Wolfe v. Wolfe , 2014 Ohio 2159 ( 2014 )

[Cite as Wolfe v. Wolfe, 2014-Ohio-2159.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT WOLFE : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
COLLEEN WOLFE : Case No. 2013CA00196
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Common Pleas
Court, Domestic Relations Division,
Case No. 2013DV00083
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 19, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER DIONISIO ANTHONY KOUKOUTAS
4883 Dressler Road, NW 116 Cleveland Avenue, NW
Canton, OH 44718 Suite 808
Canton, OH 44702
Stark County, Case No. 2013CA00196 2
Farmer, P.J.
{¶1} On February 21, 2012, appellant, Colleen Wolfe, and appellee, Robert
Wolfe, were divorced (Case No. 2011DR00672). Appellee was awarded custody of the
parties' two children, and appellant was granted supervised visitation. On January 30,
2013, the trial court issued an order suspending appellant's visitation, and issued a no
contact order, prohibiting appellant from being present within 500 feet of the children.
{¶2} On August 30, 2013, appellee filed a petition for a domestic violence civil
protection order for himself and the parties' two children as against appellant (Case No.
2013DV00083). A hearing was held on September 13, 2013. On same date, the trial
court issued the request civil protection order.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE GRANTING OF THE CIVIL PROTECTION ORDER WITH
RESPECT TO THE APPELLANT'S CHILDREN WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
I
{¶5} Appellant claims the granting of the civil protection order to include the
children is against the manifest weight of the evidence as no evidence was presented of
any harm to the children. We disagree.
{¶6} On review for manifest weight, the standard in a civil case is identical to
the standard in a criminal case: a reviewing court is to examine the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of witnesses and
Stark County, Case No. 2013CA00196 3
determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered." State v. Martin, 20 Ohio App. 3d 172, 175
(1983). See also, State v. Thompkins, 78 Ohio St. 3d 380, 1997-Ohio-52; Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179. In weighing the evidence, however, we
are always mindful of the presumption in favor of the trial court's factual findings.
Eastley at ¶ 21.
{¶7} A petition for a domestic violence civil protection order is governed by R.C.
3113.31. Subsection (A) states the following:
(A) As used in this section:
(1) "Domestic violence" means 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 of section 2903.211 or
2911.211 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.
Stark County, Case No. 2013CA00196 4
{¶8} A "family or household member" includes: "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." R.C. 3113.31(A)(3)(a)(iii).
{¶9} In the civil protection order filed on September 13, 2013, the trial court
found the following:
Colleen Wolfe is the ex-spouse of the Petitioner and the mother of
[M.] and [R.]. She has engaged in a pattern of stalking and threatening
the Petitioner and children. Jurisdiction exists. Colleen Wolfe has
attacked her ex mother-in-law and she is currently in jail for stalking
petitioner. Credible testimony presented. Colleen Wolfe has committed
acts of domestic violence against the Petitioner.
The Court further finds by a preponderance of the evidence: 1) that
the Petitioner or Petitioner's family or household member(s) are in danger
of or have been a victim of domestic violence or sexually oriented offenses
as defined in R.C. 3113.31(A) committed by Respondent; and 2) the
following orders are equitable, fair, and necessary to protect the persons
named in this Order from domestic violence.
{¶10} A hearing on the civil protection order was held on September 13, 2013.
Appellant did not appear at the hearing. Appellee testified to the following (T. at 5-6):
Stark County, Case No. 2013CA00196 5
Q. And since the time of the divorce action, uh...we're alleging that
she's engaged in an on-going pattern uh... or erratic behavior causing
fear, uh...and physical and mental distress to both you and the children. Is
that correct?
A. Yes.
Q. Um...accusations that we have asserted uh...include
uh...stalking, appearing uh...at the children's schooling. Uh...appearing at
the children's counseling. Driving past the home. Following the minor
children. And there have been a couple of instances at least where she's
actually appeared at the home and engaged in physical violence both
towards you, others in the residence for which she has been arrested and
charged with felonies on two separate occasions. Is that correct?
A. Yes.
Q. Um...can you give the Court a uh...brief description uh...of some
of the events, uh...and your concerns with respect to Colleen?
A. Sure. Um...Colleen actually came to my house a while back ago
and uh...broke in, uh...assaulted and choked my mother. Um...and just,
just pushing and assaulting me. Um...in order, before she left the house,
uh...she uh...assaulted and wouldn't allow my fiancé to get back in the
house. Um...as you stated she's been at the school. She's been at the
counseling. Uh...she's, drives past the house often. Um...and she just
continually, you know, harasses the family.
Stark County, Case No. 2013CA00196 6
Q. And all, all of these or many of these actions have actually
occurred, including the criminal violations in the presence of the minor
children. Is that correct?
A. Yes.
Q. And uh...most recently, uh...actually in August, late August of
this year, she was again charged with felony four, Menacing by Stalking
and that case is currently pending before the Stark County Grand Jury. Is
that accurate?
A. Yes. Uh...she uh...came to the house and the kids were there.
Q. Okay. And she has no uh...rights at this point to be around the
children? Correct?
A. The children or the house.
{¶11} Back on January 30, 2013, the trial court in the domestic relations case
had issued an order suspending appellant's visitation with the children, as well as a no
contact order:
Mother's visitation is suspended. In addition she shall not be
present within 500 feet of the children wherever those children may be
found, or any place that she knows or should know that the children are
likely to be, even with father's permission. If she accidentally comes in
contact with a child in any public or private place she must depart
Stark County, Case No. 2013CA00196 7
immediately. This shall include encounters on public and private roads,
highways and thoroughfares.
{¶12} It is clear from the credible evidence presented that numerous acts of
violence and threatening behavior have occurred when the children were present,
causing a "fear of imminent serious physical harm." Seeing one's grandmother choked
or one's father pushed and assaulted is sufficient to establish that the children had a
fear of imminent serious physical harm.
{¶13} Given the evidence presented, we find the trial court's determination that
the civil protection order should include the children due to appellant having engaged in
a pattern of stalking and threatening behavior toward appellee and the children is not
against the manifest weight of the evidence.
{¶14} The sole assignment of error is denied.
Stark County, Case No. 2013CA00196 8
{¶15} The judgment of the Court of Common Pleas of Stark County, Ohio,
Domestic Relations Division, is hereby affirmed.
By Farmer, P.J.
Wise, J. and
Baldwin, J. concur.
SGF/sg 513