Byron v. Byron , 2012 Ohio 1632 ( 2012 )

[Cite as Byron v. Byron, 2012-Ohio-1632.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ELIZABETH M. BYRON, : APPEAL NO. C-110576
TRIAL NO. DV1100054
Petitioner-Appellee, :
O P I N I O N.
vs. :
MARK EDWARD BYRON, :
Respondent-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 13, 2012
Moskowitz & Moskowitz, LLC, James H. Moskowitz and Joel S. Moskowitz, for
Petitioner-Appellee,
Heekin & Heekin and Christopher R. Heekin, for Respondent-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Respondent-appellant Mark Byron appeals the decision of the trial
court issuing a civil protection order against him, which ordered him to stay away
from petitioner-appellee Elizabeth Byron. In his sole assignment of error, he
contends that the trial court erred in granting the order. He argues that the evidence
was insufficient to support the court’s finding that he had placed Elizabeth in fear of
imminent serious physical harm. He also argues that the court’s judgment was
against the manifest weight of the evidence. The assignment of error is not well
taken.
{¶2} R.C. 3113.31(E)(1) provides that “the court may grant any protection
order * * * to bring about a cessation of domestic violence against the family or
household members.” When granting a protection order, the trial court must find
that the petitioner has shown by a preponderance of the evidence that the petitioner
or the petitioner’s family or household members are in danger of domestic violence.
Felton v. Felton, 79 Ohio St.3d 34, 1997-Ohio-302, 679 N.E.2d 672, paragraph two of
the syllabus.
{¶3} A court may grant a domestic violence protection order if a person
places a family or household member in fear of imminent physical harm by force or
threat of force. Richter v. Richter, 12th Dist. No. CA2009-02-055, 2009-Ohio-3828,
¶ 9-17; Hunter v. Hunter, 2nd Dist. No. 21285, 2006-Ohio-6307, ¶ 9-13. The
petitioner’s fear of imminent danger must be reasonable. Evidence of a history of
domestic violence by the respondent against the petitioner is relevant to determining
the reasonableness of the petitioner’s fear. Fleckner v. Fleckner, 177 Ohio App.3d
706, 2008-Ohio-4000, 895 N.E.2d 896, ¶ 21 (10th Dist.).
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In a civil case, the tests for reviewing the weight and sufficiency of the
evidence are essentially the same. In re E.S., 1st Dist. Nos. C-100725 and C-100747,
2011-Ohio-586, ¶ 3. We will not reverse the trial court’s findings as long as they were
supported by competent, credible evidence. Myers v. Garson, 66 Ohio St.3d 610,
614-615, 1993-Ohio-9, 614 N.E.2d 742; Capeheart v. O’Brien, 1st Dist. No. C-
040223, 2005-Ohio-3033, ¶ 11.
{¶5} A magistrate specifically found that Mark had held Elizabeth down on
the bed with a clenched fist held in front of her face, and had threatened to “end” her.
He had also grabbed the parties’ infant son and had “shoved” him on the bed. Mark
admitted that he had behaved inappropriately to Elizabeth’s mother the day after the
incident and in several subsequent emails to Elizabeth. Additionally, evidence was
presented at the full hearing on the petition for the protection order that Mark had
already violated the ex parte order by calling Elizabeth on the telephone.
{¶6} Under the circumstances, the trial court’s finding that Elizabeth had
an objectively reasonable fear of imminent danger was supported by competent,
credible evidence. See Richter, 2009-Ohio-3828, at ¶ 14-18; Hunter, 2006-Ohio-
6307, at ¶ 9-13. Therefore, we overrule Mark’s assignment of error and affirm the
trial court’s judgment.
Judgment affirmed.
H ILDEBRANDT , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry this date.
3