Hankinson v. Cooper

[Cite as Hankinson v. Cooper, 2022-Ohio-1896.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
BRANDY HANKINSON, :
Appellee, : CASE NO. CA2021-11-137
: OPINION
- vs - 6/6/2022
:
CLAYTON COOPER, :
Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DV2021-07-0437
Ched H. Peck, for appellee.
Cook Howard Law, Ltd., and Melynda W. Cook Howard, for appellant.
S. POWELL, J.
{¶ 1} Appellant, Clayton Cooper, appeals the decision of the Butler County Court
of Common Pleas, Domestic Relations Division, granting the petition for a domestic
violence civil protection order ("DVCPO") against him filed by his former girlfriend and the
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mother of his child, appellee, Brandy Hankinson.1 For the reasons outlined below, we
reverse the domestic relations court's decision and remand this matter to the domestic
relations court for further proceedings.
The Parties
{¶ 2} Cooper and Hankinson are the biological parents of one child, a girl, born on
February 13, 2018. Cooper and Hankinson were never married. Cooper resides in
Johnstown, Cambria County, Pennsylvania. Hankinson resides in Butler County, Ohio.
Cooper and Hankinson's daughter, as well as Hankinson's older son from a previous
relationship, also reside with Hankinson in Butler County, Ohio.
Facts and Procedural History
{¶ 3} On July 9, 2021, Hankinson filed a petition with the domestic relations court
seeking a DVCPO against Cooper. Hankinson also requested the domestic relations court
grant her an ex parte order of protection against Cooper. To support her petition, Hankinson
alleged that Cooper had "repeatedly" sent her threatening "letters and emails" as "that's his
only means of contact." Because of Cooper's unwanted contact with her, Hankinson
alleged that she had "changed [her] number several times" and "debated" moving "for [her]
children's and [her] protection." Hankinson also alleged that she had "previously had a
protection order in the State of Pennsylvania, Indiana County" because of Cooper
"assaulting" her while she was pregnant with their daughter. Hankinson further alleged that
Cooper had "threatened [her] life" and "threatened [her] children."
{¶ 4} Shortly after Hankinson filed her DVCPO petition, a domestic relations court
magistrate held a hearing on Hankinson's request for an ex parte order of protection against
Cooper. Following this hearing, the magistrate issued an order denying Hankinson's
1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for purposes of
issuing this opinion.
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request for an ex parte order of protection. After denying Hankinson's request for an ex
parte order, the magistrate then ordered a full hearing on Hankinson's petition for a DVCPO.
This hearing was scheduled to take place on July 21, 2021.
{¶ 5} On July 13, 2021, Cooper was personally served with the magistrate's order
denying Hankinson's request for an ex parte order of protection against him. Cooper was
also personally served with notice that a full hearing on Hankinson's DVCPO petition was
scheduled to take place on July 21, 2021. Eight days later, on July 21, 2021, the previously
scheduled full hearing on Hankinson's DVCPO petition went forward before another
domestic relations court magistrate. Despite receiving notice of the July 21, 2021 hearing
date, there is no dispute that Cooper did not appear at this hearing. There is also no dispute
that Hankinson appeared at this hearing pro se.
{¶ 6} During this hearing, Hankinson testified she had previously received an order
of protection against Cooper in 2017 while she was living in Pennsylvania and pregnant
with her and Cooper's daughter. Hankinson testified she received this protection order after
her obstetrician noticed she had "bruises" on her stomach. Documentation related to that
Pennsylvania order of protection, as well as several letters that Hankinson had since
received from Cooper, were then admitted into evidence. Within those documents,
Hankinson alleged that while living in Pennsylvania in 2017 that Cooper had called her
names, pushed her, hit her, and "shoved her against the wall" after she found him rifling
through her jewelry. This is in addition to Hankinson alleging Cooper had previously told
her that "he knows how to get away with murdering someone" and that Cooper had
"threatened [her] if [she] ever was to leave him."
{¶ 7} Although successful in her efforts to obtain an order of protection against
Cooper in Pennsylvania in 2017, Hankinson testified that she later had that order of
protection lifted in 2019 because she was "under the misconception" that she needed to "lift
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it in order for [Cooper] to see [their] daughter." Hankinson testified that after the
Pennsylvania order of protection was lifted Cooper left her several voicemail messages
threatening to cause her physical harm. Hankinson testified this included voicemail
messages where Cooper threatened to "burn [her] house down with [her] and [her] children
inside." Hankinson testified that because of Cooper's threats to her and her children she
moved from Pennsylvania to Ohio "for [her] protection." Hankinson also testified that she
changed her phone number "several times," that she was "contemplating possibly moving
again," and that she was even thinking of changing her name, if necessary. Thereafter,
when specifically asked by the magistrate if "those threats, [Cooper] made those [threats]
to you since the last order was lifted," Hankinson testified, "Yes."
{¶ 8} Following this hearing, the magistrate issued a decision granting Hankinson's
petition for a DVCPO against Cooper. After its decision was filed, the magistrate then
issued the order of protection to Hankinson. In so doing, the magistrate noted on the
second page of that protection order that it had made the following three findings of fact:
{¶ 9} On August 4, 2021, Cooper filed an objection to the magistrate's decision
granting Hankinson's DVCPO petition. To support his objection, Cooper argued the
magistrate's decision was "contrary to law" and against the manifest weight of the evidence.
Cooper also argued the magistrate's decision was "based upon erroneous findings of fact,"
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"not supported by the record in this case," and "not supported by sufficient evidence to meet
the requisite burden." Cooper filed a supplemental objection to the magistrate's decision
on October 12, 2021. In support of his supplemental objection, Cooper argued the
magistrate's decision was both factually and legally incorrect because Hankinson failed to
prove he had "engaged in domestic violence" against her pursuant to R.C.
3113.31(A)(1)(a)(i), (ii), or (iii). Cooper also argued the evidence Hankinson offered in
support of her DVCPO petition failed to provide sufficient evidence to support the
magistrate's decision issuing a DVCPO against him.
{¶ 10} On October 13, 2021, the domestic relations court filed a decision and order
overruling Cooper's objection to the magistrate's decision set forth above. In so doing, the
domestic relations court initially stated that it was granting Hankinson an order of protection
against Cooper based on Hankinson's uncontradicted testimony "that there was prior
violence between the parties, and produced documentation of prior violence in
[Pennsylvania] * * *." The domestic relations court also stated that it was granting
Hankinson an order of protection against Cooper because Cooper "poses a threat of further
violence" against Hankinson. In reaching this decision, the domestic relations court
specifically stated that it had "carefully reviewed the evidence" and conducted a de novo
review of the record prior to issuing its decision.
{¶ 11} After its decision was filed, the domestic relations court then issued the order
of protection to Hankinson. On the second page of the DVCPO, the domestic relations
court noted that, unlike the magistrate's three findings of fact set forth above, it had made
the following single fact finding:
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Cooper's Appeal and Single Assignment of Error
{¶ 12} On November 10, 2021, Cooper filed a timely notice of appeal. Cooper's
appeal now before this court for decision, Cooper raises one assignment of error for review
challenging the domestic relations court's decision granting Hankinson's petition for a
DVCPO. To support this claim, Cooper argues the domestic relations court erred by
granting Hankinson a DVCPO against him in Ohio in 2021 based on "past acts of violence"
that occurred between him and Hankinson in Pennsylvania in 2017.
DVCPO Standard Under R.C. 3113.31
{¶ 13} "The purpose of a DVCPO is the protection of a petitioner from violence by
the respondent." Halcomb v. Greenwood, 12th Dist. Clermont Nos. CA2019-03-019,
CA2019-03-020, CA2019-03-023, and CA2019-03-024, 2020-Ohio-2768, ¶ 11. A petition
requesting the issuance of a DVCPO against the respondent is governed by R.C. 3113.31.
Crawford v. Brandon, 12th Dist. Butler Nos. CA2013-08-150 and CA2013-08-151, 2014-
Ohio-3659, ¶ 6. Pursuant to that statute, for the petitioner to obtain a DVCPO against the
respondent, "the petitioner must prove by a preponderance of the evidence that the
respondent has engaged in an act of domestic violence against petitioner, petitioner's
family, or petitioner's household members." McBride v. McBride, 12th Dist. Butler No.
CA2011-03-061, 2012-Ohio-2146, ¶ 12.
{¶ 14} R.C. 3113.31(A)(1)(a)(i) thru (iv) defines the phrase "domestic violence" to
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include, among other things, the occurrence of one or more of the following acts against a
family or household member:
(i) Attempting to cause or recklessly causing bodily injury;
(ii) Placing another person by the threat of force in fear of
imminent serious physical harm;
(iii) Committing any act with respect to a child that would result
in the child being an abused child; and
(iv) Committing a sexually oriented offense.
{¶ 15} R.C. 3113.31 does not define the term "bodily injury." McGrady v. Muench,
12th Dist. Warren No. CA2018-12-145, 2019-Ohio-2677, ¶ 13. However, although the term
"bodily injury" is not defined by R.C. 3113.31, for purposes of the offense of domestic
violence in violation of R.C. 2919.15(A), (B), and (C), the phrase "physical harm to persons"
is defined by R.C. 2901.01(A)(3) to mean "any injury, illness, or other physiological
impairment, regardless of its gravity or duration." See J.R. v. E.H., 10th Dist. Franklin No.
16AP-431, 2017-Ohio-516, ¶ 13, citing State v. Reynolds, 10th Dist. No. 03AP-701, 2004-
Ohio-3692, ¶ 14.
Manifest Weight of the Evidence Standard of Review
{¶ 16} "'A trial court's decision to grant or deny a DVCPO will not be reversed where
such decision is supported by the manifest weight of the evidence.'" Porter v. Porter, 12th
Dist. Butler No. CA2019-11-185, 2020-Ohio-4504, ¶ 36, quoting Barrett v. Barrett, 12th Dist.
Warren No. CA2016-04-033, 2017-Ohio-250, ¶ 19. The standard of review for a manifest
weight challenge in a civil case is the same manifest weight of the evidence standard that
is applied to a criminal case. Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-
Ohio-641, ¶ 8, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. Under
a manifest weight challenge, this court weighs the evidence and all reasonable inferences,
considers the credibility of witnesses, and determines whether in resolving conflicts in the
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evidence, the finder of fact clearly lost its way and created a manifest miscarriage of justice
warranting reversal and a new trial ordered. Hacker v. House, 12th Dist. Butler No.
CA2014-11-230, 2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20. "A judgment will not be
reversed as being against the manifest weight of the evidence where the judgment is
supported by some competent, credible evidence going to all essential elements of the
case." McGrady v. Muench, 12th Dist. Warren No. CA2018-12-145, 2019-Ohio-2677, ¶ 14,
citing Sterling Constr., Inc. v. Alkire, 12th Dist. Madison No. CA2016-12-032, 2017-Ohio-
7213, ¶ 8.
Cooper's Arguments and Analysis
{¶ 17} As noted above, in support of his single assignment of error, Cooper argues
the domestic relations court erred by granting Hankinson's petition for a DVCPO based on
"past acts of violence" that occurred in Pennsylvania in 2017, several years prior to 2021
when Hankinson filed her petition for a DVCPO in this case. This is because, as Cooper
correctly notes, successive petitions for a DVCPO involving the same parties arising out of
the same underlying facts are subject to the doctrines of res judicata and collateral estoppel.
See Clagg v. Clagg, 10th Dist. Franklin No. 08AP-570, 2009-Ohio-328, ¶ 16 (the doctrines
of res judicata and collateral estoppel did not apply to successive petitions for a DVCPO
where "the petitions did not arise out of the same transaction or occurrence"); see, e.g.,
Bach v. Crawford, 2d Dist. Montgomery No. 19531, 2003-Ohio-1255, ¶ 15 ("[t]he trial court
did not err in determining that res judicata barred Mr. Bach's claims stemming from incidents
before August of 2000 and that the evidence of events after that date did not amount to
domestic violence under R.C. 3113.31"). We agree. Therefore, because the record is
devoid of any evidence Cooper had caused or attempted to cause bodily injury to Hankinson
after she had the Pennsylvania order of protection lifted in 2019, the domestic relations
court's decision finding Hankinson was entitled to a DVCPO against Cooper under R.C.
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3113.31(A)(1)(a)(i) was against the manifest weight of the evidence.
{¶ 18} The domestic relations court, however, did not base its decision to grant
Hankinson's petition for a DVCPO against Cooper solely on the "past acts of violence" that
occurred between Cooper and Hankinson in Pennsylvania in 2017. The domestic relations
court also based its decision to grant Hankinson's petition on its finding that Cooper "poses
a threat of further violence" against Hankinson. Although the domestic relations court was
not explicit in its decision, this seems to be a reference to the definition of "domestic
violence" set forth under R.C. 3113.31(A)(1)(a)(ii). As noted above, pursuant to that statute,
the term "domestic violence" is defined to mean placing another person by the threat of
force in fear of imminent serious physical harm. This would make sense when considering
Hankinson specifically testified that Cooper had threatened to cause her serious bodily
harm by burning her house down with her and her children inside sometime after she had
the Pennsylvania order of protection lifted in 2019.
{¶ 19} The domestic relations court, however, did not make this finding within the
DVCPO it issued to Hankinson. Rather, as set forth previously, the domestic relations court
made only one finding. That being:
{¶ 20} The ambiguity between what the domestic relations court stated within its
decision and order, and what box the domestic relations court checked on the DVCPO itself,
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may have simply been a clerical error. A "clerical error" is a mistake apparent on the record
that does not involve a legal decision or judgment. State ex rel. Allen v. Goulding, 156 Ohio
St.3d 337, 2019-Ohio-858, ¶ 11. This court, however, cannot make that decision without
further clarification from the domestic relations court. For this reason, we find it necessary
to reverse and remand this matter to the domestic relations court for further proceedings.
Upon remand, the domestic relations court shall issue a decision and order that alleviates
this ambiguity by citing with specificity what subsection(s) of R.C. 3113.31(A)(1)(a) it
intended to rely on when granting Hankinson's petition for a DVCPO against Cooper. The
domestic relations court shall also issue, if necessary, an amended DVCPO that has the
correct box(es) checked on page two of the DVCPO itself that accurately reflects what the
domestic relations court intended when it stated that it was granting Hankinson's petition
because Cooper "poses a threat of further violence" against Hankinson.
Conclusion
{¶ 21} For the reasons outlined above, and finding an ambiguity in the domestic
relations court's decision and order that must be resolved, we reverse and remand this
matter to the domestic relations court for further proceedings.
{¶ 22} Judgment reversed and remanded.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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