Stanzak v. Stanzak

HENDRICKSON, J.

Respondent-appellant, John W. Stanzak, appeals a finding made by the Butler County Court of Common Pleas, Domestic Relations Division, that he committed an act of domestic violence against petitioner-appellee^ Claudia A. Stanzak.

On August 16, 1989, appellee filed a petition for a civil protection order pursuant to R.C. 3113.31 alleging that appellant had attempted to run over her with a car and had endangered the parties' daughter. Following an ex parte hearing before a referee, she was granted a temporary protection order.

A hearing on the merits was held on August 29, 1989 before the trial judge. The evidence revealed that on the night of August 15, 1990, the parties were arguing regarding a planned trip to a water park. Appellee testified that during the argument, appellant told her "[w]hen I'm done with you you will be begging for mercy." She called her parents and asked them to come get her and the parties' two children, Melissa and Regina. When her parents arrived, Melissa was placed in their car. However, appellant was holding Regina down in bed and would not let her go. Appellee tried to get him to let the child go and slapped him in the face. Appellant then took Regina and placed her in his car. He put the car in reverse and began backing up. Appellee described the scene as follows:

"A. And then he-he grabbed Regina because I kept saying, let her go, and he ran out to the car, got in our car with her in the front seat and the passenger side door open, the driver's side door open and she was trying to get out on the passenger side to come with me. At this point he put the car-he started it, put it in reverse, backed up and he would have ran over me-she almost fell out head first onto the concrete, and struck the car next to him with the driver's side car door which stopped the car from rolling. And at this point the Police pulled up, they got out of the car- ***."

Appellant testified that when appellee's parents arrived, they demanded to know what was happening. Appellant told them he hadn't done anything but that her father grabbed him by the arms. Her father let him go, but an argument ensued during which appellant called 911.

Appellant further testified that Regina woke up screaming for him. As he was comforting her, appellee slapped him in the face twica He decided to leave, went outside and placed Regina in his car. Appellant described what happened next as follows:

"A. No, I never tried to get my wife in the car. I tried to my-I opened-the passenger side door was not open, because if the door was unlocked and I put Regina inside of the car all she would have to do is open the passenger door and grab Regina out of the car. So, I'm, you know, the passenger side was definitely locked and, uh, because I always keep my car doors locked. And, uh, I put Regina inside of the car and the door is open, I put the key in the ignition and Claudia is standing in between the door where you would close it and she's leaning up against the other car. It's a little red car that belongs to neighbors, okay. And she's leaning against the door and she's not letting me go anywhere and I'm starting the car and I'm asking her to move, I'm asking her to leave, I'm asking her to leave, and Regina-and she's screaming, Regina, you come with me, you come with me, you come with me. And, you know, I'm saying, Regina, stay here, wait, the police officer is going to come and if not we're going to go get him. No, so, finally Regina is very much upset and she wants to get out and I say, okay. So, I go to put the car in park and I thought I had it in park, okay. And I think I did have it in park, okay, and I went to turn off the ignition but the key didn't come out, so, I had it in-I had it, I guess, in the reverse which is just before park. I finally put it in park, took the keys out of the ignition, the door was open and Regina was getting out. I got out on the passenger side, I did not get out on the driver's side, okay. I'm holding onto Regina and Regina is saying, Daddy, Daddy, I want to go back to sleep, Daddy, I want to go in the house."

On the basis of the testimony, the trial court concluded:

"I'm going to find that there has been Domestic Violence but I'm going to find it has been on both sides. Mrs. Stanzak, I think, as a matter of fact you may have initiated the violence but, Mr. Stanzak, I think that your response was inappropriate with the car and the child."

On August 29, 1989, a final protection order was filed stating that "the [clourt finds that [appellant] placed [appellee] by the threat of force in fear of imminent physical harm[.]" This appeal followed.

In his sole assignment of error, appellant alleges that the trial court erred in finding that he committed an act of domestic violence, as that finding was contrary to law, was against the manifest weight of the evidence and therefore constituted an abuse of discretion. He argues that there was no evidence that he attempted to cause or recklessly cause bodily injury. We find this assignment of error to be well-taken.

"Judgments supported by some competent, credible evidence going to all essential elements of a case will not be reversed as being against the manifest weight of the evidence." C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77.

R.C. 3113.31 authorizes the trial court to issue a protective order in a case of domestic violence. Section (A) (1) defines "domestic violence" as follows:

"(1) '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;

"(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 [2151.02.1] of the Revised Code."

The decision of whether to grant a civil protection order is within the discretion of the trial court.

Deacon v. Landers (June 14, 1990), Ross App. No. 1597, unreported. See also, Thomas v. Thomas (1988), 44 Ohio App. 3d 6, 8. Nevertheless, the party seeking the protective order bears the burden of establishing that the other party committed an act of domestic violence. See Ventura v. Ventura (Sept. 26, 1986), Lake App. No. 11-183, unreported, at 4.

We first note that appellant's argument in this case is somewhat misplaced. He argues that the trial court's finding that he committed domestic violence was error because there was no evidence that he attempted to cause or recklessly caused bodily injury as provided under R.C. 3113.31(A)(1)(a). However, the trial court's finding was based on R.C.3113.31CA)(l)(b), that he placed appellee by the threat of force in fear of imminent physical harm.

Nevertheless, we find there is no competent, credible evidence to support this finding. The only threat made by appellant was the statement "[w]hen I'm done with you, you will be begging for mercy." In our view, this does not constitute "placing another person by threat of force in fear of imminent physical harm." This statement is obviously a threat, but may well have related to something else, such as custody or division of property. The relationship of the threat to appellant's subsequent conduct was tenuous at best. Appellee testified that she was afraid of appellant because he had assaulted her in the past, but nowhere in her testimony did she indicate that she was placed in fear of imminent physical harm.

Consequently, even if the finding were made under section (A) (1) (a), there would still be no evidence to support the finding. Thus, there is no evidence that appellee was injured or that appellant attempted to injure her. While appellant's conduct may indeed have been "inappropriate" as stated by the trial court, it does not amount to domestic violence under R.C. 3113.31. Appellee failed to meet her burden of establishing domestic violence. Accordingly, appellant's sole assignment of error is sustained.

Judgment reversed.