R.S. v. J.W.
C.A. No. 28970
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 31, 2018
2018-Ohio-5316
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2017-02-0558
CARR, Judge.
{1} Appellant, J.W., appeals the judgment of the Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{2} R.S. filed a petition for a domestic violence civil protection order against her former fiancé, J.W., in 2016. While the trial court initially issued an ex parte protection order, the ex parte order was terminated and the petition was dismissed after a full hearing on the matter.
{3} On February 27, 2017, R.S. filed a subsequent petition for a domestic violence civil protection order against J.W. pursuant to
{4} On appeal, J.W. raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING APPELLEE‘S PETITION FOR A DOMESTIC VIOLENCE PROTECTION ORDER AS THE DECISION IS CONTRARY TO LAW AND AN ABUSE OF DISCRETION[.]
{5} J.W. raises two arguments in support of his assignment of error. First, J.W. contends that R.S. failed to present sufficient evidence that he was a family or household member as defined by
{6} The issuance of a domestic violence civil protection order is governed by
{7} A sufficiency challenge concerns the adequacy of the evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11. When reviewing whether there was
{8} Former
- 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 section 2903.211 [menacing by stalking] or 2911.211 [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.
{9}
- A spouse, a person living as a spouse, or a former spouse of the respondent;
- A parent, a foster parent, or a child of the respondent, or another person related by consanguinity or affinity to the respondent;
- A parent or a child of a spouse, person living as a spouse, or former spouse of the respondent, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the respondent.
Family or Household Member
{10} J.W. first argues that R.S. failed to demonstrate that J.W. qualified as a family or household member for the purposes of
{11} A review of the record reveals that J.W. filed objections to the magistrate‘s decision on October 2, 2017. Therein, J.W. argued that the evidence presented at the hearing did not demonstrate that R.S. was a victim of domestic violence, nor did the evidence support the conclusion that a protection order was necessary to bring about a cessation or prevention of domestic violence. Attached to J.W.‘s objections was a bench brief that he had previously submitted to the trial court in lieu of closing argument. In support of his objections, J.W. noted that he had ordered the preparation of a hearing transcript. J.W. requested additional time to file “a Memorandum in Support of the foregoing Objection after the transcript has been filed herein as part of the Court‘s record.” While J.W.‘s bench brief addressed whether R.S. established the predicate relationship necessary in order to obtain a domestic violence civil protection order, J.W. did not set forth an objection on that basis.
{12} R.S. filed a memorandum in opposition to the J.W.‘s objections. In addition to disputing J.W.‘s evidentiary claim regarding whether he engaged in menacing by stalking, R.S. noted that J.W. simply filed a “generic statement” and failed to state his objections with particularity.
{13} The trial court initially issued an order overruling the objections on the basis that J.W. had failed to pay for the transcript he requested. J.W. subsequently demonstrated that he had, in fact, paid the deposit for the transcript, albeit two days late. The trial court issued a journal entry vacating its prior order overruling the objections. Notably, while the transcript was eventually filed with the trial court, J.W. never filed a supplemental memorandum in support of his objections.
{14} With the benefit of the transcript, the trial court issued a journal entry overruling J.W.‘s objection on February 13, 2018. The trial court identified J.W.‘s objections as follows:
- The Magistrate‘s Decision was against the manifest weight of the evidence in that the Petitioner was not a victim of domestic violence committed by Respondent and is not in danger of being a victim of domestic violence as committed by the Respondent.
- The Magistrate‘s Decision is against the manifest weight of the evidence in that the Orders contained in the Magistrate‘s Decision are not equitable, fair and necessary to bring about a cessation or prevention of domestic violations against the Petitioner.
{15} While the trial court did include a short discussion in support of its finding that R.S. and J.W. qualified as family or household members as defined by
{16}
Notwithstanding the provisions of any other rule, an order entered by the court under division (F)(3)(c) or division (F)(3)(e) of this rule is a final, appealable order. However, a party must timely file objections to such an order under division (F)(3)(d) of this rule prior to filing an appeal, and the timely filing of such objections shall stay the running of the time for appeal until the filing of the court‘s ruling on the objections.
{17} In this case, while J.W. filed objections to the magistrate‘s decision, he did not object on the basis that he was not a family or household member as defined by R.C.
Menacing by Stalking
{18} J.W. contends that there was not sufficient evidence to support the trial court‘s finding that he engaged in a pattern of conduct that caused R.S. mental distress. While J.W. admits that he contacted R.S. on a fairly regular basis via text and email, he emphasizes that those communications were not threatening in any way and his actions did not constitute a “pattern of conduct” because he had no knowledge that the communications were unwanted. J.W. further maintains that his communications with R.S. had a minimal impact on her life and did not cause her mental distress.
{19} The trial court noted in its journal entry that R.S. did not allege J.W. placed her in fear of imminent physical harm as outlined in former
{20} With respect to domestic violence premised on the commission of menacing by stalking,
{21} A person acts “knowingly” when, “regardless of purpose, * * * the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.”
{22} A “pattern of conduct” is defined, in pertinent part, as follows:
two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents, * * *. [T]he posting of messages, * * * or receipt of information or data through the use of * * * an electronic method of remotely transferring information, including, but not limited to, * * * telecommunications device, may constitute a “pattern of conduct.”
{23} The menacing by stalking statute further defines “mental distress” as either:
- Any mental illness or condition that involves some temporary substantial incapacity; [or]
- Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.
{24} J.W.‘s argument that there was no evidence that he engaged in a pattern of conduct is not well taken. “Because
{25} J.W.‘s contention that R.S. failed to demonstrate that she experienced mental distress is also without merit. At the hearing, R.S. testified that she was scared because she felt like she was being “bombarded” with text messages and emails. She explained that the messages caused her to have anxiety.2 Both R.S.‘s mother and a friend of R.S. testified that they had noticed a recent change in R.S. in that she was no longer joyful and she appeared to be experiencing stress. The director of the softball league testified that when J.W. offered to pay for R.S.‘s daughter‘s uniform, it was immediately apparent that R.S. was “visibly shaken” and started “tearing up.” Moreover, this Court has held that evidence demonstrating that a petitioner felt compelled to alter normal routines and patterns of behavior due to respondent‘s conduct corroborates allegations of mental distress. Noah v. Brillhart, 9th Dist. Wayne No. 02CA0050, 2003-Ohio-2421, ¶ 16, citing Akron v. Andrews, 9th Dist. Summit No. 19383, 2000 WL 108818, *6 (Jan. 26, 2000). In this case, R.S. started using a different vehicle and she changed the route that she took to work. R.S. refrained from placing window decals on the vehicle that commemorated her children‘s participation in sports because she did not want to be recognizable on the road. When R.S. would visit her mother, she would park in the garage so that her vehicle was out of sight. R.S. also changed her phone number. The aforementioned evidence, when construed in the light most favorable to the petitioner, was sufficient to demonstrate that R.S. experienced mental distress in light of J.W.‘s conduct.
III.
{27} J.W.‘s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J. CONCURS.
HENSAL, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
ERIC E. JONES, Attorney at Law, for Appellant.
ROBERT VIZMEG, Attorney at Law, for Appellee.