Wohleber v. Wohleber ( 2011 )

[Cite as Wohleber v. Wohleber, 2011-Ohio-6696.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
JENNIFER WOHLEBER C.A. No. 10CA009924
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LAWRENCE J. WOHLEBER, JR. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 10 DV 071996
DECISION AND JOURNAL ENTRY
Dated: December 27, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Jennifer Wohleber petitioned the court for a domestic violence civil protection
order after she heard that her ex-husband had told his victim’s advocate that he would shoot her.
Following the issuance of an ex parte order, the magistrate held a hearing and recommended
dissolving it. The trial court adopted the magistrate’s decision the same day, but Ms. Wohleber
filed objections to it. The trial court sustained the objections and reissued the protection order.
Lawrence Wohleber has appealed. This Court affirms the trial court’s judgment because there is
competent, credible evidence to support the trial court’s determination that Mr. Wohleber’s
threat placed Ms. Wohleber in reasonable fear of imminent serious physical harm. Further, Mr.
Wohleber was properly notified of the hearing on the objections to the magistrate’s decision and,
even if he had not been notified, he has not shown prejudice.
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BACKGROUND
{¶2} Ms. Wohleber was married to Mr. Wohleber for five years, and they have one
child. Since 2006, they have shared custody of their daughter and have frequently interacted in
order to transfer her between their two households. In January 2010, during one exchange of the
child, the parties argued, and Ms. Wohleber drove quickly away. Mr. Wohleber called the police
and reported that Ms. Wohleber had driven over his foot, causing him injury. Ms. Wohleber was
charged with domestic violence, but pleaded guilty to disorderly conduct as part of a plea
bargain. In March 2010, when Mr. Wohleber’s victim advocate, Marge McCoy, explained to
him that Ms. Wohleber’s charge had been reduced, he became angry. According to Ms. McCoy,
Mr. Wohleber threatened to shoot his ex-wife. Ms. McCoy informed court security and Ms.
Wohleber’s lawyer of the threat. The next day, Ms. Wohleber’s lawyer told her about it.
{¶3} Two weeks later, Ms. Wohleber filed a petition for a domestic violence civil
protection order based on the allegation that her ex-husband had threatened to shoot her. The ex
parte order was granted on April 15, 2010. A magistrate held a hearing on it a month later. At
the hearing, both parties testified and Ms. McCoy testified on behalf of Ms. Wohleber.
Following the hearing, the magistrate issued a decision indicating that, under Ngqakayi v.
Ngqakayi, 2d Dist. No. 2007 CA 85, 2008-Ohio-4745, “the Court finds that [Ms. Wohleber]
failed to provide sufficient evidence that she was aware of the statements made by [Mr.
Wohleber] . . . and that [she] was in fear of imminent physical harm by [him]. Further, [Ms.
Wohleber presented] no credible evidence of an unequivocal threat of force or that she held a
reasonable fear of imminent serious physical harm[.]” Neither party requested findings of fact or
conclusions of law.
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{¶4} The trial court adopted the magistrate’s decision and dissolved the civil protection
order the same day. After Ms. Wohleber filed objections to the magistrate’s decision, the trial
court stayed dismissal of the civil protection order. Neither Mr. Wohleber nor his lawyer
appeared at the appointed time for the hearing on the objections. It is unclear from the record
whether that hearing was held in their absence. Mr. Wohleber never opposed the objections in
writing.
{¶5} On September 15, 2010, the trial court issued a decision indicating that the
magistrate had “incorrectly applied the case of Ngqakayi v. Ngqakayi, . . . [and that] [Ms.]
Wohleber is entitled to a protection order against . . . [Mr.] Wohleber[.]” The trial court
determined that, when Ms. Wohleber became aware of the threats shortly after they were made,
“she was in fear of imminent serious physical harm[.]” Therefore, the trial court sustained her
objections to the magistrate’s decision and ordered that a protection order should issue against
Mr. Wohleber. He has appealed that decision.
REASONABLE FEAR
{¶6} Mr. Wohleber’s first assignment of error is that the trial court incorrectly reversed
the magistrate’s decision dissolving the civil protection order. He has argued that the trial court
incorrectly failed to defer to the credibility evaluations of the magistrate, but he has not pointed
to any specific credibility determination in support of his position. Instead, he has argued that
the trial court incorrectly determined that his alleged comments to Ms. McCoy caused his ex-
wife a reasonable fear of imminent, serious physical harm.
{¶7} Section 3113.31(A) of the Ohio Revised Code defines “[d]omestic violence” as,
among other things, “[p]lacing [a family or household member] by the threat of force in fear of
imminent serious physical harm[.]” R.C. 3113.31(A)(1)(b). “The Ohio Supreme Court has
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explained that, ‘[w]hen granting a protection order, the trial court must find that petitioner has
shown by a preponderance of the evidence that petitioner . . . [is] in danger of domestic
violence.’” Schultz v. Schultz, 9th Dist. No. 09CA0048-M, 2010-Ohio-3665, at ¶5 (quoting
Felton v. Felton, 79 Ohio St. 3d 34, paragraph two of the syllabus (1997)). Under the statute, a
“[f]amily or household member” includes a former spouse of the accused. R.C.
3113.31(A)(3)(a)(i). “Threats of violence will constitute ‘domestic violence’ if the fear resulting
from those threats is reasonable.” Rhodes v. Gunter, 9th Dist. Nos. 02CA008156, 02CA008157,
2003-Ohio-2342, at ¶4 (citing Conkle v. Wolfe, 131 Ohio App. 3d 375, 383 (1998); Gatt v. Gatt,
9th Dist. No. 3217-M, 2002-Ohio-1749, at ¶2; Lavery v. Lavery, 9th Dist. No. 20616, 2001 WL
1545663 at *3 (Dec. 5, 2001). “Reasonableness is determined by referencing the petitioner’s
history with the respondent.” Rhodes, 2003-Ohio-2342, at ¶4. “This Court may reverse if the
trial court’s judgment [granting or denying a petition for a domestic violence civil protection
order] is not supported by some competent, credible evidence going to all the essential elements
of the case.” Schultz, 2010-Ohio-3665, at ¶5.
{¶8} At the hearing before the magistrate, Ms. McCoy testified that Mr. Wohleber
became angry when she told him about the plea bargain. She testified that he stood up and said,
“I really don’t care what happens here. The next time I’ll just pull her out of her car and shoot
her.” Ms. McCoy told him that was not a wise thing to say to a victim advocate. According to
Ms. McCoy, Mr. Wohleber said, “I don’t really care. I’ll just shoot her.” Ms. McCoy said that
she was concerned for Ms. Wohleber’s safety, so she immediately alerted court security and,
when the proceeding concluded, told Ms. Wohleber’s lawyer. According to Ms. Wohleber, she
learned of the threat the next day when she spoke with her lawyer. Ms. Wohleber testified that
the threat frightened her because she thought Mr. Wohleber was likely to act on it. She said that,
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when they were married, Mr. Wohleber had threatened to shoot both her and her dog and he
carried a handgun for his job. She also said that Mr. Wohleber threw a telephone and a laptop
computer at her during their marriage. She testified that she “do[esn’t] know what he’s going to
do” and she is “afraid of him.”
{¶9} Mr. Wohleber did not comment on the past threats or incidents of violence his ex-
wife described, but did testify that he has not owned a gun for years. He testified that, when Ms.
McCoy told him about the plea bargain, he told her, “the next time I feel my life is in danger, . . .
I am going to protect myself.” He said that he told Ms. McCoy he “will not be a victim in this
court again,” but claimed he never said he was going to shoot anyone.
{¶10} In her decision, the magistrate indicated that, based on Ngqakayi v. Ngqakayi, 2d
Dist. No. 2007 CA 85, 2008-Ohio-4745, Ms. Wohleber had “failed to provide sufficient evidence
that she was aware of the statements made by [Mr. Wohleber] . . . and that [she] was in fear of
imminent physical harm by [him].” The magistrate further explained that Ms. Wohleber had not
presented any “credible evidence of an unequivocal threat of force or that she held a reasonable
fear of imminent serious physical harm[.]” The trial court reversed the magistrate’s decision
because it determined that the magistrate had incorrectly applied Ngqakayi and that, based on
Ms. Wohleber’s past dealings with her ex-husband, “she was in fear of imminent serious
physical harm” from him so that she qualified for a civil protection order under Section
3113.31(A)(1)(b).
{¶11} In Ngqakayi, the Second District Court of Appeals held that the trial court
properly denied the petition of a paternal grandmother on behalf of her granddaughter. Ngqakayi
v. Ngqakayi, 2d Dist. No. 2007 CA 85, 2008-Ohio-4745Id. at ¶8. The grandmother testified that,
during a telephone call with the child’s father, he told her that he would kill the child if she
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harmed her young half-sibling. Mr. Wohleber has implied that Ngqakayi supports the
magistrate’s decision because the Second District affirmed the denial of a civil protection order
when the threat was not communicated directly from the aggressor to the victim. That issue was
not discussed in Ngqakayi. What the Second District decided was that the order was not
warranted because there was “no evidence that [the child] was even aware of the threat . . . [so]
she could not possibly have been in fear of imminent physical harm[.]” Id. at ¶6. The facts of
Ngqakayi are distinguishable from the facts of this case because there was evidence that Ms.
Wohleber became aware of the threat the day after Mr. Wohleber made it and immediately
became fearful for her safety. There was no evidence to the contrary. Regardless of whether
Ms. Wohleber learned of the threat the next day as she described, she certainly learned of the
threat at some time before she filed for the civil protection order. Thus, the trial court’s decision
was based on a review of the magistrate’s legal analysis, not its factual findings. The trial court
correctly determined that its magistrate incorrectly applied Ngqakayi to this case.
{¶12} According to Ms. McCoy, Mr. Wohleber threatened to do his wife serious
physical harm by shooting her. This is not the typical he-said she-said case involving a threat
communicated directly from one former spouse to the other with no corroborating evidence for a
trial court to rely on. Here a domestic violence victim’s advocate assigned by the municipal
court to work on behalf of Mr. Wohleber testified against him at a domestic violence civil
protection order hearing. The magistrate’s decision is brief and seems to turn on the
reasonableness of Ms. Wohleber’s fear. As discussed above, the trial court correctly determined
that the magistrate erred in applying Ngqakayi v. Ngqakayi, 2d Dist. No. 2007 CA 85, 2008-
Ohio-4745, because there is no doubt that, at some time, Ms. Wohleber became aware of the
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threat. The proper question is whether there was evidence that the fear created by the threat was
reasonable under the circumstances.
{¶13} Under Ohio law, in order for threats of violence to constitute domestic violence,
“the fear resulting from th[e] threats [must be] reasonable.” Rhodes v. Gunter, 9th Dist. Nos.
02CA008156, 02CA008157, 2003-Ohio-2342, at ¶4 (citing Conkle v. Wolfe, 131 Ohio App. 3d
375, 383 (1998); Gatt v. Gatt, 9th Dist. No. 3217-M, 2002-Ohio-1749, at ¶2; Lavery v. Lavery,
9th Dist. No. 20616, 2001-Ohio-1874, at ¶3). “Reasonableness is determined by referencing the
petitioner’s history with the respondent.” Rhodes, 2003-Ohio-2342, at ¶4.
{¶14} Ms. Wohleber testified that she believed her ex-husband would carry out his
threat to shoot her. She said that he typically carried a concealed handgun and, during their
marriage, had thrown electronics at her and threatened to shoot her and her dog. When Mr.
Wohleber took the stand, his lawyer did not ask him whether he had ever thrown a laptop
computer or a telephone at his wife. He also did not ask whether Mr. Wohleber had ever
threatened to shoot Ms. Wohleber or her dog. Presumably, if those allegations were false, Mr.
Wohleber would have been anxious to deny them while on the stand. He did not. He did say
that he does not own any firearms and has not carried a gun for work since he was last employed
as a United States Air Marshal in 2007.
{¶15} There is no indication in the record that the magistrate did not believe Ms.
Wohleber’s testimony about the prior threats and violence during the marriage. Ms. Wohleber’s
testimony supports the trial court’s decision to grant the civil protection order because there was
competent, credible evidence that, given their history together, Ms. Wohleber’s fear induced by
the recent threat was reasonable under the circumstances. See Morris v. Morris, 9th Dist. No.
24664, 2009-Ohio-5164, at ¶22 (discussing importance of “other circumstances” in determining
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whether threat created a reasonable fear of imminent physical harm under Section 3113.31 of the
Ohio Revised Code).
IMMINENCE
{¶16} Mr. Wohleber has also argued that the statement he allegedly made amounted to a
conditional threat that did not meet the requirements of Section 3113.31 of the Ohio Revised
Code because it did not create a reasonable belief that any danger was “near at hand” or
“impending.” “This Court has recognized that both the totality of the circumstances, as well as
the victim’s state of mind, are relevant to the determination that the threat of harm was
imminent.” Chafin v. Chafin, 9th Dist. No. 09CA009721, 2010-Ohio-3939, at ¶22.
{¶17} Mr. Wohleber has argued that the “imminent” serious physical harm described in
the statute requires something “‘near at hand,’ impending,’ ‘hanging threateningly over one’s
head,’ or ‘menacingly near.’” Bargar v. Kirby, 12th Dist. No. CA2010-12-334, 2011-Ohio-
4904, at ¶19 (quoting Strong v. Bauman, 2d Dist. Nos. 17256, 17414, 1999 WL 317432 at *4
(May 21, 1999)). He has argued that, the statement attributed to him in this case is “a
conditional threat at best and do[es] not constitute domestic violence.” He has cited three cases
in support of his position that his statement, even if believed, amounted to only a conditional
threat. In Collie, the First District Court of Appeals held that the trial court incorrectly failed to
grant the defendant’s motion for acquittal when the State failed to prove imminence as required
for a conviction of domestic violence under Section 2919.25(C) of the Ohio Revised Code. The
First District explained that Mr. Collie made a conditional threat to shoot “[i]f [he] had a gun.”
Id. at 582. “A conditional threat is one where ‘a prerequisite must occur before the actor intends
or is empowered to carry out the threat.’” Bargar, 2011-Ohio-4904, at ¶21 (quoting In re
Jenkins, 5th Dist. No. 2003CA00330, 2004–Ohio–2657, at ¶26). The Court in Collie gave
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several examples of conditional threats from other cases. For example, “I will bust you if you do
not let go of my wife,” and “you come in here and I’ll kick your ass.” Collie, 108 Ohio App. 3d
at 582-83 (citing Columbus v. Hutchins, 10th Dist. No. 91AP-18, 1991 WL 151222 at *1 (July
30, 1991); Columbus v. James, 10th Dist. Nos. 87AP-1218, 87AP-1219, 87AP-1220, 87AP-
1221, 87AP-1222, 1988 WL 96240 at *1 (Sept. 15, 1988)). Each of the examples required a
prerequisite to occur before the threat would be carried out.
{¶18} Mr. Wohleber also cited Williamson v. Williamson, 180 Ohio App. 3d 260, 2008-
Ohio-6718, to support his argument that the threat did not implicate sufficiently imminent harm.
In Williamson, however, the Second District determined that a woman was not entitled to a civil
protection order simply because a formerly abusive ex-husband was about to be released from
prison. Id. at ¶48, 60, 64. The woman in that case did not allege that any recent violence or
threat of violence had caused her to file for the protection order. She testified that her ex-
husband’s most recent transgression had taken place years before the hearing. The sole basis for
the petition was that he had been dangerous in the past and was about to be released from prison.
The Second District held that, without some evidence of a current threat of harm, a civil
protection order would not issue. Id. at ¶50. Mr. Wohleber also cited a case involving the denial
of a civil protection order to a woman who did not testify that she subjectively believed her
abusive husband would carry out his threat to burn down the house with her in it. See Henry v.
Henry, 4th Dist. No. 04CA2781, 2005-Ohio-67, at ¶1-2. The cases Mr. Wohleber cited are
distinguishable based on the facts of this situation.
{¶19} In this case, Ms. McCoy testified that Mr. Wohleber said, “[t]he next time I’ll just
pull her out of her car and shoot her.” The threat was recent, specific, and was not conditioned
on the occurrence of any prerequisite. See Osherow v. Osherow, 9th Dist. No. 21407, 2003-
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Ohio-3927, at ¶11, 15 (affirming trial court’s grant of civil protection order after formerly
abusive ex-husband told ex-wife he would “get [her] next time” and then followed her around
town). The statement conveys a non-contingent intention to shoot the victim at his next
opportunity. It is not conditional language such as the First District Court of Appeals described
in State v. Collie, 108 Ohio App. 3d 580, 582-83 (1996). Mr. Wohleber testified that he did not
threaten to shoot anyone, and that he merely told Ms. McCoy that he would “protect [him]self”
the next time he felt that “[his] life is in danger.” There is no indication in the record that the
magistrate believed Mr. Wohleber’s testimony about that conversation. Although there are no
findings of fact or conclusions of law, the magistrate’s decision seems to indicate that she
believed Ms. McCoy’s testimony and not Mr. Wohleber’s story about what he threatened to do
to his ex-wife.
{¶20} Ms. Wohleber testified that she was afraid her ex-husband would carry out the
threat based on past experiences of violence and threatened violence. Mr. Wohleber, however,
has argued that Ms. Wohleber could not have reasonably feared for her safety when she learned
of the threat because the two continued to interact to exchange their child for two weeks between
the time of the threat and the time that Ms. Wohleber filed for the civil protection order. There
is, however, no evidence in the record that Ms. Wohleber interacted with Mr. Wohleber between
March 31 and April 15. There is competent, credible evidence to support the trial court’s
determination that Mr. Wohleber’s threat placed his ex-wife in reasonable fear of imminent
physical harm. Therefore, Mr. Wohleber’s first assignment of error is overruled.
HEARING NOTICE
{¶21} Mr. Wohleber’s second assignment of error is that the trial court failed to provide
proper notice of the hearing on Ms. Wohleber’s objections to the magistrate’s decision. Under
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Rule 19(B)(3) of the Local Rules for the Domestic Relations Division of the Lorain County
Common Pleas Court, Ms. Wohleber was required to obtain a hearing date because she was the
first to file objections to the magistrate’s decision. The record shows that Ms. Wohleber’s
objections to the magistrate’s decision included a “Notice” that the objections were scheduled for
hearing on August 31, 2010, at 11:00 a.m. and a “Proof of Mailing” to Mr. Wohleber’s lawyer
and the guardian ad litem. Therefore, the record reflects that Mr. Wohleber was properly
notified of the hearing date when he received the objections. On September 1, the trial court
wrote in an entry, “[m]atter set for hearing on Petitioner’s objections to Magistrate’s Decision.
Court to rule. Petitioner and counsel present. Respondent and counsel did not appear.” It is
unclear from the entry whether the trial court proceeded with the hearing as scheduled. The
record does not contain a transcript of an objection hearing. Therefore, even if Mr. Wohleber
could properly claim that he was not notified of the hearing, it is not clear that the trial court held
a hearing on the objections in his absence. Thus, Mr. Wohleber has not demonstrated that
missing the hearing caused him prejudice. See Civ. R. 61. His second assignment of error is
overruled.
CONCLUSION
{¶22} Mr. Wohleber’s first assignment of error is overruled because the record contains
some competent, credible evidence that Mr. Wohleber’s threat caused his wife a reasonable fear
of imminent physical harm. His second assignment of error is overruled because there was
evidence that Mr. Wohleber was properly notified of the date and time for the hearing on Ms.
Wohleber’s objections to the magistrate’s decision, and, even if he had not been notified, it is not
clear from the record that any hearing took place in his absence. The judgment of the Domestic
Relations Division of the Lorain County Common Pleas Court is affirmed.
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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 Lorain, 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(E). 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.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, J.
CONCURS
CARR, P. J.
DISSENTS
APPEARANCES:
KENNETH J. LEWIS, Attorney at Law, for Appellant.
LESLIE A. GENTILE, Attorney at Law, for Appellee.