Williamson v. Williamson , 2008 Ohio 6718 ( 2008 )

{¶ 65} For all of the reasons set forth in Judge Brogan's opinion, I join in reversing and vacating as much of the civil protection order from which this appeal is taken that pertains to the children of the parties.

{¶ 66} I would, however, affirm that part of the civil protection order that pertains to Mary.

{¶ 67} There is evidence in the record from which the trial court could find that Shawn entered or remained on Mary's premises "with purpose to commit on * * * those premises a misdemeanor, the elements of which involve causing physical harm to another person or causing another person to believe that the offender will cause physical harm to him." This is aggravated trespass, a violation of R.C. 2911.211. Significantly, there is no "serious" component to the physical-harm element in aggravated trespass. The commission of aggravated trespass is, itself, an act of domestic violence justifying a civil protection order. R.C. 3113.31.

{¶ 68} "The judgment of a lower court should not be reversed, unless the error is manifest, and it is entitled to that construction of its record which is most favorable to the judgment." Ford v. Toledo (1901), 64 Ohio St. 92,99, 59 N.E. 779. In other words, the presumption of regularity requires us to presume, unless the record affirmatively rebuts that presumption, that the trial court made any finding of fact that is both supported by evidence in the record and necessary to the order or judgment from which the appeal is taken. See 5 Ohio Jurisprudence 3d 181 et seq., Appellate Review Section 458.

{¶ 69} Applying the presumption of regularity, I would presume that the trial court found that Shawn had committed an act of domestic violence against Mary, in the form of a violation of R.C. 2911.211, which would support the civil protection order as it pertains to Mary.