Kruszynski v. Kruszynski

[Cite as Kruszynski v. Kruszynski, 2013-Ohio-3355.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ZBIGNIEW S. KRUSZYNSKI JUDGES:
Hon. William B. Hoffman, P.J.
Respondent-Appellant Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 12-CA-133
AMY KRUSZYNSKI
Petitioner-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case No. 12-CV-989
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 29, 2013
APPEARANCES:
For Respondent-Appellant For Petitioner-Appellee
LISA A. WAFER AMY KRUSZYNSKI, PRO SE
Saia & Piatt, Inc. 140 Leasure Drive
713 S. Front St. Pickerington, Ohio 44147
Columbus, Ohio 43206
Fairfield County, Case No. 12-CA-133 2
Hoffman, P.J.
{¶1} Respondent-appellant Zbigniew S. Kruszynski appeals the October 31,
2012 Entry entered by the Fairfield County Court of Common Pleas, which granted a
civil stalking protection order in favor of petitioner-appellee Amy Kruszynski.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and Appellee were married in 2002, and have been separated
since the end of 2008. Their divorce action, which has been pending since August 9,
2010, is stayed as the result of Appellant’s filing bankruptcy. The domestic relations
court issued a temporary Shared Parenting Plan relative to the parties’ son, A.K. All
parenting exchanges occur at the Pickerington Police Department. Appellee currently
resides with A.K. as well as her boyfriend, Steve Holcomb.
{¶3} On September 14, 2012, Appellee filed a Petition for Civil Stalking
Protection Order pursuant to R.C. 2903.214. Therein, Appellee sought protection from
Appellant for herself, her son, and Holcomb. The trial court issued an ex-parte order
against Appellant.
{¶4} The trial court conducted a two-day hearing on Appellee’s petition on
September 26, 2012, and October 5, 2012. The parties presented conflicting testimony
as to several incidents which allegedly occurred between them during the course of
their relationship.
{¶5} Appellee testified Appellant, over the past months, had engaged in erratic
driving; dangerous tailgating, verbal and non-verbal insults, obscenities, threats, and
physical abuse. Appellee noted these behaviors and actions caused her to be fearful of
Appellant. Appellee recalled, on Thanksgiving, 2011, she, Holcomb, and some family
Fairfield County, Case No. 12-CA-133 3
members were in two vehicles traveling to a relative’s house. Appellee and Holcomb
were in the front vehicle; Holcomb was driving. The vehicles were at an intersection,
making a right-hand turn. Appellee observed Appellant in his vehicle on the opposite
side of an intersection. Appellant came through the light, cut off another vehicle, and
proceeded to closely and dangerously tailgate Appellee and Holcomb. Appellant was
so close, Appellee could see him screaming and gesturing. Appellee also testified
about the parenting exchanges at the Pickerington Police Station. She described how
Appellant would follow her home, screaming obscenities and gesturing like he was
cutting her throat. Appellee explained she waits for Appellant to depart first in order to
avoid these situations, and takes alternative routes home.
{¶6} Appellee further discussed the verbal and physical abuse Appellant
inflicted upon her when they lived together as well as after their separation. One
morning when Appellee was dropping their son at school, Appellant approached,
slammed her against a car, and shoved his fist into her stomach.
{¶7} Appellant denied all of Appellee’s allegations.
{¶8} Following the hearing, the parties filed post-hearing briefs. Via Entry filed
October 21, 2012, the trial court granted Appellee’s petition for civil stalking protection
order as to Appellee herself, but denied the petition as to the parties’ son and Appellee’s
boyfriend.
{¶9} It is from this entry Appellant appeals, raising as his sole assignment of
error:
Fairfield County, Case No. 12-CA-133 4
{¶10} “I. THE TRIAL COURT ERRED BY GRANTING PETITIONER-APPELLEE
AMY KRUSZYNSKI A CIVIL STALKING PROTECTION ORDER PURSUANT TO R.C.
2903.214.”
I
{¶11} The decision whether to grant a civil protection order lies within the sound
discretion of the trial court. Olenik v. Huff, 5th Dist. Ashland No. 02-COA-058, 2003-
Ohio-4621, at ¶ 21. Therefore, an appellate court should not reverse the decision of the
trial court absent an abuse of discretion. In order to find an abuse of discretion, this
court must determine that the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶12} Further, a judgment supported by some competent, credible evidence will
not be reversed by a reviewing court as against the manifest weight of the evidence.
C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578(1978). A reviewing court must not substitute its judgment for that of the trial court
where there exists some competent and credible evidence supporting the judgment
rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993-Ohio-9, 614
N.E.2d 742. The underlying rationale for giving deference to the findings of the trial
court rests with the knowledge the trial judge is best able to view the witnesses and
observe their demeanor, gestures, and voice inflections, and use these observations in
weighing the credibility of the proffered testimony. Seasons Coal Co. v. City of
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
Fairfield County, Case No. 12-CA-133 5
{¶13} R.C. 2903.214 governs the issuance of civil stalking protection orders, and
reads, in relevant part:
(C) A person may seek relief under this section for the person, or
any parent or adult household member may seek relief under this section
on behalf of any other family or household member, by filing a petition with
the court. The petition shall contain or state all of the following:
(1)An allegation that the respondent is eighteen years of age or
older and engaged in a violation of section 2903.211 of the Revised Code
against the person to be protected by the protection order or committed a
sexually oriented offense against the person to be protected by the
protection order, including a description of the nature and extent of the
violation;
{¶14} R.C. 2903.211 defines the offense of “menacing by stalking”:
(A)(1) 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 cause mental distress to the other
person.
{¶15} R.C. 2903.211 further provides as follows:
(D) As used in this section:
(1) “Pattern of conduct” means 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.
Fairfield County, Case No. 12-CA-133 6
{¶16} “R.C. 2903.211(D)(1) does not require that a pattern of conduct be proved
by events from at least two different days. Arguably, a pattern of conduct could arise out
of two or more events occurring on the same date, provided that there are sufficient
intervals between them.” State v. Scruggs, 136 Ohio App.3d 631, 634, 737 N.E.2d 574(2000). One incident is insufficient to establish a “pattern of conduct.” Id. The statute
does not define the term “closely related in time,” but case law suggests the trier of fact
should consider the evidence in the context of all circumstances of the case.
Middletown v. Jones, 167 Ohio App.3d 679, 856 N.E.2d 1003, 2006–Ohio–3465 (12th
Dist.). Trial courts may take every action into consideration, even if some actions in
isolation would not seem particularly threatening. Guthrie v. Long, 10th Dist. No. 04AP–
913, 2005–Ohio–1541.
{¶17} R.C. 2903.211(D) further provides:
(2) “Mental 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.
{¶18} Appellant argues Appellee failed to prove by a preponderance of the
evidence that Appellant engaged in a pattern of conduct to knowingly cause Appellee to
be in fear of physical harm or cause Appellee mental distress. Appellant states the
incidents cited by the trial court cannot establish a pattern of conduct that could cause
Fairfield County, Case No. 12-CA-133 7
Appellee to be in fear of physical harm because the incidents of erratic driving and
tailgating Appellee described had not occurred for at least a few months before
Appellee filed her petition and there was only one incident in the two months preceding
the hearing.
{¶19} The pattern of conduct can be as few as two incidents, and the statute
does not specifically set forth what “closely in time” means. In State v. Dario, 106 Ohio
App.3d 232, 665 N.E.2d 759 (1st Dist.1995), the First District determined that the trier or
fact must decide on a case-by-case basis in the context of all of the circumstances
whether the instances are close in time. Similarly, in Middletown v. Jones, 167 Ohio
App.3d 679, 2006–Ohio–346 (12th Dist.), the Twelfth District stated the trier of fact
should consider the totality of the circumstances of the case when determining whether
the incidents were closely related in time.
{¶20} The trial court found Appellant’s actions in verbally insulting Appellee;
driving erratically in tailgating Appellee; and making inappropriate hand gestures to
Appellee occurred within a span of a few months and constituted a pattern of conduct.
We agree. The fact Appellant stopped or decreased the conduct following Appellee’s
filing of the petition and prior to the hearing does not negate the fact he had engaged in
a pattern of conduct.
{¶21} Appellant further contends Appellee failed to establish his conduct caused
her to suffer emotional distress. The trial court found Appellee believed Appellant would
cause her mental distress and physical harm. We held in Coleridge v. Tomsho, 5th Dist.
Stark No. 2002CA00280, 2003–Ohio–650, that R.C. 2903.211 was written in the
disjunctive. A petitioner can establish a fear of physical harm or mental distress.
Fairfield County, Case No. 12-CA-133 8
Appellee testified she was fearful of Appellant and experienced anxiety as a result of his
actions.
{¶22} Upon review, we find the trial court did not abuse its discretion by issuing
the CSPO. The CSPO was not against the manifest weight of the evidence and it is
supported by sufficient evidence. Appellee testified to a pattern of conduct by Appellant
which caused Appellee to fear physical harm and caused her to be fearful of Appellant.
Civil stalking protection order cases most often turn on the credibility of the witnesses
and in this case, the trial court obviously found Appellee to be more credible than
Appellant.
{¶23} Appellant’s sole assignment of error is overruled.
{¶24} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN
Fairfield County, Case No. 12-CA-133 9
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ZBIGNIEW S. KRUSZYNSKI :
:
Respondent-Appellant :
:
-vs- : JUDGMENT ENTRY
:
AMY KRUSZYNSKI :
:
Petitioner-Appellee : Case No. 12-CA-133
For the reasons stated in our accompanying Opinion, the judgment of the
Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN