HEATHER D. PRATER, PETITIONER-APPELLEE, v. SHAWN E. MULLINS, RESPONDENT-APPELLANT.
CASE NO. 2-13-04
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
September 16, 2013
[Cite as Prater v. Mullins, 2013-Ohio-3981.]
Appeal from Auglaize County Common Pleas Court Civil Division Trial Court No. 2012-CV-336 Judgment Reversed and Cause Remanded
William E. Huber for Appellant
{1} Respondent-appellant, Shawn E. Mullins (“Mullins“), appeals the January 4, 2013 judgment of the Auglaize County Court of Common Pleas, granting the request of petitioner-appellee, Heather D. Prater (“Heather“), for a civil stalking protection order (“CSPO“) protecting Heather, hеr husband, Brian Prater (“Brian“), and her two sons, D.P. and J.O. On appeal, Mullins argues that the trial court abused its discretion by issuing a 500-foot no-contact order and by giving the CSPO a four-year duration. Mullins also arguеs that there was insufficient evidence to support the CSPO. For the reasons that follow, we reverse.
{2} On December 20, 2012, Heather filed a petition for a CSPO against Mullins. In the petition, Heаther alleged that Mullins “caused mental distress to [her] family by posting cruel and threatening directed [sic] to my family everyday on Facebook” and by following and yelling things at D.P. (Doc. No. 1). That samе day, the trial court issued an ex parte CSPO, effective until January 20, 2013, and set the matter for a January 2, 2013 hearing on the merits. (Doc. No. 5).
{3} The trial court held the hearing as scheduled on January 2, 2013. (Jan. 2, 2013 Tr. at 3). Heather and Mullins and his counsel were present at the hearing. (Id.). Brian, D.P., and J.O. were not present and did not testify. (See id.). The trial court that day issued a mostly handwritten CSPO against Mullins, effective until January 2, 2017, protecting Heather, Brian, D.P., and J.O. (Doc. No. 11).
{4} Mullins filed his notice of appeal on January 23, 2013. (Doc. No. 21). He raises three assignments of error for our review.1 Because it is dispositive, we address Mullins’ third assignment of error.
Assignment of Error No. III
The trial court erred in granting the stalking order as there is insufficient evidence to support the samе.
{5} “When reviewing a trial court‘s decision to grant a civil protection order, we will not reverse the decision absent an abuse of discretion.” Retterer v. Little, 3d Dist. Marion No. 9-11-23, 2012-Ohio-131, ¶ 23, citing Van Vorce v. Van Vorce, 3d Dist. Auglaize No. 2-04-11, 2004-Ohio-5646, ¶ 15. “An abuse of discretion suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable.” Goldfuss v. Traxler, 3d Dist. Wyandot No. 16-08-12, 2008-Ohio-6186, ¶ 8, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{6}
{7} “To be entitled to a CSPO, the petitioner must show by a preponderance of the evidence that the respondent engaged in a violation of
{8} “[W]here the petitioner seeks prоtection of a ‘family or household member’ under a CSPO, the petitioner must show by a preponderance of the evidence that the respondent engaged in a violation of
{9} In other words, a petitioner may not obtаin a CSPO covering the petitioner and the petitioner‘s family or household members simply by presenting evidence as to one of the persons to be covered. See Retterer at ¶ 25. Rather, the petitioner must present evidence that the respondent engaged in a pattern of
{10} We conclude that the trial court abused its discretion in granting the CSPO because there was not some competent, credible evidence to support its decision. We first address the CSPO as to Brian. Even assuming Heather established that Mullins engaged in a pattern of conduct against Brian and that Mullins acted knowingly, she failed to satisfy the third element required under
{11} The trial court judge asked Heathеr whether she believed Mullins wanted to do her harm and whether she believed Mullins wanted to beat either her or her husband:
[TRIAL COURT]: Do you really believe that either of you wants to do each оther harm?
[MULLINS]: No.
[HEATHER]: Yes, Sir.
[TRIAL COURT]: You really believe he wants to beat you up or beat up your husband?
[HEATHER]: No, Sir.
(Jan. 2, 2013 Tr. at 43).
{12} Neither this exchange nor any other testimony or evidence in the record suggests that Brian believed Mullins wоuld cause him physical harm or mental distress. Therefore, the trial court abused its discretion in granting the CSPO as to Brian.
{13} The trial court also abused its discretion in granting the CSPO as to Heather, D.P., and J.O. bеcause Heather presented no evidence demonstrating that Mullins engaged in conduct constituting menacing by stalking as to her and her sons. When she filed her petition, Heather alleged that Mullins had yelled things at D.P. while Mullins followed D.P. (Doc. No. 1). At the hearing, however, Mullins testified that it was Mullins’ son‘s friend—not Mullins—who followed and yelled things at D.P. out of Mullins’ Jeep. (Jan. 2, 2013 Tr. at 20-22). Mullins was not even in the vehicle at the time. (Id. at 19). Heather did not refute that testimony.
{15} Mullins’ third assignment of error is therefore sustained.
Assignment of Error No. I
The trial court abused it‘s [sic] discretiоn in issuing a 500 foot no contact order.
Assignment of Error No. II
The trial court abused it‘s [sic] discretion in setting a date of four years for the duration of the stalking order as no credible evidence was introduсed to support this length of time.
{16} In his first assignment of error, Mullins argues that the trial court abused its discretion by ordering that he stay at least 500 feet away from Heather, Brian, D.P., and J.O. In his second assignment of error, Mullins argues that the trial court abused its discretion by ordering that the CSPO remain in effect for four years, until January 2, 2017.
{18} Having found error prejudicial to the appellant herein in the particulars assigned аnd argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
WILLAMOWSKI and ROGERS, J.J., concur.
/hlo
Judgment Reversed and Cause Remanded