Martindale v. Martindale , 102 N.E.3d 19 ( 2017 )

[Cite as Martindale v. Martindale, 2017-Ohio-9266.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
LISA A. MARTINDALE, :
: Case No. 17CA5
Petitioner-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
ERIC J. MARTINDALE, :
:
Respondent-Appellant. : Released: 12/14/17
_____________________________________________________________
APPEARANCES:
Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.
Sierra Meek, Nolan & Meek Co., LPA, Nelsonville, Ohio, and Micaela C.
Deming, Bluffton, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Eric Martindale commenced an appeal of the January 4, 2017
judgment of the Athens County Court of Common Pleas, subsequent to a
Domestic Violence Civil Protection Order Full Hearing. Appellant contends
the trial court erred in granting the full protection order and in naming the
children as protected parties. Upon review, we find the trial court’s decision
is supported by competent, credible evidence. Accordingly, we overrule
both assignments of error and affirm the judgment of the trial court.
Athens App. No. 17CA5 2
FACTS
{¶2} Appellant and Appellee were married in 2011. They have four
children: A.M., age 6, M.M., age 5, and twins born in July 2014. When the
parties were married in 2011, Appellant was an active member of the United
States Military. The parties lived together in Ohio, North Carolina, and
Pennsylvania. According to the parties’ testimony, the relationship between
them was violent during most of the marriage. Appellee and the two older
children returned to Athens County in November of 2013.
{¶3} On December 20, 2013, Appellee filed a petition for an ex parte
domestic violence civil protection order (CPO) in the Athens County Court
of Common Pleas.1 On the same date, Appellee was granted an order of
protection and the matter was set for a full hearing on January 6, 2014. The
matter was continued to February 20, 2014.
{¶4} On February 20, 2014, prior to the full hearing, Appellant filed a
motion to dismiss the domestic violence petition, alleging that he had
suffered abuse at Appellee’s hands, due to her anger issues and illicit drug
usage. Appellant also alleged a lack of jurisdiction. The magistrate took
1
On January 6, 2014, Appellee filed a complaint for a legal separation in the same court. Appellant filed a
complaint for divorce in a Pennsylvania court in January 2014. Appellee’s complaint for legal separation
was eventually dismissed, in a decision stating that the matter should be prosecuted in the State of
Pennsylvania. The matter then came before us on appeal in Martindale v. Martindale, 4th Dist. Athens No.
14CA30, 2016-Ohio-524, wherein we found merit to the argument that the magistrate failed to consider the
statutory factors for determination of whether Ohio is the proper forum.
Athens App. No. 17CA5 3
testimony from both parties regarding the allegations of domestic violence
and the jurisdictional issue.
{¶5} On February 26, 2014, the Magistrate’s Order found that
Appellant had sufficient minimum contacts with the State of Ohio to satisfy
the jurisdictional requirements. The full hearing on the civil protection order
was scheduled for April 28, 2014.2 However, the full hearing actually
resumed on May 30, 2014.
{¶6} At that hearing, Appellee presented testimony from Nancy
Grigsby, a director employed by the Ohio Domestic Violence Network, and
Donna Pierce, Deputy Chief Probation Officer of the Dayton Municipal
Court. On July 17, 2014, the magistrate issued a decision that all child-
related matters should be addressed in the Pennsylvania proceedings. The
parties’ children were also ordered removed as “protected persons” from the
current proceedings.3
{¶7} On August 7, 2014, the trial court requested the Common Pleas
Court for the County of Montgomery, Pennsylvania, Family Court Division,
to release the sealed transcript and/or recording of the in-camera interview of
testimony given by G.M., Appellant’s older daughter by a prior marriage.
2
During these proceedings, both parties have filed numerous motions concerning issues such as changes in
the visitation schedule, supervised visitation, requests for records, protective orders, disqualification of
Appellant’s attorney, clarification and contempt. Due to death and withdrawal, the parties have also been
represented by various counsel.
3
The parties’ younger children, the twins, were not made part of the proceedings.
Athens App. No. 17CA5 4
Her testimony was given in April 2014 in the Pennsylvania proceedings.
The trial court requested G.M.’s testimony for consideration in the
upcoming full hearing on the CPO, scheduled for August 25, 2014.
{¶8} At the full hearing, Appellee again testified and also presented
testimony from Ariah Ripley, Appellant’s prior spouse and mother of G.M.
Appellant also testified. On October 31, 2014, the Magistrate issued
Findings of Fact and Conclusions of Law: Magistrate’s Order Denying
Petition for Domestic Violence Civil Protection Order. The pertinent
findings are as follows:
“4. Both parties presented evidence of physical injuries that
he/she has sustained at the hands of the other party. Both
parties testified that the last incident of physical violence
between the parties occurred on July 6, 2013.
***
6. Neither party presented testimony from any third-party who
had witnessed any incidence of physical violence by either of
the parties.
***
10. During the pendency of this matter, Respondent has had
limited, supervised visitation with A.M. and M.M. * * * No
evidence was presented that Petitioner’s parents ever noticed
any injuries to the children upon retrieving them from
Respondent after visitation.”
{¶9} The magistrate denied the Petition and ordered the Ex Parte CPO
terminated, finding Appellee had failed to show by a preponderance of the
evidence that she or children were in imminent danger of domestic violence.
The magistrate made the following conclusions of law:
Athens App. No. 17CA5 5
“Even without concerning the question of the remoteness of the
events and whether they are even proximate enough in time to
engender current rear, the Magistrate finds Petitioner’s
testimony not credible.
* **
There’s no credible evidence that Respondent attempted to
cause or recklessly caused bodily injury to either of the
children. Further, there’s no credible evidence of any threats
Respondent made that would place the children or Petitioner in
fear of imminent serious physical harm to either of the
children.”
{¶10} Of significance, on February 15, 2015, Appellee filed Notice of
Preferred Charges against Appellant. On June 1, 2015, Appellee filed
supplemental objections to the magistrate’s order denying the CPO. On
June 19, 2015, counsel for Appellant filed his response to the objections. On
July 2, 2015, Appellee next filed a Notice of General Court Martial Hearing,
which stated that military prosecutors had contacted her to inform her that
after a months-long investigation, the military was proceeding with charges
against Appellant on four counts of assault.
{¶11} On December 20, 2015, the trial court issued its Ruling on
Objections and Entry. The trial court adopted the magistrate’s decision
denying the full CPO and dismissing the Ex Parte CPO.
{¶12} On January 21, 2016, Appellee filed a Motion for New Trial,
pursuant to Civil R. 59(A)(8), based on newly discovered evidence.
Appellee argued that on December 7, 2015, Appellant had appeared at a
Athens App. No. 17CA5 6
court martial and had submitted written stipulations of fact in which he
admitted to domestic violence against Appellee while the children were in
the home. On March 17, 2016, Appellant filed a Memorandum Contra the
Motion for New Trial. On June 7, 2016, the trial court granted the motion
for new trial, in part, to hear any new evidence as to the underlying
proceedings. A hearing was set for November 2, 2016.
{¶13} At the November 2, 2016 hearing, Appellee presented
testimony from Phillip Stackhouse, Major Spicer, and Appellant as on cross-
examination. The trial court subsequently granted a CPO which covered
Appellee and the parties’ two older children. The CPO expires in December
2018. The Court found as follows:
“Respondent admitted to striking Petitioner, see Petitioner’s
Exhibit A, causing her a black eye. * * * Respondent is
permitted visitation with parties’ children as established by any
other court order having jurisdiction.”
{¶14} This timely appeal followed. Where pertinent, additional facts
are set forth below.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN GRANTING THE
DOMESTIC VIOLENCE PROTECTION ORDER.
II. THE TRIAL COURT ERRED BY NAMING THE
CHILDREN AS PROTECTED PARTIES IN THE
PROTECTION ORDER.”
Athens App. No. 17CA5 7
A. STANDARD OF REVIEW
{¶15} “Our standard of review upon a challenge to a CPO depends
upon the nature of the challenge to the CPO.” Wootten v. Culp, 2017-Ohio-
665, 85 N.E.3d 198, ¶ 18 (4th Dist.), quoting Walters v. Walters, 150 Ohio
App.3d 287, 2002-Ohio-6455, 780 N.E.2d 1032, ¶ 9 (4th Dist.), citing
Gooderham v. Patterson, 4th Dist. Gallia No. 99CA01, 1999 WL 1034472
(Nov. 9, 1999); see also Corrao v. Corrao, 8th Dist. Cuyahoga No. 103411,
2016-Ohio-4862, ¶ 16 (“Our standard of review depends on the nature of the
challenge”). When the issue is whether a CPO should have been issued at
all, we must determine whether the trial court's finding that the petitioner has
shown by the preponderance of the evidence that the petitioner or
petitioner's family or household members are in danger of the domestic
violence is against the manifest weight of the evidence. Wootten, supra, at
18. See, e.g., Lewis v. Gravely, 4th Dist. Adams No. 14CA990, 2016-Ohio-
1502, 2016 WL 1404159, ¶ 23.
{¶16} When an appellate court reviews whether a trial court's decision
is against the manifest weight of the evidence, the court weighs the evidence
and all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence, the finder of fact
clearly lost its way and created such a manifest miscarriage of justice that
Athens App. No. 17CA5 8
the judgment must be reversed. Wootten, supra, at 19. See Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-20;
Lewis, supra, at ¶ 23 (applying this standard of review in a CPO case).
{¶17} Moreover, when reviewing the evidence under this standard, we
are aware that the weight and credibility of the evidence are to be
determined by the trier of fact; we thus defer to the trier of fact on these
issues because it is in the best position to gauge the witnesses' demeanor,
gestures, and voice inflections, and to use these observations to weigh their
credibility. Wootten, supra, at 20. See State v. Kirkland, 140 Ohio St. 3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State v. Reyes–Rosales, 4th Dist.
Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17. The trier of fact is free is
believe all, part, or none of any witness's testimony. Id. citing State v. West,
4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.
{¶18} Ultimately, a reviewing court should find a trial court's decision
is against the manifest weight of the evidence only in the exceptional case in
which the evidence weighs heavily against the decision. State v. McKelton,
148 Ohio St. 3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 330; Lewis, 2016-
Ohio-1502, at ¶ 23.
B. LEGAL ANALYSIS
1. Petitioner-Appellee as a protected party.
Athens App. No. 17CA5 9
{¶19} R.C. 3113.31(A) provides:
“(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 * * *.
{¶20} R.C. 3113.31 (E) further provides:
“(1) After an ex parte or full hearing, the court may grant any
protection order, with or without bond, or approve any consent
agreement to bring about a cessation of domestic violence
against the family or household members.”
{¶21} In his brief, Appellant discusses at length the December 30,
2015 magistrate’s decision which denied Appellee’s request for a civil
protection order. The December 30, 2015 decision placed emphasis on the
remoteness of the alleged events, the absence of Appellee’s fear, and the
idea that Appellee was using the CPO proceedings in order to obtain
leverage in the parties’ Pennsylvania court proceedings. Appellant also
emphasizes the trial court’s finding that there was no immediate and present
danger of domestic violence to Appellee and the children. Appellant argues
the evidence presented at the new trial did not directly affect the magistrate’s
findings. Upon review of the record, however, we disagree.
{¶22} We first observe that Appellant's failure to request findings of
fact and conclusions of law limits our review in this case. Civ.R. 52 states:
Athens App. No. 17CA5 10
“When questions of fact are tried by a court without a jury,
judgment may be general for the prevailing party unless one of
the parties in writing requests otherwise * * * in which case, the
court shall state in writing the conclusions of fact found
separately from the conclusions of law.”
{¶23} The purpose of Civ.R. 52 findings of fact and conclusions of
law is “ ‘to aid the appellate court in reviewing the record and determining
the validity of the basis of the trial court's judgment.’ ” See Harper v. Neal,
4th Dist. Hocking No. 2016-Ohio-7179, quoting In re Adoption of Gibson,
23 Ohio St. 3d 170, 172, 492 N.E.2d 146 (1986), quoting Werden v.
Crawford, 70 Ohio St. 2d 122, 124, 435 N.E.2d 424 (1982). Thus, a party
may file a Civ.R. 52 request in order “to ensure the fullest possible review.”
Cherry v. Cherry, 66 Ohio St. 3d 348, 356, 421 N.E.2d 1293 (1981).
{¶24} In the absence of findings of fact and conclusions of law, we
presume that the trial court applied the law correctly and will affirm its
judgment if evidence in the record supports it. Harper, supra, at ¶ 19; Bugg
v. Fancher, 4th Dist. Highland No. 06CA12, 2007–Ohio–2019, ¶ 10, citing
Allstate Fin. Corp. v. Westfield Serv. Mgt. Co., 62 Ohio App. 3d 657, 577
N.E.2d 383 (12th Dist.1989); accord Leikin Oldsmobile, Inc. v. Spofford
Auto Sales, 11th Dist. Lake No. 2000–L–202, 2002–Ohio–2441, ¶ 17 (“It is
difficult, if not impossible, to determine the basis of the trial court's ruling
without findings of fact and conclusions of law * * *.”); Yocum v.. Means,
Athens App. No. 17CA5 11
2nd Dist. Darke No. 1576, 2002–Ohio–3803, ¶ 7 (“The lack of findings
obviously circumscribes our review * * *.”). As the court explained in
Pettet v. Pettet, 55 Ohio App. 3d 128, 130, 562 N.E.2d 929 (5th Dist.1988):
{¶25} “[W]hen separate facts are not requested by counsel and/or
supplied by the court the challenger is not entitled to be elevated to a
position superior to that he would have enjoyed had he made his request.
Thus, if from an examination of the record as a whole in the trial court there
is some evidence from which the court could have reached the ultimate
conclusions of fact which are consistent with [its] judgment the appellate
court is bound to affirm on the weight and sufficiency of the evidence. The
message should be clear: If a party wishes to challenge the * * * judgment as
being against the manifest weight of the evidence he had best secure
separate findings of fact and conclusions of law. Otherwise his already
“uphill” burden of demonstrating error becomes an almost insurmountable
“mountain.” Harper, supra, at 19.
{¶26} Here, Appellant's failure to request findings of fact and
conclusions of law means that we presume the court correctly applied the
law and will affirm the trial court's judgment so long as some evidence
supports it. After our review of the record in its entirety, we believe that the
Athens App. No. 17CA5 12
record contains some competent, credible evidence, if believed, to support
the trial court's judgment.
{¶27} The November 2, 2016 hearing was for the purpose of
introducing new evidence that Appellant had entered into a written
stipulation of fact to resolve a court martial proceeding and receive non-
judicial punishment. This evidence was relevant evidence not available to
Appellee at the time of the August 25, 2014 full hearing. Appellee asserted
that the written stipulation, entered into evidence as Joint Exhibit A, was
evidence that Appellant did in fact strike his wife in the July 6, 2013
incident. Regarding the July 6, 2013 incident, the pertinent language of
Joint Exhibit A stated:
“* * * [T]he events escalated into a physical confrontation and I
struck her one occasion. As a result of this altercation my wife
developed a black eye. Our children were in the house at the
time of the incident.”
{¶28} Appellee presented evidence from 3 witnesses: Major Katherine
Spicer, a military prosecutor; Phillip Stackhouse, a retired expert on military
processes and proceedings; and Appellant, as on cross-examination. The
new trial focused on two issues: (1) whether or not Appellant misrepresented
the events of the July 6, 2013 incident of violence between the parties; and,
(2) whether or not Appellant misrepresented his prior martial arts training.
Athens App. No. 17CA5 13
{¶29} Major Spicer, a litigation associate working in the Marine
Corps Reserves, testified that she prosecuted the Martindale case. Major
Spicer testified Appellant was initially charged with two charges: assault and
conduct unbecoming an officer. In 2015, a hearing officer found probable
cause on the charges, but not enough objective evidence to support a
conviction. Therefore, it was recommended that the case not be referred to a
general court martial.
{¶30} However, Major Spicer personally investigated the matter
further. Appellee turned over her entire phone to the Naval Criminal
Investigative Service (NCIS) to perform a forensic analysis on Appellee’s
phone. Pictures on the phone corroborated Appellee’s version of the events
that took place on July 6, 2013. Major Spicer also reviewed Appellant’s
NCIS interrogation. She testified Appellant did not deny hitting Appellee,
but indicated he claimed “self-defense.”
{¶31} Importantly, Major Spicer also noted that during the NCIS
interrogation, Appellant informed that he took a week off work due to his
injuries and that his commanding officer saw his black eye. Based on this
information, Major Spicer also interviewed the commanding officer and
executive officer. During her investigation, she was unable to corroborate
Athens App. No. 17CA5 14
that Appellant had missed any work related to the July 2013 incident or that
he ever suffered a black eye.
{¶32} Major Spicer testified that Appellant also submitted
photographs to verify his own injuries. However, upon analysis, these
photographs were unable to corroborate his version of the facts of the July
2013 incident. Major Spicer also testified she was never under any pressure
to bring charges against Appellant.
{¶33} Phillip Stackhouse, a retired military lawyer, testified as an
expert in the area of military legal procedure and non-judicial punishment.
He was not involved in Appellant’s court martial proceedings. However, he
testified he did review Joint Exhibit A. He testified he interpreted the word
“struck” as meaning “slap” or “punch.” He also testified the Marine Corps
Martial Arts program is “very serious.” He testified it is a violent program,
teaching striking, choking, and weapon usage.
{¶34} On direct examination, Appellant reaffirmed his testimony that
he never hit, struck, or punched his wife, and that he just “shoved her face
away.” Appellant testified that Joint Exhibit A contained the word “strike”
in it because the Navy “wanted it included.” The Navy also required his
black belt experience to be contained in Joint Exhibit A. Appellant testified
composing the document was a “back and forth” process he participated in
Athens App. No. 17CA5 15
remotely from his hotel room. He kept refusing to sign the stipulation with
“strike” in it. He explained the attorneys convinced him as follows:
“[I]f I was shoving my wife’s face away from me when she had
bit me could be constituted as a strike. I felt like it was
something I could reconcile and sign. Uh, looking at this now I
regret it. * * * This is what the Navy insisted on. They insisted
on that wording as I understand it.”
{¶35} Appellant also testified that he did not deliberately omit the
information that he had a black belt in martial arts during his August 2014
testimony. He explained the omission as wanting to “make sure he was
answering the questions directly,” and he wanted to give his most significant
experience. He could not recite the actual requirements.
{¶36} Appellant also testified there may have been improper influence
from a Congressman who contacted Appellant’s command, which caused
the charges to be filed. He did not claim unlawful command influence
because he was not sure to whom he would make the claim, and he was
unsure of the success of such a claim.
{¶37} On cross-examination, Appellant reiterated previous testimony
that he had never hit his wife. Then, Appellant was asked to read from Joint
Exhibit A, which stated as previously set forth above, that he “struck her on
one occasion, * * * as a result [she] developed a black eye.” Appellant also
identified his signature and his counsel’s signature on the document.
Athens App. No. 17CA5 16
{¶38} Appellant was then asked to review Exhibit 2 entitled
“Response to report of Non-judicial Punishment,” which set forth as follows:
“It was then that I struck my wife with an open hand as I tried to push her
away from me.” He confirmed either he or his counsel wrote the sentence.
Appellant confirmed he was found guilty of disorderly conduct for engaging
in an altercation with his spouse.
{¶39} Appellant denied initiating a plea deal on the morning of the
court martial. He admitted he accepted responsibility for “his involvement”
in the incident on July 6, 2013. According to his testimony, the Navy
required him to take responsibility for his actions on July 6, 2013 “as they
understood them.”
{¶40} On cross-examination, Appellant testified in the Marines he had
received hand to hand combat training. Appellant admitted he had a black
belt despite testifying three times in August 2014 that he had “a little bit” of
martial arts training. He had not practiced martial arts since 2012.
{¶41} Based on the foregoing testimony, we find the evidence
adequately supports the trial court's decision to grant the full CPO. While
the full CPO issued January 4, 2017 contains only brief findings of the court,
we note that the December 15, 2015 entry denying the full CPO
demonstrates the trial court’s familiarity with the case. In the December
Athens App. No. 17CA5 17
2015 entry, the trial court stated that it had made its own independent
analysis in its review of the record. The trial court analyzed the parties’
testimony at length as to various incidents and the court noted several times
that the evidence was conflicting and unable to be corroborated. The trial
court stated it had reviewed the exhibits and photographs of both parties of
injuries allegedly sustained. The court also commented that it found both
parties’ credibility to be “strained.”
{¶42} Based on our limited review, we can only conclude that having
heard the new testimony regarding the July 6, 2013 incident, the trial court
found Appellant’s credibility to be more than “strained,” and possibly found
it to be deceptive and untruthful. Even from a cold record, Appellant’s
testimony appears to be vague and evasive at times. On January 5, 2017, the
trial court made only the specific finding that Appellant admitted to striking
Appellee and causing her a black eye.
{¶43} Appellant points out nothing in the trial court’s January 4, 2017
order speaks to Appellee’s lack of fear. Appellant also points out that the
issuance of a civil protection order cannot be based solely on previous
incidents of alleged domestic violence. Appellant emphasizes there is no
evidence of a reasonable, ongoing imminent fear of domestic violence.
Athens App. No. 17CA5 18
{¶44} Appellant has directed us to M.J. v. L. P., 9th Dist. Medina No.
15CA0036-M, 2016-Ohio-7080, wherein the appellate court observed when
reviewing whether there is sufficient evidence that a petitioner is under fear
of imminent serious physical harm, “the critical inquiry is ‘whether a
reasonable person would be placed in fear of imminent (in the sense of
unconditional, non-contingent) serious physical harm.” Id. at 11, quoting
State v. McKinney, 9th Dist. Summit No. 24430, 2009-Ohio-2225, ¶ 11,
quoting State v. Tackett, 4th Dist. Jackson No. 04CA12, 2005-Ohio-1437,
¶ 14. Although “we refer to the petitioner's history with respondent” when
carrying out this inquiry, M.H. v. J.H., 9th Dist. Medina No. 15CA0031-M,
2015-Ohio-5178, ¶ 7, to support the extension of a civil protection order,
“[t]here must also be evidence the petitioner has a reasonable belief of
serious physical harm based on new threats of domestic violence.” Studer v.
Studer, 3rd Dist. Crawford No. 3–11–04, 2012-Ohio-2838, ¶ 23; see also
Woolum v. Woolum, 131 Ohio App. 3d 818, 822 (12th Dist.1999) (affirming
extension of civil protection order “on the basis of past domestic abuse
coupled with present threat of future violence”) (Emphasis added.). This
requirement of continued threats beyond those that gave rise to the initial
civil protection order is necessary because “[t]he purpose of the civil
Athens App. No. 17CA5 19
protection order is not to address past abuse.” Wetterman v. B.C., 9th Dist.
Medina No. 12CA0021–M, 2013-Ohio-57, ¶ 11.
{¶45} While it is true that in the December 2015 entry the trial court
specifically found “no indication that Petitioner is fearful of serious
imminent physical harm,” given the limited review to which we are
constrained by the lack of findings of fact and conclusions of law, we
presume the trial court applied the law correctly and considered all the
evidence in the record. While the trial court did not make a specific finding
in the January 2017 CPO addressing the issues of reasonable imminent fear
or the remoteness in time of the events, we further point out the absence of a
request for findings of fact and conclusions of law ordinarily results in a
waiver of the right to challenge the trial court's lack of an explicit finding
concerning an issue. Cline v. Rogers Farms, 4th Dist. Pickaway No. 16CA7,
2017-Ohio-1379, 27. Fultz v. Fultz, 4th Dist. Pickaway No. 13CA9, 2014-
Ohio-3344, ¶ 51; Pawlus v. Bartrug, 109 Ohio App. 3d 796, 801, 673 N.E.2d
188 (9th Dist.1996).
{¶46} Again, we presume the trial court’s familiarity with the record
and review of the record. At the February 2014 hearing, Appellee testified
that she was fearful for her life. Throughout these proceedings, both parties
acknowledged their relationship was a violent one. And, the various rulings
Athens App. No. 17CA5 20
have hinged on the parties’ credibility, with neither party’s testimony
establishing any strong indication of reliability. In the December 20, 2015
entry, the court noted as follows:
“A review of the record reveals that [Appellant] does not
dispute that the parties have had a violent past. He concedes
that there has been violence in the past. Respondent asserts it
had been mutual. * * * There is no corroborating information
concerning incidents of [Appellant] choking, grabbing, pushing,
or striking the [Appellee].”
{¶47} Significantly, in January 2017, the trial court at last had
corroborating information before it and a strong indicator of Appellant’s
lack of credibility, due to his minimization of his actions in the July 6, 2013
incident which formed the basis of the court martial proceedings. Other
courts have observed that minimizing the nature of charges that formed the
basis of a court martial and military sentence reveals a tendency to discount
one’s own conduct and responsibility, ultimately affecting credibility
determinations.4 The trial court was free to believe all, part, or none of
Appellant’s testimony. West, supra, at 23. Mindful that the trial court is in
the best position to assess demeanor and truthfulness, as Appellant
4
See Miller v. Ohio Department of Education, 2nd Dist. Montgomery No. 27359, 2017-Ohio-7197, ¶ 38
(Miller admitted at ODE hearing that he had pled guilty to the charges that formed the basis of the court-
martial and his military sentence, but maintained that he was not guilty of the crimes, thus minimizing the
seriousness of his convictions and sentence and militating against the idea of true rehabilitation.). In re
Application of Tynes, 146 Ohio St. 3d 243, 2016-Ohio-3307, ¶ 19 (Court had significant concerns regarding
Tynes’ honesty and integrity during the admissions process, given his efforts to minimize his own
culpability for criminal convictions which occurred in 1998 by a court-martial for multiple felony
offenses.).
Athens App. No. 17CA5 21
minimized his actions on July 6, 2013, we defer to the trial court’s apparent
assessment that his credibility was lacking. See Wootten, supra, at 20.
{¶48} Given the parties’ violent history, Appellee’s testimony that she
was fearful, and the clear evidence that Appellant did strike his wife’s face
causing a black eye on July 6, 2013 and resulting in non-judicial punishment
via the United States Military, we do not believe that the trial court's
judgment creates a manifest miscarriage of justice.5 The trial court’s finding
that Appellee had shown by a preponderance of the evidence that she was in
danger of domestic violence was supported by evidence in the record and
justified issuance of the full CPO. As such, the first assignment of error has
no merit and is hereby overruled.
2. The children as protected parties.
{¶49} In the second assignment of error, Appellant argues the scope
of the CPO is too broad. Appellant argues, notwithstanding the above, there
is no evidence whatsoever to justify the addition of the minor children as
protected parties. Appellant argues the only allegations relating to the
children were several unexplained bruises that Appellee either did not report
to children’s services or did report but no action was taken. Appellant
5
We observe that during these proceedings, notwithstanding the very full case load on the trial court’s
docket, both parties filed numerous motions concerning issues such as changes in the visitation schedule,
supervised visitation, requests for records, protective orders, disqualification of Appellant’s attorney,
clarification, and contempt. Due to death and withdrawal, the parties have also been represented by various
counsel. These factors have also contributed to the fact that the July 2013 incident occurred over 4 years
ago at this point.
Athens App. No. 17CA5 22
emphasizes the trial court’s December 2015 finding Appellee not to be
credible. Appellant points out prior to the third day of testimony at the
original civil protection order hearing, the magistrate removed the children
from the civil protection order. No evidence was presented as to the
children at the new trial.
{¶50} In response, Appellee contends the inclusion of the children
was proper because they were both exposed to the domestic violence
perpetrated against Appellee. Appellee points out the inconsistency of
Appellant’s testimony about whether or not the children were present during
the July 2013 domestic violence incident. Appellee argues their presence in
an unsafe environment was a form of domestic violence.
{¶51} “[W]hen the challenge to the CPO involves the scope of the
order, we review the order for an abuse of discretion.” Wootten, supra, at 30,
quoting Walters v. Walters, 150 Ohio App. 3d 287, 2002-Ohio-6455, 780
N.E.2d 1032, at ¶ 10; Corrao v. Corrao, 2016-Ohio-4862, 2016 WL
3632494, at ¶ 16, quoting Allan v. Allan, 8th Dist. Cuyahoga No. 101212,
2014-Ohio-5039, ¶ 11, quoting Reynolds v. White, 8th Dist. Cuyahoga No.
74506, 1999 WL 754496 (Sept. 23, 1999) (“R.C. 3113.31 expressly
authorizes trial courts to ‘ “craft protection orders that are tailored to the
particular circumstances,’ ” and therefore, challenges to the scope of a
Athens App. No. 17CA5 23
protection order are reviewed for an abuse of discretion”); Denney v.
Sanders, 1st Dist. Hamilton No. C–150556, 2016-Ohio-5113, ¶ 19 (“As the
trial court has discretion over the scope of the civil protection order, we
review challenges to the scope of a [protection order] under an abuse of
discretion standard”).
{¶52} “ ‘A trial court abuses its discretion when it makes a decision
that is unreasonable, unconscionable, or arbitrary.’ ” Wootten, supra, at 31,
quoting State v. Keenan, 143 Ohio St. 3d 397, 2015-Ohio-2484, 38 N.E.3d
870, ¶ 7, quoting State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966,
986 N.E.2d 971, ¶ 34. “An abuse of discretion includes a situation in which
a trial court did not engage in a ‘sound reasoning process’; this review is
deferential and does not permit an appellate court to simply substitute its
judgment for that of the trial court.” State v. Felts, 2016-Ohio-2755, 52
N.E.3d 1223, ¶ 29 (4th Dist.), quoting Darmond at ¶ 34.
{¶53} However, “[a]lthough the abuse of discretion standard usually
affords maximum [deference] to the lower court, no court retains discretion
to adopt an incorrect legal rule or to apply an appropriate rule in an
inappropriate manner. Such a course of conduct would result in an abuse of
discretion.” 2–J Supply, Inc. v. Garrett & Parker, L.L.C., 4th Dist. Highland
Athens App. No. 17CA5 24
No. 13CA29, 2015-Ohio-2757, at ¶ 9. See Safest Neighborhood Assn. v.
Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 694, ¶ 16.
{¶54} While no evidence was presented at the new trial regarding
direct violence to the children, Appellee testified numerous times in previous
hearings that the children were present and observed the physical
altercations between the parties. While that evidence was conflicting and
uncorroborated, Joint Exhibit A demonstrates corroborating evidence that
the children were present during the July 6, 2013 incident. Appellee has
directed us to McBride v. McBride, 2012-Ohio-2146, 971 N.E.2d 1007 (12th
Dist.), where the appellate court found that one child’s presence during times
when the father was repeatedly beating the brother placed both children in
an unsafe environment. The McBride court held at ¶ 25:
“The trial court did not err in issuing a CPO on behalf of E.M.
in light of our previous holding that ‘placing children in an
environment where there is a substantial risk to their health and
safety constitutes one form of domestic violence.’ Ferris v.
Ferris, 2006-Ohio-878, at ¶ 28.”
{¶55} Likewise, we do not find the trial court abused its discretion in
adding A.M. and M.M. to the full CPO. Given that the testimony of both
parties throughout these proceedings acknowledged the home environment
was violent, along with Appellant’s admission that the children were present
during the July 6, 2013 incident, the children were placed in substantial risk
Athens App. No. 17CA5 25
to their health and safety. For the foregoing reasons, we find no merit to
Appellant’s second assignment of error and it is hereby overruled.
Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Athens App. No. 17CA5 26
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Costs are
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Athens County Court of Common Pleas to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.