Albers v. Albers , 2012 Ohio 3838 ( 2012 )

[Cite as Albers v. Albers, 2012-Ohio-3838.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
CYNTHIA K. ALBERS :
Plaintiff-Appellee : C.A. CASE NO. 11CA0060
vs. : T.C. CASE NO. 11DV0155
HENRY W. ALBERS : (Civil Appeal from
Domestic Relations Court)
Defendant-Appellant :
.........
OPINION
Rendered on the 24th day of August, 2012.
.........
Elizabeth J. Henley, Atty. Reg. No. 0034207, Talbott Tower, Suite 1205, 131 N. Ludlow
Street, Dayton, OH 45402
Attorney for Plaintiff-Appellee
Thomas M. Kollin, Atty. Reg. No. 0066964, 2661 Commons Blvd., Suite 214,
Beavercreek, OH 45431
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Henry W. Albers appeals from an order granting a civil protection order to his
wife, Cynthia K. Albers, and their three children.
{¶ 2} In early August of 2011, while the parties were in the middle of divorce
proceedings, Cynthia1 filed a petition seeking an ex parte domestic violence civil protection
1
For purposes of clarity and convenience, the parties
will be referred to by their first names.
2
order against Henry on her behalf and on the behalf of her three daughters, ages 17, 15, and
11. In the petition, Cynthia stated that Henry had pled guilty to committing three sexual
molestation felonies against their oldest daughter. Cynthia said that she and all three of her
daughters were anxious and fearful of Henry. In an affidavit filed with the petition, Cynthia
stated that Henry had been charged with committing two counts of sexual battery and one
count of gross sexual imposition against their oldest daughter.
{¶ 3} Cynthia’s request for an ex parte civil protection order was heard by a
magistrate on August 10, 2011. The magistrate filed a written decision denying the request
on that same date, finding that Cynthia failed to present sufficient evidence that she is in
immediate and present danger necessitating the issuance of an ex parte order. The magistrate
also set the matter for a full hearing before the court on August 29, 2011. [Dkt. 5]. The full
hearing was held before a judge of the domestic relations court on September 22, 2011.
{¶ 4} Cynthia was the only witness to testify at the full hearing. She testified that
she wanted Henry to be prevented from contacting the three children based on the fact that
Henry had sexually molested their oldest daughter. Cynthia had no direct knowledge of the
facts of that offense, but she did affirm that her husband had pled guilty to and been sentenced
regarding the sexual molestation of their eldest daughter. (Tr. 7). Cynthia was not aware of
any contact that Henry had with the three children since he was charged with molesting their
oldest daughter. His criminal bond apparently had a “no contact” requirement.
{¶ 5} On September 27, 2011, the trial court granted Cynthia’s petition for a civil
protection order. The order protected Cynthia and her three children for a period of five
years. Henry was ordered, among other things, to neither abuse nor have any contact with the
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persons protected under the order.
{¶ 6} Henry filed a timely notice of appeal from the September 27, 2011 order,
raising the following two assignments of error:
{¶ 7} First Assignment of Error:
{¶ 8} “THE TRIAL COURT ERRED IN GRANTING APPELLEE A DOMESTIC
VIOLENCE CIVIL PROTECTION ORDER UPON A FINDING THAT APPELLEE IS IN
DANGER OF OR HAS BEEN A VICTIM OF DOMESTIC VIOLENCE AS DEFINED IN
O.R.C. § 3113.31(A) COMMITTED BY APPELLANT.”
{¶ 9} Second Assignment of Error:
{¶ 10} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AS TO
THE SCOPE OF THE APPELLEE’S DOMESTIC VIOLENCE CIVIL PROTECTION
ORDER.”
{¶ 11} The decision whether to grant a protection order is within the sound discretion
of the trial court and will not be reversed absent an abuse of that discretion. Parrish v.
Parrish, 95 Ohio St.3d 1201, 765 N.E.2d 359 (2002). In AAAA Enterprises, Inc v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990), the Supreme Court held:
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.
(1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is
to be expected that most instances of abuse of discretion will result in decisions
that are simply unreasonable, rather than decisions that are unconscionable or
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arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were it
deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would
support a contrary result.
{¶ 12} Before granting a civil protection order, “the trial court must find that
petitioner has shown by a preponderance of the evidence that petitioner or petitioner’s family
or household members are in danger of domestic violence.” Felton v. Felton, 79 Ohio St.3d
34, 679 N.E.2d 672 (1997), paragraph two of syllabus.
{¶ 13} “Domestic violence” is defined in R.C. 3113.31(A), which provides, in part:
(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 or committing a violation of section 2903.211 or
2911.211 of the Revised Code;
(c) Committing any act with respect to a child that would result in the
child being an abused child, as defined in section 2151.031 of the Revised
Code;
(d) Committing a sexually oriented offense.
{¶ 14} Henry argues that the trial court abused its discretion in granting a civil
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protection order to the parties’ children because there was no “credible evidence to
demonstrate that [Henry] committed any of the conduct proscribed in R.C. 3113.31 with
respect to the parties’ minor children.” (Brief, p. 6.) According to Henry, the oldest child
did not testify at the full hearing, so there was no evidence to support a finding of domestic
violence with respect to any of the parties’ children. We do not agree.
{¶ 15} The fact that Henry had pled guilty to and been convicted of and sentenced for
committing a sexually oriented offense involving the parties’ eldest daughter was not in
dispute at the hearing on Cynthia’s petition. Cynthia affirmed the truth of that matter in her
testimony at the full hearing. (Tr. 7). She also testified at the hearing before the magistrate
that Henry had pled guilty to the offense. (Tr. 3). That is evidence on which the court could
rely to find that Henry had committed a sexually oriented offense against a family member in
violation of R.C. 3113.31(A)(1)(d).
{¶ 16} Henry argues that the trial court abused its discretion by including the parties’
two youngest children as protected persons under the civil protection order. According to
Henry, although there may have been evidence supporting a finding of domestic violence
against the parties’ oldest child, there was no evidence presented or suggestion made at the
full hearing that Henry had ever committed domestic violence against the parties’ two younger
children, or that the two younger children feared that such domestic violence was imminent.
{¶ 17} In Carpeno v. Carpeno, 11th Dist. Lake No. 2004-L-202, 2005-Ohio-7046, a
mother of four children sought a civil protection order against her husband on behalf of
herself and their four children. Three of the four children had been sexually abused by the
husband. The trial court granted a civil protection order to one of the three children who
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were abused, but not to the remaining three children. The 11th District reversed the decision
of the trial court and found that all four children should have been included in the protection
order. The court wrote, at ¶ 15:
[T]here was an on-going criminal investigation of the allegations of
sexual abuse by Richard of two of the minor children, (E. and D.), divorce
proceedings had commenced, and visitation matters were pending. Further, at
the hearing the court found that (E.) was a victim of domestic violence, i.e.,
sexual abuse. In such circumstances, when the court grants a protection order
for one child of a family, it follows that any remaining children of the family
would also properly fall within the ambit of the CPO. Thus, the trial court
abused its discretion in issuing the CPO as to only (E.), and not including the
other siblings.
{¶ 18} The domestic violence section, R.C. 3113.31(A), prohibits specified criminal
conduct “against a family or household member.” The test for a violation of R.C. 3119.31(A)
is thus retrospective, and a violation is predicated on conduct involving a single victim.
{¶ 19} The statute authorizing issuance of a civil protection order is more expansive.
It requires a finding that the “petitioner or petitioner’s family or household members are in
danger of domestic violence.” The test is prospective, and contemplates the potential of
conduct involving more than one victim.
{¶ 20} The majority of sexual offenses against children involve members of the
offender’s immediate or extended family who live in the same household. The minor is then
more vulnerable to the perpetrator’s misconduct. And, the perpetrator has an ease of access
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to the victim because of the proximity a household involves.
{¶ 21} In the present case, Henry committed domestic violence against his oldest
child. Based on a review of the record before us, and on the authority of Carpeno, we find
that the trial court did not abuse its discretion by granting a civil protection order that
protected all three of the parties’ children.
{¶ 22} Nevertheless, we agree with Appellant that the trial court abused its discretion
when it included Cynthia Albers within the coverage of the CPO. In order to obtain a CPO, a
petitioner must show by a preponderance of the evidence that persons to be covered by the
order are in danger of domestic violence. Felton
{¶ 23} The Petition For Domestic Violence CPO that Cynthia filed sought relief on
behalf of her three daughters, not herself. At the September 22, 2011 full hearing on her
petition, Cynthia limited her request to a CPO protecting her three daughters. (Tr. 4).
Previously, at the August 10, 2011 hearing before the magistrate on Cynthia’s request for an
ex parte CPO, Cynthia testified that she and her daughters “felt unsafe” in the marital
residence, which is for sale, for fear that Henry would come there, (Tr. 4), are “afraid to go
over there” and are “worried for our safety” because of Henry’s criminal case. (Tr. 5).
{¶ 24} Cynthia expressed a concern for her own safety, but otherwise offered no basis
to conclude that she is in danger of domestic violence. Therefore, she failed to show that
proposition by a preponderance of the evidence. The trial court abused its discretion in
issuing a civil protection order covering Cynthia.
{¶ 25} The assignments of error are overruled to the extent they concern including the
parties’ three daughters within the coverage of the CPO. The assignments of error are
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sustained to the extent that they concern including Cynthia Albers within the coverage of the
CPO. The CPO will be modified to include only the parties’ three daughters within its
coverage. As modified, the CPO will be affirmed.
CUNNINGHAM, J., concurs.
(Hon. Penelope R. Cunningham, First District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio.)
FAIN, J., concurring in part and dissenting in part:
I agree that there is evidence in the record to support the trial court’s finding that the
oldest child of defendant-appellant Henry W. Albers is in danger of domestic violence.
Therefore, I would affirm the civil protection order as it relates to that child.
In my view, there is insufficient evidence in the record to support a finding that the
younger two children are in danger of domestic violence. I find Judge Rice’s dissenting
opinion in Carpeno v. Carpeno, 11th Dist. Lake No. 2004-L-202, 2005-Ohio-7046, to be
more persuasive than the majority opinion. I realize that, as applied to Judge Rice’s
dissenting opinion, the facts in this case are distinguishable from the facts in Carpeno. Judge
Rice found that the trial court in that case had not abused its discretion by failing to include
other children within the scope of the civil protection order, whereas in the case before us, we
would have to find that the trial court abused its discretion by including the younger two
children within the scope of the civil protection order.
The case before us is comparable to Kandel v. Kandel, 5th Dist. Ashland No.
04-COA-014, 2004-Ohio-4548. In that case, the only testimony as to one child was by the
appellee-mother, who indicated that that child “wished to be included.” Id., ¶ 39. That
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evidence was held to be insufficient to prove, by a preponderance of the evidence, that that
child was in danger of domestic violence, even though the evidence was sufficient to establish
that the appellee-mother and her fiancé were in danger of domestic violence. Id., ¶ 40. In
the case before us, there is no evidence that the two younger children are in danger of
domestic violence. There is also no evidence that plaintiff-appellee Cynthia K. Albers is in
danger of domestic violence.
I would reverse that part of the civil protection order that includes within its scope the
two younger children and Cynthia Albers.
Copies mailed to:
Elizabeth J. Henley, Esq.
Thomas M. Kollin, Esq.
Hon. Steven L. Hurley