C.K. v. D.K. , 2022 Ohio 647 ( 2022 )

[Cite as C.K. v. D.K., 2022-Ohio-647.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
C. K. C.A. No. 21CA011733
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
D. K. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 19DV086303
DECISION AND JOURNAL ENTRY
Dated: March 7, 2022
CARR, Presiding Judge.
{¶1} Appellant, D.K., appeals the judgment of the Lorain County Court of Common
Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} D.K. and C.K were married in 1996. Two children were born of the marriage- a
son, W.K. and a daughter, M.K. Several weeks after C.K. filed a petition for divorce in early
June of 2019, D.K. drove to the marital residence with C.K.’s permission to discuss several
matters. D.K. informed C.K. that he was set to lose his job. When D.K. broached the subject of
reconciliation, the conversation grew contentious. C.K. went into her bedroom to retrieve her
purse so that she could leave the house. D.K. blocked the door to prevent C.K. from exiting the
bedroom. When C.K. eventually made her way to the garage, D.K. grabbed her phone out of her
hand. During the struggle, C.K.’s purse fell to the ground. D.K. took C.K.’s phone to his
vehicle and retrieved a handgun that he had recently purchased. C.K. called 911. D.K.
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proceeded to walk into the nearby woods and fire a gunshot. Based on prior comments, C.K.
feared that D.K. had committed suicide. When D.K. emerged from the woods he was placed
under arrest by officers who had responded to the scene.
{¶3} The following day, on June 27, 2019, C.K. filed a petition for a domestic violence
civil protection order against D.K. on behalf of herself and the children. The trial court granted
an ex parte civil protection order and set the matter for a full hearing. After the full hearing, at
which D.K. did not appear, the trial court issued a five-year domestic violence civil protection
order that identified C.K., W.K., and M.K. as protected parties.
{¶4} On August 23, 2019, D.K. filed a motion to either modify or terminate the
protection order. After a hearing, the magistrate issued a decision denying D.K.’s motion. D.K.
filed objections to the magistrate’s decision and C.K. filed a brief in opposition to the objections.
Thereafter, the trial court issued a decision overruling D.K.’s objections and adopting the
magistrate’s decision as the order of the court.
{¶5} D.K. subsequently filed a second motion to modify the protection order on
November 13, 2020, wherein he sought to remove his children as protected parties. C.K. filed a
motion for Civ.R. 11 sanctions on the basis that D.K.’s motion was groundless and filed only for
the purposes of harassment. The trial court held a hearing on the pending motions via Zoom.
The trial court subsequently issued a journal entry denying both the motion for modification of
the protection order as well as the motion for sanctions.
{¶6} On appeal, D.K. raises five assignments of error.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S DECISION DENYING THE MOTION TO REMOVE
THE MINOR CHILDREN FROM THE CIVIL PROTECTION ORDER WAS
AN ABUSE OF DISCRETION[.]
{¶7} In his first assignment of error, D.K. contends that the trial court abused its
discretion in denying his motion to modify the civil protection order. This Court disagrees.
{¶8} This Court reviews a trial court’s order ruling on a motion for modification of a
civil protection order for an abuse of discretion. J.M. v. L.J., 9th Dist. Lorain No. 19CA011549,
2020-Ohio-4419, ¶ 11. An abuse of discretion is more than an error of judgment; it means that
the trial court was unreasonable, arbitrary or unconscionable in its ruling. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶9} “Either the petitioner or the respondent of the original protection order or consent
agreement may bring a motion for modification or termination of a protection order or consent
agreement that was issued or approved after a full hearing.” R.C. 3113.31(E)(8)(b). “The court
may modify or terminate as provided in division (E)(8) of this section a protection order or
consent agreement that was issued after a full hearing under this section.” R.C.
3113.31(E)(8)(a). “The moving party has the burden of proof to show, by a preponderance of
the evidence, that modification or termination of the protection order or consent agreement is
appropriate because either the protection order or consent agreement is no longer needed or
because the terms of the original protection order or consent agreement are no longer
appropriate.” R.C. 3113.31(E)(8)(b).
In considering whether to modify or terminate a protection order or consent
agreement issued or approved under this section, the court shall consider all
relevant factors, including, but not limited to, the following:
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(i) Whether the petitioner consents to modification or termination of the
protection order or consent agreement;
(ii) Whether the petitioner fears the respondent;
(iii) The current nature of the relationship between the petitioner and the
respondent;
(iv) The circumstances of the petitioner and respondent, including the relative
proximity of the petitioner’s and respondent’s workplaces and residences and
whether the petitioner and respondent have minor children together;
(v) Whether the respondent has complied with the terms and conditions of the
original protection order or consent agreement;
(vi) Whether the respondent has a continuing involvement with illegal drugs or
alcohol;
(vii) Whether the respondent has been convicted of, pleaded guilty to, or been
adjudicated a delinquent child for an offense of violence since the issuance of the
protection order or approval of the consent agreement;
(xiii) Whether any other protection orders, consent agreements, restraining orders,
or no contact orders have been issued against the respondent pursuant to this
section, section 2919.26 of the Revised Code, any other provision of state law, or
the law of any other state;
(ix) Whether the respondent has participated in any domestic violence treatment,
intervention program, or other counseling addressing domestic violence and
whether the respondent has completed the treatment, program, or counseling;
(x) The time that has elapsed since the protection order was issued or since the
consent agreement was approved;
(xi) The age and health of the respondent;
(xii) When the last incident of abuse, threat of harm, or commission of a sexually
oriented offense occurred or other relevant information concerning the safety and
protection of the petitioner or other protected parties.
R.C. 3113.31(E)(8)(c).
{¶10} In his most recent motion for modification of the civil protection order, D.K.
sought to remove his children as protected parties. D.K. noted that it had been 15 months since
the incident which gave rise to the protection order, that W.K. had recently reached the age of
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majority, and that D.K. and C.K. were close to finalizing their divorce. D.K. attached an
affidavit wherein he averred that he had missed notable events in his children’s lives such
graduations, sporting events, and birthdays. D.K. contended that W.K. was now an adult who
could “speak for himself” regarding whether the protection order was necessary. D.K. further
argued that M.K.’s inclusion in the protection order had prevented him from seeking parental
rights in the divorce proceeding.
{¶11} The parties convened for a hearing on the motion for modification on the same
day that the divorce proceeding was finalized. D.K. introduced a certificate showing that he had
participated in a four-hour class on recognizing and defusing potential domestic violence
situations. D.K. was also seeking ongoing treatment for depression and anxiety. D.K.
acknowledged that he was convicted of one count of violating the protection order in the Elyria
Municipal Court. D.K. explained that he sought to modify the protection order because he
wanted to reestablish a relationship with his children and bring additional love and care to their
lives.
{¶12} C.K. testified that she did not consent to the modification because she continued
to fear for her children’s safety. C.K. indicated that prior to the issuance of the protection order,
D.K. told her that he no longer considered W.K. and M.K. to be his children. C.K. testified that
M.K. had not expressed a desire for the protection order to be modified.
{¶13} C.K. suggested that D.K. had engaged in a pattern of behavior aimed at getting
back at her that had disrupted the lives of the children. C.K. explained that there is an Amazon
Alexa in the house where she resides with M.K. and W.K. On one occasion, the “drop-in
feature” on the Alexa was activated. C.K. testified that she did not activate the feature and that
the only other person with the capability to do so was D.K. C.K. further suggested that D.K.
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disrupted mail service to the home when he did a change of address for the entire household. In
the fall of 2019, C.K. discovered that her debit card had been cancelled. D.K. was the only
person other than herself who could have accessed the card’s account. C.K. also suggested that
there was a situation in June 2020 when the OnStar services on her vehicle were activated. D.K.
was the only other person with the information necessary to activate those services which
allowed the location of her vehicle to be tracked. When the trial court inquired of C.K. regarding
her opinion that D.K. had done hurtful things to the children, C.K. discussed additional incidents,
including an occasion where D.K. locked W.K. out of his Xbox Live account. D.K. changed the
password which prevented W.K. from accessing the system. This meant that W.K. was unable to
use several hundred dollars’ worth of games that he had purchased.
{¶14} When W.K. took the witness stand, he indicated that he did not want the
protection order to be modified because he feared for his safety around D.K. W.K. suggested
that D.K. bullied him. W.K. testified about an occasion in January 2020 when he became
uncomfortable because he saw D.K. drive through the campus at his high school.1 W.K. further
observed D.K. drive by the house where he lives with his mother and his sister on at least a half
dozen occasions. On cross-examination, W.K. explained that he was not troubled by the fact that
D.K. could not attend his high school graduation. When the trial court asked W.K. to expand on
his reference to bullying, W.K. described an incident in 2018 where W.K. intentionally
embarrassed him in front of a friend who was at their house to work on a school project. W.K.
has a strong dislike of clowns of which D.K. was well aware. When the friend’s mother arrived
to provide a ride home, D.K. started telling the mother about W.K.’s issues with clowns. In front
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W.K. indicated that this incident occurred in January of 2020. W.K. noted that he had
since graduated from high school and enrolled at the University of Akron.
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of his friend and his friend’s mother, D.K. turned on the television and played a scene from a
movie that made W.K. extremely uncomfortable. W.K. testified that D.K. played the scene with
the aim of embarrassing W.K.
{¶15} In denying D.K.’s motion for modification of the protection order, the trial court
reviewed the factors set forth in R.C. 3113.31(E)(8)(c) and made numerous findings. In addition
to finding that none of the protected parties consented to modification, the trial court determined
that there was credible testimony that both M.K. and W.K. continued to fear D.K. The trial court
noted that C.K. and D.K. had recently concluded a contentious divorce proceeding and that C.K.
had sincere concerns that D.K. might use his relationship with M.K to get back at her.
Furthermore, the trial court discussed several events where D.K. had engaged in disruptive
behavior and found that he had failed to comply with the terms of the protection order on
multiple occasions. The trial court concluded that D.K. had failed to demonstrate by a
preponderance of the evidence that a modification of the protection order in regard to W.K. and
M.K. was warranted.
{¶16} On appeal, D.K. stresses that he was only required to prove by a preponderance of
the evidence that the terms of the original protection order were no longer appropriate. It is well
settled that the “[p]reponderance of the evidence entails the greater weight of the evidence,
evidence that is more probable, persuasive, and possesses greater probative value.” (Internal
quotations and citations omitted). In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-Ohio-
2685, ¶ 7; State v. Leatherwood, 9th Dist. Summit No. 15132, 1991 WL 262890, *1 (Dec. 11,
1991) (“[p]reponderance of the evidence means the greater weight of the evidence, that is
evidence that outweighs or overbalances the evidence opposed to it.”). D.K. contends that, in
light of the evidence presented at the hearing, the trial court abused its discretion when it
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determined that he failed to meet the preponderance standard in regard to removing W.K. and
M.K. from the protection order.
{¶17} After a careful review of the record, we cannot say that the trial court’s decision
to deny the motion was unreasonable, arbitrary, or unconscionable. D.K. presented evidence
showing that he had completed a four-hour domestic violence class and that he was seeking
treatment for depression and anxiety. Notably, however, the vast majority of the evidence
presented at the hearing did not support the conclusion that the protection order should be
modified. W.K. testified that he feared being around his father and that he did not want the
protection order to be modified. C.K. gave similar testimony with respect to M.K., indicating
that she feared D.K. might use his relationship with M.K. to get back at C.K. Although D.K.
now argues that this line of testimony was purely speculative, W.K. and C.K. detailed a number
of events which suggested that D.K. had disrupted the children’s lives. Furthermore, while D.K.
disputes the trial court’s findings that he repeatedly drove by the marital residence, that he drove
to W.K.’s high school, and that he activated the OnStar services on C.K.’s vehicle, this Court
remains mindful that the trial court was in the best position to resolve credibility issues. See
State v. P.J.M., 8th Dist. Cuyahoga No. 109017, 2020-Ohio-3805, ¶ 31. Under these
circumstances, we cannot say the trial court abused its discretion in denying D.K.’s motion.
{¶18} In light of the foregoing, the first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S DECISION DENYING THE MOTION TO REMOVE
THE MINOR CHILDREN FROM THE CIVIL PROTECTION ORDER WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AS WELL AS
THE SUFFICIENCY OF THE EVIDENCE[.]
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ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE
MOTION TO REMOVE THE MINOR CHILDREN FROM THE CIVIL
PROECTION ORDER[.]
{¶19} D.K. couches his second assignment of error in terms of the sufficiency of the
evidence and the weight of the evidence. In his third assignment of error, D.K. suggests the trial
court erred as a matter of law in denying his motion for a modification of the protection order.
{¶20} “When reviewing a challenge related to a civil protection order, ‘our standard of
review depends on the nature of that challenge.’” Schneider v. Razek, 8th Dist. Cuyahoga Nos.
100939, 101011, 2015-Ohio-410, ¶ 39, quoting Allan v. Allan, 8th Dist. Cuyahoga No. 101212,
2014-Ohio-5039, ¶ 11. When a trial court either issues a protection order in the first instance or
renews the initial protection order, this Court reviews the evidence presented in support of the
protection order to determine whether sufficient evidence was presented or whether the
protection order is against the weight of the evidence. See Lundin v. Niepsuj, 9th Dist. Summit
No. 28223, 2017-Ohio-7153, ¶ 18-19. Significantly, the instant appeal does not involve a trial
court order granting an initial petition for a protection order or a motion for renewal. Instead, the
instant appeal involves the trial court’s denial of a motion to modify a protection order. A trial
court’s ruling on a motion to modify or terminate a protection order is reviewed for an abuse of
discretion. Brown v. Naff, 2d Dist. Miami No. 2011-CA-17, 2012-Ohio-1770, ¶ 9; Razek at ¶ 40.
{¶21} In support of his second and third assignments of error, D.K. cites a number of
cases where the issuance of protection orders pertaining to children were reversed on direct
appeal because the petitioners failed to carry their evidentiary burden. D.K. repeatedly argues
that there was no evidentiary basis to include the children in the protection order in the first
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instance, let alone remain on the protection order. D.K. points to the “uncontroverted fact” that
neither child was present during the incident which originally gave rise to the protection order.
{¶22} To the extent that D.K. challenges the evidentiary foundation underpinning the
initial protection order issued in 2019, he is barred from raising those issues at this time. The
doctrine of res judicata bars any claims between the parties that were either litigated or could
have been litigated in a prior proceeding. See Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-
2805, ¶ 7. As issues pertaining to the initial issuance of the protection order could have been
raised in a direct appeal, but were not, D.K. is now barred from raising them under the doctrine
of res judicata. See Brooks at ¶ 7.
{¶23} To the extent that D.K. contends that the trial court should have modified the
protection order in light of the evidence presented at the modification hearing, we note that we
addressed this issue in resolving D.K.’s first assignment of error and concluded that the trial
court did not abuse its discretion in denying the motion to modify the protection order. See
Discussion of Assignment of Error I, supra.
{¶24} The second and third assignments of error are overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED AS A MATTER OF LAW BY INCLUDING THE
MINOR CHILDREN AS PROTECTED PARTIES[.]
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED PLAIN ERROR BY INCLUDING THE
MINOR CHILDREN AS PROTECTED PARTIES[.]
{¶25} In his fourth and fifth assignments of error, D.K. raises an array of legal
arguments wherein he contends that the children should have never been included in the
protection order at the time it was first issued in 2019. D.K. goes as far as to suggest that the
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trial court committed plain error when it initially listed W.K. and M.K. as protected parties.
These issues are barred by res judicata as they could have been raised at an earlier stage in the
proceedings. See Brooks at ¶ 7.
{¶26} D.K.’s fourth and fifth assignments of error are overruled.
III.
{¶27} D.K.’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas, Domestic Relations Division is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file 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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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TEODOSIO, J.
SUTTON, J.
CONCUR.
APPEARANCES:
MICHAEL J. TONY, Attorney at Law, for Appellant.
SCOTT R. SYLKATIS, Attorney at Law, for Appellee.