J.S. v. L.S.

[Cite as J.S. v. L.S., 2022-Ohio-2485.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[J.S.], :
Petitioner-Appellee, : No. 20AP-571
(C.P.C. No. 19DV-806)
v. :
(REGULAR CALENDAR)
[L.S.], :
Respondent-Appellant. :
D E C I S I O N
Rendered on July 19, 2022
On brief: Grossman Law Offices, LLC, and John H. Cousins
IV, for appellee. Argued: John H. Cousins IV
On brief: Trolinger Law Offices, LLC, and Christopher L.
Trolinger, for appellant. Argued: Christopher L. Trolinger
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations and Juvenile Branch
MENTEL, J.
{¶ 1} Respondent-appellant, [L.S.], appeals from the December 14, 2020 order of
the Franklin County Court of Common Pleas, Domestic Relations Division, granting the
petition for a domestic violence civil protection order of petitioner-appellee, [J.S.].
{¶ 2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On May 1, 2019, appellee filed a petition for a domestic violence civil
protection order against her former boyfriend, appellant. The petition identified two minor
children as family members to be protected by the order. According to the addendum
included in the petition, appellant had threatened appellee over the telephone and text
No. 20AP-571 2
message stating that he was going to "burn" her, and she would "not have a pretty face much
longer." (Addendum, attached to Petition for Domestic Violence Protection Order.)
Appellee also alleged that appellant had given her minor son a black eye, visited her
children's daycare without her permission, and left unsolicited items on her doorstep.
According to appellee, appellant also sent her a video of his attempted suicide. The trial
court granted appellee's ex parte emergency order and the case was set for a full hearing.
{¶ 4} This matter was first heard on June 3, 2019. The trial court granted appellee's
petition for domestic violence civil protection order as to the protected persons and added
appellee's newborn child to the order who was born after the petition was filed but before
the full hearing. On June 25, 2019, appellant filed a timely appeal. On March 26, 2020,
this court reversed and remanded the case concluding that the trial court had failed to
afford appellant a "full hearing" within the meaning of R.C. 3113.31. J.S. v. L.S., 10th Dist.
No. 19AP-400, 2020-Ohio-1135 ("J.S. I"). Specifically, the trial court failed to provide a
"full hearing" when "it considered evidence submitted by J.S. without allowing L.S. to
review the evidence and in conducting independent factual research without allowing L.S.
to respond." Id. at ¶ 25. The case was reheard on October 26, 2020. The following evidence
was adduced at the hearing.
{¶ 5} Appellee and appellant dated on and off in 2018. (Oct. 26, 2020 Tr. at 7.)
Appellee testified that when she first started dating appellant, he "grabbed [her] around
[the] neck and held [her] to the bed and when [she] passed out, he choked [her], he said he
was sorry that he took it too far." (Tr. at 10.) According to appellee, in August 2018, she
broke up with appellant after he gave her two-year-old son a black eye. Appellee stated that
appellant admitted to hitting her son purportedly because the child was acting up in the
store. Appellee did not call the police about the incident out of fear of retaliation. (Tr. at 7,
11.) According to appellee, appellant threatened her over the telephone, text message, and
in person. (Tr. at 13.) Appellee told appellant for months that she was afraid of him and
did not want any contact with him going forward. (Tr. at 8.) Appellant sent her messages
that she was "just a whore, you are not getting away from me, no matter where you go, I
will be there." (Tr. at 8.) Appellee testified, "[appellant] told me one day that he was going
to burn me and I wasn't going to be a pretty face much longer after showing up to my house
screaming at me from the road." (Tr. at 9.) According to appellee, in April 2018, appellant
No. 20AP-571 3
also showed up at her children's daycare, grabbed her by the arm, and would not let go until
she agreed to talk to him. (Tr. at 9-10.) Appellant also showed up a week or so later at her
place of work. (Tr. at 9.) Appellee testified that appellant threatened to come to the house
and take her son's belongings. (Tr. at 9.) In August 2018, appellant followed appellee back
to her vehicle at the Sweet Corn Festival calling her names and telling her that she was not
going to leave. (Tr. at 13.) At that point, appellee agreed to give appellant a ride home.
According to appellee, appellant became very upset and refused to leave her vehicle.
Ultimately, appellant exited the vehicle without further incident. (Tr. at 13.) Appellee
testified that she believed appellant was a violent person after learning he had previously
shot himself over a custody matter. (Tr. at 11.) Appellee testified that appellant owns a gun
as he had it at one point in his bedroom, and he later put a gun in his truck allegedly because
people from work were following him. (Tr. at 13-14.)
{¶ 6} In April 2019, appellant drove by appellee's home and yelled that she was not
going to be a pretty face much longer. (Tr. at 11.) Appellee interpreted this to mean, based
on the prior comments, he was going to burn her face. "I don't know how to feel other than
you were going to seriously hurt me." (Tr. at 11.) Appellee testified to several text messages
she exchanged with appellant. Appellee read a message that appellant would see her at the
hospital, which she took to mean he was going to hurt her. (Tr. at 16.) Appellee testified to
a picture appellant sent her of a jump rope tied to the banister with the message, "if I want
to keep not taking him seriously, he hoped it was on my conscious forever." (Tr. at 18.)
Appellee stated that appellant would regularly make threats that he would harm himself
and these messages made her "afraid that if he did -- if he did follow through with it, what
it would mean to his girls and how I would be responsible, and that if he didn't follow
through and I didn't contact him, that he would come after me and harm me because I
didn't respond in the way that he felt was appropriate." (Tr. at 17-18.) Appellant had sent
appellee a video of him attempting to hang himself and a message that said, "I'm serious
[appellee], I will be dead by morning." (Tr. at 17.) Appellee stated the text message was a
separate threat from the video. (Tr. at 17.) The video was played for the court. Appellee
testified that approximately 18 seconds into the video, appellant is standing with a rope
around his neck. At or around 48 seconds into the video, appellant's daughter walked out
of her room when the appellant exclaimed "shit." (Tr. at 21.) Appellee testified that she
No. 20AP-571 4
watched the video before the text message and believed appellant was dead. (Tr. at 19.)
Appellee stated that she experienced mental distress from the video and reading the text
messages. (Tr. at 21.) Appellee testified that she later received a text message from
appellant that stated, "I would be dead right now if [appellant's daughter] didn't wake up."
(Tr. at 22.) Appellant also sent a message to appellee that the police cannot hold him
forever, appellee took it to mean "that [appellant] would come harm [her]." (Tr. at 23.)
{¶ 7} Appellee testified she could not get out of bed and could not focus or live her
life without thinking appellant was going to "make good on the threat that he was going to
burn me." (Tr. at 10.) Appellee started seeing a psychiatrist and taking medication because
she could not sleep for weeks at a time. Appellee testified that she now takes anxiety and
nausea medicine. (Tr. at 23.) "I would wait out by the front door waiting for him to show
up to hurt me or my kids." (Tr. at 23.) Appellee changed jobs out of fear that appellant
would hurt her at work. (Tr. at 23.) According to appellee, she urinated in her pants when
appellant walked by her during a court hearing. (Tr. at 23-24.) Appellee testified that she
is fearful of appellant causing her imminent serious bodily harm. (Tr. at 24.)
{¶ 8} On cross-examination, appellee was asked about her previous petitions for a
domestic violence protection order against her ex-husband, Andrew Cunningham, and
Zach Riehl, the father of one of her children. (Tr. at 29, 32.) Appellee stated that neither
case went to a hearing. Appellee testified that she had previously informed appellant that
he was not the father of her newborn child. (Tr. at 36.) According to appellee, appellant
said he was going to burn her on multiple occasions but the one instance that stood out was
in the street. (Tr. at 39.) While appellee acknowledged that there is more than one meaning
to someone saying they are going to "burn you," she testified, "I took it like he was going to
burn me; and when he followed it up with I wasn't going to be a pretty face, I felt like he
was going to catch me on fire and burn me." (Tr. at 39.) Appellee stated that appellant sent
text messages that "he was going to burn me, he was going to come to my work, he was
going to contact my friends and family, which he had already had done. And then he would
say it was all in the name of protecting his children because he believed I would reach out
and get them help, and he didn't want them taken away from him." (Tr. at 42-43.) Appellee
conceded there were no text messages about appellant "burning" her before the court.
No. 20AP-571 5
(Tr. at 43.) Appellee explained that she changed phones, and it was difficult to go through
a year's worth of messages.
{¶ 9} Appellee testified that appellant gave her son a black eye in 2018. Appellee
acknowledged she did not witness appellant hit her son. Appellee initially heard about it
through appellant's daughter but testified appellant later admitted to the incident. (Tr.
at 49.) Appellee could not initially identify a direct threat in Exhibits 1 or 2 but stated that
a video of appellant trying to kill himself "made [her] feel like there was a threat." (Tr. at
51-52.) Appellee conceded that she continued to text appellant after the incident. "I did. I
wouldn't want anybody to die." (Tr. at 52.) Appellee acknowledged that she continued to
text appellant up until she filed the civil protection order. Appellee testified that, two days
before she filed the protection order, she told appellant if he did not stop texting her, she
would file a protection order. (Tr. at 52-53.)
{¶ 10} On redirect examination, appellee testified that she believed appellant's text
message that law enforcement "can't keep me forever" was a threat. Appellee stated that
appellant's text messages that he would "see [her] at the hospital," and she was a "white
trash whore" were threats. (Ex. 1 at 8.) Appellee testified that she wanted her children
included as protected parties in the order. (Tr. at 66.) Appellee explained she interpreted
the question regarding her prior petitions for protection orders as whether she had filed a
standalone petition, which did not involve custody or part of her divorce. (Tr. at 66.)
{¶ 11} Appellant was the only other witness to testify at the hearing. Appellant has
sole custody of two children unrelated to this case. (Tr. at 72.) Appellant testified that he
started dating appellee in 2018. Appellant denied ever having a physical altercation with
appellee. According to appellant, the text message about the hospital concerned his desire
to be at the hospital for the birth of appellee's youngest child. Appellant stated his comment
about appellee not being a pretty face anymore was referring "to aging, the way she was
living her life, the lives she was destroying, anyone that had a possible child with her, just
the evil, pure evil of the things she does is what I was referring to." (Tr. at 77.)
{¶ 12} Appellant admitted to attempting suicide 11-12 years ago by shooting himself
in the chest. (Tr. at 78.) Appellant testified that he engaged in inpatient treatment and has
been in counseling. As for the suicide video, appellant testified that appellee "had
previously been telling me it was my kid, and then she told me the kid passed away, and
No. 20AP-571 6
then they found a heartbeat, and then it was not my kid." (Tr. at 79.) The video "was a way
of trying to get her to stop the roller coaster and just be honest with me." (Tr. at 80.)
{¶ 13} Appellant stated that he repeatedly asked appellee to leave him alone. (Tr. at
81.) Appellant rarely spoke with appellee over the telephone and primarily communicated
over text message. (Tr. at 84.) According to appellant, the last time he saw appellee was
when she "brought over a due date from a doctor with the baby. She showed up eight
months pregnant roughly and at that point was telling me it was mine." (Tr. at 84.)
Appellant testified that appellee was concerned with a potential custody battle. (Tr. at 93.)
Appellant believed appellee was "playing games" regarding the paternity of the baby. (Tr. at
95.) Appellant had bought a paternity test and asked appellee to meet at the police station.
(Tr. at 96.) Appellant testified he hit a breaking point as to the paternity of the child.
Appellant did not recall a time when appellee's two-year-old son had a black eye and denied
that it ever happened. (Tr. at 104.)
{¶ 14} According to appellant, he met appellee at her children's daycare once at her
request. They went into the building and loaded the kids into the vehicle without incident.
Appellant stated, in 2018, he stopped by the daycare on two other occasions to pay
appellee's bill because "she had lost her job -- or I thought she had lost her job." (Tr. at 85-
86.) Appellant had previously given the kids hot wheels and admitted that he threated to
take the gifts back. Appellant denied ever screaming outside appellee's residence or
threatening to burn appellee's face. (Tr. at 89, 108.)
{¶ 15} On cross-examination, appellant testified to telling appellee, at the end of the
relationship, that he would call the cops to get his stuff. (Tr. at 109.) Appellant did not
"bring the cops," and it was a just a threat. (Tr. at 110.) Appellant denied screaming at
appellee during this interaction. Appellant conceded this conversation was over the
telephone but there were no threats. Appellant also conceded he has not filed a complaint
to establish paternity as the biological father of the child. (Tr. at 113.) Appellant
acknowledged that when one of the DNA companies contacted him about completing a
paternity test, he answered the telephone in Japanese believing it was a bill collector. (Tr.
at 113-14.)
{¶ 16} When asked about the text message that read, "I would be dead right now if
[my daughter] didn't wake up. [* * *] This is serious now[,]" appellant stated that was in
No. 20AP-571 7
reference to the video. (Ex. 1 at 10; Tr. at 115.) As for the next message, "[Y]ou don't want
to be with me that's fine, but not knowing is going to kill me tonight," appellant stated that
he was "trying to get [appellee] to give me some answers", but he was not suicidal. (Tr. at
115.) When asked if he was trying to "send [appellee] a message" to get her to respond,
appellant answered "yes, sir." (Tr. at 116.) Appellant acknowledged that even after appellee
referred to his messages as threatening, he kept texting appellee because he "explained to
her that [he] wasn't threatening." (Tr. at 116.) Appellant denied ever choking appellee at
any point. (Tr. at 118.) Appellant denied that he owns a gun. (Tr. at 119.) Appellant
acknowledged that he has a felony conviction on his record involving an element of violence
and pled to a charge related to abuse of another woman. (Tr. at 119.) Appellant denied
having an anger problem.
{¶ 17} On redirect examination, appellant denied being present at the hospital when
appellee's child was born. (Tr. at 122.) Appellant denied ever seeing appellee urinate on
herself, and appellee appeared calm at the hearing. (Tr. at 123.)
{¶ 18} At the conclusion of the case, the trial court found that petitioner had met her
burden of proof and granted the petition for a domestic violence protection order. On
December 14, 2020, the trial court issued an order of protection against appellant. The
order included appellee's three minor children as protected parties.
{¶ 19} Appellant filed a timely appeal.
II. ASSIGNMENT OF ERROR
{¶ 20} Appellant assigns the following as trial court error:
[1] THE TRIAL COURT ERRED IN GRANTING APPELLEE'S
PETITION FOR A CIVIL PROTECTION ORDER WITHOUT
CONDUCTING A "FULL HEARING" AS REQUIRED BY R.C.
§ 3113.31 BY DISSALLOWING [SIC] RELEVANT,
CREDIBILITY AND IMPEACHMENT TESTIMONY.
[2] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY FINDING EVIDENCE OF
PREVIOUS COURT PROCEEDINGS REGARDING
PETITIONER'S VERASITY [SIC.], MENTAL HEALTH, AND
SIMILAR CONDUCT IRRELEVANT WHEN PETITIONER
MADE INCONSISTENT STATEMENTS.
[3] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSE ITS DISCRETION BY FINDING TESTIMONY AND
No. 20AP-571 8
DOCUMENTARY EVIDENCE OF PREVIOUS CIVIL
PROTECTION ORDER FILINGS BY PETITIONER
IRRELEVANT WHEN PETITIONER HAD PREVIOUSLY
TESTIFIED THAT SHE HAD NOT FILED ANY PRIOR
PETITIONS FOR CIVIL PROTECTION ORDERS.
[4] THE TRIAL COURT ERRED AS A MATTER OF LAW BY
FAILING TO ADMIT EXHIBITS AND TESTIMONY
RELATED TO PREVIOUS CIVIL PROTECTION ORDERS
AND OTHER CERTIFIED COURT ORDERS BASED ON
RELEVANCY WHEN SUCH WERE DIRECTLY RELATED TO
IMPEACHMENT, CREDIBILITY, TRUTHFULNESS, AND
PRIOR CONDUCT IN CONTRAVENTION OF EVID.R. 608,
613, AND 616.
[5] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY FINDING THAT THE
MENTAL HEALTH OF THE PETITIONER IS IRRELEVALNT
[SIC] TO THE OBJECTIVE REASONABLENESS OF THE
PETITIONER'S FEAR AND CREDIBILITY.
[6] THE TRIAL COURT ERRED AND FAILED TO MAKE ANY
FACTUAL FINDINGS TO JUSTIFY THE GRANTING OF THE
PETITION FOR A CIVIL PROTECTION ORDER UNDER R.C.
§ 3113.
[7] THE TRIAL COURT ERRED AS THE GRANTING OF A
CIVIL PROTECTION ORDER WAS NOT SUPPORTED BY
THE MANIFEST WEIGHT OF THE EVIDENCE.
[8] THE TRIAL COURT ERRED IN ORDERING THE MINOR
CHILDREN AS PROTECTED PERSONS UNDER THE CIVIL
PROTECTION ORDER AS THERE WAS NO EVIDENCE TO
JUSTIFY THEIR BEING PROTECTED UNDER THE CIVIL
PROTECTION ORDER AND THE PETITION WAS NEVER
AMENDED TO REQEUST [SIC] PROTECTION FOR THE
CHILD BORN AFTER THE PETITION WAS FILED.
III. LEGAL ANALYSIS
A. Appellant's Second, Third, Fourth, and Fifth Assignments of Error
{¶ 21} For harmony of analysis this court will address appellant's second, third,
fourth, and fifth assignments of error together. In appellant's second assignment of error,
appellant argues the trial court erred by excluding evidence of prior court proceedings
based on petitioner's veracity, mental health, and similar conduct when appellee made
No. 20AP-571 9
inconsistent statements. In appellant's third assignment of error appellant argues that the
trial court erred in finding that the prior civil protection order filings were irrelevant. In
appellant's fourth assignment of error, the trial court erred in failing to admit exhibits and
testimony of previous civil protection orders and other court documents based on relevancy
when related to impeachment, truthfulness, and prior conduct in violation of Evid.R. 608,
613, and 616. In appellant's fifth assignment of error, appellant argues that the trial court
erred by finding that the mental health of petitioner was irrelevant to the objective
reasonableness of the petitioner's fear and credibility.
{¶ 22} As an initial matter, we note that appellant's brief fails to comply with App.R.
16 as he failed to separately argue each assignment of error. App.R. 16(A)(7) requires each
assignment of error to include "[a]n argument containing the contentions of the appellant
with respect to each assignment of error presented for review." While it is within the
reviewing court's discretion to consider assignments of error together, the parties do not
have this choice and are obligated to argue each assignment of error separately in their
brief. Fiorilli Constr., Inc. v. A. Bonamase Contracting, Inc., 8th Dist. No. 94719, 2011-
Ohio-107, ¶ 30. While App.R. 12(A) allows this court to disregard an assignment of error
not separately argued in its brief, in the interests of justice, we will address appellant's
arguments to the extent they contend that the trial court abused its discretion in excluding
testimony and exhibits as to the prior court documents and appellee's mental health.
{¶ 23} The admissibility of evidence falls within the trial court's broad discretion.
Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, ¶ 20, citing State v.
Hymore, 9 Ohio St.2d 122, 128 (1967). A trial court's ruling on evidentiary issues will not
be disturbed absent an abuse of discretion that has resulted in materially prejudice. Beard
at ¶ 20. Abuse of discretion is a determination by the court that is arbitrary, unreasonable,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The Supreme
Court of Ohio, however, has recently clarified this standard of review noting that all "courts
lack the discretion to make errors of law, particularly when the trial court's decision goes
against the plain language of a statute or rule." Johnson v. Abdullah, 166 Ohio St.3d 427,
2021-Ohio-3304, ¶ 39. " 'Even in the event of an abuse of discretion, a judgment will not
be disturbed unless the abuse affected the substantial rights of the adverse party or is
inconsistent with substantial justice.' " Maiorana v. Walt Disney Co., 10th Dist. No. 20AP-
No. 20AP-571 10
207, 2021-Ohio-4530, ¶ 49, quoting Beard at ¶ 20, citing O'Brien v. Angley, 63 Ohio St.2d
159, 164-65 (1980).
1. Court Documents
{¶ 24} Appellant argues that the trial court erred by excluding exhibits and certain
testimony as appellee had made inconsistent statements regarding her previously filed
protection orders. The trial court excluded the exhibits as irrelevant.
{¶ 25} Evid.R. 401 states "[r]elevant evidence" is "evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." Pursuant to Evid.R.
613, "[i]n examining a witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents disclosed to the witness at
that time, but on request the same shall be shown or disclosed to opposing counsel."
Evid.R. 613(A). Furthermore, extrinsic evidence of a prior inconsistent statement by a
witness is admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of
impeaching the witness, the witness is afforded a prior
opportunity to explain or deny the statement and the opposite
party is afforded an opportunity to interrogate the witness on
the statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the
action other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under
Evid.R. 608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under the
common law of impeachment if not in conflict with the Rules
of Evidence.
Evid.R. 613(B).
When concerning the introduction of extrinsic evidence of prior inconsistent
statement this court has previously stated:
Evid.R. 613(B), thus, allows introduction of extrinsic evidence
of a prior statement only after a proper foundation has been
laid through direct or cross-examination in which: " ' "(1) the
witness * * * is presented with the former statement; (2) the
witness is asked whether he made the statement; (3) the
witness is given an opportunity to admit, deny or explain the
statement; and (4) the opposing party is given an opportunity
No. 20AP-571 11
to interrogate the witness on the inconsistent statement." ' "
State v. Kulasa, 10th Dist. No. 11AP-826, 2012-Ohio-6021, ¶
12, quoting State v. Mack, 73 Ohio St.3d 502, 514-15, 1995-
Ohio-273, 653 N.E.2d 329 (1995), quoting State v. Theuring,
46 Ohio App.3d 152, 155, 546 N.E.2d 436 (1st Dist.1988). If a
witness denies making a prior inconsistent statement, a proper
foundation has been laid, and if, in addition, the prior
inconsistent statement does not relate to a collateral matter,
extrinsic evidence is admissible. Kulasa at ¶ 19. If a witness
admits having made the contradictory statements, however,
then extrinsic evidence of the prior inconsistent statement is
not admissible. In re M.E.G., 10th Dist. No. 06AP-1256, 2007-
Ohio-4308; State v. Hill, 2d Dist. No. 20028, 2004-Ohio-
2048, ¶ 40.
State v. Ollison, 10th Dist. No. 16AP-95, 2016-Ohio-8269, ¶ 60, quoting State v.
Ferguson, 10th Dist. No. 12AP-1003, 2013-Ohio-4798, ¶ 15.
{¶ 26} Upon review, Exhibit A is a 2012 civil protection order petition by appellee
against her ex-husband, Andrew Cunningham purportedly as part of a divorce filing.
Similarly, Exhibit B is a 2015 petition for a domestic violence civil protection order by
appellee against the father of one of her minor children. These documents also include
various orders and entries from the magistrate and statements from the parties in the
respective cases. After consideration of the evidence, we find the trial court's ruling was not
an abuse of its discretion that resulted in material prejudice to appellant. It is not
unreasonable to find that the petition filed by appellee against her ex-husband in a divorce
proceeding was irrelevant as it involved an unrelated matter and a different respondent
from the case at issue. Similarly, the exclusion of the petition and filings by appellee against
her child's father in a custody matter as irrelevant is also not unreasonable. While appellee
did initially testify that she had not previously filed a protection order, appellee explained
she interpreted the question as asking whether she had filed a standalone petition like this
proceeding and not as part of custody or divorce matter. (Tr. at 66.) There is no doubt from
the transcript that appellee acknowledged that she had made these two filings. Therefore,
appellee admitted and explained the contradictory statement.
{¶ 27} Regardless, even if these documents were relevant and had been admitted as
exhibits, appellant fails to demonstrate how their exclusion materially prejudiced his case.
Appellee initially testified that she had not filed a protection order, when she had, in fact,
No. 20AP-571 12
filed two such petitions in her divorce and custody cases. The admission of the exhibits
would not have provided anymore material information than what was already in the
record. Appellant made his point. Despite this line of questioning as to the inconsistent
statement by appellee regarding her prior filings, the trial court, however, found appellee
more credible and granted the petition.
{¶ 28} Appellant next argues the trial court erred by excluding a decision by a
Licking County magistrate from her custody case. The trial court denied the admission of
the exhibit as irrelevant. Pursuant to Evid.R. 611, the trial court must "exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect witnesses from harassment or
undue embarrassment." A trial court in a bench trial is particularly positioned to evaluate
the evidence and credibility of witnesses. Ahmmad v. Ahmed, 10th Dist. No. 14AP-736,
2015-Ohio-2537, ¶ 38 (writing a written record cannot convey on appeal a witnesses'
demeanor, gestures, and voice inflections).
{¶ 29} We find the trial court's exclusion of the exhibit was not an abuse of
discretion. Here, appellant attempted to utilize the magistrate's ruling in the custody case
to demonstrate appellee is untruthful. The trial court is entitled to the same opportunity to
determine credibly as the magistrate in the Licking County proceeding. The trial court is
under no obligation to accept another trier of fact's credibility determination in a wholly
unrelated matter. One does not inform the other. It is not inconsistent for one court to
determine an individual is not credible in one case, and credible in another. As such, the
appellant has failed to demonstrate how this decision is relevant to the instant case or that
he was materially prejudiced by the exclusion of the Licking County decision.
{¶ 30} Appellant also argues that the trial court erred excluding Exhibits A and B in
violation of Evid.R. 616(B) and (C) as well as Evid.R. 608. Appellant, however, failed to
raise these arguments to the trial court at the hearing. As such, appellant has waived all but
plain error analysis as to this issue.
{¶ 31} "An appellate court recognizes plain error with the utmost caution, under
exceptional circumstances, and only to prevent a miscarriage of justice." State v. Mankin,
10th Dist. No. 19AP-650, 2020-Ohio-5317, ¶ 15, citing State v. Pilgrim, 184 Ohio App.3d
No. 20AP-571 13
675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St.3d 460, 2008-
Ohio-6266, ¶ 139. "For an error to be a 'plain error' under Crim.R. 52(B), it must satisfy
three prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error
must be 'plain,' meaning an 'obvious' defect in the trial proceedings, and (3) the error must
have affected 'substantial rights,' meaning the error must have affected the outcome of the
trial." Mankin at ¶ 16, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68 (2002).
{¶ 32} Upon review, we decline to further expand our discussion as to the merits of
the evidentiary arguments as, regardless of appellant's argument, even if the error was
clear, the exclusion of these exhibits and testimony did not affect appellant's substantial
rights as to affect the outcome of the hearing. The trial court was aware of the prior court
proceedings based on testimony at the hearing. Again, appellant has failed to persuade this
court that the inclusion of this testimony would have changed the outcome in this case.
2. Mental Health
{¶ 33} Next, appellant argues that the trial court erred in sustaining an objection
regarding appellee's mental health and exclusion of the magistrate's decision in the Licking
County matter. Appellant contends this evidence shows appellee's propensity for
dishonesty and concerns about her mental health. Appellant also argues the mental health
testimony was permissible because appellee admitted to seeing a psychiatrist and taking
anxiety medicine.
{¶ 34} Appellant asked at trial if appellee had a mental health diagnosis, which the
trial court sustained as irrelevant. Regardless of the merits of appellant's argument,
appellant fails to demonstrate how the exclusion of this single question resulted in material
prejudice. First, appellee admitted to seeing a psychiatrist and taking medication for
anxiety as well as issues with sleep from appellant's behavior. It is reasonable to believe
that the answer to this question would have largely repeated testimony already in the
record. Moreover, there is significant evidence presented in this case as to the actions of
appellant that are not in dispute unrelated to any potential mental diagnosis of appellee.
There is no dispute as to much of the evidence before the court, most notably the text
messages sent to appellant, the image of the jump rope tied to a banister, and video of
appellant attempting suicide. Regardless of any further examination of appellee's mental
health, the actions of appellant were obvious.
No. 20AP-571 14
{¶ 35} It is also unclear what other testimony appellant believes would have come
from his cross-examination of appellee on this issue as he failed to proffer additional
questions or state on the record what he believed would have come from such testimony.
Appellant argues that all issues related to the mental health of the appellee were preserved
as they were "reflected in the offered documentary evidence whereby there was a judicial
determination that the Appellee had mental health issues and had an extreme propensity
for untruthfulness." (Reply Brief at 12.) We are not persuaded that the credibility
determination of a magistrate in a different case plays any role in the trial court's analysis.
The trial court is the trier of fact and must make its own conclusions on credibility of the
witnesses. Moreover, even if assuming appellant's evidentiary argument has merit on this
point, based on the evidence in this case, any error on this issue would have been harmless.
See Civ.R. 61.
{¶ 36} Appellant's second, third, fourth, and fifth assignments of error are
overruled.
B. Appellant's First Assignment of Error
{¶ 37} In appellant's first assignment of error, he argues the trial court erred by not
allowing him a "full hearing," as defined under R.C. 3113.31, based on the above-mentioned
evidentiary issues set forth in the previous section.
{¶ 38} "The decision to grant a civil protection order lies within the sound discretion
of the trial court." Martin v. Martin, 10th Dist. No. 13AP-171, 2013-Ohio-5703, ¶ 6, quoting
Daughtry v. Daughtry, 10th Dist. No. 11AP-59, 2011-Ohio-4210, ¶ 5, citing Parrish v.
Parrish, 95 Ohio St.3d 1201, 2002-Ohio-1623 (2002). Here, however, appellant alleges the
trial court did not allow him a "full hearing" within the meaning of R.C. 3113.31. Where an
appeal requires an analysis of R.C. 3113.31, the civil domestic violence statute, we apply a
de novo standard of review. D.M.W. v. E.W., 10th Dist. No. 17AP-359, 2018-Ohio-821, ¶ 11,
citing Hope Academy Broadway Campus v. Ohio Dept. of Edn., 10th Dist. No. 07AP-758,
2008-Ohio-4694, ¶ 13.
{¶ 39} Pursuant to R.C. 3113.31, when a petitioner seeks a civil protection order and
requests an ex parte hearing, the trial court is required to hold a hearing on the same day
and, if good cause is shown, may enter an ex parte temporary order. D.M.V. at ¶ 11, citing
R.C. 3113.31(D)(1). If the trial court issues an ex parte order, "the court shall schedule a full
No. 20AP-571 15
hearing for a date that is within seven court days after the ex parte hearing."
R.C. 3113.31(D)(2)(a). However, the term "full hearing" is not defined under the statute.
Tarini v. Tarini, 10th Dist. No. 12AP-336, 2012-Ohio-6165, ¶ 14, citing Deacon v. Landers,
68 Ohio App.3d 26, 587 N.E.2d 395 (4th Dist.1990). In Tarini, this court considered the
meaning of "full hearing" under R.C. 3113.31(D)(2)(a). We wrote, generally, a "full hearing"
" 'is one in which ample opportunity is afforded to all parties to make, by evidence and
argument, a showing fairly adequate to establish the propriety or impropriety of the step
asked to be taken.' " Tarini at ¶ 14, quoting Deacon at 30. " '[W]here the issuance of a
protection order is contested, the court must, at the very least, allow for presentation of
evidence, both direct and rebuttal, as well as arguments.' " (Footnote omitted.) Id.{¶ 40} Appellant argues that the trial court's evidentiary determinations, set forth in
assignments of error two through five, precluded him from receiving a "full hearing" under
R.C. 3113.31(D)(2). We disagree. The denial of a full hearing is not the exclusion of certain
evidence during the hearing but concerns the deprivation of the opportunity to be heard.
See D.M.W., ¶ 12-13 (concluding the trial court deprived appellant of a full hearing, as
required by R.C. 3113.31, when "[t]he trial court was aware appellant and his counsel were
present and prepared for a full contested hearing, yet it did not permit appellant or counsel
to appear before the court to present evidence."); J.S. I at ¶ 25 (finding the trial court denied
L.S. a "full hearing" when "it considered evidence submitted by J.S. without allowing L.S.
to review the evidence and in conducting independent factual research without allowing
L.S. to respond."); H.C. v. R.C., 10th Dist. No. 15AP-936, 2016-Ohio-668, ¶ 16 (concluding
the trial court failed to provide appellant a full hearing under R.C. 3113.31 by denying him
the opportunity to complete his cross-examination of the minor child, call his own
witnesses, or present evidence in his own defense); Spigos v. Spigos, 10th Dist. No. 03AP-
682, 2004-Ohio-757 (finding the trial court erred in failing to provide the petitioner a full
hearing under R.C. 3113.31 when the court interrupted her testimony, requested to speak
with counsel off the record, and then entered judgment against the petitioner on the basis
that she had failed to meet her burden to grant the petition for a domestic violence
protection order).
{¶ 41} In the case sub judice, there is no dispute that appellant was served with a
copy of the petition and was given an opportunity to be heard and present evidence at the
No. 20AP-571 16
October 26, 2020 hearing. The only assertion that a "full hearing" was not granted is
involving the exclusion of certain exhibits and questions that the trial court deemed
irrelevant. In our view, appellant's argument concerns an evidentiary issue that, under the
facts of this case, did not preclude appellant from a "full hearing" as intended under
R.C. 3113.31. Allowing such an interpretation would severely impede the trial court's broad
authority as to evidentiary matters. While " '[o]ne of the fundamental due process rights is
the right to present witnesses in one's behalf,' the 'right may be tempered by judicial
discretion and the laws of evidence.' " Tarini at ¶ 17, quoting In re Houseman v. Houseman,
4th Dist. No. 831, 1981 Ohio App. LEXIS 13378 (Oct. 30, 1981). Based on the foregoing, we
find appellant was provided a full hearing as contemplated under R.C. 3113.31.
{¶ 42} Appellant's first assignment of error is overruled.
C. Appellant's Sixth Assignment of Error
{¶ 43} In appellant's sixth assignment of error, appellant argues that the trial court
erred in failing to include any findings of fact to justify the granting of the petition for a civil
protection order under R.C. 3113.31.
{¶ 44} Effective June 1, 2012, Civ.R. 65.1 governs domestic violence civil protection
orders, civil stalking protection orders, and sexually-oriented offense civil protection
orders. M.D. v. M.D., 8th Dist. No. 106581, 2018-Ohio-4218, ¶ 46, citing Weber v.
Forinash, 6th Dist. No. S-14-034, 2015-Ohio-3187, ¶ 30. Civ.R. 65.1 was enacted, in part,
to expediate the process of obtaining a protection order after a full hearing, which was
inconsistent with aspects of Civ.R. 53. M.D. at ¶ 47-48. "As such, it 'uniquely applies to the
special statutory proceeding set forth in R.C. 3113.31, which provides the requirements for
the entry of a CPO against adults for the protection of victims of domestic violence.' "
Besman v. Leventhal, 8th Dist. No. 104414, 2017-Ohio-464, ¶ 4, quoting Heimann v.
Heekin, 1st Dist. No. C-130613, 2014-Ohio-4276, ¶ 5. In an effort to streamline proceedings
for protection orders, Civ.R. 65.1, unlike Civ.R. 53, "does not provide for a request for
findings of fact and conclusions of law." B.L.L. v. M.T., 7th Dist. No. 21MA0021, 2021-
Ohio-4300, ¶ 39, quoting Insa v. Insa, 2d Dist. No. 26909, 2016-Ohio-7425, ¶ 27.
{¶ 45} Generally, a court will only speak through its entries, as "[n]either the parties
nor a reviewing court should have to review the trial court record to determine the court's
intentions. Rather, the entry must reflect the trial court's action in clear and succinct
No. 20AP-571 17
terms." Infinite Sec. Solutions, L.L.C. v. Karam Props. II, 143 Ohio St.3d 346, 2015-Ohio-
1101, ¶ 29. The Supreme Court, however, has also recognized that "requiring specific or
hypertechnical language is inefficient and counterproductive." Id. at ¶ 31. In the interest
of justice, a reviewing court may examine the entire entry and proceedings to identify the
grounds upon which the judgement is based. Joyce v. Gen. Motors Corp., 49 Ohio St.3d
93, 551 N.E.2d 172 (1990), paragraph one of the syllabus, citing A. B. Jac, Inc. v. Liquor
Control Comm., 29 Ohio St.2d 139 (1972); see also State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St.3d 565, 569 (1996) ("A reviewing court must examine the entire
journal entry and the proceedings below where necessary to ascertain the precise basis of a
lower court's judgment."); Miller v. Grimsley (In re Grimsley), 449 B.R. 602 (Bankr.
S.D.Ohio 2011) (finding that while a court speaks through its written orders and judgments
"there is nothing in the principle that prohibits a court from reviewing the entire record of
a case when deciding the grounds for, or the meaning of, a court's judgment or order. To
the contrary, a court clearly may do so").
{¶ 46} Appellee contends that appellant failed to request findings of fact in this case
and, as such, may not assert this argument on appeal. Appellee's argument fails in this
regard as Civ.R. 65.1 does not allow for the filing of a request for findings of fact and
conclusions of law. See Besman at ¶ 5 (finding "it would be inconsistent with Civ.R. 65.1 to
allow a request for findings of fact and conclusions of law because it would delay the
proceedings.") (emphasis sic.) Appellant, however, is also incorrect in his statement that
the trial court failed to provide any findings of fact to justify granting the petition for a
protection order. The trial court, in its December 14, 2020 order wrote, "by a
preponderance of the evidence: 1) that the Petitioner or Petitioner's family or household
member (s) (sic) are in danger of or have been a victim of domestic violence or sexually
oriented offenses as defined in R.C. 3113.31 (A) (sic) committed by Respondent; and 2) the
following orders are equitable, fair, and necessary to protect the persons named in this
Order from domestic violence." (Order of Protection at 2.) While the trial court's analysis
is certainly concise, it clearly and succinctly found the petitioner and her household
members were in danger of or have been victims of domestic violence as defined under
R.C. 3113.31. A brief look at the trial court's ruling from the bench at the hearing confirms
this conclusion:
No. 20AP-571 18
The motive behind the civil protection order for public policy is
to protect petitioners from domestic violence, and after looking
at the scope of testimony as it originally occurred, I do believe
that at the hearing, petitioner provided the Court with enough
credible testimony and/or evidence which did not significantly
deviate from the original petition reviewed and approved by
this Court on June 3rd, 2019, to substantiate her reasonable
fear and justify an award of a civil protection order.
Again, looking at the evidence, it is a preponderance of the
evidence, and I have considered all the evidence of the parties,
the testimony of both witnesses, and the demeanor of both
witnesses in the courtroom. And I do believe that the threshold
of the preponderance of the evidence has been met.
Specifically this Court finds that petitioner was placed in fear of
imminent serious physical harm by the threats and/or action
by the respondent, and this fear is objectively reasonable given
the circumstances of the case. I do not find the pattern of
stalking.
The Court finds by a preponderance of the evidence that the
petitioner has been the victim of domestic violence as defined
by Ohio Revised Code 3113.31(A) committed by the
respondent, and that the following orders are equitable, fair
and necessary to protect the person's name in this order from
domestic violence.
(sic passim.) (Tr. at 134-36.)
{¶ 47} Here, the findings of fact, in conjunction with the trial court's oral
pronouncements at the conclusion of the trial, established as fact the evidence offered by
appellee that she is in danger of or has been victim of domestic violence as defined under
the statute. Besman at ¶ 101 (finding the trial court's findings of fact, while not
1 The trial court's finding of fact in Besman was similarly concise stating:
Petitioner was sworn and gave testimony that supports finding that Respondent
committed domestic violence as defined in O.R.C. §3113.31 and that the Petitioner is
in danger of Domestic [sic] violence. Her testimony is found to be credible. Sgt.
Lesner and Matthew Besman are found to be credible. Dr. Horowitz testimony was
minimal. Respondent was obstreperous throughout the trial and his testimony is
found to be both evasive and self-serving.
The Court further finds by a preponderance of the evidence: 1) that the Petitioner or
Petitioner's family or household members are in danger of or have been a victim of
domestic violence or sexually oriented offenses as defined in R.C. 3113.31(A)
committed by Respondent; and 2) the following orders are equitable, fair, and
necessary to protect the persons named in this Order from domestic violence.
Besman at ¶ 8.
No. 20AP-571 19
comprehensive, are adequate to allow a reviewing court to determine the existence of
assigned error.) Accordingly, the findings of fact from the trial court are satisfactory to
enable a reviewing court to review the existence of error. While the trial court would be
better served with a more expansive examination in the order, its analysis at the conclusion
of the hearing resolves any concerns by this court as to its ruling on this matter.
{¶ 48} Appellant's sixth assignment of error is overruled.
D. Appellant's Seventh Assignment of Error
{¶ 49} In appellant's seventh assignment of error, he argues that the trial court's
ruling granting appellee's petition for a civil protection order was against the manifest
weight of the evidence.
{¶ 50} This court will review a trial court's grant of a civil protection order to
" ' "determine whether sufficient, credible evidence supports a finding that the respondent
had engaged in acts or threats of domestic violence." ' " T.S. v. B.S., 10th Dist. No. 18AP-
302, 2018-Ohio-4987, ¶ 21, quoting Fleckner v. Fleckner, 177 Ohio App.3d 706, 2008-
Ohio-4000, ¶ 15 (10th Dist.), quoting Kabeer v. Purakaloth, 10th Dist. No. 05AP-1122,
2006-Ohio-3584, ¶ 7. A reviewing court will not reverse the trial court's award of a civil
protection order as being against the manifest weight of the evidence absent a finding that
there was not "some competent, credible evidence [that] goes to the essential elements of
the case." Id. If the evidence is susceptible to more than one interpretation, a reviewing
court must construe the evidence consistent with the trial court's order. Id. An appellate
court presumes that the trial court's findings are accurate as it was best positioned to view
the witnesses and weigh the credibility of their testimony. Dennison v. Dennison, 10th Dist.
No. 19AP-335, 2020-Ohio-2800, ¶ 28.
{¶ 51} As set forth in R.C. 3113.31(A)(1), domestic violence is defined as the
occurrence of at least one of the following: "(i) [a]ttempting to cause or recklessly causing
bodily injury; (ii) [p]lacing another person by the threat of force2 in fear of imminent
2R.C. 3113.31(A)(1)(a)(ii) does not define "force," "serious physical harm," or "imminent." M.D. at ¶ 69. R.C.
2901.01(A)(1), however, defines "force" as "any violence, compulsion, or constraint physically exerted by any
means upon or against a person or thing." "Serious physical harm" is defined in R.C. 2901.01(A)(5) as:
(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;
No. 20AP-571 20
serious physical harm or committing a violation of section 2903.211 or 2911.211 of the
Revised Code; (iii) [c]ommitting 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; and (iv)
[c]ommitting a sexually oriented offense." A petitioner seeking a civil protection order must
prove domestic violence or a threat of domestic violence by a preponderance of the
evidence. Johnson v. Auls, 10th Dist. No. 08AP-286, 2008-Ohio-6123, ¶ 5, citing Felton v.
Felton, 79 Ohio St.3d 34 (1997), paragraph two of the syllabus. "Domestic violence" also
includes the occurrence of one or more of these acts against a person with whom the
respondent is or was in a dating relationship. R.C. 3113.31(A)(1)(b).
{¶ 52} For the purposes of R.C. 3113.31, the threat of force constitutes domestic
violence if the fear from those threats is reasonable. Fleckner at ¶ 21, quoting Lavery v.
Lavery, 9th Dist. No. 20616, 2001-Ohio-1874, *4-5, discretionary appeal not allowed, 95
Ohio St.3d 1409 (2002). The history between the parties is instructive as to the
reasonableness of the fear at issue. Fleckner at ¶ 21, citing Gatt v. Gatt, 9th Dist. No. 3217-
M, 2002-Ohio-1749, citing Eichenberger v. Eichenberger, 82 Ohio App.3d 809, 816, 613
N.E.2d 678 (1992) (finding that while the respondent had not previously caused physical
harm to the petitioner, the petitioner's fear that respondent would now carry out his threat
to kill her was reasonable and not irrational). Courts use both a subjective and objective
test to resolve the reasonableness of the petitioner's fear. The subjective test "inquires
whether the respondent's threat of force actually caused the petitioner to fear imminent
serious physical harm." Fleckner at ¶ 23. The objective test looks at "whether the
petitioner's fear is reasonable under the circumstances (that is, whether the respondent's
threat would cause a reasonable person to fear imminent [unconditional, non-contingent]
serious physical harm)." Id.{¶ 53} While the trial court " 'may consider past acts to determine whether the
incident at issue constitutes domestic violence, the issuance of a civil protection order
(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.
No. 20AP-571 21
cannot be based solely on previous incidents of alleged domestic violence.' " E.W. v. T.W.,
10th Dist. No. 16AP-88, 2017-Ohio-8504, ¶ 36, quoting Solomon v. Solomon, 157 Ohio
App.3d 807, 2004-Ohio-2486, ¶ 23, citing Bruner v. Bruner, 7th Dist. No. 99CA285
(Sept.22, 2000). However, " 'imminence does not require an offender to carry out a threat
immediately or be in the process of carrying it out [b]ecause civil protection orders are
intended to prevent violence before it happens[.]' " M.D. at ¶ 68-73, quoting Young v.
Young, 2d Dist. No. 2005-CA-19, 2006-Ohio-978, ¶ 105. Under R.C. 3113.31, the critical
inquiry in determining whether the threat was "imminent" is " ' "whether a reasonable
person would be placed in fear of imminent (in the sense of unconditional, non-contingent)
serious physical harm." ' " T.S. at ¶ 24, quoting Fleckner at ¶ 20, quoting Maccabee v.
Maccabee, 10th Dist. No. 98AP-1213, 1999 Ohio App. LEXIS 2992 (June 29, 1999).
{¶ 54} There is no dispute that appellant stated that he would "burn" appellee.
While appellant contends that this was stated in a different context, appellee testified she
interpreted the phrase, in conjunction with appellant's prior statements that she would not
be a pretty face anymore, that appellant was going to bring her harm. "I don't know how to
feel other than you were going to seriously hurt me." (Tr. at 11.) Appellee also testified that
she believed appellant's text message "they can't keep me forever," that appellant would see
her "at the hospital," and that she was a "white trash whore" were threats. Appellant does
not dispute these text messages were sent but contends they were sent in a different context
and were not threats.
{¶ 55} Appellee also testified as the video and accompanying text messages related
to appellant's suicide attempt. Appellant texted appellee, "I'm serious [appellee], I will be
dead by morning." (Tr. at 17.) Appellee testified to a picture from appellant of a jump rope
tied to the banister with the message, "if I want to keep not taking him seriously, he hoped
it was on my conscious forever." (Tr. at 18.) Appellee stated that appellant would
consistently make threats that he would harm himself and these messages made her "afraid
that if he did--if he did follow through with it, what it would mean to his girls and how I
would be responsible, and that if he didn't follow through and I didn't contact him, that he
would come after me and harm me because I didn't respond in the way that he felt was
appropriate." (Tr. at 17-18.) Appellee testified that she watched the video before reading
the text message and believed appellant was dead. (Tr. at 18-19.) Appellee testified the
No. 20AP-571 22
video began with appellant standing with a rope around his neck and a few moments later
appellant's daughter walked out from her room before the appellant exclaimed "shit."
(Tr. at 21.) Appellee received a text message from appellant that stated, "I would be dead
right now if [appellant's daughter] didn't wake up." (Tr. at 22.) Again, appellant does not
deny these messages were sent but contends that it was his way of getting an answer from
appellee regarding the paternity of her youngest child.
{¶ 56} Regarding the text message, "You don't want to be with me that's fine, but not
knowing is going to kill me tonight," appellant stated that he was "trying to get her to give
me some answers" but he was not suicidal. (Tr. at 115.) When appellant was asked if this
was trying to "send [appellee] a message," appellant responded "yes, sir." (Tr. at 116.)
Appellee testified that she is fearful of appellant causing her imminent serious bodily harm.
Despite knowing that appellee referred to his messages as threatening, appellant said he
kept texting appellee because he "explained to her that [he] wasn't threatening." (Tr. at
116.) Appellee stated that she experienced mental distress from the video and reading the
text messages. Appellee could not get out of bed and could not focus or live her life without
thinking appellant was going to bring her harm. Appellee testified that she is now seeing a
psychiatrist and taking medication because she could not sleep. Appellee changed jobs out
of fear that appellant would hurt her at work. Appellee also alleged that she urinated in her
pants when appellant walked by her during a court hearing. (Tr. at 24.) Moreover, there is
no dispute appellee has previously shot himself and has a felony conviction on his record
involving an element of violence.
{¶ 57} After review of the hearing transcript and relevant evidence, the trial court's
ruling was not against the manifest weight of the evidence. The trial court is best positioned
to observe the parties and their testimony and make a determination as to their credibility.
Nkurunziza v. Nyamusevya, 10th Dist. No. 10AP-134, 2010-Ohio-5966, ¶ 10. "We will not
second-guess those credibility determinations on appeal." Id. Given the turbulent history
between the parties, text messages, and suicide video, there was sufficient competent,
credible evidence to support the trial court granting the civil protection order.
{¶ 58} Appellant's seventh assignment of error is overruled.
No. 20AP-571 23
E. Appellant's Eighth Assignment of Error
{¶ 59} In appellant's eighth assignment of error, he argues the trial court erred in
including the minor children as protected persons as there was no evidence to justify their
inclusion in the protection order. Appellant also argues that the petition was never formally
amended to request the protection of the third child born after the petition was filed.
{¶ 60} R.C. 3113.31 explicitly provides the trial court with the authority to craft a
protection order tailored to the unique circumstances of the case. As such, this court will
review the scope of the civil protection order under an abuse of discretion analysis. T.S. at
¶ 27. "Further, when issuing a civil protection order where domestic violence exists, the
court is prompted to consider not only the petitioner but also the []petitioner's family or
household members[]." (Internal quotations omitted.) Woolum v. Woolum, 12th Dist. No.
CA98-07-010, 131 Ohio App.3d 818, 824 (1999), quoting Felton v. Felton, 79 Ohio St.3d 34(1997), paragraph two of the syllabus. McBride v. McBride, 12th Dist. No. CA2011-03-061,
2012-Ohio-2146, ¶ 25. (Internal quotations omitted.) ("The trial court did not err in issuing
a CPO on behalf of E.M. in light of our previous holding that placing children in an
environment where there is a substantial risk to their health and safety constitutes one form
of domestic violence."); see also Martindale v. Martindale, 4th Dist. No. 17CA5, 2017-Ohio-
9266, ¶ 55.
{¶ 61} There was sufficient testimony at trial to support the inclusion of appellee's
minor children as protected parties. Appellee testified that appellant struck her two-year-
old son. Appellee testified that appellant admitted to the incident stating that the child was
acting up in a store. Appellant denied the incident ever happened. Appellee also alleged
that appellant visited her children's daycare on multiple occasions without invitation.
Appellant testified that he once visited the daycare at appellee's invitation and on two other
occasions went to the daycare to pay part of appellee's bill. In its December 14, 2020 order,
the trial court found, "by a preponderance of the evidence: 1) that the Petitioner or
Petitioner's family or household member (s) (sic) are in danger of or have been a victim of
domestic violence or sexually oriented offenses as defined in R.C. 3113.31 (A) (sic)
committed by Respondent; and 2) the following orders are equitable, fair, and necessary to
protect the persons named in this Order from domestic violence." The trial court also stated
at the conclusion of the hearing, "I do believe that at the hearing, petitioner provided the
No. 20AP-571 24
Court with enough credible testimony and/or evidence which did not significantly deviate
from the original petition reviewed and approved by this Court on June 3rd, 2019, to
substantiate her reasonable fear and justify an award of a civil protection order." (Tr. at
134-35.) While the evidence was conflicting and uncorroborated, the trial court found
appellee's testimony more credible than appellant's testimony in this case. Given these
facts, we find the trial court was not unreasonable in the scope of the order to include the
minor children as protected parties.
{¶ 62} Regarding the inclusion of the newborn child as a protected party, appellee
was pregnant at the time she filed her petition for a protection order. Before the full hearing
commenced, appellee had given birth to the child. There is no dispute that appellee testified
that she wanted her children included in the order as protected parties. (Tr. at 66.) This
would logically include the newborn not initially identified in the petition as a protected
person. Ohio courts have found a trial court may exclude individuals that a petitioner asked
to be included in the order if the evidence does not support their inclusion as a protected
party. See, e.g., Hyde v. Smith, 12th Dist. No. CA2014-09-193, 2015-Ohio-1701 (finding the
trial court erred including petitioner's father, mother, and brother as additional protected
parties as they, despite their inclusion in the petition, did not meet the definition of "family
or household members" under R.C. 3113.31(A)(3)). It is, therefore, logical that a trial court,
having been authorized by statute to tailor the order to the unique circumstances of the
case, may add a minor child, born after the petition was filed but before the full hearing,
that is also at risk of harm from the appellant. Moreover, there is no evidence in the record
that appellant has a familial relationship or custodial interest in any of these children. As
the trial court's determination that the minor children should be included in the protection
order was reasonable, we cannot say that the trial court's inclusion of the third minor child
to the protection order was an abuse of discretion.
IV. CONCLUSION
{¶ 63} Having overruled appellant's eight assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations
and Juvenile Branch.
Judgment affirmed.
KLATT, J., concurs.
No. 20AP-571 25
DORRIAN, J., concurs in judgment only.
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