Detrick v. Preece , 2013 Ohio 2499 ( 2013 )

[Cite as Detrick v. Preece, 2013-Ohio-2499.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
LINDSAY DETRICK,
PETITIONER-APPELLEE, CASE NO. 8-12-17
v.
CHAD PREECE, OPINION
RESPONDENT-APPELLANT.
Appeal from Logan County Common Pleas Court
Domestic Relations Division
Trial Court No. CP12-04-0068
Judgment Reversed and Cause Remanded
Date of Decision: June 17, 2013
APPEARANCES:
Miranda A. Warren for Appellant
Scott Nelson Barrett for Appellee
Case No. 8-12-17
WILLAMOWSKI, J.
{¶1} Respondent-Appellant Chad Preece (“Preece”) brings this appeal from
the judgment of the Common Pleas Court of Logan County, Domestic Relations
Division granting a civil protection order (“CPO”) to Petitioner-Appellee Lindsay
Detrick (“Detrick”) preventing Preece from having contact with Detrick, her
family, or their daughter Alexandrea. For the reasons set forth below, the
judgment is reversed.
{¶2} Preece and Detrick were married on December 31, 2001, and
Alexandrea was born on August 27, 2002. On September 25, 2009, the trial court
granted a divorce to Preece and Detrick following a contentious divorce which
involved a lengthy custody battle. Detrick was named the residential parent by the
trial court. On November 8, 2010, Preece filed a motion for shared parenting time.
On April 11, 2012, Detrick contacted Children’s Services of Logan County and
claimed that Preece had made a threat against her life to Alexandrea. She also
alleged that Preece was viewing pornography while Alexandrea was in the home,
had twisted Alexandrea’s arm, and had taken Alexandrea’s toys away from her
during visits. As a result, she claimed that Alexandrea was suffering emotional
harm and was afraid of her father. Detrick also filed a motion for a CPO based
upon the above allegations along with alleged prior threats to her safety that
Preece allegedly said to Alexandrea. An ex parte order of protection for Detrick
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and Alexandrea was issued requiring Preece to stay 100 yards away from them
and Preece’s visitation rights were suspended.
{¶3} A full hearing was held on July 11, 2012. At the hearing, Megan
Christenson (“Christenson”), an investigator for Children’s Services of Logan
County, testified that she had investigated the allegations. She testified that
Detrick had told her that Alexandrea had told her that Preece had told Alexandrea
that she better learn to drive a car so that she could stop the car when he shot
Detrick in the head. Preece’s attorney objected to the triple hearsay of the
statement. The objection was overruled on the grounds that the statement was not
offered to prove the truth of the matter asserted, but merely to show why she
conducted the investigation. Christenson also testified that she had interviewed
Alexandrea. Christenson testified that Alexandrea had told her that Preece made
the statement while they were all sitting in the living room watching television.
Christenson then stated that Alexandrea’s fear and concern were resulting in her
having trouble sleeping and that Alexandrea was wetting the bed. Christenson
also testified that she spoke to Detrick and questioned her. She testified that she
found Alexandrea and Detrick to be credible. Preece’s counsel objected to her
testifying as to the credibility of Alexandrea and Detrick, but the objection was
overruled.
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{¶4} Christenson further testified that she spoke with Preece as well. He
denied all of the allegations. He also denied that he even owned a firearm. Due to
the nightmares and bedwetting, Christenson found the claim to be substantiated
and sent a letter stating that Preece had committed emotional maltreatment. The
case was then closed with no further action by the agency. On cross-examination,
Christenson admitted that she had been unaware of the lengthy and antagonistic
custody battle. She also admitted that she did not really know how long the
nightmares and bedwetting had been occurring. Finally, she admitted that some
children subjected to custody battles could exhibit similar symptoms.
{¶5} Detrick was the next party to testify. She testified that Alexandrea
told her that Preece had told Alexandrea that she needed to learn to stop the car
because he was going to drive up beside them and shoot Detrick in the head.
Preece’s attorney again objected due to hearsay, but it was again admitted as not
being offered to prove the truth of the matter asserted, but to lay a foundation for
her actions. She claimed that Alexandrea was very afraid of her father. She also
testified that the fear manifested itself by Alexandrea having nightmares and
wetting the bed. She then recounted to the court an incident where they saw
Preece in his vehicle while leaving a store. She claimed that Alexandrea was so
terrified that she could barely walk. She testified that Alexandrea kept saying
“there’s my dad” and that he had seen them. According to Detrick, Alexandrea
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had cried for an hour afterward. She interpreted that as Alexandrea being afraid of
her father and testified that Alexandrea was terrified of going to her father’s home.
On cross-examination she admitted that she wanted Preece’s visitation reduced,
though she was willing to still allow him to see his daughter. She did admit that
Alexandrea had had ongoing problems with bedwetting and nightmares since the
divorce several years prior.
{¶6} The final witness was Alexandrea. Alexandrea testified that she was a
fourth grade student. On direct examination, she was asked whether she had told
her mother anything her father had said about her mother. Her answer was no.
When asked if her father had ever told her that she should learn to drive a car, her
response again was no. Upon questioning by the court, Alexandrea stated that if
she could make the decision, she would like equal time with both parents. She
testified that she missed her father. She stated that she had seen her father at the
store, but did not remember being upset by it. She also testified that she did not
have nightmares and was not wetting the bed anymore. She did not testify that
any negative statements concerning her mother’s safety had been made. She did
not testify that she was afraid of her father harming anyone.
{¶7} At the conclusion of the hearing, the magistrate granted the request for
the CPO. The order was for six months. Preece filed objections to the
magistrate’s decision on September 18, 2012. On November 7, 2012, the trial
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court overruled the objections and adopted the magistrate’s decision. Preece
brings this appeal from that decision and raises the following assignments of error.
First Assignment of Error
It was an abuse of discretion and against the manifest weight of
the evidence when the trial court granted an order of protection
to [Detrick] and her minor child.
Second Assignment of Error
The court committed plain error by permitting the admission of
hearsay testimony over the objection of [Preece].
{¶8} Initially, this court notes two things. First, Detrick has chosen to not
file a brief in response to Preece’s. Pursuant to Appellate Rule 8(C), this court
may accept Preece’s statement of facts as accurate. Second, the CPO has expired.
Although the CPO has expired, the issue is not moot as the existence of such is a
factor to consider in any future custody proceedings.
{¶9} In the first assignment of error, Preece claims that the granting of the
CPO was against the manifest weight of the evidence. A CPO can be granted
when the petitioner shows by a preponderance of the evidence that the petitioner
or the petitioner’s family members are in danger of domestic violence. R.C.
3113.31(D). Domestic violence has been defined as follows.
“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;
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(b) Placing another person by the threat of force in fear of
imminent serious physical harm or committing a violation of
[R.C. 2903.211 or 2911.211];
(c) Committing any act with respect to a child that would
result in the child being an abused child, as defined in [R.C.
2151.031];
(d) Committing a sexually oriented offense.
R.C. 3113.31(A)(1). Generally, judgments regarding CPO’s that are supported by
competent, credible evidence going to all of the essential elements will not be
reversed as being against the manifest weight of the evidence. Bryan-Wollman v.
Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918.
{¶10} A review of the evidence shows that Detrick did not know if the
alleged statement was actually made or not. She testified that she was only afraid
if the allegations were true. She also testified that she had previously heard that
Preece had threatened her two years prior, but again, the statements were not made
to her and she had no knowledge if they were actually made. She did know that
Preece had never acted on the alleged first threat. Detrick claimed that Alexandrea
was terrified, but Alexandrea testified to the opposite. She stated that she missed
her father and wanted to spend time with him and her mother equally. The only
testimony to the alleged statement was made by Christenson in the form of double
and triple hearsay and Detrick repeating a double hearsay statement. This
evidence was not offered for the truth of the matter asserted, but rather to provide
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a background as to why certain actions were taken. Alexandrea, the only witness
to have allegedly heard the statement denied that it was made. The supposed
physical manifestations of Alexandrea’s fear were not limited to the time when the
alleged statement was made. Instead, the nightmares and bedwetting were a
recurring problem that had been resurfacing periodically whenever Alexandrea
was stressed. Most of the stress seemed to be coming from her parents’ ongoing
custody disputes. Without any evidence offered to prove that the alleged
statement by Preece was ever made and the allegation being denied by the person
to whom it was allegedly made, there is no evidence to support the conclusion that
a CPO was necessary. Thus, the trial court erred in granting the CPO. The first
assignment of error is sustained.
{¶11} Having sustained the first assignment of error and found that the trial
court’s order granting the CPO was against the manifest weight of the evidence,
the second assignment of error is moot. Therefore, this court will not address the
issue further. App.R. 12(A)(1)(c).
{¶12} The judgment of the Court of Common Pleas of Logan County,
Domestic Relations Division is reversed and remanded.
Judgment Reversed and
Cause Remanded
PRESTON, P.J. and SHAW, J., concur.
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