JOSEPH REISING v. KELLY REISING
No. 104864
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 18, 2017
2017-Ohio-2859
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-13-803373
JUDGMENT: REVERSED AND REMANDED
BEFORE: Boyle, J., Kilbane, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 18, 2017
Paul W. Vincent
Adam James Vincent
18500 Lake Road, Suite 230
Rocky River, Ohio 44116
ATTORNEY FOR APPELLEE
Brian W. Sharkin
Law Office of Brian W. Sharkin
P.O. Box 770824
Lakewood, Ohio 44107
{¶1} Respondent-appellant, Kelly Reising, appeals from the trial court‘s judgment denying her motion to terminate a civil stalking protection order (“CSPO“). For the reasons that follow, we reverse and remand with instructions.
I. Procedural History
{¶2} In March 2013, petitioner-appellee, Joseph Reising, filed a petition for a civil stalking protection order pursuant to
{¶3} On April 2, 2013, the trial court held a full hearing and granted the CSPO as requested. Although the trial court did not make findings of fact, it checked the paragraph in the CSPO that stated as follows:
The Court finds by a preponderance of the evidence that 1) the Respondent has knowingly engaged in a pattern of conduct that caused Petitioner to believe that the Respondent will cause physical harm or cause or has caused mental distress; and 2) the following orders are equitable, fair, and necessary to protect the persons named in this Order from stalking offenses.
The trial court ordered the CSPO to remain in effect until April 2, 2018.
{¶4} On April 27, 2016, Kelly filed her motion to terminate the CSPO, arguing that the original circumstances leading to the CSPO had materially changed and that the CSPO was no longer equitable. Kelly asked the trial court to terminate the CSPO so that she could have contact with her two daughters whom she had not had contact with for
{¶5} The trial court held a hearing on Kelly‘s motion to terminate at which Kelly and Joseph testified. The trial court did not announce her decision orally at the hearing.
{¶6} On August 4, 2016, the trial court issued a judgment that denied Kelly‘s motion to terminate and ruled, “Hearing held 08/03/2016 on respondent‘s motion to terminate C.S.P.O. Court reporter present. The court finds respondent failed to show by clear and convincing evidence that the protection order should be terminated. Respondent‘s motion is denied.”
{¶7} It is from this judgment that Kelly appeals.1
{¶8} Kelly raises the following two assignments of error:
- The lower court erred to the prejudice of the appellant when it applied the clear and convincing standard when Ohio law requires only a preponderance of the evidence.
- The lower court abused its discretion to the prejudice of the appellant when it found appellant had not met the requirements necessary for a modification of the civil protection order and denied her motion to terminate the civil protection order.
II. Standard of Review
{¶9} Trial courts have discretion in deciding whether or not to grant a motion to terminate a civil stalking protection order, and our review is limited to an abuse of
III. Standard of Proof
{¶10} In her first assignment of error, Kelly argues that the trial court erroneously applied a clear and convincing standard of proof when it denied her motion to terminate the CSPO. We agree.
{¶11} It is well established that in order to obtain a civil stalking protection order under
{¶12}
{¶13} After reviewing
{¶14} Moreover, we find that our decision in Delaine, 8th Dist. Cuyahoga No. 103860, 2016-Ohio-5250, provides guidance on the standard of proof. The trial court in Delaine failed to hold a hearing on the respondent‘s motion to terminate, but it denied the motion by referring to the original judgment that granted the civil stalking protection order. The trial court‘s original judgment “found, by the preponderance of the evidence[,]” that the civil stalking protection order should be granted. Therefore, the court in Delaine applied a preponderance of the evidence standard of proof when it ruled on the motion to terminate the civil stalking protection order. See also Schneider v. Razek,
{¶15} Courts abuse their discretion when they apply the wrong standard of proof in rendering their decisions. In State ex rel. Dewine v. Valley View Ents., 11th Dist. Trumbull No. 2014-T-0051, 2015-Ohio-1222, the trial court erroneously interpreted the applicable water pollution control statute and held the state to a higher standard of proof than required. Dewine at ¶ 28. Thus, the Eleventh District reversed and remanded the matter so that the trial court could apply the lower preponderance of the evidence standard of proof to determine the relevant issues. Id.; see also In re Simers, 4th Dist. Washington No. 06CA30, 2007-Ohio-3232 (trial court abused its discretion when it applied an incorrect legal standard when evaluating a name-change application).
{¶16} Here, the trial court did not apply the preponderance of the evidence standard of proof when it ruled on Kelly‘s motion to terminate the CSPO. Rather, the trial court used the clear and convincing evidence standard. “Clear and convincing evidence” is a measure of proof that is more than a mere “preponderance of the evidence.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). Because
{¶17} Accordingly, we sustain Kelly‘s first assignment of error and vacate the trial court‘s judgment dated August 4, 2016, that denied Kelly‘s motion to terminate the CSPO. We remand this matter to the trial court with instructions to apply a preponderance of the evidence standard of proof in determining whether Kelly proved that the original circumstances materially changed and whether it was no longer equitable for the CSPO to continue.
IV. Termination of the CSPO
{¶18} In her second assignment of error, Kelly argues that the trial court abused its discretion when it found Kelly had not met the requirements necessary to terminate the CSPO. Specifically, Kelly argues that the trial court had no evidence that she continued to be a threat to Joseph, her two children, Joseph‘s wife and her children but for the chaotic time period in 2013. Kelly requests that this court terminate the CSPO.
{¶19} Because we vacate the trial court‘s August 4, 2016 judgment denying Kelly‘s motion to terminate the CSPO, however, we decline to address this issue as it is moot.
{¶20} Kelly‘s second assignment of error is overruled. Judgment reversed and
It is ordered that appellant recover from appellee the 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 to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and SEAN C. GALLAGHER, J., CONCUR