J.W. v. D.W. , 2019 Ohio 4018 ( 2019 )

[Cite as J.W. v. D.W., 2019-Ohio-4018.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
J.W., :
Petitioner-Appellee, :
No. 19AP-52
v. : (C.P.C. No. 18DV-719)
D.W., : (REGULAR CALENDAR)
Respondent-Appellant. :
D E C I S I O N
Rendered on September 30, 2019
On brief: D.W., pro se. Argued: D.W.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
SADLER, J.
{¶ 1} Respondent-appellant, D.W., appeals the January 23, 2019 judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
issuing a domestic violence civil protection order ("CPO") to petitioner-appellee, J.W. For
the following reasons, we affirm the trial court order.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellee is the adult child of appellant. On May 29, 2018, appellee filed a
petition for a CPO against appellant alleging appellant has engaged in telephone
harassment, stalking, and trespassing for years, has made veiled threats to C.W. (his wife),
talked about getting a gun, and has paranoid schizophrenia that she refuses to treat.
According to the petition, due to appellant's behavior, appellee, C.W., and their roommate
fear for their safety, and the stress of appellant's continued harassment is effecting C.W.'s
No. 19AP-52 2
mental state and recovery from a surgery. The trial court granted an ex parte CPO and set
the matter for a full hearing. Multiple continuances followed.
{¶ 3} On January 3, 2019, appellant filed a motion for deposition and discovery
asking the court for an order to depose appellee at appellant's home in order to "establish
foundation for this hearing and litigation." (Mot. for Disc. & Dep. at 1.) In her motion,
appellant stated appellee's only complaint is he does not want to hear from her and does
not want anything from her. According to appellant, "this needs to change" due to her
serious health condition, and she "no longer [has] time to be patient." (Mot. for Disc. &
Dep. at 1, 2.) She states that "[u]p to now, I've kept my distance and just called. Even when
dropping his belongings off, I left them on the porch and waited at a distance for him to
acknowledge receipt. And he did want his stuff. I've called for wellness checks since his
Dad passed away." (Mot. for Disc. & Dep. at 2.) Appellant also states that the allegations
of mental health are serious and causing her problems and that both C.W. and their mutual
friend, B.S., are showing up at her work, following her, working with people who appellant
is building a case against with the "fraud unit," and are trying to extort money from her.
(Mot. for Disc. & Dep. at 2.) Appellant adds that pictures of appellant and appellee are
being "used/sold." (Mot. for Disc. & Dep. at 2.)
{¶ 4} In early January 2019, appellant issued subpoenas to 19 people. A full
hearing was held before a judge on January 23, 2019. Both appellant and appellee
appeared, pro se, at the full hearing and testified on their own behalf.1
{¶ 5} At the outset of the hearing, appellant asked the trial court judge about her
pending motion. The trial court denied the motion to conduct a deposition of appellee and
stated appellant could ask appellee questions related to the CPO at the hearing itself.
{¶ 6} Appellee then testified on his own behalf. According to appellee, he wanted
no contact with appellant but appellant nevertheless persisted in emailing him, texting him,
showing up at his home, and having the police conduct wellness checks on him. Appellee
offered a binder of exhibits in support of his testimony but did not bring a copy of the
exhibits for appellant. Appellant told the trial court it was okay for the judge to look at the
exhibits and then show the exhibits to appellant.
1 On July 31, 2019, appellant filed a motion to supplement the record with the transcript of the full hearing.
Appellee did not oppose the motion. In the interest of justice, we granted appellant's motion to supplement
the record on September 6, 2019. App.R. 9(E); D.M.W. v. E.W., 10th Dist. No. 17AP-359, 2018-Ohio-821, ¶ 8.
No. 19AP-52 3
{¶ 7} Appellee's exhibits included: a notarized affidavit from C.W. attesting to her
stress, anxiety, and fear regarding his mother; medical records of C.W.; a case index of a
1988 criminal trespass case brought against appellant by a public school system; a May
2018 police report from appellant calling the police to conduct a wellness check on appellee;
a May 2018 police report documenting C.W.'s call to police when appellant was looking at
the property next door to their property, which was for sale; three years of time clock
records from C.W.'s place of employment to counter appellant's contention that C.W. was
following her; information about the 22-caliber, tactical pellet rifle appellant received from
an online store; approximately two years of emails from appellant to appellee, which
appellee testified were unsolicited and unresponded to; text messages from appellant to
appellee beginning in 2016; and a retail description of the pellet rifle owned by appellant.
(Ex. at 253.)
{¶ 8} Appellee described some of the email content as documenting appellant's
ongoing, decade-long contention that various people behind the house yell things at her,
and her belief that C.W. was involved with these people in the backyard. According to
appellee, other emails from appellant to appellee show appellant recognized appellee
wanted nothing to do with her but nonetheless persisted in emailing and texting him,
sending the police to his house to conduct wellness checks when he would not respond to
her, threatening to sue him and others if he did not respond to her, and stating she was
including him in a lawsuit so that she could depose him since he would not talk to her.
{¶ 9} Appellant testified on her own behalf. According to appellant, she does not
have paranoid schizophrenia. Appellant stated she was being followed by people related to
an actual FBI case, and this has to do with her son since C.W. has shown up at places
appellant was working. On further questioning, appellant could not produce any dates
C.W. followed her. Appellant repeatedly testified that her desire to make sure appellee is
taken care of after she passes away motivates her to contact appellee and that she would
continue to contact appellee regardless of his cooperation or desire to be left alone. "[T]here
isn't anything that the Court * * * can do about this. * * * [O]ne way or another, I am going
to make sure that [appellee is] taken care of after I die. Now, we can do that with your
cooperation * * * or we can do it without your cooperation." (Tr. at 49-50.)
No. 19AP-52 4
{¶ 10} Regarding her interest in buying the house next to appellee, appellant
testified she did not intend to live in the house but would buy it as a "rehab house"; she
disagreed that her text to appellee stating "wanna be neighbors? Oh, you could give me a
phone call" instead was pushing herself on appellee. (Tr. at 55, 64.) Appellant suggested
she would sue appellee for loss of income from not purchasing the property next door from
him due to the protection order.
{¶ 11} Appellant further testified she did not believe her contact with appellee meets
the threshold for the protection order since there had not been any violence, since offering
appellee assistance does not equate to harassment, and having the police conduct wellness
checks on him two or three times a year is not stalking. Appellant released the police officer
who she subpoenaed for the hearing, called no other witnesses, and submitted no other
evidence.
{¶ 12} On the same day as the hearing, the trial court granted appellee a CPO against
appellant, effective for five years. The CPO directs appellant, in pertinent part, to: not
abuse, harm, attempt to harm, threaten, follow, stalk, or harass appellee or C.W.; not enter
or interfere with appellee and C.W.'s residence, school, business, or place of employment;
stay away from appellee and C.W. and, specifically, to not be present within 100 yards of
appellee and C.W. or any place appellant knows or should know they are likely to be; not
initiate or have any contact with appellee or C.W.; not remove, damage, hide, or dispose of
any property owned or possessed by appellee or C.W.; not cause or encourage any person
to do acts prohibited by the CPO; and not possess, use, carry, or obtain any deadly weapon
while the CPO is active.
{¶ 13} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 14} Appellant assigns the following as trial court error:
[1.] The court errored procedurally by not requiring the
petitioner [J.W.] to provide a copy of the 2 inch binder of
exhibits which he submitted to the court. The court further
errored by not showing the exhibits to defendant [D.W.] as
each was discussed.
[2.] The court errored in denying the requested deposition.
No. 19AP-52 5
[3.] The court errored in not permitting witnesses to be called
by [D.W.], particularly his wife [C.W.] and their partner
[B.S.].
[4.] The court abused it's discretion by preventing [D.W.]
from owning or carrying a fire arm.
[5.] The court errored in giving consideration to [C.W.'s]
health and stress issues.
[6.] The court errored in issuing this CPO for five years.
[7.] The court abused it's discretion by granting the CPO when
the standard requires the element of knowingly causing
distress.
[8.] The court abused it's discretion in issuing a CPO without
sufficient evidence.
[9.] The court errored by granting a CPO without sufficient
evidence.
[10.] The court errored in granting a CPO using the evidence
presented.
[11.] The court abused it's discretion by issuing a CPO for the
purpose of preventing [D.W.] from purchasing the house next
to my son's residence.
(Sic passim.)
III. STANDARD OF REVIEW
{¶ 15} "Generally, the decision of whether or not to grant a CPO lies within the
sound discretion of the trial court." C.L. v. T.B., 10th Dist. No. 17AP-813, 2018-Ohio-1074,
¶ 5. Peterson v. Butikofer, 10th Dist. No. 18AP-364, 2019-Ohio-2456, ¶ 38. An abuse of
discretion connotes a decision that was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Where the trial court's decision to
grant a CPO is supported by "sufficient, credible evidence * * * that the respondent had
engaged in acts or threats of domestic violence," the trial court has not abused its discretion.
(Citations omitted.) Peterson at ¶ 39; Olson v. Olson, 6th Dist. No. WD-15-002, 2016-Ohio-
149, ¶ 12. The scope and duration of a CPO is likewise within the sound discretion of the
trial court and will not be reversed on appeal absent a showing that the decision was
No. 19AP-52 6
arbitrary, unconscionable, or unreasonable. Campbell v. Underwood, 10th Dist. No. 09AP-
1125, 2010-Ohio-2909, ¶ 11; T.S. v. B.S., 10th Dist. No. 18AP-302, 2018-Ohio-4987, ¶ 27.
{¶ 16} Legal questions, including interpreting statutory authority, are reviewed de
novo on appeal. Martin v. Martin, 10th Dist. No. 13AP-171, 2013-Ohio-5703, ¶ 6.
IV. LEGAL ANALYSIS
{¶ 17} For clarity of analysis, we will at times consider appellant's assignments of
error out of order and have grouped certain assignments of error together where
appropriate. We preliminarily note that we will address appellant's assignments of error
only and disregard extraneous allegations which fall outside of the assignments of error and
the record of this appeal. App.R. 12(A)(1)(b); Blevins v. Blevins, 10th Dist. No. 14AP-175,
2014-Ohio-3933, ¶ 12.
A. Appellant's First Assignment of Error
{¶ 18} Appellant's first assignment of error contends the trial court erred
procedurally and violated her due process rights by not requiring appellee to provide her a
copy of the binder of exhibits. Appellant further contends the trial court erred by not
showing the exhibits to appellant as each was discussed. Appellant cites to Loc.R. 3(E)(3)
of the Franklin County Court of Common Pleas, Division of Domestic Relations, written
instructions from the trial court magistrates, and an article on Ohio trial practice.
{¶ 19} First, Loc.R. 3(E)(3) of the Franklin County Court of Common Pleas, Division
of Domestic Relations, addresses case management in divorces. Therefore, it is
inapplicable to the present case. Moreover, even if appellee was required to provide the
exhibits to appellant in the manner argued, in this case appellant expressly agreed to the
procedure proposed by the judge, did not raise the issue of not being provided with the
exhibits prior to the hearing, did not object to not being presented each item as it was
discussed with the trial court, and did not object to the exhibits being admitted into
evidence at the close of the hearing. Furthermore, no record evidence demonstrates the
binder was not presented to appellant.
{¶ 20} "It is a well-established rule that an appellate court will not consider any error
which counsel for a party complaining of the trial court's judgment could have called but
did not call to the trial court's attention at a time when such error could have been avoided
or corrected by the trial court." (Citations omitted.) State v. Quarterman, 140 Ohio St.3d
No. 19AP-52 7
464, 2014-Ohio-4034, ¶ 15. Furthermore, a party is not "permitted to take advantage of an
error that he himself invited or induced the trial court to make." State ex rel. Mason v.
Griffin, 90 Ohio St.3d 299, 303 (2000). We additionally note appellant, who received the
exhibits prior to appeal, did not demonstrate how receipt of those exhibits at the full hearing
would have affected the outcome of this case. Considering all the above, we find appellant
has not demonstrated the trial court erred.
{¶ 21} Accordingly, appellant's first assignment of error is overruled.
B. Appellant's Second Assignment of Error
{¶ 22} Appellant's second assignment of error contends the trial court erred and
violated her due process rights by denying her motion and subsequent request to depose
appellee. In support of her assignment of error, appellant cites to "Rule 26 A," which we
presume to be Civ.R. 26(A), as providing "the right for trial preparation" and cites generally
to Dater v. Charles H. Dater Found., 1st Dist. No. C-020675, 2003-Ohio-7148, for the
proposition that a trial court abuses its discretion "based on an error made by the court
related to denying discovery." (Appellant's Brief at 8.) Appellant asserts "[a]dditional
assignment of errors [sic] will document errors of fact or lack thereof and other errors which
would have been exposed in deposition." (Appellant's Brief at 8.) Appellant mentions
"65.1," which we presume to refer to Civ.R. 65.1. (Appellant's Brief at 7.)
{¶ 23} Civ.R. 26(A) provides that it is the policy of the civil procedure rules "(1) to
preserve the right of attorneys to prepare cases for trial with that degree of privacy
necessary to encourage them to prepare their cases thoroughly and to investigate not only
the favorable but the unfavorable aspects of such cases and (2) to prevent an attorney from
taking undue advantage of an adversary's industry or efforts." Civ.R. 26(A). The rule
specifies deposition on oral examination as one of the methods to obtain discovery. Civ.R.
26(B)(1) provides that "[u]nless otherwise ordered by the court in accordance with these
rules, * * * [i]n general[, p]arties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action."
{¶ 24} Civ.R. 65.1 provides special procedures for CPOs in line with applicable
statutory requirements that account for the protection of victims of domestic violence,
stalking, and sexually oriented offenses. Civ.R. 65.1, Staff Note (July 1, 2012 Amendment).
Under Civ.R. 65.1(D)(2), "[d]iscovery may be had only upon the entry of an order
No. 19AP-52 8
containing all of the following to the extent applicable: (a) The time and place of the
discovery; (b) The identities of the persons permitted to be present, which shall include any
victim advocate; and (c) Such terms and conditions deemed by the court to be necessary to
assure the safety of the Petitioner, including if applicable, maintaining the confidentiality
of the Petitioner's address."
{¶ 25} Regarding the presentation of evidence in a CPO full hearing, in D.M.W. v.
E.W., 10th Dist. No. 17AP-359, 2018-Ohio-821, ¶ 12, we noted that although the term "full
hearing" is not statutorily defined, in general, a full hearing on a CPO petition "is one in
which ample opportunity is afforded to all parties to make, by evidence and argument, a
showing fairly adequate to establish the propriety or impropriety of the step asked to be
taken." (Citations omitted.) Id. "[W]here the issuance of a protection order is contested,
the court must, at the very least, allow for presentation of evidence, both direct and rebuttal,
as well as arguments." (Citations omitted.) Id.{¶ 26} In this case, during the full hearing on the CPO, the trial court denied
appellant's request to depose appellee and told appellant she could question appellee
during the hearing if her questions were related to the case and not about her divorce with
appellee's father. As explained in more detail below, we find appellant has not
demonstrated the trial court erred in denying her motion to depose appellee on this record.
{¶ 27} First, appellant has not cited to which part of Dater she believes applies to
this case. Regardless, Dater is an estate and charitable trust case in which the First District
Court of Appeals found the trial court erred in granting, during a deposition, a defendant's
motion for a protective order barring inquiry into certain topics and corresponding denial
of the plaintiff-appellant's request to complete the deposition of a trustee. We find Dater
is not dispositive to this case, which, unlike Dater, involves a CPO full hearing and the
proposed person to be deposed testifies at the hearing.
{¶ 28} Second, while appellant is correct that the Ohio Civil Rules provide for
discovery by deposition generally, appellant has not shown these rules required the trial
court in this case to allow her to depose her son. Appellant's motion for deposition, filed
20 days prior to the January full hearing, largely consists of matters irrelevant to whether
a CPO is warranted in this case. Record evidence additionally shows appellant generally
views deposing appellee as a tool to force him to speak to her since he refuses to otherwise.
No. 19AP-52 9
Furthermore, contrary to appellant's argument, we find no "errors of fact or lack thereof
* * * which would have been exposed in deposition." (Appellant's Brief at 8.) Appellant
had the chance to and did question appellee during the full hearing. She likewise had the
opportunity to present evidence in opposition to appellee's assertions but she did not do so
beyond her own testimony.
{¶ 29} Considering all the above, we find appellant has not demonstrated the trial
court erred or abused its discretion in denying her request to depose her son on the facts of
this case. State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general
rule that an appellant bears the burden of affirmatively demonstrating error on appeal).
Therefore, we find appellant's assignment of error to lack merit.
{¶ 30} Accordingly, appellant's second assignment of error is overruled.
C. Appellant's Third Assignment of Error
{¶ 31} Appellant's third assignment of error contends the trial court erred
procedurally and violated her due process rights by not permitting her to call witnesses.
We disagree.
{¶ 32} As previously provided, a full hearing on a CPO petition "is one in which
ample opportunity is afforded to all parties to make, by evidence and argument, a showing
fairly adequate to establish the propriety or impropriety of the step asked to be taken."
(Citations omitted.) D.M.W. at ¶ 12. "[W]here the issuance of a protection order is
contested, the court must, at the very least, allow for presentation of evidence, both direct
and rebuttal, as well as arguments." (Citations omitted.) Id.{¶ 33} Appellant cites H.C. v. R.C., 10th Dist. No. 15AP-936, 2016-Ohio-668, ¶ 13,
Tarini v. Tarini, 10th Dist. No. 12AP-336, 2012-Ohio-6165, and Spigos v. Spigos, 10th Dist.
No. 03AP-682, 2004-Ohio-757, ¶ 16, in support of her assignment of error. In H.C., we
found the trial court committed plain error in failing to conduct a full hearing where there
was no dispute the trial court did not allow the respondent to present any evidence because
the trial court mistakenly believed it was compelled to grant a CPO based on an existing
stay away order in a criminal case. In Tarini, we found a CPO petitioner had been deprived
of a full hearing where the trial court denied the petitioner the opportunity to present
additional evidence but then dismissed his request for the CPO because his evidence did
not establish a prima facie case for such an order. Finally, in Spigos, we found the CPO
No. 19AP-52 10
petitioner was not afforded a meaningful opportunity to be heard where the record
indicated that, without warning, the trial court interrupted the testimony of the petitioner,
requested to speak with counsel off the record, and subsequently entered judgment against
the petitioner on the basis that the petitioner had failed to prove an element of the CPO.
{¶ 34} Each case is readily distinguishable from the case at hand, which, while
lacking some formality and structure, did allow appellant the opportunity to present
evidence and make her argument against the CPO in accordance with D.M.W. and Tarini.
We note the witnesses mentioned by appellant at the hearing and cited to in her appellate
brief—a witness to appellee's alleged kidnapping as a child and "multiple witnesses" to her
not being physically violent with appellee—were not relevant to the CPO at hand. (Tr. at
57.) Appellant does not cite to, nor do we find, anywhere in the transcript where appellant
asked to call C.W. or B.S. at the full hearing or the trial court actually denying such a request.
Therefore, considering all the above, we find appellant's assignment of error to be against
the record and to lack merit.
{¶ 35} Accordingly, appellant's third assignment of error is overruled.
D. Appellant's Fifth Assignment of Error
{¶ 36} In her fifth assignment of error, appellant contends the trial court erred by
considering C.W.'s health and stress issues. She refers to hearing testimony of appellee as
well as the discussions between appellee and the court regarding the affidavit of C.W.,
which attested to C.W.'s fear, stress, and anxiety caused by appellant and the resultant
impact to their lives and C.W.'s health.
{¶ 37} Specifically, appellant argues: the trial court was improperly trying to use the
order to prevent C.W. from adverse health effects due to stress, and the evidence did not
amount to "mental distress" but, rather, merely mental stress or annoyance; the evidence
of C.W.'s stress is not "admissible"; no evidence or documentation of C.W.'s stress such as
a "report of seeing a professional" was submitted to the trial court; her son (not appellant)
is the cause of the stress since "[h]e is the one * * * plant[ing] these fears" and "perpetuating
these allegations"; and, regardless, C.W.'s health issues are resolved. (Appellant's Brief at
11-12.) For the following reasons, we disagree.
{¶ 38} At the outset, we note that many of these arguments seem to involve issues—
such as sufficiency and/or weight of the evidence—that are unrelated sustaining the
No. 19AP-52 11
assignment of error. As previously noted, "this court rules on assignments of error only."
Blevins, 2014-Ohio-3933, at ¶ 12; App.R. 12(A)(1)(b). The sufficiency of the evidence to
support a protection order in this case is addressed later in this decision in regard to her
seventh, eighth, and tenth assignments of error. Because appellant challenged only the trial
court's "consideration" of C.W.'s health and stress issues, we will consider that question
alone. (Appellant's Brief at 1o.)
{¶ 39} Appellant does not challenge mental distress as a basis to support the CPO
issued under R.C. 3113.31 in this case. As defined in R.C. 3113.31(A)(1)(a)(ii), the definition
of domestic violence includes "committing a violation of [R.C.] 2903.211," the menacing by
stalking statute. Menacing by stalking under R.C. 2903.211(A)(1) is supported where a
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 a family or
household member of the other person or cause mental distress to the other person or a
family or household member of the other person." (Emphasis added.) Thus, "explicit or
direct threats of physical harm are not necessary to establish a violation of R.C.
2903.211(A)." Kramer ex rel. Kramer v. Kramer, 3d Dist. No. 13-02-03, 2002-Ohio-4383,
¶ 15.
{¶ 40} R.C. 2903.211(D)(2)(b) defines mental distress, in part, as "[a]ny mental
illness or condition that would normally require psychiatric treatment, psychological
treatment, or other mental health services, whether or not any person requested or
received psychiatric treatment, psychological treatment, or other mental health services."
(Emphasis added.) See also Dunkin v. Ireland, 10th Dist. No. 04AP-1175, 2005-Ohio-3371,
¶ 16-17 (finding issuance of CPO under the menacing by stalking prong of R.C. 3113.31(A)(1)
to be supported by a preponderance of the evidence where petitioner's mental distress,
exhibited through her statements regarding being fearful of the respondent and having
panic attacks, was reasonable given the respondent's repeated unwanted contact with the
petitioner).
{¶ 41} Here, contrary to appellant's contention, we find C.W.'s fear, anxiety, and
health to be relevant to meeting the statutory definition of mental distress under R.C.
2903.211. Furthermore, because the definition of mental distress specifies a person need
not pursue professional treatment or services in order for that mental condition to serve as
No. 19AP-52 12
a basis for establishing menacing by stalking under R.C. 2903.211(A)(1), the lack of a
medical or professional opinion did not render C.W.'s affidavit inadmissible. The cases
cited by appellant2 are either irrelevant to the assignment of error or distinguishable and
not dispositive to the case at hand. We further find appellant's contentions regarding
appellee as the cause of C.W.'s distress to be against the record, and appellant's comment
about C.W.'s current health state to be irrelevant and based on information outside of the
record.
{¶ 42} Considering all the above, we find the trial court did not err by considering
C.W.'s health and stress issues and, therefore, appellant's assignment of error lacks merit.
{¶ 43} Accordingly, appellant's fifth assignment of error is overruled.
E. Appellant's Seventh, Eighth, and Tenth Assignments of Error
{¶ 44} Appellant's seventh, eighth, and tenth assignments of error collectively
challenge aspects of the sufficiency of the evidence to support the trial court's issuance of
the CPO. We address them together.
{¶ 45} "A person seeking a CPO must prove domestic violence or threat of domestic
violence by a preponderance of the evidence." Dunkin at ¶ 14, citing Felton v. Felton, 79
Ohio St.3d 34 (1997), paragraph two of the syllabus. R.C. 3113.31(A)(1)(a)(ii) defines
"domestic violence," in relevant part, as "[t]he occurrence of one or more of the following
acts against a family or household member: * * * 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." (Emphasis added.)
{¶ 46} R.C. 2903.211(A)(1) addresses menacing by stalking and provides in part:
"No 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 a family or
household member of the other person or cause mental distress to the other person or a
family or household member of the other person." (Emphasis added.) R.C.
2903.211(A)(2)(a) specifies that prohibited conduct includes "use of any form of written
communication or any electronic method of remotely transferring information * * * [to]
2 Thomas v. Thomas, 44 Ohio App.3d 6, 7 (10th Dist.1988); Studer v. Studer, 3d Dist. No. 3-11-04, 2012-Ohio-
2838, ¶ 29; Kramer; Caban v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶ 31.
No. 19AP-52 13
post a message or use any intentionally written or verbal graphic gesture with purpose to
* * * [v]iolate division (A)(1)."
{¶ 47} R.C. 2903.211(D) sets forth definitions for "pattern of conduct" and "mental
distress." Under R.C. 2903.211(D)(1), "[p]attern of conduct" means, in pertinent part, "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." "In determining what constitutes a
pattern of conduct for purposes of R.C. 2903.211(D)(1), courts must take every action into
consideration even if * * * some of the person's actions may not, in isolation, seem
particularly threatening." (Citations omitted.) Olson, 2016-Ohio-149, at ¶ 14.
{¶ 48} Under R.C. 2903.211(D)(2), "[m]ental distress" means any of the following:
(a) Any mental illness or condition that involves some
temporary substantial incapacity;
(b) Any mental illness or condition that would normally
require psychiatric treatment, psychological treatment, or
other mental health services, whether or not any person
requested or received psychiatric treatment, psychological
treatment, or other mental health services.
" '[M]ental distress for purposes of menacing by stalking is not mere mental stress or
annoyance.' " Ellet v. Falk, 6th Dist. No. L-09-1313, 2010-Ohio-6219, ¶ 38, quoting Caban
v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶ 29. However, it "need not be
incapacitating or debilitating." Jenkins v. Jenkins, 10th Dist. No. 06AP-652, 2007-Ohio-
422, ¶ 19. "[E]xpert testimony is not required to find mental distress. Lay testimony may
be sufficient." Id. See also Ellet at ¶ 38 ("[T]estimony that the offender's conduct or actions
caused the victim considerable fear and anxiety can support a finding of mental distress.").
"A trial court may rely on its knowledge and experience in determining whether mental
distress has been caused." (Citation omitted.) Jenkins at ¶ 19.
{¶ 49} The mental state of "knowingly" is set forth in R.C. 2901.22(B), which states:
A person acts knowingly, regardless of purpose, when the
person is aware that the person’s conduct will probably cause
a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when the person is
aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of
an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its
No. 19AP-52 14
existence and fails to make inquiry or acts with a conscious
purpose to avoid learning the fact.
See also Ellet at ¶ 28-30.
{¶ 50} In this case, appellant first argues, in her seventh assignment of error, that
the trial court erred by granting the CPO when the evidence did not show she "knowingly
caus[ed] distress." (Appellant's Brief at 13.) According to appellant, she has been estranged
from appellee for years and there was no way appellant could know about C.W.'s health
problems or what appellee was saying to C.W. Further, appellant argues that "[p]ossibly
annoying" appellee and C.W. does not meet the standard for the CPO. (Appellant's Brief at
13.) In her eighth assignment of error, appellant contends the trial court abused its
discretion by issuing a CPO without sufficient evidence since her behavior does not rise to
the level of stalking, and it is inappropriate to use a CPO "merely to create a buffer-zone"
around C.W. (Appellant's Brief at 14.) She argues that her buying the house next door may
create a temporary uncomfortable situation but does not meet the CPO standard. In her
tenth assignment of error, appellant contends the trial court erred in granting the CPO
using the evidence presented. Under this assignment of error, appellant cites to J.T. v. R.T.,
9th Dist. No. 14CA0061-M, 2015-Ohio-4418, to assert that use of bribes, "carrots," and
some threats of action when dealing with children is normal and not a basis to issue a CPO.
(Appellant's Brief at 16.) As to the number of phone calls she makes to appellee, appellant
states "the standard is a legitimate reason for making a call," and her legitimate reasons to
call included dealing with his belongings that were still at her house, giving appellee
reminders, such as to lock his doors or wear his helmet, and addressing "things that need
to be put in order before [she] dies." (Appellant's Brief at 16, 17.) Appellant also cites to
Gannon v. Gannon, 6th Dist. No. WD-07-078, 2008-Ohio-4484, in contending that two
alleged previous occurrences were too old to be considered in support of the CPO.
{¶ 51} Having reviewed the record of the full hearing, we disagree that the trial court
erred in granting the protection order in this case. Record evidence shows an extensive
history, which spans years prior and up to the petition for the CPO, of appellant repeatedly
contacting appellee by phone, email, and appearing at his house. Appellant's repeated
contacts persisted despite her acknowledgment of appellee's lack of response and desire to
be left alone, and she openly discussed and demonstrated her willingness to use police
wellness checks and lawsuits to force appellee to interact with her. In testifying at the full
No. 19AP-52 15
hearing, appellant continued to express her resolve to force appellee to interact with her
despite his wishes. Furthermore, in her emails, text message, and testimony, appellant
accuses appellee's wife, C.W., of unsubstantiated actions, such as showing up at appellant's
places of employment, being involved with people who appellant believes are harassing her
and threatening her, and states appellant would not tolerate C.W.'s harassment anymore.
Appellee submitted as an exhibit an affidavit of C.W. attesting to the fear and anxiety caused
by appellant's behavior and communications, the changes appellee and C.W make in their
daily lives to attempt to avoid her, and the impact the stress and anxiety has had on C.W.'s
health and recovery from a surgery.
{¶ 52} Having carefully considered appellant's arguments, we find this record
contains sufficient evidence to demonstrate appellant engaged in a pattern of conduct that,
regardless of her purpose, she knew would probably cause mental distress for purposes of
R.C. 2903.211. R.C. 2903.211(A)(1) and (2), (D); R.C. 2901.22(B); Dunkin, 2005-Ohio-
3371, at ¶ 16-18. Lias v. Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 14, quoting
Jenkins at ¶ 16 (" 'Purpose or intent to cause physical harm or mental distress is not
required. It is enough that the person acted knowingly.' "). Therefore, appellant's
assignments of error challenging the sufficiency of the evidence to support the CPO lack
merit.
{¶ 53} Accordingly, appellant's seventh, eighth, and tenth assignments of error are
overruled.
F. Appellant's Ninth Assignment of Error
{¶ 54} In her ninth assignment of error, appellant again contends the trial court
erred issuing a CPO without sufficient evidence. Under this assignment of error, appellant
argues that appellee's contention that she is a paranoid schizophrenic is untrue and should
not have been considered by the trial court without the presentation of medical records.
{¶ 55} In this case, the parties presented conflicting testimony regarding whether
appellant has paranoid schizophrenia. Neither party presented medical records. However,
there is no record evidence the trial court based its decision on appellant's alleged
psychological condition. As demonstrated in the seventh, eighth, and tenth assignments of
error above, the record of this case contains sufficient evidence to demonstrate appellant
engaged in a pattern of conduct she knew would probably cause appellee and C.W. mental
No. 19AP-52 16
distress for purposes of R.C. 2903.211. It is, therefore, not clear how the argument
appellant presents here would result in the assignment of error as written, pertaining to
sufficiency of the evidence, being sustained. App.R. 12(A)(1)(b). Regardless, because
appellant presented no legal authority to support this assignment of error, we find appellant
has not demonstrated error on appeal. Sims, 2016-Ohio-4763, at ¶ 11; State v. Hubbard,
10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34; App.R. 16(A)(7); State v. Smith, 9th Dist.
No. 15AP0001n, 2017-Ohio-359, ¶ 22 (noting that it is not the duty of an appellate court to
create an argument on an appellant's behalf).
{¶ 56} Accordingly, appellant's ninth assignment of error is overruled.
G. Appellant's Eleventh Assignment of Error
{¶ 57} Appellant's eleventh assignment of error contends the trial court abused its
discretion by issuing a CPO for the purpose of preventing appellant from purchasing the
house next to appellee's residence. In support of her assignment of error, appellant cites to
what we presume to be R.C. 3113.31(E)(5) for the proposition that a CPO cannot affect title
to real property and three cases—Darden v. Fambrough, 8th Dist. No. 99730, 2013-Ohio-
5583, ¶ 2; Chandler v. Dunn Hardware, Inc., 168 Ohio App.3d 496, 2006-Ohio-4376, ¶ 23
(8th Dist.); and In re Marriage of Muhammad, 153 Wash.2d 795, 805 (2005)—essentially
for the proposition that CPOs should not be used as tactics during employment disputes.
{¶ 58} R.C. 3113.31(E)(5) provides that "[n]o protection order issued or consent
agreement approved under this section shall in any manner affect title to any real property."
It is undisputed that at the time of the CPO hearing, appellant did not own the property
next to appellee's residence, was not in contract to buy that property, or otherwise had any
right to the property in question. Appellant provides no authority applying R.C.
3113.31(E)(5) in these or similar circumstances to prevent the issuance of a CPO. As a
result, appellant has not met her burden to demonstrate error on appeal in this regard.
Sims at ¶ 11; App.R. 12(A)(2) and 16(A)(7); Smith at ¶ 22.
{¶ 59} Furthermore, the record in this case clearly does not implicate that a CPO was
improperly used within the context of an employment dispute. We find appellant's
argument in this regard to be against the record and to lack merit.
{¶ 60} Accordingly, appellant's eleventh assignment of error is overruled.
No. 19AP-52 17
H. Appellant's Fourth and Sixth Assignments of Error
{¶ 61} Appellant's fourth and sixth assignments of error challenge certain
conditions imposed in the CPO as unsupported by the evidence. As provided previously,
the scope and duration of a CPO is within the sound discretion of the trial court and will
not be reversed on appeal absent a showing that the decision was arbitrary, unconscionable,
or unreasonable. Campbell, 2010-Ohio-2909, at ¶ 11; T.S., 2018-Ohio-4987, at ¶ 27.
{¶ 62} In her fourth assignment of error, appellant contends the trial court abused
its discretion by preventing her from owning or carrying a firearm. She contends she does
not own a gun, and the evidence shows she never made any violent threats, let alone with a
gun.
{¶ 63} Appellant cites to Lerner v. Giolekas, 8th Dist. No. 102768, 2016-Ohio-696,
and Boals v. Miller, 5th Dist. No. 10-COA-039, 2011-Ohio-1470, in support of her
assignment of error. In Lerner, after vacating a protection order and ordering a new
hearing, the Eighth District Court of Appeals held that should the trial court issue another
protection order on remand, "there must be competent, credible evidence that prohibiting
[the petitioner] from having firearms or weapons bears a sufficient nexus to the conduct
that the trial court is attempting to prevent." (Citation omitted.) Lerner at ¶ 52. In Boals,
the Fifth District Court of Appeals found the trial court abused its discretion when it
prohibited the respondent from possessing firearms because the evidence in the record
does not support the restriction where the protection order was based on the petitioner's
demonstration of a reasonable fear of imminent physical harm, and no record evidence
showed the respondent threatened the petitioner with physical harm with a deadly weapon.
{¶ 64} We find Boals—a case based on the fear of imminent physical harm, rather
than a case based on mental distress caused by stalking behavior—to be factually
distinguishable from the case at hand. Moreover, appellant has not demonstrated the
restriction is unrelated to this particular CPO on the record of this case. In appellee's
affidavit in support of the ex parte CPO, in addition to discussing appellant's telephone
harassment, stalking, and trespassing for years, her untreated mental condition, and veiled
threats she makes to C.W., he states, "[i]n the past [appellant] has talked about getting a
gun." (Addendum to Petition for Civil Protection Order at 1.) In C.W.'s affidavit provided
as an exhibit at the hearing, C.W. avers: "I can remember she left voicemails a few years ago
No. 19AP-52 18
talking about how she was thinking of getting a gun. More recently she left my husband
text messages stating that she had gotten a pellet rifle and was going to 'get a hunting
license.' " (Aff. at 3.) In an email provided as an exhibit, appellant states she received a
tactical rifle from Amazon and that Amazon did not know who it belonged to and to keep
it. A text message from appellant to appellee that day urges appellant to call her because
she received an "M4 by mistake" and asking him if it is real. (Mar. 17, 2017 Text Message
at 1.) About one month later, appellant texts, "I learned how to kill raccoons with a pellet
rifle. Amazon hasn't called back so I'm opening that M4 and getting a raccoon license."
(June 25, 2017 Text Message at 1.) At trial, appellee testified appellant had a "122 Lancer
Tactical," which he described as a 22-caliber pellet rifle capable of killing small game. (Tr.
at 39.) The protection order ultimately proscribed: "RESPONDENT SHALL NOT
POSSESS, USE, CARRY, OR OBTAIN ANY DEADLY WEAPON at any time while the Order
remains in effect."3 (Emphasis sic.) (Order of Protection at 3.)
{¶ 65} Having considered the evidence presented regarding appellant's expressed
desire to obtain a gun within the context of the entire record and the protection order issued
in this case, we cannot say the trial court's decision to impose a restriction on appellant
against possessing, using, carrying, or obtaining any deadly weapon was arbitrary,
unconscionable, or unreasonable. Therefore, the trial court has not abused its discretion,
and we will not reverse its decision in this regard. Campbell at ¶ 11; T.S. at ¶ 27.
{¶ 66} In her sixth assignment of error, appellant contends the trial court erred in
issuing the CPO for five years. She contends her serious health condition is a mitigating
circumstance that would warrant consideration of a duration of less than five years.
{¶ 67} Taking into consideration appellant's long pattern of conduct toward
appellee and testimony expressing her unwillingness to stop contacting appellee in the
future, we cannot conclude the trial court's decision to issue a CPO for a period of five years
was unreasonable, arbitrary, or unconscionable. Lias, 2007-Ohio-5737, at ¶ 36 (finding
trial court did not abuse its discretion in setting a five-year duration of a protection order
where the record showed an extensive pattern of unwanted conduct with the petitioner).
3Because no specific weapons were indicated for appellant to turn over to law enforcement, the trial court
apparently did not view the pellet gun referenced in the record as a deadly weapon or appellant's possession
of it as the basis for imposing the restriction.
No. 19AP-52 19
Therefore, on this record, the trial court's decision to issue a CPO for a period of five years
was within its discretion and within the authority of the court.
{¶ 68} Accordingly, appellant's fourth and sixth assignments of error are overruled.
V. CONCLUSION
{¶ 69} Having overruled appellant's eleven assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgment affirmed.
KLATT, P.J., and DORRIAN, J., concur.
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