R.S. v. J.W. , 2018 Ohio 5316 ( 2018 )

[Cite as R.S. v. J.W., 2018-Ohio-5316.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
R.S. C.A. No. 28970
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
J.W. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. DR-2017-02-0558
DECISION AND JOURNAL ENTRY
Dated: December 31, 2018
CARR, Judge.
{¶1} Appellant, J.W., appeals the judgment of the Summit County Court of Common
Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} R.S. filed a petition for a domestic violence civil protection order against her
former fiancé, J.W., in 2016. While the trial court initially issued an ex parte protection order,
the ex parte order was terminated and the petition was dismissed after a full hearing on the
matter.
{¶3} On February 27, 2017, R.S. filed a subsequent petition for a domestic violence
civil protection order against J.W. pursuant to R.C. 3113.31. The trial court promptly issued an
ex parte protection order. The matter proceeded to a full hearing before a magistrate. On
September 19, 2017, the magistrate issued a decision granting the petition and ordering a five-
year protection order against J.W. J.W. filed timely objections to the magistrate’s decision. R.S.
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filed a memorandum in opposition to the objections. The trial court ultimately issued a journal
entry overruling the objections and adopting the magistrate’s decision on February 13, 2018.
{¶4} On appeal, J.W. raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING APPELLEE’S PETITION FOR
A DOMESTIC VIOLENCE PROTECTION ORDER AS THE DECISION IS
CONTRARY TO LAW AND AN ABUSE OF DISCRETION[.]
{¶5} J.W. raises two arguments in support of his assignment of error. First, J.W.
contends that R.S. failed to present sufficient evidence that he was a family or household
member as defined by R.C. 3113.31(A)(3). Second, J.W. asserts that R.S. failed to prove that he
engaged in menacing by stalking as defined by R.C. 2903.211. This Court disagrees with both
assertions.
{¶6} The issuance of a domestic violence civil protection order is governed by R.C.
3113.31, 1 which permits a trial court to issue a protection order after a full hearing “to bring
about a cessation of domestic violence[.]” See former R.C. 3113.31(E). Before the trial court
may grant a domestic violence civil protection order pursuant to R.C. 3113.31, it 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.’” Chafin v. Chafin, 9th Dist. Lorain No.
09CA009721, 2010-Ohio-3939, ¶ 7, quoting Felton v. Felton, 79 Ohio St.3d 34, 42 (1997).
{¶7} A sufficiency challenge concerns the adequacy of the evidence. Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11. When reviewing whether there was
1
Two separate amendments to R.C. 3113.31 have taken effect since R.S. filed her petition on
February 27, 2017. For the purposes of this appeal, we apply the version in place at the time
R.S. filed her petition.
3
sufficient evidence to support a trial court’s decision to grant a domestic violence civil protection
order, this Court must determine whether, in viewing the evidence in the light most favorable to
the petitioner, a reasonable trier of fact could find that the petitioner demonstrated by a
preponderance of the evidence that a domestic violence civil protection order should issue. A.M.
v. D.L., 9th Dist. Medina No. 16CA0059-M, 2017-Ohio-5621, ¶ 11; see also Eastley at ¶ 11, and
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶8} Former R.C. 3113.31(A)(1) defined “domestic violence” as the occurrence of one
or more of the following acts against a family or household member:
(a) Attempting to cause or recklessly causing bodily injury;
(b) Placing another person by the threat of force in fear of imminent serious
physical harm or committing a violation section 2903.211 [menacing by stalking]
or 2911.211 [aggravated trespass] of the Revised Code;
(c) Committing any act with respect to a child that would result in the child being
an abused child, as defined in section 2151.031 of the Revised Code;
(d) Committing a sexually oriented offense.
{¶9} R.C. 3113.31(A)(3)(a) states that “family or household member” means any of the
following who is residing with or has resided with the respondent:
(i) A spouse, a person living as a spouse, or a former spouse of the respondent;
(ii) A parent, a foster parent, or a child of the respondent, or another person
related by consanguinity or affinity to the respondent;
(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of
the respondent, or another person related by consanguinity or affinity to a spouse,
person living as a spouse, or former spouse of the respondent.
Family or Household Member
{¶10} J.W. first argues that R.S. failed to demonstrate that J.W. qualified as a family or
household member for the purposes of R.C. 3113.31(A)(3).
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{¶11} A review of the record reveals that J.W. filed objections to the magistrate’s
decision on October 2, 2017. Therein, J.W. argued that the evidence presented at the hearing did
not demonstrate that R.S. was a victim of domestic violence, nor did the evidence support the
conclusion that a protection order was necessary to bring about a cessation or prevention of
domestic violence. Attached to J.W.’s objections was a bench brief that he had previously
submitted to the trial court in lieu of closing argument. In support of his objections, J.W. noted
that he had ordered the preparation of a hearing transcript. J.W. requested additional time to file
“a Memorandum in Support of the foregoing Objection after the transcript has been filed herein
as part of the Court’s record.” While J.W.’s bench brief addressed whether R.S. established the
predicate relationship necessary in order to obtain a domestic violence civil protection order,
J.W. did not set forth an objection on that basis.
{¶12} R.S. filed a memorandum in opposition to the J.W.’s objections. In addition to
disputing J.W.’s evidentiary claim regarding whether he engaged in menacing by stalking, R.S.
noted that J.W. simply filed a “generic statement” and failed to state his objections with
particularity.
{¶13} The trial court initially issued an order overruling the objections on the basis that
J.W. had failed to pay for the transcript he requested. J.W. subsequently demonstrated that he
had, in fact, paid the deposit for the transcript, albeit two days late. The trial court issued a
journal entry vacating its prior order overruling the objections. Notably, while the transcript was
eventually filed with the trial court, J.W. never filed a supplemental memorandum in support of
his objections.
{¶14} With the benefit of the transcript, the trial court issued a journal entry overruling
J.W.’s objection on February 13, 2018. The trial court identified J.W.’s objections as follows:
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1. The Magistrate’s Decision was against the manifest weight of the evidence in
that the Petitioner was not a victim of domestic violence committed by
Respondent and is not in danger of being a victim of domestic violence as
committed by the Respondent.
2. The Magistrate’s Decision is against the manifest weight of the evidence in that
the Orders contained in the Magistrate’s Decision are not equitable, fair and
necessary to bring about a cessation or prevention of domestic violations against
the Petitioner.
{¶15} While the trial court did include a short discussion in support of its finding that
R.S. and J.W. qualified as family or household members as defined by R.C. 3113.31(A)(3), the
vast majority of the trial court’s analysis was devoted to examining whether J.W. had engaged in
menacing by stalking.
{¶16} Civ.R. 65.1(F)(3)(d)(i) provides, in relevant part, that, “[a] party may file written
objections to a court’s adoption, modification, or rejection of a magistrate's denial or granting of
a protection order after a full hearing, or any terms of such an order, within fourteen days of the
court’s filing of the order.” Loc.R. 27.04(B) of the Summit County Court of Common Pleas,
Domestic Relations Division provides that “[a]ll objections shall be specific and state the
grounds of objection with particularity.” “While former Rule 65.1(G) provided that an order
issued after a full hearing was a final, appealable order with or without the subsequent filing of
objections, that Rule was amended in July 2016.” A.S. v. D.S., 9th Dist. Medina No. 16CA0080-
M, 2017-Ohio-7782, ¶ 5. Civ.R. 65.1(G) now states:
Notwithstanding the provisions of any other rule, an order entered by the court
under division (F)(3)(c) or division (F)(3)(e) of this rule is a final, appealable
order. However, a party must timely file objections to such an order under
division (F)(3)(d) of this rule prior to filing an appeal, and the timely filing of
such objections shall stay the running of the time for appeal until the filing of the
court’s ruling on the objections.
{¶17} In this case, while J.W. filed objections to the magistrate’s decision, he did not
object on the basis that he was not a family or household member as defined by R.C.
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3113.31(A)(3). Because J.W. did not object on this basis, we decline to address this argument on
appeal. See generally J.Y. v. J.Y., 9th Dist. Medina No. 17CA0037-M, 2018-Ohio-3522, ¶ 5.
Menacing by Stalking
{¶18} J.W. contends that there was not sufficient evidence to support the trial court’s
finding that he engaged in a pattern of conduct that caused R.S. mental distress. While J.W.
admits that he contacted R.S. on a fairly regular basis via text and email, he emphasizes that
those communications were not threatening in any way and his actions did not constitute a
“pattern of conduct” because he had no knowledge that the communications were unwanted.
J.W. further maintains that his communications with R.S. had a minimal impact on her life and
did not cause her mental distress.
{¶19} The trial court noted in its journal entry that R.S. did not allege J.W. placed her in
fear of imminent physical harm as outlined in former R.C. 3113.31(A)(1)(b), nor did R.S. allege
that J.W. engaged in any of the other acts set forth in R.C. 3113.31(A)(1)(a)-(d). Thus, this case
hinged entirely on whether J.W. engaged in menacing by stalking as defined in R.C. 2903.211.
See former R.C. 3113.31(A)(1)(b).
{¶20} With respect to domestic violence premised on the commission of menacing by
stalking, R.C. 2903.211(A)(1) provides, in relevant part, that “[n]o person by engaging in a
pattern of conduct shall knowingly cause another person to believe that the offender will cause
physical harm to the other person * * * or cause mental distress to the other person[.]”
{¶21} A person acts “knowingly” when, “regardless of purpose, * * * the person is
aware that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that such
circumstances probably exist.” R.C. 2901.22(B).
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{¶22} A “pattern of conduct” is defined, in pertinent part, as follows:
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, * * *. [T]he
posting of messages, * * * or receipt of information or data through the use of * *
* an electronic method of remotely transferring information, including, but not
limited to, * * * telecommunications device, may constitute a “pattern of
conduct.”
R.C. 2903.211(D)(1).
{¶23} The menacing by stalking statute further defines “mental distress” as either:
(a) Any mental illness or condition that involves some temporary substantial
incapacity; [or]
(b) 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.
R.C. 2903.211(D)(2).
{¶24} J.W.’s argument that there was no evidence that he engaged in a pattern of
conduct is not well taken. “Because R.C. 2903.211(D)(1) does not elaborate on the requirement
that the incidents must be ‘closely related in time,’ that question must be considered with
reference to all of the surrounding circumstances.” R.C. v. J.G., 9th Dist. Medina No.
12CA0081-M, 2013-Ohio-4265, ¶ 12. The evidence presented at the hearing demonstrated that
after the initial petition for a protection order was dismissed in October 2016, J.W. immediately
began texting and emailing R.S on a frequent basis. While some of these messages were aimed
at tying up loose ends from when the couple lived together, other messages rehashed issues
surrounding their separation. While R.S. did respond on occasion, her responses were typically
short and polite. J.W. often conveyed his continued feelings for R.S. and expressed his dismay
that she would not communicate with him. R.S. eventually took measures to block J.W. from
sending emails to her personal account. On multiple occasions, however, R.S. received
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messages on her work account that referenced J.W. from shadowy, unfamiliar email addresses.
One email encouraged her to reach out to J.W. Another email was exceedingly critical and
encouraged her to “do all men a favor and never get involved in another relationship.” J.W. went
so far as to reach out to the director of a 5th grade softball league to offer to coach R.S.’s
daughter’s team. The director of the league testified that the offer was highly unusual coming
from a male who did not have a child on the team. When it became clear that coaching the team
was not feasible, J.W. then offered to pay for R.S.’s daughter’s uniform, and assist other players
in paying for their uniforms. After consulting R.S., the director declined J.W.’s offer. This
evidence, when construed in a light favorable to R.S., was sufficient to demonstrate that J.W.
engaged in a pattern of conduct toward R.S. that supported the issuance of a protection order.
{¶25} J.W.’s contention that R.S. failed to demonstrate that she experienced mental
distress is also without merit. At the hearing, R.S. testified that she was scared because she felt
like she was being “bombarded” with text messages and emails. She explained that the messages
caused her to have anxiety.2 Both R.S.’s mother and a friend of R.S. testified that they had
noticed a recent change in R.S. in that she was no longer joyful and she appeared to be
experiencing stress. The director of the softball league testified that when J.W. offered to pay for
R.S.’s daughter’s uniform, it was immediately apparent that R.S. was “visibly shaken” and
started “tearing up.” Moreover, this Court has held that evidence demonstrating that a petitioner
felt compelled to alter normal routines and patterns of behavior due to respondent’s conduct
corroborates allegations of mental distress. Noah v. Brillhart, 9th Dist. Wayne No. 02CA0050,
2
While R.S. testified that she spoke to a counselor about her issues, R.S. specified that the
counselor was an individual who typically worked with children in a school. It is unclear from
the record whether their conversations were informal in nature or whether they interacted in a
formal treatment setting.
9
2003-Ohio-2421, ¶ 16, citing Akron v. Andrews, 9th Dist. Summit No. 19383, 2000 WL 108818,
*6 (Jan. 26, 2000). In this case, R.S. started using a different vehicle and she changed the route
that she took to work. R.S. refrained from placing window decals on the vehicle that
commemorated her children’s participation in sports because she did not want to be recognizable
on the road. When R.S. would visit her mother, she would park in the garage so that her vehicle
was out of sight. R.S. also changed her phone number. The aforementioned evidence, when
construed in the light most favorable to the petitioner, was sufficient to demonstrate that R.S.
experienced mental distress in light of J.W.’s conduct.
{¶26} The assignment of error is overruled.
III.
{¶27} J.W.’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas, Domestic Relations Division, is affirmed.
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 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
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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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.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J.
CONCURS.
HENSAL, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
ERIC E. JONES, Attorney at Law, for Appellant.
ROBERT VIZMEG, Attorney at Law, for Appellee.