J.M. v. M.M.

[Cite as J.M. v. M.M., 2016-Ohio-5368.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
J. M. C.A. No. 15CA0057-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
M. M. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 15DV0113
DECISION AND JOURNAL ENTRY
Dated: August 15, 2016
SCHAFER, Judge.
{¶1} Respondent-Appellant, M.M. (“Father”), appeals the judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, granting a domestic violence civil
protection order in favor of Petitioner-Appellee, J.M. (“Mother”), and their two children, G.M.
and A.M. We reverse.
I.
{¶2} Mother and Father were divorced in 2008 after approximately 15 years of
marriage. The parties have two minor children, G.M., and A.M. As part of the parties’ shared
parenting plan, Father was granted parenting time with his three children. In 2014, Father was
exercising his parenting time when a physical altercation transpired between him and his two
teenage sons, G.M. and A.M. This altercation resulted in G.M. and A.M. being charged with
aggravated assault against their father in the Medina County Court of Common Pleas, Juvenile
Division, where the Juvenile Court ultimately adjudicated the children delinquent. The Juvenile
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Court ordered that Father’s parenting time with his children be held only in public places and
prohibited Father from transporting G.M. and A.M. If G.M. and A.M. did not cooperate with the
Juvenile Court’s visitation order, they faced a potential penalty of 86 days in juvenile detention.
{¶3} On May 15, 2015, Mother and Father agreed to meet in a public place so that
Father could exercise his parenting time with G.M. and A.M. The location that the parties
mutually selected was a McDonald’s restaurant in Jackson Township, Ohio, which is located
directly across the street from Walsh University. Mother testified that she and her two sons
arrived at the McDonald’s at 6:00 p.m. and waited inside the restaurant for Father to arrive.
According to Mother, Father’s mother arrived to pick up the children and take them back to her
house where they would visit with Father. However, G.M. and A.M. both refused to go with
their grandmother because they were only permitted to visit with their father in a public place,
per the Juvenile Court’s visitation order. The grandmother then called Father and informed him
of the children’s refusal to go home with her. Father subsequently drove to the McDonald’s to
confront his sons and ex-wife.
{¶4} Mother testified that when Father arrived at the McDonald’s, he appeared very
agitated and instructed his sons to leave with their grandmother or else he would call the police
and have them sent to juvenile detention. G.M. and A.M. again refused to leave, citing the
Juvenile Court’s visitation order. According to Mother, Father sat down nearly on top of A.M. in
one of the booths and yelled in A.M.’s ear that if he and his brother did not leave with their
grandmother, they would go to juvenile detention. Mother testified that Father’s actions and
demeanor made G.M. feel uncomfortable, to the point where G.M. walked away and sat down at
another table. When the boys again refused to leave the McDonald’s, Father began filming
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everybody on his cellphone, which Mother said frightened and intimidated her. Father then
called the police and walked outside of the restaurant.
{¶5} Two police officers soon arrived at the scene, where one officer spoke with Father
and the two children outside of the restaurant while the other officer spoke to Mother inside of
the McDonald’s. G.M. and A.M. soon rejoined their mother inside of the restaurant, where they
all waited for Father to drive away. When Father did not leave after several minutes, one of the
officers escorted Mother and her two sons to their vehicle. As Mother attempted to drive out of
the McDonald’s parking lot, she observed Father in his truck waiting for them to leave, as if he
was going to follow them once they pulled out of the McDonald’s driveway. Sensing that Father
was trying to follow them, Mother quickly drove across the street into the Walsh University
parking lot in an effort to lose Father. However, Father quickly followed Mother’s vehicle and
“chase[d] [her] through the parking lot” at a speed of approximately 20 miles per hour. Upon
noticing Father driving “on [her] tail,” Mother elected to turn around and drive back to the
McDonald’s parking lot, where the police officers were still located. Upon entering the
McDonald’s parking lot, one of the police officers waved for Mother to drive back towards him.
Father followed Mother’s vehicle in his truck, but when the police officers approached his truck,
Father drove away.
{¶6} On May 18, 2015, Mother petitioned for a domestic violence civil protection
order on behalf of herself and the parties’ three children, C.M., G.M., and A.M. A magistrate
held a full evidentiary hearing on Mother’s petition on May 25, 2015. At the full hearing, both
parties were represented by counsel, were provided with an opportunity to testify and ask
questions of the other party, and were given an opportunity to present evidence. Mother testified
at the full hearing that Father’s conduct on the day in question made her feel intimidated, unsafe,
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and afraid. Mother stated that she filed for the domestic violence civil protection order because
she was “scared to death of [Father]”, not only because of his actions on the day in question, but
also because of his “lengthy history of abuse” against her and their children, which has transpired
“numerous times over multiple years.”
{¶7} At the conclusion of the hearing, the magistrate issued a five-year domestic
violence civil protection order that named Mother, G.M., and A.M. as protected persons. The
trial court approved and adopted the domestic violence civil protection order.
{¶8} Father filed this timely appeal, raising three assignments of error for this Court’s
review.
II.
Assignment of Error I
The trial court erred as a matter of law and abused its discretion in finding
by a preponderance of the evidence that [Petitioner] or [Petitioner’s] family
or household members are in danger or have been a victim of domestic
violence or sexually oriented offenses denied in R.C. 3113.31(A) committed
by [Respondent].
{¶9} In his first assignment of error, Father argues that Mother failed to offer sufficient
evidence to support the issuance of a domestic violence civil protection order against him.
Specifically, Father contends that Mother presented insufficient evidence demonstrating that
Father committed an act of domestic violence against either her or their children. We agree.
{¶10} “‘In order to grant a [domestic violence civil protection order], the court must
conclude that the petitioner has demonstrated by a preponderance of the evidence that the
petitioner * * * [is] in danger of domestic violence.’” M.K. v. J.K., 9th Dist. Medina No.
13CA0085–M, 2015–Ohio–434, ¶ 7, quoting B.C. v. A.S., 9th Dist. Medina No. 13CA0020–M,
2014–Ohio–1326, ¶ 7. When assessing the sufficiency of the evidence for a trial court's decision
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to grant a civil protection order, “we must determine whether, viewing the evidence in the light
most favorable to [the petitioner], a reasonable trier of fact could find that the petitioner
demonstrated by a preponderance of the evidence that a civil protection order should issue.”
R.C. v. J.G., 9th Dist. Medina No. 12CA0081–M, 2013–Ohio–4265, ¶ 7, citing Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, ¶ 11, and State v. Jenks, 61 Ohio St. 3d 259
(1991), paragraph two of the syllabus. A sufficiency challenge tests the adequacy of the
evidence. Eastley at ¶ 11. In applying the sufficiency standard, “‘we neither resolve evidentiary
conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of
fact.’” State v. Jarvis, 9th Dist. Lorain No. 14CA010667, 2015-Ohio-4219, ¶ 10, quoting State
v. Jones, 1st Dist. Hamilton Nos. C–120570, C–120571, 2013–Ohio–4775, ¶ 33.
{¶11} Here, the trial court decided to issue the domestic violence civil protection order
based on its determination that the parties are “family or household members” as the phrase is
defined in R.C. 3113.31(A)(3), that Mother or members of Mother’s family or household are in
danger of or have been a victim of domestic violence by Father, and that the issuance of a
domestic violence civil protection order is “equitable, fair, and necessary to protect” Mother and
her children from future domestic violence. Father does not contest the trial court’s finding that
he and the Petitioners are family or household members. Rather, Father disputes the trial court’s
finding that he committed an act of “domestic violence,” as the phrase is defined under Ohio law.
{¶12} As defined in R.C. 3113.31(A)(1), the phrase “domestic violence” means the
occurrence of one or more of the following acts against a family or household member:
(a) Attempting to cause or recklessly causing bodily injury;
(b) 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;
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(c) Committing any act with respect to a child that would result in the child being
an abused child, as defined in section 2151.031 of the Revised Code;
(d) Committing a sexually oriented offense.
In its order granting Mother’s petition for a domestic violence civil protection order, the trial
court did not specify which subsection of R.C. 3113.31(A)(1) that Father was found to have
committed. At the outset, we note that the only three subsections even remotely applicable to the
facts in the instant matter are R.C. 3113.31(A)(1)(a), (b), and (c). As such, we will address each
relevant subsection of R.C. 3113.31(A)(1) to determine whether sufficient evidence was
presented at the full hearing to justify the trial court’s issuance of a domestic violence civil
protection order.
A. Attempting to Cause or Recklessly Causing Bodily Injury
{¶13} The magistrate might have found Father to have violated section A of this
provision which prohibits “attempting to cause or recklessly causing bodily injury.” Bodily
injury encompasses “any injury, illness, or other physiological impairment, regardless of its
gravity or duration.” R.C. 2901.01(A)(3) (defining “physical harm to persons”). “A person acts
recklessly when, with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to circumstances when, with
heedless indifference to the consequences, the person disregards a substantial and unjustifiable
risk that such circumstances are likely to exist.” R.C. 2901.22(C).
{¶14} After a thorough review of the record, we determine that insufficient evidence
was presented to warrant the issuance of a domestic violence civil protection order pursuant to
R.C. 3113.31(A)(1)(a). None of the evidence presented during the full hearing on Mother’s
petition demonstrated by a preponderance of the evidence that Father attempted to cause bodily
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injury to any of the Petitioners in this matter. In support of her argument that Father committed
an act of domestic violence under this subsection, Mother points to the fact that Father followed
and “tailed” her car in the Walsh University parking lot at a speed of 20 miles per hour. Mother
notes on appeal that a car can be used as a deadly weapon, and thus Father’s conduct of
following her in a car constitutes an act of domestic violence. Moreover, Mother testified that
this conduct by Father greatly frightened and intimidated her. However, we conclude that
Mother’s argument is without merit, as we cannot conclude that following another car at a
relatively low rate of speed in a parking lot, standing alone, constitutes an act of domestic
violence pursuant to R.C. 3113.31(A)(1)(a).
B. Fear of Imminent Serious Physical Harm
{¶15} Next, Father argues that insufficient evidence was presented at the full hearing to
warrant the issuance of a domestic violence civil protection order under R.C. 3113.31(A)(1)(b),
prescribing placing a family member in fear of imminent serious physical harm. When
reviewing a finding of domestic abuse under R.C. 3113.31(A)(1)(b), “the critical inquiry is
‘whether a reasonable person would be placed in fear of imminent (in the sense of unconditional,
non-contingent) serious physical harm[.]’” State v. McKinney, 9th Dist. Summit No. 24430,
2009–Ohio–2225, ¶ 11, quoting State v. Tackett, 4th Dist. Jackson No. 04CA12, 2005–Ohio–
1437, ¶ 14. In carrying out this inquiry, we refer to the Petitioners’ history with the respondent.
E.g., Wohleber v. Wohleber, 9th Dist. Lorain No. 10CA009924, 2011–Ohio–6696, ¶ 13.
However, previous incidents of domestic violence do not support a finding that the Petitioners’
fear of imminent serious physical harm was reasonable “‘absent an initial, explicit indication that
[they were] in fear of imminent serious physical harm on the date contained in the petition.’”
Chafin v. Chafin, 9th Dist. Lorain No. 09CA009721, 2010–Ohio–3939, ¶ 22, quoting Fleckner v.
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Fleckner, 177 Ohio App. 3d 706, 2008–Ohio–4000, ¶ 27 (10th Dist.); see also Wetterman v. B.C.,
9th Dist. Medina No. 12CA0021–M, 2013–Ohio–57, ¶ 11 (“The purpose of the civil protection
order is not to address past abuse.”). Additionally, “both the totality of the circumstances, as
well as the victim's state of mind, are relevant to the determination that the threat of harm was
imminent.” Chafin at ¶ 22.
{¶16} R.C. 2901.01(A)(1) defines “force” as “any violence, compulsion, or constraint
physically exerted by any means upon or against a person or thing.” “Serious physical harm,” on
the other hand, is defined as any of the following:
(a) Any mental illness or condition of such gravity as would normally require
hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or
total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves
some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in
substantial suffering or that involves any degree of prolonged or intractable pain.
R.C. 2901.01(A)(5).
{¶17} At the full evidentiary hearing, Mother supported her petition with her own
testimony. Mother cites the following in support of her argument that she and her sons are in
fear of imminent serious physical harm from Father: (1) that Father closely followed them in his
truck in the Walsh University parking lot at a speed of roughly 20 miles per hour; (2) that Father
physically assaulted her during their marriage and she has obtained a domestic violence civil
protection order against him in the past; (3) that Father assaulted their two minor sons roughly
six months before the date in question; (4) that Father continues to harass and verbally abuse her,
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including making insulting comments about her weight while at the McDonald’s on the day in
question; (5) that Father sat nearly on top of A.M. while at the McDonald’s and loudly yelled in
the child’s year demanding that he leave with their grandmother; (6) that Father videotaped his
two sons in the McDonald’s and threatened to call the police on them if they did not leave with
their grandmother; (7) that Father videotaped her in the McDonald’s and yelled at her in public;
and (8) that Father assaulted a police officer in the past. Mother testified at the full hearing that
Father’s conduct on the day in question made her feel intimidated, unsafe, and afraid. Mother
stated that she filed for the domestic violence civil protection order because she was “scared to
death of [Father]”, not only because of his actions on the day in question, but also because of his
“lengthy history of abuse” against her and their children, which has transpired “numerous times
over multiple years.”
{¶18} After carefully reviewing the record and considering the evidence in a light most
favorable to Mother, we conclude that insufficient evidence was presented from which the trial
court could have found that Father made a recent threat of domestic violence upon which Mother
could reasonably fear imminent harm either to herself or to her minor children. To begin, there
was no competent, credible evidence presented at the full hearing to support Mother’s contention
that Father assaulted their two sons in 2014 or that Father assaulted a police officer in the past.
Indeed, with regard to the allegation that Father assaulted their two sons in 2014, the Medina
County Court of Common Pleas, Juvenile Division, has already adjudicated G.M. and A.M.
delinquent for this incident based upon the children’s own admission.
{¶19} With regard to Father’s aforementioned conduct on May 15, 2015, we similarly
determine that insufficient evidence was presented to warrant a domestic violence civil
protection order under R.C. 3113.31(A)(1)(b). The May 15, 2015 incident did not involve Father
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making any threats of violence and, outside of Father sitting “nearly atop” of A.M. and yelling in
the boy’s ear, did not involve any contact between the parties. Rather, the record reflects that
Father became frustrated and irate when his children refused to leave the McDonald’s with their
paternal grandmother. We conclude that Father’s conduct inside of the McDonald’s restaurant,
while not to be condoned, did not rise to the level of domestic abuse. See Young v. Young, 2d
Dist. Greene No. 2005-CA-19, 2006-Ohio-978, ¶ 107 (“[Respondent] may have acted childishly
and inappropriately * * *, but that is not a basis for a civil protection order.”)
{¶20} Even Mother admitted at the full hearing that her fear of Father stemmed not only
from Father’s temperament on the day in question, but also from a lengthy history of verbal and
physical abuse at the hands of Father, which dates back several years. However, while evidence
of past abuse “is relevant and may be an important factor in determining whether [Mother] had a
reasonable fear of further harm,” Wetterman, 2013-Ohio-57, at ¶ 12, we must consider both the
victim’s state of mind and the totality of the circumstances when determining whether a
reasonable fear or present harm existed, Chafin, 2010-Ohio-3939, ¶ 22. And, after a careful
examination of the record, we determine that the record does not disclose that Mother had a
reasonable fear of imminent physical harm. The only plausible basis for Mother fearing
imminent serious harm at the hands of Father would have been the so-called car chase in the
Walsh University parking lot. But, Mother admitted that the “car chase” occurred at a relatively
slow rate of speed. Additionally, this encounter did not result in Father being arrested, despite
the fact that the police were present at the time. Based on the foregoing, we conclude that
Mother’s fear of Father was not reasonable and could not sustain a finding of domestic violence
of the issuance of a domestic violence civil protection order under R.C. 3113.31(A)(1)(b).
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C. Committing an Act with Respect to a Child that Would Result in the Child Being an
Abused Child
{¶21} Lastly, Father argues that insufficient evidence was presented at the full hearing
to warrant the issuance of a domestic violence civil protection order under R.C.
3113.31(A)(1)(c). Under this subsection of the statute, domestic violence includes
“[c]ommitting any act with respect to a child that would result in the child being an abused
child.” As relevant to this case, an “abused child” includes any child who “[i]s endangered as
defined in section 2919.22 of the Revised Code, except that the court need not find that any
person has been convicted under that section in order to find that the child is an abused child.”
R.C. 2151.031(B).
{¶22} On appeal, Mother argues that Father committed an act of child endangering by
creating “a substantial risk to the health or safety of [their children], by violating a duty of care,
protection, or support[.]” R.C. 2919.22(A). Specifically, Mother contends that by engaging “in
the car chase through the Walsh U[niversity] parking lot, [Father] * * * attempted to inflict
physical harm * * * upon [G.M. and A.M.] who were in [Mother’s] car.” A “substantial risk” is
defined as “a strong possibility, as contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).
{¶23} After reviewing the record in this matter, we determine that insufficient evidence
was presented to warrant the issuance of a domestic violence civil protection order pursuant to
R.C. 3113.31(A)(1)(c). As noted earlier, Mother conceded at the full hearing that the “car chase”
occurred at a relatively low speed of approximately 20 miles per hour and that this encounter did
not result in Father being arrested, despite the fact that the police were present at the time of the
incident. While Mother is correct in noting that a vehicle can be used as a “deadly weapon,”
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there is no evidence in the record to suggest that Father intended to inflict serious bodily harm to
his children when he followed Mother’s vehicle through the Walsh University parking lot on the
day in question or that injury to the teenage boys was a strong probability as opposed to a remote
or significant possibility. As such, we conclude that no evidence presented during the full
hearing on Mother’s petition demonstrated by a preponderance of the evidence that Father
committed an act with respect to either of his children that resulted in either G.M. or A.M. being
an abused child.
{¶24} Accordingly, we determine that the trial court erred by granting Mother’s petition
for a domestic violence civil protection order on behalf of herself and her two sons.
Accordingly, Father’s first assignment of error is sustained.
Assignment of Error II
The trial court’s decision to grant [Petitioner’s] petition for a domestic
violence civil protection order is against the manifest weight of the evidence.
Assignment of Error III
The trial court erred, abused its discretion and denied [Respondent] due
process by adding a provision to a preexisting Medina County Juvenile
Court visitation order when the trial court lacked jurisdiction to add such
provision and when such new provision was subject to more than one
interpretation.
{¶25} Our resolution of Father’s first assignment of error renders his second and third
assignments of error moot and we decline to address them. See App.R. 12(A)(1)(c).
III.
{¶26} Having sustained Father’s first assignment of error, we reverse the judgment of
the Medina County Court of Common Pleas, Domestic Relations Division and remand this
matter for further proceedings consistent with this opinion.
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Judgment reversed
and cause remanded.
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 Medina, 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 Appellee.
JULIE A. SCHAFER
FOR THE COURT
MOORE, P. J.
CONCURS.
HENSAL, J.
DISSENTING.
{¶27} I respectfully dissent. As the majority points out, domestic violence under
Revised Code Section 3113.31(A)(1)(b) includes “[p]lacing another person by the threat of force
in fear of imminent serious physical harm * * *.” In light of the evidence presented at the
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evidentiary hearing, including testimony regarding M.M.’s actions on May 15, 2015, as well as
testimony regarding past incidents of abuse, I would hold that sufficient evidence existed for
purposes of establishing that J.M. was “in fear of imminent serious physical harm[.]”
{¶28} To the extent that the majority concludes that M.M. did not threaten force against
J.M. as required under Section 3113.31(A)(1)(b), “threats need not be verbalized * * * [and] can
be apparent from conduct.” Williams v. Hupp, 7th Dist. Mahoning No. 10 MA 112, 2011-Ohio-
3403, ¶ 25; Siouffi v. Siouffi, 2d Dist. Montgomery No. 17113, 1998 WL 879255, *3 (Dec. 18,
1998) (stating that “a threat of force need not be conveyed expressly; it may just as well be
conveyed implicitly by conduct. Conduct which is threatening in nature is no less threatening
simply because it is unaccompanied by verbal expressions of the threat.”). Based upon the
testimony adduced at the hearing, I would hold that J.M. presented sufficient evidence to
establish a threat of force, which – while not explicit – can be implied by M.M.’s conduct.
{¶29} In light of the foregoing, I would overrule M.M.’s first assignment of error and
address the merits of his second and third assignments of error.
APPEARANCES:
GERALD D. PISZCZEK, Attorney at Law, for Appellant.
JACQUENETTE S. CORGAN, Attorney at Law, for Appellee.