Lundin v. Niepsuj , 2014 Ohio 1212 ( 2014 )

[Cite as Lundin v. Niepsuj, 2014-Ohio-1212.]
IN THE COURT OF APPEALS
NINTH APPELLATE DISTRICT
SUMMIT COUNTY, OHIO
BARBARA LUNDIN, a.k.a. NIEPSUJ, : OPINION
Plaintiff-Appellee, :
CASE NO. 26015
- vs - :
VINCENT NIEPSUJ, :
Defendant-Appellant. :
Civil Appeal from the Court of Common Pleas, Domestic Relations Division.
Case No. DR 2011 04 0968.
Judgment: Affirmed.
Vincent Niepsuj, pro se, 400 West Avenue, Suite A1, Buffalo, NY 14224 (Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Vincent Niepsuj, appeals the domestic violence civil protection
order issued by the Summit County Court of Common Pleas, Domestic Relations
Division, on June 2, 2011. The order restrained appellant from having contact with his
ex-wife, Barbara Lundin a.k.a. Niepsuj (appellee herein), and their three children. For
the following reasons, we affirm the judgment of the trial court.
{¶2} On April 4, 2011, appellee filed a petition in the domestic relations court
for a domestic violence civil protection order under R.C. 3113.31. The trial court issued
an ex-parte temporary civil protection order and set the matter for hearing pursuant to
R.C. 3113.31(D). A full hearing was held on April 13, 2011. Appellee appeared pro se;
appellant was represented by counsel. The magistrate heard the testimony of
appellant, appellee, and several witnesses on appellee’s behalf.
{¶3} On June 2, 2011, the domestic relations court issued a domestic violence
civil protection order utilizing the form prescribed in Sup.R. 10.01. Form 10.01-I was
signed by the magistrate and approved by the trial judge on the same date.
{¶4} On June 13, 2011, appellant filed a motion for relief from judgment,
pursuant to Civ.R. 60(B), from the Form 10.01-I order. Appellant filed timely objections
to this domestic violence civil protection order on June 16, 2011. Appellant also filed
objections to the ex parte civil protection order, which had been replaced by the
subsequent domestic violence civil protection order.
{¶5} On July 5, 2011, appellant filed a notice of appeal in this court. On July 8,
2011, this court issued a show cause order stating more information was needed
concerning whether there was a final, appealable order. This order also instructed
appellant to either provide this court with the trial court’s ruling on his objections or, if
the trial court had not ruled on the objections, to move this court to remand the matter
for the trial court to rule on the objections. As the trial court had not ruled on his
objections or his motion for relief from judgment, appellant filed a motion requesting, as
an option, that the matter be remanded “so that jurisdiction is vested back with the
Domestic Relations court * * *.” On September 16, 2011, this court granted the motion,
and the appeal was stayed.
{¶6} The trial court independently reviewed the facts and issued a judgment
entry on October 19, 2012. The trial court overruled appellant’s objections to the
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current domestic violence civil protection order and denied the Civ.R. 60(B) motion for
relief from judgment. The trial court further found that appellant’s objections to the ex-
parte civil protection order were untimely and that he had failed to support his objections
with a transcript of those proceedings. Therefore, appellant’s objections to the ex parte
order were overruled.
{¶7} On November 19, 2012, appellant filed a “renewed” notice of appeal,
which we treated as a request to amend the original notice of appeal to include an
appeal from the trial court’s order ruling on appellant’s objections. That request was
granted. Therefore, before this court for review are both the June 2, 2011 original order
of protection and the trial court’s order of October 19, 2012. Appellee did not file a brief
in this matter.
{¶8} Appellant’s sole assignment of error states:
The trial court erred as a matter of law by issuing any length Order
of Protection against Appellant Vincent without satisfying any
essential element of O.R.C. 3113.31(A), for any of the four unique
protected parties, to wit: Barbara the Appellee, S. (now 18), A (16)
and T (13). [Emphasis sic.]
{¶9} We first address the appropriate standard of review of a civil protection
order. The decision whether to issue a civil protection order pursuant to R.C. 3113.31
lies within the sound discretion of the trial court. Hoyt v. Heindell, 191 Ohio App.3d 373,
2010-Ohio-6058, ¶39 (11th Dist.). The trial court also has broad discretion to determine
the appropriate scope of a civil protection order. R.C. 3113.31(E)(1) (“the court may
grant any protection order * * * [t]he order * * * may” include those provisions contained
in (E)(1)(a)-(h)).
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{¶10} However, when the trial court exercises its discretion to grant an R.C.
3113.31 petition, the trial court must find that the petitioner has shown by a
preponderance of the evidence that he or she is the victim of, or in danger of, domestic
violence. Felton v. Felton, 79 Ohio St.3d 34, 42 (1997).
Consequently, as in other civil cases, we review the evidence
underlying protection orders to determine whether sufficient
evidence was presented or whether the protection order is against
the manifest weight of the evidence. With respect to the scope of a
protection order, however, we consider whether the trial court
abused its discretion.
A.S. v. P.F., 9th Dist. Lorain No. 13CA010379, 2013-Ohio-4857, ¶4 (citations omitted).
Therefore, a reviewing court must look to the nature of the challenge to the civil
protection order in determining the appropriate standard of review.
{¶11} In his sole assignment of error, appellant argues the trial court erred in
issuing the domestic violence civil protection order because the finding that appellant
knowingly engaged in a pattern of conduct that caused mental distress to appellee and
their children was against the manifest weight of the evidence. We therefore review
whether it was against the manifest weight of the evidence for the trial court to find that
petitioner’s claim was established by a preponderance of the evidence.
{¶12} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2129, ¶17, the
Ohio Supreme Court held that the “criminal” manifest weight standard announced in
State v. Thompkins, 78 Ohio St.3d 380 (1997) also applies to manifest weight
challenges in civil cases. Therefore, we sit as a “thirteenth juror” and review the record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses,
and determine whether the trier of fact “‘clearly lost its way and created a manifest
injustice[.]’” Id. at 546-47, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
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Dist.1983). In weighing the evidence, however, we are always mindful of the
presumption in favor of the trial court’s factual findings. Eastley at ¶21.
{¶13} In this case, the trial court determined that appellee was entitled to a civil
protection order because she proved by a preponderance of the evidence that appellant
had engaged in a pattern of conduct by which appellant knowingly caused appellee and
the children mental distress. The trial court’s order of June 2, 2011, restrains appellant
from having contact with appellee and their children until April 13, 2016, and contains
the following findings of fact:
The parties are divorced, and have had a high conflict case
concerning their children. Between 12/2010 and 4/2011,
Respondent has engaged in a pattern of conduct causing Petitioner
and the children severe emotional trauma. The parties had a
physically abusive relationship while they were married.
The Court further finds by a preponderance of the evidence: 1) that
the Petitioner or Petitioner’s family or household member(s) are in
danger of or have been a victim of domestic violence or sexually
oriented offenses as defined in R.C. 3113.31(A) committed by
Respondent; and 2) the following orders are equitable, fair, and
necessary to protect the persons named in this Order from
domestic violence.
{¶14} Appellant argues the trial court’s findings that appellant and appellee had
a high-conflict divorce case and a physically abusive relationship were not supported by
the record. Appellant further argues he did not have knowledge that his “entirely
innocent” conduct would cause mental distress to appellee and their children and that,
in fact, it did not cause such distress.
{¶15} A high-conflict case is not an element required for the issuance of a
protection order. See R.C. 3113.31. Similarly, a protection order may issue without a
finding that physical abuse has occurred. Id. Thus, although the trial court’s findings on
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these issues are supported by the record, we need not address them. Instead, this
court focuses on whether the trial court clearly lost its way in determining that appellant
engaged in a pattern of conduct whereby he knowingly caused appellee and their
children emotional distress. See Thompkins, supra.
{¶16} R.C. 2903.211(A)(1) defines menacing by stalking: “[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.” When committed against a family member, an act of menacing by
stalking is “domestic violence.” R.C. 3113.31(A)(1)(b). A person’s ex-spouse and
children are family members. R.C. 3113.31(A)(3).
{¶17} “‘[S]talkers engage in psychological warfare, which by its nature is
devious, insidious, and subtle.’” State v. Werfel, 11th Dist. Lake No. 2006-L-163, 2007-
Ohio-5198, ¶34, quoting Paulus v. Rucker, 11th Dist. Portage No. 2002-P-0080, 2003-
Ohio-2816, ¶35 (Christley, J., concurring). Accordingly, in considering stalking
allegations, the totality of the alleged offender’s conduct must be considered even if
certain instances of conduct, in isolation, appear non-threatening. Tuuri v. Snyder, 11th
Dist. Geauga No. 2002-G-2107, 2002 Ohio App. LEXIS 2060, *9 (Apr. 30, 2002), citing
Still v. Still, 2d Dist. No. 17416, 1999 Ohio App. LEXIS 1808, *5 (Apr. 23, 1999). A
pattern of conduct is “two or more actions or incidents closely related in time, whether or
not there has been a prior conviction based on any of those actions or incidents.” R.C.
2903.211(D)(1). The statute does not define “closely related in time.” “Consequently,
whether the incidents are ‘closely related in time’ is to be resolved by the trier of fact,
‘considering the evidence in the context of all the circumstances in the case.’” Cooper
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v. Manta, 11th Dist. Lake No. 2011-L-035, 2012-Ohio-867, ¶39, quoting State v. Bone,
10th Dist. Franklin No. 05AP-565, 2006-Ohio-3809, ¶24.
{¶18} A person acts “knowingly” with respect to his or her conduct when,
regardless of purpose, he or she “is aware that his conduct will probably cause a certain
result or will probably be of a certain nature.” R.C. 2901.22(B).
{¶19} Actual threats, physical harm, or mental distress are sufficient, but not
necessary, elements of menacing by stalking. The perpetrator’s knowledge that his
pattern of conduct would cause the victim to fear such harm is sufficient. Turri, supra,
*9-10, citing State v. Smith, 126 Ohio App.3d 193, 202 (7th Dist.1998). See also
Holloway v. Parker, 3rd Dist. Marion No. 0-12-50, 2013-Ohio-1940, ¶23, fn. 5; Mullen v.
Hobbs, 1st Dist. Hamilton No. C-120362, 2012-Ohio-6098, ¶30-39 (Cunningham J.,
concurring in judgment only); R.C. v. J.G., supra, ¶9. “Mental distress” is defined as any
mental condition that involves temporary, substantial incapacity or that normally
requires mental health services, whether or not such services were sought. R.C.
2903.211(D)(2).
{¶20} At the April 13, 2011 hearing, the testimony of appellee, her minister, and
her children’s youth group leader established that, over a period of several months
immediately prior to appellee’s petition for a domestic violence civil protection order,
appellant sought out persons who may know appellee and their children, including
church ministers, congregants, youth group leaders, youth group members, teachers,
parents, coaches, teammates, and psychological counselors. Appellant attempted to
acquire information concerning the habits, routines, and/or religious beliefs of appellee
and the children. Appellant made numerous phone calls to church personnel seeking
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information about his children and church beliefs. Appellant explored the area where
appellee and the children lived looking for their home, their church, their youth group
camp, and anyone he could talk to about them. Appellant rejected numerous
suggestions that he speak with his children directly, even though there was no order
restraining appellant from contacting his children during this time. One counselor
stopped providing services to appellee and the children because appellant would show
up uninvited at her office and stay all day with a book, a behavior that disturbed the
counselor and her clients.
{¶21} Appellant did not deny he engaged in the conduct described by the other
witnesses, but tried to explain it and repeatedly stated that it was not violent or
threatening conduct. Appellant testified he did these things in order to gain a better
understanding of his children’s life. He also indicated that he wanted to know why his
children had not been available for scheduled Skype video chat sessions, which had
been a part of the previous order. Appellant argues strenuously that his conduct was
“entirely innocent” with “good motive” and that there is simply no way he could have
known that his conduct would cause anyone mental distress.
{¶22} However, it is important to analyze his conduct, as the trial court did in
ruling on appellant’s objections, in the context of the parties’ previous history. Appellant
was previously subject to a protection order issued in November 2001. That order was
extended to February 6, 2011. Appellee testified that these orders were issued
because appellant had been verbally and physically abusive during their marriage.
According to appellee, appellant would scream at her for hours without provocation; had
kicked a box of curtains at her; punched through a cupboard door; kicked in a bedroom
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door where she had locked herself in; jumped over a banister to scream at her; and
slapped things out of her hands to get her attention.
{¶23} Appellant did not deny these events occurred, but testified that he had
forced the bedroom door open with his arm and that he was merely “venting” when he
punched the cupboard and kicked the curtains. Appellant acknowledged that he sent a
letter to appellee using another person’s return address because it would likely have
been rejected if he were the identified sender. Appellant refused to comment on
whether he understood his actions might be upsetting and denied that he had also
upset those who testified in the very same hearing that appellant’s actions were
upsetting. Thus, the trial court did not lose its way in determining that appellant “was
aware that his conduct would probably cause” mental distress to appellee and their
children. R.C. 2901.22(B).
{¶24} Appellant similarly argues that the trial court’s finding that his conduct in
fact caused mental distress to appellee and his children was not supported by the
evidence. However, appellee testified appellant’s behavior upset the children, caused
her great anxiety, and was among the reasons she and the children attended
counseling. Appellee testified that appellant’s conduct was socially isolating the
children. Appellee further testified to her belief that the situation was escalating, thereby
acknowledging her fears for the future. Thus, the trial court had before it evidence that
appellee and the children experienced mental distress; and the trial court did not lose its
way in finding that appellant had caused this distress.
{¶25} Under these circumstances, the trial court’s determination that a protection
order should issue due to appellant having engaged in a pattern of conduct that caused
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mental distress to appellee and their children was not against the manifest weight of the
evidence.
{¶26} Appellant’s assignment of error is without merit. The judgment of the trial
court is affirmed.
{¶27} We order that a special mandate issue out of this Court, directing the
Court of Common Pleas, Domestic Relations Division, County of Summit, 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.
{¶28} Immediately upon the filing hereof, this document shall constitute the
journal entry of judgment, and it shall be 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.
{¶29} Costs taxed to appellant.
_____________________________________
PRESIDING JUDGE TIMOTHY P. CANNON
Eleventh Appellate District,
Sitting by Assignment.
JOSEPH J. VUKOVICH, J.,
Seventh Appellate District,
Sitting by Assignment,
CYNTHIA WESTCOTT RICE, J.,
Eleventh Appellate District,
Sitting by Assignment,
concur.
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