had not heard testimony that would convince the court by clear and convincing evidence or even by a preponderance of the evidence that Royce had attempted to cause or recklessly caused bodily injury to Mary. Further, the trial court stated that it did not believe that there had been evidence that either Brooke or Troy had been abused. The trial court dismissed the cause of action for a civil protection order and dissolved the ex parte protection order. Royce withdrew his petition for a civil protection order.
{¶ 17} On December 22, 1998, Mary filed a notice of appeal in the Court of Appeals for Ross County. On January 11, 1999, Mary filed a motion in the court of appeals seeking a stay of the trial court‘s November 25, 1998 dismissal of her petition for a civil protection order. Specifically, Mary requested an order reinstating the ex parte civil protection order that was originally granted on October
{¶ 18} This court originally accepted this case to decide whether during a hearing on a civil protection order under
{¶ 19} “Domestic violence” is defined by
“(a) Attempting to cause or recklessly causing bodily injury;
“(b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 or 2911.211 of the Revised Code;
“(c) Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Revised Code.”
{¶ 20} As an alternative to filing a criminal charge of domestic violence,
{¶ 22} The decision whether to grant a civil protection order lies within the sound discretion of the trial court. Deacon v. Landers (1990), 68 Ohio App.3d 26, 587 N.E.2d 395. Therefore, an appellate court should not reverse the judgment of the trial court absent an abuse of discretion. An abuse of discretion “connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.
Burden of Proof
{¶ 23} At the hearing, I believe that the trial court misstated the burden of proof required for a civil protection order as proof by clear and convincing evidence. In its entry, the trial court stated: “The Court weighing the evidence finds that the testimony failed to establish by clear and convincing evidence (or even by a preponderance of the evidence) that Defendant had committed any act of domestic violence as defined in Ohio Revised Code Section 3113.31(A)(1)(a), (b), or (c) as to Plaintiff or the minor children, Brooke Anne Parrish and Troy James Parrish, who are parties to this proceeding.” (Emphasis added.)
{¶ 24} Continuing, the trial court noted on two occasions that petitioner failed to show by “clear and convincing” evidence that domestic violence occurred. At one point, the court referred to “a preponderance,” but later the court reverted to
{¶ 25} Accordingly, I would hold that the court of appeals erred in finding that the trial court clearly stated in its decision that petitioner failed to establish by a preponderance of the evidence that respondent committed any act of domestic violence as to petitioner or her children. The record is very unclear on this point.
Evidence
{¶ 26} In seeking to establish that Mary or her children were in danger of domestic violence, Mary‘s counsel sought to introduce evidence that Royce abused B.J., his child from a previous relationship who then resided with his mother. The trial court, however, ruled that evidence of respondent‘s abuse of his son B.J. was not relevant to the issue of whether Mary and her two children were in immediate danger of domestic violence inflicted by Royce. The trial court concluded that respondent‘s child B.J. was not a party to the domestic violence and stated that it would not make a custody or companionship order because one had already been made in the domestic relations case and because the civil protection order was not sought for B.J.
{¶ 27} I believe that the trial court erroneously presumed that a temporary custody order under
{¶ 28} In fact, the Tenth District Court of Appeals in Thomas v. Thomas (1988), 44 Ohio App.3d 6, 540 N.E.2d 745, compared
{¶ 29} Clearly, the remedies provided in a
{¶ 30} Civil protection orders specifically protect family or household members.
Totality of the Circumstances
{¶ 32} After holding that Mary did not support her claims with evidence sufficient to defeat Royce‘s motion to dismiss, the court of appeals went on to address Mary‘s contention that the trial court erred in sustaining Royce‘s motion to dismiss because it refused to consider the totality of the circumstances of Royce‘s violence and threats of violence.
{¶ 33} The court of appeals concluded that evidence of abuse of respondent‘s son B.J. consisted entirely of the testimony of petitioner‘s mother and father concerning an incident that allegedly occurred more than a year before trial. On the contrary, there was testimony from three witnesses of three separate instances of excessive bruising on B.J. Linda Pardue‘s testimony was proffered that in 1996, she observed a bruise or red mark in the shape of a handprint on B.J.‘s face. Mary‘s father testified about seeing bruises on B.J. in the spring of 1997 and again in the fall of 1997. Moreover, he testified about being present when Mrs. Ford confronted Royce about his abuse of his son B.J. and Royce told Mrs. Ford that B.J. was his child and he would do with him what he wanted.
{¶ 34} Mrs. Ford‘s testimony was also proffered that she had seen bruises on B.J. in the spring and fall of 1997, that B.J. always appeared to be frightened of Royce, and that Royce made statements to the effect that “he‘s my kid and I‘ll do whatever I want to to him” and that he would “be willing to do the same thing to Brooke.”
{¶ 35} Testimony regarding Royce kicking the window out of the family car while Mary was in the car was evidence of violence perpetrated in Mary‘s presence. Moreover, there was evidence presented at the hearing about Royce‘s
{¶ 36} Incomprehensibly, although the court of appeals acknowledged the testimony about an incident of abuse of B.J. (there was evidence with regard to three incidents), it concluded that evidence of Royce‘s predilection toward violence never established that he directed his anger toward her or her children. Moreover, the court concluded that Mary‘s evidence failed to establish an immediate threat of physical harm, which the court noted was required by
{¶ 37} Courts cannot look at incidents of domestic violence in a vacuum. Domestic violence is almost always a series of incidents that gradually escalate into increasing acts of brutality, repeating themselves in cycles. Thus, in a petition for a civil protection order, evidence of respondent‘s prior acts of violence toward the petitioner or the respondent‘s family or other household members should be admissible to prove by a preponderance of the evidence that petitioner and her children are in danger of domestic violence.
Placing Another Person by Threat of Force in Fear of Imminent Serious Physical Harm
{¶ 38} The court of appeals seemed to require that Royce verbally threaten Mary, as evidenced by the comment that “the witness could not testify that appellee
{¶ 39} I would find that the reasonableness of a petitioner‘s fear should be measured with reference to her history with respondent. See Eichenberger v. Eichenberger (1992), 82 Ohio App.3d 809, 613 N.E.2d 678. The petitioner should not be required to testify specifically that he or she fears the respondent. Thus, I would hold that pursuant to
Conclusion
{¶ 40} More than three years have passed since Mary first petitioned the trial court for a civil protection order to protect herself and her family from further abuse by Royce. An inexplicable twenty-one months elapsed from the time Mary filed the notice of appeal in the court of appeals to the time of disposition by the court of appeals. I am compelled to note that particularly in a matter such as a
{¶ 41} Although three years have passed since the filing of this case, the correct resolution of this case is still important, not only to the parties, but to give guidance to the lower courts in these matters. Judge Michael J. Voris‘s words quoted by Justice Resnick in Felton v. Felton, bear repeating:
“In his article entitled ‘The Domestic Violence Civil Protection Order and the Role of the Court,’ Judge Michael J. Voris of the Clermont County Domestic Relations Court, cogently expressed this obligation:
” ‘Advanced societies take intra-family violence seriously. Only in the last twelve years has this problem become a focus of attention and national concern. The Ohio Legislature has passed one of the most comprehensive * * * statutes authorizing Civil Protection Orders to combat domestic violence. Because the language of the statutes is broad, the response of the Court has a profound impact in protecting the victims of domestic violence. Judges have the power and authority to implement the legislation. It is critical that Judges and Referees be aware of the severity of the domestic violence problem and make efforts to remain informed about the recent domestic violence legislation. Continuing education as to the realities of all forms of domestic violence will help to remove the shroud of secrecy and break the cycle of violence. Judges and Referees can play a leadership role in enlightening and educating attorneys, parties and the community in general about the severity of the domestic violence issues and the civil legal remedies that exist for victims of domestic violence. The Attorney General‘s Task Force on Family Violence urges Judges not to underestimate their ability to influence the respondent‘s behavior. Judges can communicate a powerful message about the justice system‘s view of domestic violence within their own courtrooms.
” ‘The Ohio Legislature has made a laudatory beginning in responding to the problems of domestic violence. The legislation that provides for Civil
Protection Orders is responsive to the immediate needs of the victims and provides a necessary alternative and supplement to criminal legal remedies. However, the legislation cannot achieve its full potential without the careful and responsible utilization by Judges and Referees.’ * * * “The consequences of domestic violence are serious and severe. Protection orders can be an effective tool when used in conjunction with provisions in divorce and dissolution decrees and other separation agreements. Ohio‘s courts must make themselves aware of the authority they have been granted by the legislation to implement all of these protection orders.” Felton, 79 Ohio St.3d at 45, 679 N.E.2d at 680, quoting Voris, The Domestic Violence Civil Protection Order and the Role of the Court (1990), 24 Akron L.Rev. 423, 432.
{¶ 42} Therefore, I would hold that in a hearing on a civil protection order under
{¶ 43} Because the majority today dismisses a case involving an issue in which I believe guidance is greatly needed, I respectfully dissent.
RESNICK, J., concurs in the foregoing dissenting opinion.
Katherine Hine, for appellant Mary R. Parrish.
Jeremiah B. McKenna, for amici curiae Ross County Network for Children, Alliance for the Rights of Children, National Alliance for Family Court Justice, National Committee for the Rights of the Child, One Voice, and Protection Parents Research Network.