Lundin v. Niepsuj , 2017 Ohio 7153 ( 2017 )

[Cite as Lundin v. Niepsuj, 2017-Ohio-7153.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BARBARA LUNDIN C.A. No. 28223
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
VINCENT NIEPSUJ COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. DR 2011-04-0968
DECISION AND JOURNAL ENTRY
Dated: August 9, 2017
CANNON, Judge.
{¶1} Appellant, Vincent Niepsuj, appeals from the modified domestic violence civil
protection order issued by the Summit County Court of Common Pleas, Domestic Relations
Division, on March 31, 2016. The order restrains appellant from having contact with his ex-
wife, Barbara Lundin (appellee herein) and their son, T.N., who was 16 years old at the time the
order was entered. For the following reasons, the trial court’s judgment is vacated, and judgment
is entered for appellant.
{¶2} On June 2, 2011, the trial court issued a domestic violence civil protection order
(“CPO”) with an expiration date of April 13, 2016. This court affirmed the CPO on March 26,
2014. Lundin v. Niepsuj, 9th Dist. Summit No. 26015, 2014-Ohio-1212. The CPO was modified
multiple times thereafter.
{¶3} Shortly before the CPO was set to expire, on February 9, 2016, appellee filed a
motion to modify the CPO, asking the trial court to extend the CPO for another five years. The
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reason stated in support of the requested extension was “the history of the case and the past
violations.” Appellant filed a response in opposition, a motion to deny and dismiss the motion,
and a request to enjoin appellee.
{¶4} On March 30, 2016, the trial court held a hearing on appellee’s motion to modify
the CPO and on appellant’s motion to modify parental or visitation rights in the separate divorce
case between the parties. Both parties appeared pro se. Appellant had subpoenaed multiple
witnesses with regard to his motion to modify parental or visitation rights but indicated he was
not aware the motion to modify the CPO was also to be heard that day. Appellant was
admonished many times by the trial court during his examination of the witnesses: he had a
tendency to break off into lengthy statements instead of questioning, cross-examine his own
witnesses, and argue with the court. After those witnesses testified with regard to the divorce
case, appellant called appellee to the stand.
{¶5} Appellee testified that T.N. has expressed embarrassment and concern about
appellant being nearby or on the premises at school and church. Appellee stated that appellant
“[goes] around Portage County talking to all these people [and] it gets spread around the school,
back to the boys and they find it embarrassing.” Appellee mentioned that appellant had violated
the initial CPO by criminally trespassing, but she did not reference specific examples of when
this occurred. She also testified that appellant had attempted to violate the CPO by once asking
T.N.’s adult brothers to bring T.N. when they were scheduled to meet with appellant.
{¶6} The trial court then told appellant he was done with the witness, and the trial court
questioned appellee with regard to the CPO.
Q: Tell me the reasons why you’re requesting an extension of the Civil Protection
Order.
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A: Based on Mr. Niepsuj’s behaviors, based on the fact he violated the Civil
Protection Order –
Q: When?
A: – in the past. Um – um you – I think I put the dates in my filing of the
violation of the Civil Protection Order and criminal trespassing. There is really
no need for Vince or I to have a relationship.
MR. NIEPSUJ: I don’t want a relationship with you.
THE COURT: Would you please not interrupt her.
Q: Are you still in – in –
MR. NIEPSUJ: Is she still testifying?
THE COURT: Yes.
MR. NIEPSUJ: Because I’d like to ask her about that CPO.
Q: Are you – are you still in fear for your safety?
MR. NIEPSUJ: She’s never –
A: Yes.
MR. NIEPSUJ: – said that.
THE COURT: Would you just –
MR. NIEPSUJ: You’re putting words in her mouth, Your Honor. She
never said that, you said that.
THE COURT: Mr. Niepsuj –
MR. NIEPSUJ: Your Honor, she never said that.
THE COURT: Mr. Niepsuj –
MR. NIEPSUJ: Why did you say she’s still in fear?
THE COURT: Because I have a right to ask her the question.
MR. NIEPSUJ: She –
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THE COURT: Now sit down and shut up.
MR. NIEPSUJ: We never established she’s in any fear at all, Your Honor.
Q: Are you in fear that this man may cause you harm as well as your son, [T.N.]?
A: Yes.
Q: Do you want – for how long do you want the extension?
A: Five years.
Q: Until – until the child becomes of age?
A: For him until the age but I would like at least five years. I would like the full
five years.
MR. NIEPSUJ: Okay. I’d like to –
A: So we don’t have to come back.
MR. NIEPSUJ: I’d like you on the stand to ask – to ask you why – what a
CPO’s about. You don’t just simply have it because something’s
inconvenient to you. It has to do with the threat of harm, physical harm,
impending harm. I’d like to ask you questions about the actual CPO.
We’ve talked about [T.N.] but we haven’t talked about the CPO. We
didn’t even know we were meeting here for the CPO because nothing’s
established. They didn’t even tell me when I checked with the officer just
yesterday when the hearing was being set for the CPO and who the judge
is on that. * * *
***
MR. NIEPSUJ: I haven’t had a chance to ask her about the elements that
go to a CPO whether it be harm, fear, (inaudible).
THE COURT: That’s what she just said, she’s in fear of harm that you
would cause her and her son, [T.N.], physical harm.
MR. NIEPSUJ: What specific harm? What specific harm are you worried
about? I’m trying to do good for the children, never bad. What harm
could you ever even imagine?
A: Do you want me to answer?
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Q: Yes you may answer the question.
A: Emotional harm.
MR. NIEPSUJ: Like what?
A: If you don’t do what he says when he wants, he gets angry.
MR. NIEPSUJ: I don’t get angry.
A: He screams. Yells.
MR. NIEPSUJ: I haven’t even talked to the boy.
A: He gets violent.
A FEMALE SPEAKER: Are you gonna let her testify?
MR. NIEPSUJ: Yes I will.
A: I mean even all the ramblings, you know knocking things out of my hands,
hitting, screaming, you can’t say no to him. He won’t stop.
MR. NIEPSUJ: Every – that’s not true.
THE COURT: Why don’t you –
MR. NIEPSUJ: It’s not true. I can testify.
THE COURT: You know, I’m going to have you gagged.
MR. NIEPSUJ: May I testify though?
THE COURT: I’m going to have you gagged if you don’t pay attention to
what I’m telling you.
MR. NIEPSUJ: I don’t want another CPO, Your Honor.
THE COURT: You’re going to be listening and not talking.
MR. NIEPSUJ: I just don’t want another CPO when there’s no need for it.
THE COURT: I decide that, not you.
MR. NIEPSUJ: Your Honor, I know but she hasn’t shown me.
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THE COURT: All right.
MR. NIEPSUJ: And you’ve asked her about fear, she hasn’t talked about
fear until you asked her about her fear.
THE COURT: The Court is going to grant the extension of the CPO.
{¶7} On March 31, 2016, the trial court issued a modified domestic violence CPO,
pursuant to R.C. 3113.31. The modified CPO states that it protects appellee and T.N. for an
additional five years until March 30, 2021. The CPO also includes the following relevant
provisions:
4. RESPONDENT SHALL NOT ENTER or interfere with the
residence, school, business, place of employment, day care centers, or
child care providers of the protected persons named in this Order,
including the buildings, grounds, and parking lots at those locations.
Respondent may not violate this Order even with the permission of a
protected person.
5. RESPONDENT SHALL STAY AWAY FROM PETITIONER and
all other persons named in this Order, and not be present within 500 feet
of any protected persons wherever those protected persons are likely to
be, even with Petitioner’s permission. If Respondent accidentally
comes in contact with protected persons in any public or private place,
Respondent must depart immediately. This Order includes encounters on
public and private roads, highways, and thoroughfares.
6. RESPONDENT SHALL NOT INITIATE OR HAVE ANY
CONTACT with the protected persons named in this Order or their
residences, businesses, places of employment, schools, day care centers,
or child care providers. Contact includes, but is not limited to, landline,
cordless, cellular, or digital telephone; text; instant messaging; fax; e-
mail; voice mail; delivery service; social networking media; blogging;
writings; electronic communications; or communications by any other
means directly or through another person. Respondent may not violate
this Order even with the permission of a protected person.
11. PARENTAL RIGHTS AND RESPONSIBILITIES ARE
TEMPORARILY ALLOCATED AS FOLLOWS: Parental rights
shall be in accordance with the divorce decree and subsequent parental
orders in divorce case no. 2002-02-0687. This Order applies to [T.N.]
until he becomes an adult.
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12. VISITATION ORDERS DO NOT PERMIT RESPONDENT TO
VIOLATE THE TERMS OF THIS ORDER. As a limited exception
to paragraphs 5 and 6, temporary visitation rights are established as
follows: in accordance with Court orders in the divorce case.
16. RESPONDENT SHALL NOT USE OR POSSESS alcohol or
illegal drugs.
{¶8} On April 4, 2016, appellant filed a timely Civ.R. 52 motion for findings of fact
and conclusions of law with the trial court. Prior to the court ruling on that motion, appellant
filed an appeal from the CPO on May 2, 2016. Because further action was anticipated, however,
the CPO was not yet final and appealable. See Walker v. Doup, 36 Ohio St. 3d 229 (1988),
syllabus (“When a timely motion for findings of fact and conclusions of law has been filed in
accordance with Civ.R. 52, the time period for filing a notice of appeal does not commence to
run until the trial court files its findings of fact and conclusions of law.”). .The trial court
subsequently issued its findings of fact and conclusions of law on September 27, 2016.
Therefore, we treat appellant’s May 2, 2016 notice of appeal as a premature appeal, timely as of
September 27, 2016. See App.R. 4(C).
{¶9} The trial court’s findings of fact and conclusions of law consists of one paragraph:
This cause came on for hearing this 16th day of March 2016 on the
Motion filed by the Petitioner requesting the Court to continue the current
Civil Protection Order. She testified that both she and the parties’ son,
[T.N.], a protected person under the current Civil Protection Order were in
fear that terminating the current Civil Protection Order in effect would be
harmful to both the Petitioner and the parties’ protected son, [T.N.]. She
testified that the Defendant would cause her and the parties’ son both
physical and emotional harm should the Civil Protection Order in
existence be terminated. Based on the testimony of the Petitioner, the
Court hereby orders that the Civil Protection Order is extended for an
additional period of five years.
{¶10} Appellant raises three assignments of error for our review:
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[1.] The trial court erred when it extended the civil protection order in the
above-captioned case absent evidence of domestic violence, in violation of
Section 3113.31 of the Ohio Revised Code.
[2.] The trial court erred and abused its discretion when it issued an order
in the civil protection order prohibiting the appellant from using or
possessing alcohol or illegal drugs.
[3.] The trial court erred and abused its discretion when it issued an order
in the civil protection order prohibiting the appellant from entering or
having contact with his son’s school.
{¶11} Under his first assignment of error, appellant asserts the trial court erred when it
extended the CPO for five years absent a showing that appellant committed an act of domestic
violence or threatened imminent serious physical harm to appellee or T.N.
{¶12} R.C. 3113.31 governs domestic violence CPOs. “A person may seek relief under
this section on the person’s own behalf, or any parent or adult household member may seek relief
under this section on behalf of any other family or household member, by filing a petition with
the court.” R.C. 3113.31(C). “The petition shall contain or state:
(1) An allegation that the respondent engaged in domestic violence against
a family or household member of the respondent, including a description
of the nature and extent of the domestic violence;
(2) The relationship of the respondent to the petitioner, and to the victim if
other than the petitioner;
(3) A request for relief under this section.
Id. “After an ex parte or full hearing, the court may grant any protection order, with or without
bond, or approve any consent agreement to bring about a cessation of domestic violence against
the family or household members.” R.C. 3113.31(E)(1). The order or agreement may impose
any of the restrictions listed in (E)(1)(a)-(k). Id.
{¶13} “Any protection order issued or consent agreement approved under this section
shall be valid until a date certain, but not later than five years from the date of its issuance or
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approval, or not later than the date a respondent who is less than eighteen years of age attains
nineteen years of age, unless modified or terminated as provided in division (E)(8) of this
section.” R.C. 3113.31(E)(3)(a) (emphasis added).
{¶14} “Either the petitioner or the respondent of the original protection order or consent
agreement may bring a motion for modification or termination of a protection order or consent
agreement that was issued or approved after a full hearing.” R.C. 3113.31(E)(8)(b).
{¶15} Additionally, “[a]ny protection order issued or consent agreement approved
pursuant to this section may be renewed in the same manner as the original order or agreement
was issued or approved.” R.C. 3113.31(E)(3)(c) (emphasis added). “The statute does not
explicitly set forth when a renewal is permitted, but use of the term ‘renew’ suggests the issuance
of an additional [CPO] after the expiration of an original order.” Martin v. Martin, 10th Dist.
Franklin No. 13AP-171, 2013-Ohio-5703, ¶8, citing Felton v. Felton, 79 Ohio St. 3d 34, 40
(1997) (noting that a CPO “can be renewed at the end of the effective period”); also citing Little
v. Little, 10th Dist. Franklin No. 10AP-843, 2011-Ohio-318, ¶6; Patton v. Patton, 5th Dist.
Muskingum No. CT2009-0031, 2010-Ohio-2096, ¶3; Hershberger v. Hershberger, 3d Dist.
Seneca No. 13-2000-15, 2000 WL 1675568, *2 (Nov. 8, 2000); Woolum v. Woolum, 131 Ohio
App.3d 818, 821 (12th Dist.1999). See also M.J. v. L.P., 9th Dist. Medina No. 15CA0036-M,
2016-Ohio-7080, ¶9.
{¶16} Here, appellee moved the trial court to “modify” the CPO, utilizing the form
prescribed in Sup.R. 10.01 for doing so (Form 10.01-K). It is clear, however, that appellee was
actually requesting a renewal of the CPO. In her motion, appellee stated: “[M]odify the effective
date of the order of protection. I wish to extend the date another five continuous years.” It was
also filed shortly before the initial CPO was set to expire.
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{¶17} The trial court granted appellee’s motion, utilizing Form 10.01-M, the form
prescribed by Sup.R. 10.01 for modifying or terminating a CPO. This form provides that the
terms of a modified order “shall be effective until [insert date] (SHALL BE SAME
EXPIRATION DATE AS IN CIVIL PROTECTION ORDER).” This is consistent with the
provision in R.C. 3113.31(E)(3)(a) that a CPO shall be valid “not later than five years from the
date of its issuance or approval.” The expiration date in the initial CPO was April 13, 2016. In
the modified CPO, however, the trial court stated it was to be effective until March 30, 2021.
Additionally, in its findings of facts and conclusions of law, the trial court did not state it had
modified the CPO, but that it was “continue[d]” or “extended.”
{¶18} It is clear from these circumstances that the trial court was attempting to renew
the initial CPO, not modify it. Had it been a modification, as noted in the form, it would have
been temporally limited by the expiration date of the original CPO. As a result, the trial court
was required, pursuant to R.C. 3113.31(E)(3)(c), to renew the CPO “in the same manner as the
original [CPO] was issued or approved.” This would require a new finding of domestic violence,
or threat thereof, under the law set forth below, to justify issuance of what amounted to an
effectively new CPO.
{¶19} The decision whether to issue or renew a CPO lies within the sound discretion of
the trial court. See Hoyt v. Heindell, 191 Ohio App. 3d 373, 2010-Ohio-6058, ¶39 (11th Dist.)
(citations omitted). When the trial court exercises its discretion, however, it must find that the
petitioner has shown by a preponderance of the evidence that the petitioner or petitioner’s family
or household members are the victim of, or in danger of, domestic violence. Felton, supra, at 42,
citing R.C. 3113.31(D). “Consequently, as in other civil cases, we review the evidence
underlying protection orders to determine whether sufficient evidence was presented or whether
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the protection order is against the manifest weight of the evidence.” A.S. v. P.F., 9th Dist. Lorain
No. 13CA010379, 2013-Ohio-4857, ¶4 (citations omitted); see also Charles v. Peters, 2d Dist.
Greene No. 2015-CA-52, 2016-Ohio-1259, ¶10 (“A protection order, or an order extending a
protection order, requires sufficient evidence.”).
{¶20} A challenge to the manifest weight of the evidence requires this court to review
the evidence presented, including the reasonable inferences and the credibility of the witnesses,
to determine whether the trier of fact clearly lost its way and created such a manifest miscarriage
of justice that the decision must be reversed. A.S., supra, at ¶5, citing Eastley v. Volkman, 132
Ohio St. 3d 328, 2012-Ohio-2179, ¶20. In weighing the evidence, we are always mindful of the
presumption in favor of the finder of fact. Eastley, supra, at ¶21.
{¶21} R.C. 3113.31(A)(1) defines “domestic violence,” in pertinent part, as “[p]lacing
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] or 2911.211 [aggravated trespass] of the
Revised Code[.]”
{¶22} To support the trial court’s findings regarding physical harm in this case, appellee
must have proved by the preponderance of the evidence that (a) she has a reasonable belief that
she is in fear of imminent serious physical harm, (b) as a direct result of appellant’s force or
threat of force. See Charles, supra, at ¶20. “Force” means “‘any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.’” Id., quoting R.C.
2901.01(A)(1). “‘Serious physical harm to persons’ means any of the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
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(c) Any physical harm that involves some permanent incapacity, whether
partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that
involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged or
intractable pain.
R.C. 2901.01(A)(5); see Charles, supra, at ¶21.
{¶23} “Imminence” is not defined in R.C. 3113.31. “Therefore, we must construe it
according to its ordinary meaning. * * * ‘Imminent’ means ‘ready to take place,’ ‘near at hand,’
‘impending,’ ‘hanging threateningly over one’s head,’ or ‘menacingly near.’” Fleckner v.
Fleckner, 177 Ohio App. 3d 706, 2008-Ohio-4000, ¶20 (10th Dist.), quoting Webster’s Third
New International Dictionary (1969), 1130. “‘[I]mminence does not require an offender to carry
out a threat immediately or be in the process of carrying it out. * * * [C]ivil protection orders are
intended to prevent violence before it happens * * *.’” Id., quoting Young v. Young, 2d Dist.
Greene No. 2005-CA-19, 2006-Ohio-978, ¶105. “Therefore, ‘the critical inquiry under [R.C.
3113.31] “is whether a reasonable person would be placed in fear of imminent (in the sense of
unconditional, non-contingent), serious physical harm.”’” Id., quoting Maccabee v. Maccabee,
10th Dist. Franklin No. 98AP-1213, 1999 WL 430943, *2 (June 29, 1999), quoting Strong v.
Bauman, 2d Dist. Montgomery Nos. 17256 & 17414, 1999 WL 317432, *4 (May 21, 1999).
“‘This inquiry necessarily involves both subjective and objective elements.’” Young, supra, at
¶106, quoting Strong, supra, at *4.
{¶24} In its findings of fact and conclusions of law, the trial court stated, as its sole
reason for extending the CPO, that appellee testified she was in fear that appellant would cause
her and T.N. physical and emotional harm if the CPO was terminated. We find the trial court’s
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five-year renewal of the CPO was an abuse of discretion because the findings and conclusions
are against the manifest weight of the evidence.
{¶25} When questioned by the trial court as to why she requested the extension, appellee
stated, “Based on Mr. Niepsuj’s behaviors, based on the fact he violated the Civil Protection
Order in the past.” When questioned as to when these alleged violations occurred, appellee
responded, “I think I put the dates in my filing of the violation of the Civil Protection Order and
criminal trespassing.” There are no dates listed in her request for an extension of the CPO; the
only grounds she provides in the motion are “the history of the case and the past violations.”
{¶26} When questioned as to what kind of harm she fears from appellant, appellee stated
“emotional.” She testified that appellant embarrasses T.N. but did not establish when the
behavior of which she complains occurred. It appears from much of her testimony that she is
relying on events that occurred prior to the initial CPO in 2011.
{¶27} At the hearing, the trial court stated to appellant that appellee said she was in fear
of physical harm; but appellee had not testified to such. She subsequently testified that appellant
would knock things out of her hand, hit, yell, scream, and get angry. Nothing can be
extrapolated from this testimony, however, as to when these events took place or that any
physical harm she may fear is imminent or serious, as required by R.C. 3113.31. Again, it
appears appellee is testifying to behavior that occurred prior to the initial 2011 CPO. “Merely
finding that there were past acts of domestic violence, without anything more, is not enough to
warrant a present civil protective order.” Solomon v. Solomon, 157 Ohio App. 3d 807, 2004-
Ohio-2486, ¶27 (7th Dist.) (emphasis sic).
{¶28} Appellee may indeed be in fear of appellant. In fact, based upon the aberrant
behavior of appellant at the hearing as set forth above, it is understandable. The fear, however,
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must be in the context of the definitions set forth above. It cannot merely be based on
embarrassment in the community or some unspecified conduct that occurred at some unspecified
time in the past. In short, appellee did not present sufficient evidence, under these statutory
provisions, to support a finding that, since the issuance of the original CPO, incidents occurred
that caused her to have a reasonable belief that she was in fear of imminent serious physical
harm as a direct result of appellant’s force or threat of force. The trial court appears to have
applied a solely subjective test to the question of whether appellee met her burden of proof. See,
e.g., Fleckner, supra, at ¶23.
{¶29} The five-year renewal of the CPO was entered against the manifest weight of the
evidence.
{¶30} Appellant’s first assignment of error has merit. As a result, appellant’s second
and third assignments of error are rendered moot.
{¶31} The judgment of the Summit County Court of Common Pleas, Domestic
Relations Division, is vacated, and judgment is entered in favor of appellant.
Judgment vacated.
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
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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 Appellee.
TIMOTHY P. CANNON
FOR THE COURT
RICE, J.
WRIGHT, J.
CONCUR.
(Cannon, J., Westcott Rice, J., and Wright, J. of the Eleventh District Court of Appeals, sitting
by assignment.)
APPEARANCES:
ADAM VAN HO, Attorney at Law, for Appellant.
BARBARA LUNDIN, pro se, Appellee.