D.M. v. D.B. , 2018 Ohio 4162 ( 2018 )

[Cite as D.M. v. D.B., 2018-Ohio-4162.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
D.M. C.A. No. 17CA0074-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
D.B. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 16DV0282
DECISION AND JOURNAL ENTRY
Dated: October 15, 2018
TEODOSIO, Judge.
{¶1} D.B. appeals the judgment of the Medina County Court of Common Pleas,
Domestic Relations Division, overruling objections and adopting the magistrate’s decision
granting a domestic violence civil protection order. We reverse and remand.
I.
{¶2} D.M. filed a petition for a domestic violence civil protection order against D.B. in
December 2016. A hearing was held before the magistrate in February 2017, with the magistrate
issuing a decision and an order of protection on February 10, 2017. In its judgment entry of
September 21, 2017, the trial court overruled objections filed by D.B. and adopted the decision
of the magistrate. D.B. now appeals, raising two assignment of error.
II.
ASSIGNMENT OF ERROR ONE
A DUE PROCESS VIOLATION OCCURS WHEN THE REQUIRED WEIGHT
OF THE EVIDENCE[,] HERE A PREPONDERANCE, IS SKEWED BY
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ADDING[] “VIEWING THE EVIDENCE IN THE LIGHT MOST
FAVORABLE TO (THE PETITIONER)”. [SIC] PREPONDERANCE OF
EVIDENCE IS THE DUE PROCESS STANDARD[,] NOT PREPONDERANCE
OF EVIDENCE VIEWED IN [THE] LIGHT MOST FAVORABLE TO
PETITIONER.
{¶3} In his first assignment of error, D.B. argues the trial court erred by applying the
incorrect evidentiary standard. In its order overruling D.B.’s objections and adopting the
magistrate’s decision that issued a domestic violence civil protection order, the trial court stated:
“After viewing the evidence in the light most favorable to Petitioner, the Court finds that a
reasonable trier of fact could find that Petitioner demonstrated by a preponderance of the
evidence that a domestic violence civil protection order should issue.” D.B. contends the trial
court erred by “viewing the evidence in the light most favorable to Petitioner[.]” We agree.
{¶4} “In order to grant a DVCPO, the [trial] court must conclude that the petitioner has
demonstrated by a preponderance of the evidence that the petitioner and/or the petitioner’s
family or household members are in danger of domestic violence.” B.C. v. A.S., 9th Dist.
Medina No. 13CA0020-M, 2014-Ohio-1326, ¶ 7. In contrast, when an appellate court is
assessing the sufficiency of the evidence for a trial court’s decision to grant a civil protection
order, it is the appellate court’s role to “determine whether, 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 civil protection order should issue.”
R.C. v. J.G., 9th Dist. Medina No. 12CA0081-M, 2013-Ohio-4265, ¶ 7, citing Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 11, and State v. Jenks, 61 Ohio St. 3d 259
(1991), paragraph two of the syllabus.
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{¶5} The trial court applied an incorrect evidentiary standard when it used the standard
of review applied by an appellate court in assessing the sufficiency of the evidence for a trial
court’s decision to grant a civil protection order. D.B.’s first assignment of error is sustained.
ASSIGNMENT OF ERROR TWO
WHEN A COURT COUPLES ITS’ [SIC] DECISION WITH HAVING TO
VIEW THE EVIDENCE OF THE PETITIONER IN THE LIGHT MOST
FAVORABLE, THEREBY INSERTING A DISPARATE THEORY INTO
PREPONDERANCE OF THE EVIDENCE, THE DECISION OF THE COURT
IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} In his second assignment of error, D.B. argues the trial court’s decision was
against the manifest weight of the evidence as a result of the application of the incorrect
evidentiary standard. We do not reach the merits of assignment of error two because our
resolution of the first assignment of error necessitates further consideration by the trial court.
We therefore decline to address D.B.’s second assignment of error. See App.R. 12(A)(1)(c).
III.
{¶7} D.B.’s first assignment of error is sustained. We decline to address the second
assignment of error. The judgment of the Medina County Court of Common Pleas, Domestic
Relations Division, is reversed and remanded for proceedings consistent with this decision.
Judgment reversed
and cause remanded.
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 Medina, 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.
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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
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 Appellee.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
CARR, J.
CONCUR.
APPEARANCES:
L. RAY JONES, Attorney at Law, for Appellant.
CARLA BOYLE SMALL, Attorney at Law, for Appellee.