Spaulding v. SpauldingSpaulding v. Spaulding
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DECISION AND JUDGMENT
Decided: February 26, 2021
PIETRYKOWSKI, J.
{1} Appellant, Keith Spaulding, appeals the judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, issuing a domestic violence civil protection order on behalf of appellee, Daniel Spaulding.1
{2} On October 16, 2017, appellee filed a petition for domestic violence civil protection order, pursuant to
From 11/20/16-10/07/17 [appellant] is stalking [appellee]. [Appellant] sits outside [appellee‘s] home and blocks him from leaving the driveway. [Appellant] chased [appellee] down the road when [appellee] was on his way to the doctor. [Appellant] sat in the parking lot of the doctor‘s office. Staff from the doctor‘s office had to walk [appellee] to his car. * * * [Appellant] also told [appellee] that he was going to “extinguish” him. [Appellant] also told [appellee] that he was going to kill him and his family.
[Appellant] has pointed a gun at [appellee] in the past. [Appellant] also told [appellee] that when [appellee] was assaulted and hospitalized several years ago, that [appellant] arranged the attack on him.
{3} A consent agreement and domestic violence civil protective order was entered, pursuant to
{4} On December 17, 2019, appellee made a pro se request to the trial court to extend or renew the consent agreement and domestic violence civil protection order beyond January 25, 2020, stating: “RESPONDENT HAS BEEN CHARGED & CONVICTED OF VIOLATING THE ORDER CASE # CRB 1800906 VIO TPO SYLVANIA COURT.”
{5} Hearing on the motion was held before a magistrate on January 6, 2020. At the hearing, appellee, in response to the magistrate‘s inquiry about the circumstances that brought appellee to file the renewal, testified as follows:
I would like to get a renewal just because there has been a violation that [appellant] was convicted on. There‘s still an amount of fear. * * * [H]e was recently released off of probation and since then things have already started to happen again. For example, there was * * * my in-laws * * * there was a funeral last Friday and he showed up to that, and my family called me and told me don‘t come to that because he is present. But it was actually my in-laws, no relation to him whatsoever.
And there‘s just an ongoing fear that this is gonna start right up. He‘s violated numerous times and only been convicted on the one offense, so. I would just say for my own peace and my family‘s peace, * * * I believe I‘m the sixth immediate family member that has had a protection
order on Keith, * * * I want to say in the past ten years. A couple no contact orders as well with immediate family. So * * * there‘s a deep history of violence and I know it‘s going to be ongoing. So it is a fear and that‘s * * * the reason why I would like to get it extended for my own safety.
(Emphasis added.)
{6} Appellee further testified, on redirect examination, regarding appellant‘s conduct in connection with the sale of certain real property that belonged to appellee and was located adjacent to appellant‘s property. Specifically, appellee stated:
Yes. There was contact in 2019. * * * I did sell my property in 2019. * * * [Y]es, there was contact through my realtor. * * * [M]y realtor * * * almost dropped my listing because of the harassment from Keith. * * * [T]he property almost didn‘t sell because of Keith. * * * I‘m going back to 2018 on the thing I was just about to say. So that would have been in 2018, but the sheriffs at the end of 2018 came out to the property because Keith was there.
{7} After hearing the foregoing testimony, the magistrate issued findings of fact and conclusions of law, and, further, issued an order extending the protection order against appellant for a period of one year. Appellant filed objections to the magistrate‘s order. A judge found appellant‘s objections not well-taken, and denied the same by written entry dated May 26, 2020, concluding that appellant “engaged in a pattern of
Assignment of Error
{8} Appellant assigns the following as his sole error for our review:
I. The Lower Court Abused Its Discretion in that the Evidence offered by Appellee in Support of Extending the CPO was Insufficient and/or Against the Manifest Weight of the Evidence, and, additionally, Violated His Right Not to [be] Punished Twice for the same offense.
Analysis
{9} Ohio law provides that a protection order issued pursuant to
{10} This court, in Olson v. Olson, 6th Dist. Wood No. WD-15-002, 2016-Ohio-149, set forth the standard for granting a civil protection order, as follows:
“When granting a protection order, the trial court must find that petitioner has shown by a preponderance of the evidence that petitioner or petitioner‘s family or household members are in danger of domestic
violence. R.C. 3113.31(D) .” Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), paragraph two of the syllabus. “The decision to grant or dismiss a request for a civil protection order is within the discretion of the trial court.” Rangel v. Woodbury, 6th Dist. Lucas No. L-09-1084, 2009-Ohio-4407, 11, citing Deacon v. Landers, 68 Ohio App.3d 26, 31, 587 N.E.2d 395 (4th Dist.1990). “An appellate court will not reverse a trial court‘s decision regarding a civil protection order absent an abuse of discretion.” Id., citing Parrish v. Parrish, 146 Ohio App.3d 640, 646, 767 N.E.2d 1182 (4th Dist.2000). An abuse of discretion connotes that the trial court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “If the trial court‘s decision is supported by credible and competent evidence, the appellate court will not reverse the decision as an abuse of discretion.” Rangel at 11, citing Jarvis v. Jarvis, 7th Dist. Jefferson No. 03-JE-26, 2004-Ohio-1386, 13.
Pursuant to
Expounding on those elements, ” ‘Pattern of conduct’ means 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.”
“Mental distress” means “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.”
Id. at 12-15 (emphasis added).
{11} In the instant matter, appellant argues that the evidence offered by appellee in support of the extension was insufficient and/or against the manifest weight of the evidence. Testimony by appellee established that he was fearful, and suffered mental distress, as a result of appellant‘s pattern of conduct following the imposition of the initial protective order on January 30, 2018. Such conduct included-in addition to appellant‘s violation of the protective order that resulted in his November 2018 conviction-appellant‘s surprise appearance at the funeral for one of appellee‘s in-laws just days before the January 6, 2020 hearing, appellant‘s continuing conduct to harass and intimidate in connection with the sale of appellee‘s property in 2019, and appellant‘s presence at appellee‘s property in 2018, which led to a visit by the sheriffs.
{12} Appellee‘s uncontroverted testimony concerning his continuing fear of appellant based upon appellant‘s “deep history” of “ongoing” violence-as evidenced by
{13} Appellee‘s mental distress is further corroborated by the fact of his changed routine in paying respect to his deceased in-law. He testified on cross-examination that he did not attend the funeral the previous Friday, “because I, out of respect for the family I was asked that it would be a good idea that I didn‘t go because he was there.” “Evidence of a changed routine corroborates a finding of mental distress.” Smith v. Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, 832 N.E. 2d 757, ¶ 20 (4th Dist.), citing Noah v. Brillhart, 9th Dist. Wayne No. 02CA0050, 2003-Ohio-2421, ¶ 16, and State v. Scott, 9th Dist. Summit No. 20834, 2002-Ohio-3199, ¶ 14.
{14} Appellant‘s presence at a funeral for someone with whom he had no relationship and where he may have known he was unwelcome demonstrates his intention to cause appellee mental distress, as he knew that appellee would be attending to pay respect to his deceased in-law.
{15} All of the foregoing constitutes evidence of specific conduct by appellant that occurred at specific times. Although each of the incidents occurred over a period of three years, together they show, by a preponderance of competent, credible evidence that appellant engaged in a pattern of conduct that knowingly caused appellee mental distress, as prohibited by
{16} To the extent that appellant argues that there is no evidence that appellee was in fear of “imminent serious physical harm in December 2019,” appellant is reminded that an offender violates
{17} Finally, we look to appellant‘s claim that the extension of the protection order violated appellant‘s “constitutional right not to be punished twice for the same
{18} For all of the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
C.A. No. L-20-1102
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. JUDGE
Christine E. Mayle, J. JUDGE
Gene A. Zmuda, P.J. CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.