Mullen v. Hobbs ( 2012 )

[Cite as Mullen v. Hobbs, 2012-Ohio-6098.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
KELLY MULLEN, : APPEAL NO. C-120362
TRIAL NO. SK-1101029
Petitioner-Appellee, :
vs. :
MICHELE HOBBS, : O P I N I O N.
Respondent-Appellant. :
Civil Appeal From: Hamilton County Common Pleas Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 26, 2012
Cornetet, Meyer, Rush & Kirzner Co., LPA, and Karen P. Meyer, for Petitioner-
Appellee,
Cohen, Todd, Kite & Stanford, LLC, and John L. O’Shea, for Respondent-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Respondent-appellant Michele Hobbs appeals from the judgment of
the Hamilton County Court of Common Pleas entering a five-year order of protection
against her in favor of petitioner-appellee Kelly Mullen and Mullen’s daughter.
Because we determine that the record contains competent, credible evidence to
support the trial court’s determination that Hobbs, by engaging in a pattern of
conduct, had knowingly caused Mullen and her daughter to believe that they would
suffer mental distress, we affirm the issuance of the protection order.
{¶2} Mullen filed a petition for a civil stalking protection order against
Hobbs on behalf of herself and her child on September 8, 2011. In the petition,
Mullen alleged that Hobbs had insisted that she had legal rights to Mullen’s daughter
and that Hobbs had appeared unannounced on her child’s first day of school in mid-
August 2011. Hobbs had then visited the school, again unannounced, in early
September. The same day that the petition was filed, the trial court entered an ex
parte temporary protection order until the matter could be set for an evidentiary
hearing.
{¶3} At the hearing on Mullen’s petition, Mullen filed as an exhibit the Ohio
Supreme Court’s opinion in Hobbs v. Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361,
953 N.E.2d 302. In that opinion, the Supreme Court detailed the relationship
between Hobbs and Mullen: The couple had begun dating in 2000, and in 2003,
they had decided to ask Hobbs’s friend, Scott Liming, to donate his sperm so that
Mullen could undergo in vitro fertilization. Liming had agreed. Hobbs and Mullen
both had contributed financially to the fertilization process, and, in 2005, Mullen
had given birth to a girl. For two years, Hobbs and Mullen had jointly raised the
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OHIO FIRST DISTRICT COURT OF APPEALS
child; however, in 2007, Mullen and the child had moved out of the house that they
had shared with Hobbs, giving rise to a legal dispute between Hobbs and Mullen over
the child. On July 12, 2011, the Ohio Supreme Court had affirmed the juvenile
court’s determination that Hobbs had been a non-parent to the child and that Mullen
had not relinquished any of her custodial rights to Hobbs. Id. at ¶ 23.
{¶4} Mullen testified at the hearing that she had had several “heated
conversations” with Hobbs regarding the outcome of their litigation. Hobbs had told
Mullen that Mullen could not control when Hobbs saw the child and that Hobbs
would make sure that the child knows Hobbs as a mother, too, and that the child will
hate Mullen. Mullen testified that she had clearly explained to Hobbs that she did
not want Hobbs to see or speak to her daughter. Nevertheless, Mullen testified that
on the child’s first day of school, August 16, 2011, she and Liming had taken the child
to school and had been standing inside the front doors when Mullen had witnessed
Hobbs “pacing” outside the school. Hobbs then had waved at the child, and, at that
point, Mullen had motioned for Hobbs to come inside. Hobbs had taken a quick
picture of the child, and then she had left. Mullen testified that she had felt Hobbs’s
actions had “wrecked the mood for a minute,” and that she could tell that the
experience had caused her daughter anxiety. Mullen testified that “[i]t was all very
weird.” Hobbs admitted in her testimony that she had shown up at the school that
morning to see the child.
{¶5} Mullen testified that she had been bothered by Hobbs’s actions, so she
had met with the child’s principal and teacher to inform them of the prior custody
dispute and had told them that she did not want Hobbs to have contact with her
daughter. Mullen then had sent the following email to Hobbs:
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OHIO FIRST DISTRICT COURT OF APPEALS
Michele,
Your unannounced and unplanned visit at [my child’s] school was out
of line this morning.
Unscheduled visits AND contact with [my child] is (sic) not approved
by me.
Please refrain from further contact or I will be forced to seek further
legal recourse.
To be clear, unannounced visits to [my child’s] homes, schools,
activities and the like are not approved by me and are in violation of
my wishes for my daughter.
{¶6} Hobbs had replied to Mullen’s email as follows:
You’ve got to be kidding. For once you acted in [the child’s] best
interest, now this? There was nothing out of line getting to wish my
daughter good luck on her first day of school. [The child’s school] is a
public school in my neighborhood. I don’t need approval to visit [the
school]. And last I looked, your house * * * isn’t even in the district, so
unless you are paying the $6566.18 for out of district tuition, I have
more of a right to be there than you. Liming’s house on Beechwood is
in the district, but [the child] does not live there and he still has no
legal custodial rights granted by the courts, so his rights and mine are
the same here. Unless of course you have lied and put Liming’s
address down as [the child’s] residence, then that changes everything.
And to be clear, there is no such thing as a ‘violation’ of your wishes.
You will not allow [the child] to see me. If there is anyone violating
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OHIO FIRST DISTRICT COURT OF APPEALS
someone here it’s you. I really thought you had made an effort and
turned a corner this morning. Stupid me. Poor [child]…still.
{¶7} After this exchange, Mullen testified that the child’s teacher had told
Mullen that Hobbs had visited the school playground on September 6, and that
Hobbs had talked to other children through the fence. A teacher’s assistant at the
child’s school confirmed Mullen’s testimony and stated that, at the beginning of the
school year in September, she had seen Hobbs standing with a dog just outside the
fenced-in school playground, and Hobbs had been talking with two children. As a
result, the assistant testified that she had brought all the children inside from recess,
including Mullen’s child.
{¶8} Mullen testified that another incident had occurred on September 7
where her daughter had called her from school, and she had been upset. The child
had stated that a classmate had brought beef jerky to school from the child’s “other
mom,” which had caused the child to be embarrassed. Another teacher at the child’s
school testified that the child had seemed upset in early September and had asked to
call her mother. Hobbs admitted in her testimony that she had given beef jerky to
another child and had told him to give it to Mullen’s daughter. Yet another school
employee testified that she had received an email from Hobbs expressing concern
about the child.
{¶9} Mullen also testified that Hobbs had told her that Hobbs had been
arrested for aggravated menacing involving a firearm and had applied for a
concealed carry permit. Because of Hobbs’s demonstrated “hatred,” Mullen testified
that she was afraid that Hobbs would take the child, or that Hobbs would harm
Mullen or the child.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Based upon the evidence presented, the magistrate found that Mullen
proved, by a preponderance of the evidence, that Mullen and her daughter were
entitled to a five-year civil stalking protection order against Hobbs. The trial court
approved and adopted the magistrate’s findings. Hobbs filed objections to the order,
which were overruled by the trial court. This appeal ensued.
Civil Stalking Protection Order
{¶11} R.C. 2903.214 provides a framework for obtaining a civil stalking
protection order (“CSPO”). To obtain a CSPO, a petitioner must show, by a
preponderance of the evidence, that a respondent’s conduct violates the menacing-
by-stalking statute, R.C. 2903.211. Lindsay v. Jackson, 1st Dist. No. C-990786, 2000
Ohio App. LEXIS 4043, *13 (Sept. 8, 2000). R.C. 2903.211(A)(1) provides, “[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.”
{¶12} The decision to grant or deny a CSPO is left to the sound discretion of
the trial court, and we will not reverse the trial court’s decision absent an abuse of
discretion. Jenkins v. Jenkins, 10th Dist. No. 06AP-652, 2007-Ohio-422, ¶ 10. An
abuse of discretion occurs when the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). Moreover, this court will not reverse a trial court’s decision on manifest-
weight-of-the-evidence grounds unless, after reviewing all evidence and reasonable
inferences and considering the credibility of the witnesses, we determine that the
trier of fact lost its way and created such a manifest miscarriage of justice that we
must reverse its decision. Ensley v. Glover, 6th Dist. No. L-11-1026, 2012-Ohio-
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OHIO FIRST DISTRICT COURT OF APPEALS
4487, ¶ 9; see also Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 14-23, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997).
Mental Distress
{¶13} In Hobbs’s first assignment of error, she argues that the trial court’s
decision issuing a CSPO against her was not supported by competent, credible
evidence because insufficient evidence was offered to support the conclusion that
Hobbs had knowingly caused mental distress to Mullen and her daughter. This court
recently held that mental distress need not actually have been caused in order for a
CSPO to issue, and that a petitioner need only show that an offender, by engaging in
a pattern of conduct, knowingly caused the petitioner to believe that she or he would
suffer mental distress or physical harm. See Griga v. DiBenedetto, 1st Dist. No. C-
120300, 2012-Ohio-____, ¶ __. Thus, in addressing Hobbs’s assignment of error,
we must determine whether Mullen showed, by a preponderance of the evidence,
that Hobbs, by engaging in a pattern of conduct, had knowingly caused Mullen and
Mullen’s daughter to believe that they would suffer mental distress.
{¶14} R.C. 2903.211(D)(2) defines “mental distress” as:
(a) Any mental illness or condition that involves some temporary
substantial incapacity; (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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} A petitioner is not required to present expert testimony regarding
mental distress, and the trier of fact may invoke its own experience in determining
this element. See, e.g., State v. Horsley, 10th Dist. No. 05AP-350, 2006-Ohio-1208,
¶ 46. “[M]ere mental stress or annoyance” is insufficient to establish mental distress.
Caban v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶ 28. A petitioner’s
statement that respondent caused mental distress, without more, is also insufficient.
Lindsay, 1st Dist. No. C-990786, 2000 Ohio App. LEXIS 4043, at *3.
{¶16} As to prong (a) of R.C. 2903.211(D)(2)—temporary substantial
incapacity—“[i]ncapacity is substantial if it has a significant impact upon the
[petitioner’s] daily life.” State v. Willett, 9th Dist. No. 25521, 2012-Ohio-1027, ¶ 10,
quoting State v. Payne, 178 Ohio App.3d 617, 2008-Ohio-5447, 899 N.E.2d 1011, ¶ 9.
Substantial incapacity does not mean that the petitioner must have been
incapacitated to the point of hospitalization or to the point of becoming incapable of
caring for himself or herself. Payne at ¶ 9. In Payne, the court determined that
mental distress had been proven beyond a reasonable doubt by the state in a
menacing-by-stalking prosecution where the victim had been so afraid that she had
been unable to leave her house for approximately six hours, and that qualified as
substantial incapacity. Id.{¶17} Evidence of a petitioner’s fear is also relevant to a determination of
mental distress under prong (b) of R.C. 2903.211(D)(2)—any mental illness or
condition that would normally require treatment. See Smith v. Wunsch, 162 Ohio
App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶ 19. In Wunsch, the petitioner sought
a CSPO against the respondent, a former co-worker, after the respondent: had shown
up at the petitioner’s new place of employment, hiding in the bushes on one
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OHIO FIRST DISTRICT COURT OF APPEALS
occasion; had driven past the petitioner while the petitioner had been going to and
from work in the same day, even though the petitioner had lived a considerable
distance from the respondent; had sent the petitioner emails; and had called the
petitioner. Id. at ¶ 4.
{¶18} The petitioner in Wunsch testified that she had feared for her safety
because of the respondent’s actions. The petitioner’s friend testified that she had
been on the phone with the petitioner during one of the incidents with the
respondent, and that the petitioner had been “hysterical.” The police officer who had
made a police report following one of these incidents testified that the petitioner had
been “pretty shook up” and “upset.” The Fourth Appellate District affirmed the trial
court’s determination that this evidence established mental distress under prong (b).
Id. at ¶ 19.
{¶19} Hobbs argues that, at most, Mullen’s testimony showed that Hobbs’s
actions had bothered Mullen, had embarrassed her, and had made her
uncomfortable. Contrary to Hobbs’s assertion, we determine that the testimony at
the hearing provided competent, credible evidence from which the trial court could
have determined that Hobbs had caused Mullen and her daughter to believe that
they would suffer mental distress.
{¶20} Mullen testified that she had had several “heated conversations” with
Hobbs regarding custody of the child, and that even after the Supreme Court had
determined that Mullen was the sole legal custodian and residential parent of the
child in July 2011, Hobbs had maintained that she was the child’s mother and that
Mullen could not control when Hobbs saw the child. Mullen also testified that
Hobbs had stated that Hobbs would make sure that the child hates Mullen.
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OHIO FIRST DISTRICT COURT OF APPEALS
Moreover, Mullen testified that Hobbs had demonstrated hatred toward her, and
that Mullen had been afraid that Hobbs would take her daughter, or that Hobbs
would harm Mullen or her daughter.
{¶21} After the incident where Hobbs had appeared uninvited on the first
day of school, Mullen testified that she had met with her daughter’s principal and
teacher, informing them of the background between her and Hobbs and letting them
know that she did not want Hobbs to have contact with her daughter. Mullen also
had made her feelings clear to Hobbs in an email. Mullen’s daughter also had
become anxious in the presence of Hobbs. Mullen’s and her daughter’s reactions to
Hobbs’s conduct evidences that they had been upset by Hobbs’s behavior.
{¶22} Even after Hobbs had been warned by Mullen, Hobbs had contacted
Mullen’s daughter twice more within the next couple of weeks. A teacher’s assistant
testified that she had seen Hobbs standing with a dog just outside the playground,
talking with two children, and that this had caused the assistant to bring all the
children, including Mullen’s child, inside the school from recess prematurely.
Moreover, according to Mullen, the “beef jerky” incident where Hobbs had sent beef
jerky to school with another young child to give to Mullen’s daughter had caused
Mullen’s daughter to be upset.
{¶23} We determine that the escalation of Hobbs’s conduct toward Mullen
and her daughter caused them to believe that they would suffer mental distress,
especially in light of the years of litigation between Mullen and Hobbs. Therefore,
the totality of the evidence presented to the trial court provides competent, credible
evidence for the conclusion that Hobbs had caused Mullen and her daughter to
believe that they would suffer mental distress.
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OHIO FIRST DISTRICT COURT OF APPEALS
Hobbs Acted Knowingly
{¶24} We also determine that the evidence presented at the hearing provided
competent, credible evidence from which the trial court could have determined that
Hobbs had acted knowingly. R.C. 2901.22(B) provides that
[a] person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.
{¶25} Mullen testified that she had made it clear to Hobbs that she did not
want Hobbs to see or speak to her daughter; nevertheless, Hobbs had waited outside
of the child’s school, unannounced. After that incident, Mullen had sent Hobbs an
email stating that she did not want Hobbs to have any contact with her child. Hobbs
had indicated in her reply email to Mullen that Hobbs had no intention of abiding by
Mullen’s wishes stating, “I don’t need approval to visit [the school],” and referring to
the child as Hobbs’s daughter. Hobbs then had defied Mullen’s wishes by contacting
the child at school, once directly at the playground, and another time indirectly
through another child at the school.
{¶26} Competent, credible evidence exists in the record from which the trial
court could have determined that Hobbs had acted knowingly for purposes of R.C.
2903.211. Therefore, we overrule Hobbs’s first assignment of error.
Physical Harm
{¶27} In her second assignment of error, Hobbs argues that the trial court’s
judgment issuing a CSPO against her was not supported by competent, credible
evidence that Hobbs had knowingly caused Mullen and her daughter to believe that
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OHIO FIRST DISTRICT COURT OF APPEALS
they would suffer physical harm. A petitioner seeking a CSPO under the menacing-
by-stalking statute, however, need only satisfy the mental-distress prong or the
physical-harm prong, not both. R.C. 2903.211(A)(1); see also Lindsay, 1st Dist. No.
C-990786, 2000 Ohio App. LEXIS 4043, at *14 (stating that the physical harm and
mental distress prongs in the menacing-by-stalking statute are independent).
{¶28} Because we determine that the trial court’s decision was supported by
competent, credible evidence as to Mullen’s and her daughter’s belief of mental
distress, the trial court’s decision can be upheld on this basis alone. We need not
reach whether Mullen proved, by a preponderance of the evidence, that she had
believed that Hobbs would cause physical harm to her or her daughter. As a result,
we decline to address Hobbs’s second assignment of error.
{¶29} In conclusion, we determine that competent, credible evidence exists
to support the trial court’s finding that Hobbs, by engaging in a pattern of conduct,
had knowingly caused Mullen and her daughter to believe that they would suffer
mental distress. Further, we determine that the trial court did not abuse its
discretion in ordering a five-year CSPO against Hobbs in favor of Mullen and her
daughter. Therefore, the judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMANN, P.J., concurs.
CUNNINGHAM, J., concurs in judgment only.
CUNNINGHAM, J., concurring in judgment only.
{¶30} I agree with the majority in holding that the decision of the trial court
must be affirmed; however, I believe that the standard set forth in Griga v.
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OHIO FIRST DISTRICT COURT OF APPEALS
DiBenedetto, 1st Dist. No. C-120300, 2012-Ohio-____, and applied by the majority
in this case, is incorrect.
{¶31} This court in Griga followed the majority of other appellate districts in
holding that mental distress need not actually have been suffered under R.C.
2903.211. See Fortney v. Willhoite, 11th Dist. No. 2011-L-120, 2012-Ohio-3024, ¶ 41;
State v. Hart, 12th Dist. No. CA2008-06-079, 2009-Ohio-997, ¶ 31; Bloom v.
Macbeth, 5th Dist. No. 2007-COA-050, 2008-Ohio-4564, ¶ 11; Horsley, 10th Dist.
No. 05AP-350, 2006-Ohio-1208, at ¶ 47; City of Dayton v. Davis, 136 Ohio App.3d
26, 32, 735 N.E.2d 939 (2d Dist.1999); Ensley v. Glover, 6th Dist. No. L-11-1026,
2012-Ohio-4487, ¶ 13; Retterer v. Little, 3d Dist. No. 9-11-23, 2012-Ohio-131, ¶ 39.
{¶32} Of the other appellate districts that have held that actual mental
distress is not required under the menacing-by-stalking statute, at least one district
has explained that the plain language of the statute dictates such an outcome,
without any further analysis. See Retterer at ¶ 39; see also Warnecke v. Whitaker,
3d Dist No. 12-11-03, 2011-Ohio-5442, ¶ 14.
{¶33} The Griga court did not reach its conclusion under a plain-language
analysis, but instead, the court examined the legislative intent of the statute.
According to the court, the intent of the statute is to allow a court to intervene before
harm occurs—both physical and mental harm; therefore, a petitioner or victim need
only show that he or she believes that mental distress will occur. Griga, 1st Dist. No.
C-120300, 2012-Ohio-____, at ¶ __.
{¶34} I agree that CSPOs serve as a critical tool for preventing harm, I
believe, however, that the court need not resort to legislative intent in interpreting
the mental-distress prong of the menacing-by-stalking statute because the statute is
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not ambiguous, especially when read in context with the definition of mental distress
under the statute.
{¶35} Using a plain-language analysis, the Seventh Appellate District held
that the menacing-by-stalking statute requires proof of actual mental distress.
Caban, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, at ¶ 23. In reaching this
conclusion, the Caban court determined that, “by repeating ‘to the other person’
after both physical harm and mental distress, rather than merely placing it at the end
of the sentence, the legislature expressed that ‘to believe’ does not modify ‘mental
distress’.” Id. at ¶ 24.
{¶36} I agree with the determination of the court in Caban for the reason set
forth by that court, but also because of the legislature’s definition of mental distress
under the statute. R.C. 2903.211(D)(2) defines mental distress for purposes of
menacing by stalking, in part, as “[a]ny 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)(b).
{¶37} By using the phrase “normally require * * * treatment” in defining
mental distress, the legislature created an objective inquiry. This objective test for
mental distress is incompatible with an interpretation of the menacing-by-stalking
statute requiring only that the victim or petitioner believe that mental distress will be
caused—a subjective inquiry. But see Lane v. Brewster, 12th Dist. No. CA2011-08-
060, 2012-Ohio-1290, ¶ 21 (determining that the mental-distress inquiry must focus
on the petitioner, and not that of a reasonable person).
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{¶38} Moreover, a subjective belief inquiry for mental distress, requiring
only that a petitioner or victim believe that he or she will suffer mental distress,
would render as superfluous the phrase “whether or not any person requested or
received * * * treatment, or other mental health services[]” in the legislature’s
definition of mental distress under R.C. 2903.211(D)(2)(b). See State ex rel. Carna
v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484,
967 N.E.2d 193, ¶ 18-19 (when interpreting statutes, courts must give significance to
every word in the statute and should not treat any part of a statute as superfluous
unless “manifestly required”).
{¶39} I would conclude that the menacing-by-stalking statute requires proof
of mental distress or belief of physical harm. Applying an actual-mental-distress
standard, I would hold that Mullen proved by a preponderance of the evidence that
Hobbs, by engaging in a pattern of conduct, had knowingly caused Mullen and her
daughter mental distress. Therefore, I join in the majority’s judgment affirming the
trial court’s issuance of a CSPO.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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