R.E.S. v. M.J.M.R.E.S. v. M.J.M.
Charles Tyler, Sr., for appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 20, 2025
EILEEN T. GALLAGHER, J.:
1 1 In this consolidated appeal, appellant, R.E.S., appeals judgments denying her petition for a domestic-violence civil protection order (DVCPO) against appellee, M.J.M., and granting the petition for DVCPO filed by M.J.M. against her. R.E.S. claims the following errors:
The magistrate erred by arbitrarily limiting the presentation of petitioner‘s evidence to events that occurred since April 7, 2021, the last time petitioner filed a domestic violence civil protection order petition. - The court erred in finding that [M.J.M.] did not strike [R.E.S.].
- The court erred in failing to protect [R.E.S.] pursuant to
R.C. 3113.31 . - The court considered the conduct of R.E.S.‘s fiancé, which is an error of law.
- [M.J.M.]‘s communication through Our Family Wizard rises to the level of domestic violence pursuant to
R.C. 3113.31 . - The court erred in finding that [R.E.S.] committed domestic violence.
2 2 We affirm the trial court‘s judgments.
I. Facts and Procedural History
3 3 On November 1, 2023, R.E.S. filed a petition for DVCPO against M.J.M. in Cuyahoga C.P. No. DV-23-397059. That same day, a magistrate of the domestic relations court conducted an ex parte hearing and granted an ex parte DVCPO in that case. On November 2, 2023, M.J.M. filed a petition for DVCPO against R.E.S. in Cuyahoga C.P. No. DV-23-397088. The court denied the petition in DV-397088 because it had already granted an ex parte DVCPO against M.J.M. in DV-397059, the previous day.
4 4 On November 30, 2023, a magistrate held a hearing on the parties’ competing petitions for DVCPO. The testimony and evidence presented focused primarily on an event that occurred at the Oakwood Village Police Department on October 31, 2023. R.E.S. and M.J.M. were never married, but they had a child
5 5 M.J.M. had custody of R.M. and agreed to deliver him to R.E.S. at the Oakwood Village Police Department on October 31, 2023. M.J.M. testified that he arrived at the Oakwood Village Police Department at the appointed time and waited for R.E.S. to arrive. Minutes later, R.E.S. entered the parking lot, drove toward M.J.M.‘s car, and parked very close to M.J.M.‘s car.
6 6 R.E.S.‘s fiancé (C.L.) came with her to pick up R.M. R.E.S. testified that she got R.M. out of M.J.M.‘s car and placed him in her own car. Meanwhile, she noticed something going on between [M.J.M.] and [C.L.]. (Tr. 28.) R.E.S. could not open the driver‘s side door so she entered through the passenger side of her car and slid over to the driver‘s seat. She asserts in her brief that when she got into the driver‘s seat, she leaned out the window to see what was happening between M.J.M. and C.L. and M.J.M. struck her in the face. (Tr. 28.)
7 7 M.J.M. described a different version of the incident. He testified that upon arrival, R.E.S. quickly exited her car, approached the back door of his car, and yanked, aggressively, on the door handle. After opening the door, R.E.S. pulled some of M.J.M.‘s belongings out of the car before taking R.M. and placing him in her car. Meanwhile, R.E.S.‘s fiancé, C.L., approached M.J.M. and threatened to kill him. (Tr. 52.) R.E.S. testified that she did not know why C.L. exited the vehicle. (Tr. 39.) M.J.M. explained the encounter as follows:
[C.L.] walks over to me, he says something, then starts saying, I‘m going to kill you. Comes back at me.
[R.E.S.] come back, then leaves again.
And then boom, he comes right at me.
I‘m using my door as a barrier. She comes through the driver side and starts punching on me, two on one.
I take off and retreat, because he is an off-duty cop. I know he carries a weapon with him.
He goes after me.
I thought he had a gun.
(Tr. 52-53.) Finally, M.J.M. testified that every time he asks the juvenile court for more parenting time with R.M., R.E.S. files a petition for a DVCPO in order to prevent him from receiving additional parenting time. (Tr. 61.)
8 8 Both parties presented video footage of the incident taken from the Oakwood Village Police Department surveillance camera. The video shows M.J.M. arrive first and back into a parking spot. Shortly thereafter, R.E.S.‘s vehicle enters the parking lot and parks very closely, next to M.J.M.‘s vehicle. After parking her car, R.E.S. walks over to the rear passenger‘s side of M.J.M.‘s car and removes R.M. from the backseat. M.J.M. also exits his car and walks toward the back driver‘s side door of his car. At the same time, C.L. exits R.E.S.‘s car and stands between the two vehicles facing M.J.M. As R.E.S. passes behind C.L., she lets go of R.M.‘s hand, briefly walks between the cars where M.J.M. and C.L. are facing each other, and then retreats to place R.M. in her car.
10 10 R.E.S. testified that M.J.M. texted her several times through Our Family Wizard after he was aware of the existence of the ex parte civil protection order protecting R.E.S. M.J.M. explained that in the parties’ custody case, which was then pending in the Cuyahoga County Juvenile Court, the court had ordered that visitation of the parties’ child should continue despite the issuance of the ex parte civil protection order. M.J.M. testified he thought communication through Our Family Wizard was permitted despite the protection order because the parties continued to have shared visitation of their child.
11 11 M.J.M. conceded on cross-examination that his messages contained inappropriate name calling and profanity. He explained, however, that he was expressing frustration because R.E.S. prevented him from visiting with his son even though the court explicitly ordered that visitation could continue. (Tr. 48.) M.J.M. argued that although he used profanity, he never threatened anyone with violence and never stalked anyone. (Tr. 48.)
12 12 After hearing the testimony and viewing the surveillance-video footage, the magistrate found that the video evidence more closely matched M.J.M.‘s
13 13 Based on the evidence, the magistrate concluded that R.E.S. and her fiancé, C.L., were the primary aggressors in the incident and that if M.J.M. struck R.E.S., he was acting in self-defense. (Magistrate‘s decision p. 3.) The magistrate further found that although M.J.M.‘s text messages on Our Family Wizard contained inappropriate profanity, they did not rise to the level of domestic violence under
14 14 R.E.S. filed timely objections to the magistrate‘s decisions. The trial court reviewed the record, overruled the objections, and adopted the magistrate‘s decisions. R.E.S. now appeals the trial court‘s judgments.
15 15 To obtain a DVCPO under
16 16
- Attempting to cause or recklessly causing bodily injury;
- Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section
2903.211 [menacing by stalking] or2911.211 [aggravated trespass] of the Revised Code; - 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; - Committing a sexually oriented offense.
17 17 The statutory criterion to determine whether or not to grant a civil protection order pursuant to
18 18 The decision whether to grant a . . . protection order [is] within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. E.A. v. A.A., 2024-Ohio-2807, ¶ 37 (8th Dist.), quoting Parrish v. Parrish, 95 Ohio St.3d 1201, 1204 (2002). A court abuses its discretion when it exercises its judgment in an unwarranted way with respect to a matter over which it has discretionary authority. Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. An abuse of discretion may be found where a trial court applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact. Thomas v. Cleveland, 2008-Ohio-1720, ¶ 15 (8th Dist.). An abuse of discretion also implies a decision that is unreasonable, arbitrary, or unconscionable. State ex rel. DiFranco v. S. Euclid, 2015-Ohio-4915, ¶ 13. When applying the abuse-of-discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Vannucci v. Schneider, 2018-Ohio-1294, ¶ 22 (8th Dist.).
A. Limitation on Evidence
19 19 In the first assignment of error, R.E.S. argues the trial court erred by arbitrarily limiting the presentation of evidence to events that occurred since April 7, 2021, the last time R.E.S. filed a petition for a DVCPO. She contends this
20 20 R.E.S. did not object to the limitation on the presentation of evidence. (Tr. 8.) She, therefore, forfeited all but plain error. Ohio Power Co. v. Burns, 2022-Ohio-4713, ¶ 40, citing State v. Quarterman, 2014-Ohio-4034, ¶ 15 ([A]n argument that is not timely raised is deemed forfeited and is reviewed for plain error.).
21 21 Ordinarily, the party asserting plain error bears the burden of showing that the court made an obvious error that affected substantial rights, i.e., that it affected the outcome of the trial. State v. Rogers, 2015-Ohio-2459, ¶ 22. However, the plain-error doctrine is not favored in civil cases and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself. State ex rel. Target Auto Repair v. Morales, 2022-Ohio-2062, ¶ 15, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997).
22 22 As noted by R.E.S., the magistrate limited the presentation of evidence to events that occurred after April 7, 2021, the date of the hearing on R.E.S.‘s last petition for DVCPO against M.J.M. However, the magistrate acknowledged the prior DVCPO and indicated that she would take judicial notice of it. Moreover, R.E.S. fails to explain what evidence she would have presented that would have demonstrated that she had a reasonable basis to fear that M.J.M. would
23 23 The video footage of the October 31, 2023 incident shows R.E.S. walking confidently toward M.J.M.‘s back car door where she aggressively pulls the door handle to open the door. The video also shows R.E.S. reaching out of the car attempting to grab or strike M.J.M. In either case, she does not appear to be frightened of M.J.M. Thus, the evidence presented at trial contradicts R.E.S.‘s claim that she feared M.J.M. was going to harm her.
24 24 Therefore, because R.E.S. cannot establish a claim for plain error in the restriction on the presentation of evidence, we overrule the first assignment of error.
B. Evidence M.J.M. Struck R.E.S.
25 25 In the second assignment of error, R.E.S. argues the trial court erred in finding that M.J.M. did not strike her. She contends the court‘s finding that M.J.M. did not strike her was against the manifest weight of the evidence.
26 26 In determining whether a verdict in a civil bench trial is against the manifest weight of the evidence, we examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the verdict must be reversed and a new trial ordered. Sonis v. Rasner, 2015-Ohio-3028, ¶ 53 (8th Dist.), citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
28 28 R.E.S. argues the court‘s finding that M.J.M. did not strike her is against the manifest weight of the evidence because R.E.S. made a police report immediately after the assault and her injuries were documented. M.J.M. never denied punching R.E.S. in the face; he testified that he did not remember punching her in the face. (Tr. 17.) Indeed, R.E.S. states in her brief that she was struck when she reached out the window of her car while M.J.M. and C.L. were fighting, which suggests she was struck accidentally.
29 29 Moreover, the magistrate never found that M.J.M. did not strike R.E.S. The magistrate‘s decision in DV-397059 states, in relevant part, that R.E.S. and her fiancé, C.L., were the primary aggressors and that if M.J.M. did indeed strike [R.E.S.], [he] was acting primarily in self-defense. Similarly, in DV-397088, the magistrate never found that M.J.M. did not strike R.E.S. Rather, the magistrate again found, based on the surveillance video, that R.E.S. and C.L. were the primary aggressors and that they repeatedly struck M.J.M. The transcript and video evidence support the magistrate‘s findings.
C. Failure to Protect
31 31 In the third assignment of error, R.E.S. argues the trial court‘s finding that she failed to prove, by a preponderance of the evidence, that M.J.M. committed an act or acts of domestic violence as defined in
32 32 As previously stated,
- Attempting to cause or recklessly causing bodily injury;
- Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section
2903.211 [menacing by stalking] or2911.211 [aggravated trespass] of the Revised Code; - 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; - Committing a sexually-oriented offense.
33 33 R.E.S. testified at trial that M.J.M. punched her in the face. She also stated that she sustained a bruise on her left cheekbone as a result of the assault. (Tr. 28.) When asked whether R.E.S. was in fear at the time of the incident, she
34 34 R.E.S.‘s testimony, if believed, would prove that an act of domestic violence occurred under
35 35 M.J.M. asked R.E.S. on cross-examination whether she felt threatened at a particular point in the surveillance video, and she replied: I wasn‘t punching yet, so not yet. (Tr. 38.) Therefore, R.E.S. admitted that she was not afraid of M.J.M. when she arrived to deliver R.M. to M.J.M. for parenting time. And the evidence shows that R.E.S. and C.L. initiated the violence that took place. Therefore, R.E.S.‘s actions do not reflect a person who was frightened of M.J.M. Moreover, the evidence supports the magistrate‘s finding that if M.J.M. struck R.E.S., he struck her in self-defense.
36 36 Therefore, the third assignment of error is overruled.
D. R.E.S.‘s Fiancé
37 37 In the fourth assignment of error, R.E.S. argues the trial court erroneously considered the conduct of R.E.S.‘s fiancé, C.L. She argues the court‘s finding that R.E.S. and C.L. were the primary aggressors is not supported by the evidence. She asserts, in relevant part:
But the only evidence that the court references in the opinion which discusses any aggressor is the fact that [R.E.S.] was leaning out of the vehicle grabbing at [M.J.M.] in an attempt to stop the altercation occurring between [M.J.M.] and [R.E.S.]‘s fiancé after she has already been struck by [M.J.M.]. As such, the Court has clearly considered [R.E.S.]‘s fiancé‘s conduct in the decision, [sic] and is a clear error of law.
Finally, as the facts make clear, [R.E.S.] leaning out of the vehicle to establish the cause of the events occurring outside the vehicle does not constitute a need for [M.J.M.] to act in self-defense against [R.E.S.], as the court incorrectly termed it.
(Appellant‘s brief p. 11.)
38 38 R.E.S. testified that she did not know why C.L. exited her vehicle in the parking lot of the Oakwood Village Police Department. His conduct is nevertheless relevant to the issues presented because he was directly involved in the domestic dispute between R.E.S. and M.J.M. According to M.J.M., C.L. was an off-duty police officer who carried a weapon and threatened to kill M.J.M. M.J.M. also stated that C.L. began punching him and that R.E.S. climbed through the vehicle, reached out the car window, and began punching him as well.
39 39 In making her findings, the magistrate‘s decision relied heavily on the police surveillance video of the incident. The magistrate‘s decision states, in relevant part:
While the video is somewhat unclear, [R.E.S.] can be seen lunging toward [M.J.M.] as she walks around the vehicles with the child and [R.E.S.]‘s fiancé then moves between the vehicles while [R.E.S.] goes to the other side of her vehicle and places the child in the car. [R.E.S.]‘s fiancé aggressively moves toward [M.J.M.], and a struggle can be seen between the two of them. [R.E.S.] then climbs through her vehicle and can be seen leaning out grabbing at/striking at [M.J.M.]. At no time in the video is it evidence that [M.J.M.] ever strikes [R.E.S.], however
[R.E.S.]‘s fiancé can be seen striking at [M.J.M.] several times. M.J.M. then runs away and [R.E.S.]‘s fiancé follows him. The video shows [R.E.S.]‘s fiancé repeatedly moving toward [M.J.M.] aggressively and then throwing [M.J.M.]‘s dropped cell phone at [M.J.M.] The Court finds that the video evidence offered by both parties more closely matches [M.J.M.]‘s testimony of the event. The court therefore finds [M.J.M.]‘s testimony more credible than [R.E.S.]‘s testimony.
The evidence establishes that [R.E.S.] and her fiancé were the primary aggressors in this incident and that [M.J.M.], if he did indeed strike [R.E.S.], was acting in self-defense.
(Denial of Civil Protection Order After Full Hearing, R. 20 in DV-397059.)
40 40 The video evidence and M.J.M.‘s testimony establish that C.L. attacked M.J.M. and that, as a result, M.J.M. acted in self-defense. The video further demonstrates that R.E.S. joined C.L. when she reached out of car window in an apparent attempt to grab or hit M.J.M. C.L.‘s conduct is relevant to explain M.J.M.‘s actions in self-defense, to show that R.E.S. and C.L. were the primary aggressors, and to show that M.J.M. was not a primary aggressor. Therefore, the trial court did not err in considering C.L.‘s conduct.
41 41 The fourth assignment of error is overruled.
E. Our Family Wizard Communications
42 42 In the fifth assignment of error, R.E.S. argues that M.J.M.‘s communications through Our Family Wizard rise to the level of domestic violence under
44 44 The trial court found that although M.J.M.‘s communications were rude and technically in violation of the ex parte DVCPO, none of the messages communicated any stalking or threats of violence. Having reviewed the transcript of the messages, we agree that although the messages were inappropriate, they did not cause any bodily injury, nor did they express any stalking or a threat of force that could have put R.E.S. in fear of imminent serious physical harm. Therefore, M.J.M.‘s messages did not rise to the level of domestic violence as defined by
45 45 The fifth assignment of error is overruled.
F. Domestic Violence
46 46 In the sixth assignment of error, R.E.S. argues the trial court erred in finding that she committed domestic violence. She contends the trial court‘s finding is not supported by the evidence.
47 47
48 48 The sixth assignment of error is overruled.
49 49 Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, domestic relations division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, P.J., and
DEENA R. CALABRESE, J., CONCUR