Kranek v. Richards , 2011 Ohio 6374 ( 2011 )

[Cite as Kranek v. Richards, 2011-Ohio-6374.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
CHRISTIAN KRANEK ) CASE NO. 11 JE 2
)
PETITIONER-APPELLEE )
)
VS. ) OPINION
)
SARAH J. RICHARDS )
)
RESPONDENT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Jefferson County, Ohio
Case No. 10DR227
JUDGMENT: Affirmed in part. Reversed in part.
Remanded.
APPEARANCES:
For Petitioner-Appellee: Christian Kranek, Pro se
111 Euclid Street
Amsterdam, Ohio 43903
For Respondent-Appellant: Atty. Peter S. Olivito
606-612 Sinclair Building
Steubenville, Ohio 43952
Atty. Kristopher M. Haught
2021 Sunset Boulevard
Steubenville, Ohio 43952
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: December 7, 2011
[Cite as Kranek v. Richards, 2011-Ohio-6374.]
WAITE, P.J.
{1} Appellant Sarah J. Richards appeals the judgment of the Jefferson
County Court of Common Pleas which issued a four-year Civil Stalking Protection
Order (“CSPO”) against her in favor of Appellee Christian Kranek (“Christian”), along
with Appellee’s wife Nicholette Kranek (“Nicholette”), and three children, C.K.1 (one
month old), C.K.2 (one year old), and J.K. (ten years old). Appellant and Christian
were talking on the phone about visitation issues regarding their child J.K. when
Appellant threatened to kill him and his family. Three weeks later, Christian received
a threatening message on his answering machine, and identified Appellant’s voice on
the recording. A CSPO must be based on a pattern of conduct, and two incidents
closely related in time constitutes a pattern of conduct. R.C. 2903.211(D)(1). Even
though Christian has not responded to this appeal, the record does not reasonably
support reversal. However, the record does reflect that the court told the parties it
would dismiss the CSPO with respect to the child J.K., as all custody issues
pertaining to that child file was under the jurisdiction of another court. The trial court
failed to dismiss as to J.K. Hence, the judgment is partially reversed and the case
remanded for the trial court to file a corrected judgment entry removing J.K. from the
CSPO.
{2} On August 3, 2010, Christian filed a petition for a CSPO against
Appellant. Appellee sought relief for himself, his wife, and three children. The court
granted a temporary protection order and set a full hearing for August 20, 2010.
Appellant, Christian and Nicholette testified at the hearing. Christian and Nicholette
both described the phone call of July 30, 2010. Christian had called Appellant to
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discuss visitation issues regarding their child J.K. (Tr., p. 14.) J.K. was speaking to
Appellant, but the child became upset and started to cry, then left the room. (Tr., p.
6.) Christian picked up the phone and Nicholette activated the speaker phone
feature so that she could hear the conversation. Nicholette heard Appellant say, “I’ll
kill you and your family.” (Tr., p. 6.) Christian heard Appellant say: “I’ll kill you and
your whole family.” (Tr., p. 15.) Christian also heard Appellant say: “You know I’m
capable of it and if I can’t do it I know someone who will.” (Tr., p. 15.)
{3} Approximately 30 minutes after the phone call, a police officer arrived at
the house due to a report of child abuse made by Appellant to the Madison County
Sheriff’s Department. (Tr., p. 8.) The officer found that J.K. was fine, and took a
report about the threatening phone call made by Appellant. When Nicholette wrote
down what Appellant had said, she left out the word “kill” and wrote: “I’m going to
and you and your family.” (Tr., p. 9.) She testified in court, though, that Appellant
said she was going to kill them.
{4} Christian and Nicholette also testified about a message left on their
telephone answering machine on August 19, 2010, in which the caller said: “I’m
going to get you. I’m hiding. I’m waiting for you[.]” (Tr., p. 18.) Christian and
Nicholette both recognized Appellant’s voice leaving this message. (Tr., pp. 11, 18.)
{5} Christian testified that, sometime before J.K.’s birth in 2000, Appellant
threw an ashtray at him that left a permanent scar. (Tr., p. 21.) There was also
testimony that Appellant displayed a gun to Nicholette during a custody exchange of
J.K. (Tr., p. 11.) This incident occurred in a McDonald’s restaurant approximately 18
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months prior to the death threat in July of 2010. One other incident mentioned in the
record is a threat Appellant made to Nicholette: “About a year-and-a-half ago
[Appellant] was telling me, you know, I just need to butt out, mind my own business
or else she’ll kick my butt.” (Tr., p. 13.)
{6} During the CSPO hearing, the parties explained to the court that
Appellant had permanent custody of J.K. and that Christian had visitation rights.
Custody and visitation had initially been decided by the Jefferson County Court of
Common Pleas, Juvenile Division. Jurisdiction over the juvenile was then transferred
to the Madison County Court of Common Pleas, Juvenile Division, after Appellant
moved to that county. The trial judge determined that judicial custody of J.K. fell
under the jurisdiction of Madison County and that the CSPO would be dismissed as
to J.K. (Tr., pp. 35-36.)
{7} On August 26, 2010, the court filed its judgment entry making the
CSPO permanent until August 3, 2014. On September 1, 2010, Appellant filed a
request for findings of fact and conclusions of law. On January 5, 2011, the court
issued its findings. The court made several findings: that custody, visitation and
child support were contested; that Appellant threatened to kill Christian and his family
due to the custody dispute; and that Appellant was responsible for multiple threats of
physical harm that were designed to cause mental distress in order to influence the
outcome of the custody dispute. The court determined that the evidence showed a
pattern of threats of physical harm against the persons listed on the CSPO petition.
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{8} Appellant filed this timely appeal on February 3, 2011. Appellee has
not responded to this appeal. According to App.R. 18(C), we “may accept the
appellant's statement of the facts and issues as correct and reverse the judgment if
appellant's brief reasonably appears to sustain such action.”
{9} Although Appellant lists four assignments of error, the first three
assignments deal with specific facts found by the court and these findings all relate to
the fourth assignment of error challenging the manifest weight of the evidence. For
these reasons, all the assignments will be treated together.
ASSIGNMENTS OF ERROR 1, 2, 3, AND 4
{10} “THE TRIAL COURT ERRED IN FINDING THAT CUSTODY,
VISITATION AND SUPPORT ARE CONTESTED.
{11} “THE TRIAL COURT ERRED IN FINDING THAT SARAH J.
RICHARDS MADE MULTIPLE THREATS OF PHYSICAL HARM DESIGNED TO
CAUSE MENTAL DISTRESS IN ORDER TO INDUCE CHRISTIAN KRANEK TO
FORGO ANY CUSTODY CHALLENGES.
{12} “THE TRIAL COURT ERRED IN FINDING THAT THE CONDUCT OF
SARAH J. RICHARDS CONSTITUTES A PATTERN OF THREATS OF PHYSICAL
HARM AND CAUSING MENTAL DISTRESS TO CHRISTIAN KRANEK AND THE
PERSONS LISTED ON THE PETITION FOR A DOMESTIC STALKING CIVIL
PROTECTION ORDER.
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{13} “THE TRIAL COURT [SIC] DECISION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY COMPETENT,
CREDIBLE EVIDENCE.”
{14} In this appeal, Appellant is challenging the factual basis of the trial
court’s judgment. Thus, Appellant’s manifest weight of the evidence argument
encompasses all issues raised in this appeal. R.C. 2903.214 governs the issuance
of a CSPO. The petitioner must demonstrate, by a preponderance of the evidence,
that the respondent has engaged in menacing by stalking. Strausser v. White, 8th
Dist. No. 92091, 2009-Ohio-3597, ¶30 The decision whether to grant a CSPO is
within the trial court's sound discretion. See, e.g., Smith v. Wunsch, 162 Ohio
App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶10. “The term ‘abuse of discretion’
connotes more than an error of law or of judgment; it implies that the court's attitude
is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5
Ohio St. 3d 217, 219, 450 N.E.2d 1140. Moreover, “an appellate court may not simply
substitute its judgment for that of the trial court so long as there is some competent,
credible evidence to support the lower court findings.” State ex rel. Celebrezze v.
Environmental Enterprises, Inc. (1990), 53 Ohio St. 3d 147, 154, 559 N.E.2d 1335.
{15} When an appellate court reviews a trial court's judgment, the appellate
court must generally defer to the fact-finder's weighing of the evidence credibility
determination. See, e.g., Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St. 3d
77, 81, 461 N.E.2d 1273.
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{16} Appellant first contends that the trial court made findings and issued
rulings over the custody and child support of J.K. that were outside its authority
because another court, the Madison County Court of Common Pleas, Juvenile
Division, already has jurisdiction over custody matters regarding J.K. Although
Appellant does not cite any law to support this contention, she is correct. A standard
CSPO contains many sections that potentially relate to parental rights and child
custody issues. Sup.R. Form 10.03-F. If a child is protected by the order and a
parent is the respondent bound by the order, then most aspects of the CSPO will
necessarily affect parental rights in some way. The order may prohibit a parent from
having contact with a child, from visiting the child, or from residing with the child. The
CSPO may order the parent not to be in the same vehicle with the child, take
vacations with the child, or enter the child’s school or day care center. Custody and
visitation would terminate, as a practical matter, if the order contains the standard
provision requiring the respondent to stay 500 feet away from the victim.
{17} We recently held that “when the domestic relations court presiding over
the [civil protection order] is not the court that has jurisdiction over parental rights and
responsibilities, the domestic relations court has no authority to issue orders
regarding parental rights or visitation. Every court that has looked at this issue has
come to the same conclusion.” McCue v. Marlin, 187 Ohio App. 3d 1, 2010-Ohio-
1298, 930 N.E.2d 855, ¶27. “A common pleas court does not have jurisdiction * * *
where a juvenile court in the same county has already made a determination of
parental rights and responsibilities.” Couch v. Harrison (Feb. 12, 2001), 12th Dist.
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No. CA2000-08-063, *4. “[A] trial court issuing a CPO may temporarily allocate
parental rights and responsibilities for the minor children if no other court has
previously or is concurrently doing so.” Parker v. Jamison, 4th Dist. No.
02CA002857, 2003-Ohio-7295, ¶24. Any provisions of a civil protection order that
attempt to usurp the final child custody orders of another court cannot be enforced.
McCue, supra.
{18} The trial court in this case recognized that the juvenile court of Madison
County had issued custody orders regarding J.K., and thus, the judge notified the
parties at the CSPO hearing that J.K. would be removed from the CSPO. The court
failed to do this in its judgment entry, and for that reason, the case must be
remanded to the trial court to make that correction.
{19} The second and third issues raised by Appellant involve the court’s
finding that she made multiple threats that constituted a pattern of conduct.
Appellant does not agree that there were multiple threats involved, here. To review
this matter, we must first look to the elements that must be proven to warrant the
issuance of a CSPO. R.C. 2903.214 contains the procedure for filing a “petition for
protection order.” R.C. 2903.214(C) provides:
{20} “A person may seek relief under this section for the person, 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. The petition
shall contain or state all of the following:
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{21} “(1) An allegation that the respondent is eighteen years of age or older
and engaged in a violation of section 2903.211 of the Revised Code against the
person to be protected by the protection order or committed a sexually oriented
offense against the person to be protected by the protection order, including a
description of the nature and extent of the violation;” (Emphasis added.)
{22} At the heart of a CSPO is an allegation that the accused committed
menacing by stalking as defined by R.C. 2903.211. Before a court may grant a
CSPO, a petitioner must demonstrate, by a preponderance of the evidence, that the
respondent has engaged in menacing by stalking. Strausser v. White, 8th Dist. No.
92091, 2009-Ohio-3597, ¶30; Caban v. Ransome, 7th Dist. No. 08MA36, 2009-Ohio-
1034, ¶7. Turning, then, to the appropriate statute governing stalking, R.C.
2903.211(A)(1), it provides: “No 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.”
{23} “ ‘Pattern of conduct’ means 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.” R.C. 2903.211(D)(1). One incident is insufficient to
establish a “pattern of conduct.” McKinley v. Kuhn, 4th Dist. No. 10CA5, 2011-Ohio-
134, ¶15; State v. Scruggs (2000), 136 Ohio App. 3d 631, 737 N.E.2d 574. In
determining what constitutes a pattern of conduct for purposes of R.C.
2903.211(D)(1), courts must take every action into consideration “even if some of the
person's actions may not, in isolation, seem particularly threatening.” Guthrie v.
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Long, 10th Dist. No. 04AP-913, 2005-Ohio-1541, ¶12; Miller v. Francisco, 11th Dist.
No.2002-L-097, 2003-Ohio-1978, ¶11.
{24} The pattern of conduct described in R.C. 2903.211(D)(1) must occur
“closely related in time”. “R.C. 2903.211 does not attempt to define or give further
meaning to the phrase ‘closely related in time.’ ” State v. Bone, 10th Dist. No. 05AP-
565, 2006-Ohio-3809, ¶24. “Consequently, ‘whether the incidents in question were
“closely related in time” should be resolved by the trier of fact “considering the
evidence in the context of all the circumstances in the case.” ’ ” Id., quoting State v.
Dario (1995), 106 Ohio App. 3d 232, 238, 665 N.E.2d 759. It has been held that “[t]he
incidents need not occur within any specific temporal period.” Jenkins v. Jenkins,
10th Dist. No. 06AP-652, 2007-Ohio-422, ¶18. A period of eight months has been
accepted as being closely related in time to support a CSPO. McKinley, supra.
{25} The CSPO in this case appears to have been based on two main
incidents. The first occurred on July 30, 2010. This was the phone call in which
Appellant threatened to kill Christian and his family. The second is the phone
message from August 19, 2010, in which the caller said: “I’m going to get you. I’m
hiding. I’m waiting for you[.]” (Tr., p. 18.) Christian and Nicholette both testified that
they heard Appellant’s voice leave this message. (Tr., pp. 11, 18.) Although the
second incident is not as threatening as Appellant’s initial statement that she would
kill Christian and his family, it can be seen as shorthand repetition of the initial threat.
Since a pattern of conduct can be established with two incidents, the record supports
the trial court’s findings, and, thus, supports the issuance of the CSPO. Additional
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relevant evidence can also be found in the record. Appellant has inflicted bodily
harm in the past, as related in the incident in which Appellant threw an ashtray at
Appellee that left a permanent scar. Christian and Nicholette were also aware that
Appellant had purchased a handgun, and she publicly displayed it to Nicholette
during a custody exchange at a McDonald’s Restaurant in Zanesville, Ohio. (Tr., p.
11.) Nicholette also testified that Appellant threatened to do her some harm. (Tr., p.
13.) Thus, there appeared to be an extended pattern of threats and violence,
culminating in the two instances occurring on July 30 and August 19, 2010. Because
these two incidents occurred less than three weeks apart, there can be no question
that the two incidents were closely related in time to one another.
{26} At the CSPO hearing, Appellant contradicted the testimony of Christian
and Nicholette. She stated that she never made a death threat. (Tr., p. 27.) The
court apparently did not believe her version of the events. “The trier of fact is free to
believe or disbelieve any witness * * *.” Sims v. Dibler, 172 Ohio App. 3d 486, 2007-
Ohio-3035, 875 N.E.2d 965, ¶44. “The trier of fact is free to believe all, part or none
of the testimony of each witness.” State v. Jackson (1993), 86 Ohio App. 3d 29, 33,
619 N.E.2d 1135.
{27} Appellant’s fourth assignment of error simply restates that she is
challenging the manifest weight of the evidence. Since there is some competent,
credible evidence that, if believed, supports the trial court’s findings, there is nothing
unreasonable, arbitrary or unconscionable in its determination that the findings
warrant the issuance of a permanent CSPO. While the issuance of this CSPO is
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valid, it is apparent from the record that the trial court should have deleted J.K. from
the CSPO because jurisdiction of this child fell to the juvenile court of Madison
County. Because the trial judge stated on the record that it would dismiss the CSPO
as to J.K., the judgment entry should have been so modified.
{28} In conclusion, the record supports a pattern of threats made by
Appellant against Christian Kranek, Nicholette Kranek, and the three children listed in
petition for a CSPO. A pattern may be established with two incidents, and two
incidents are clearly proven in the record. The trial court erred, however, in failing to
comply with its decision to dismiss the minor child J.K. from the CSPO. The court
found that J.K. was under the jurisdiction of the juvenile court of Madison County and
announced to the parties in open court that J.K. would be deleted from the CSPO. In
light of the trial judge’s finding and the fact that Appellee has not filed a brief in this
appeal, we partially sustain Appellant’s first and fourth assignments of error. The
judgment of the trial court is reversed with respect to J.K., and the case is remanded
for the trial court to remove J.K. from the CSPO.
Donofrio, J., concurs.
Vukovich, J., concurs.