R.T. v. J.T.

[Cite as R.T. v. J.T., 2015-Ohio-4418.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
J.T. C.A. No. 14CA0061-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
R.T. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 13 CV 0210
DECISION AND JOURNAL ENTRY
Dated: October 26, 2015
CARR, Judge.
{¶1} Appellant R.T. (“Mother”) appeals the judgment of the Medina County Court of
Common Pleas, Domestic Relations Division, that issued a domestic violence civil protection
order against her, naming her three children as the protected parties. This Court reverses and
remands.
I.
{¶2} J.T. (“Father”) and Mother are the parents of three children: a son, T.T.; and two
daughters, L.T. and E.T. The children were 13, 11, and 7 years old, respectively, at the time
relevant to this matter. Mother and Father were divorced and the custody of the children was
parsed pursuant to a shared parenting plan under which Mother was the residential parent for
school purposes.
{¶3} After receiving a call from L.T.’s school regarding an incident, Father filed a
petition for a domestic violence civil protection order on behalf of L.T., seeking relief on behalf
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of all three children. Father alleged that L.T. reported to a school counselor that Mother threw a
glass mug at L.T. during a heated argument, and the mug bounced off the wall and hit L.T. in the
head. Father made no allegations with regard to T.T. and E.T., although he requested that the
court temporarily allocate parental rights and responsibilities for the care of all three children and
suspend Mother’s visitation pending a full hearing on the petition. The domestic relations court
issued an ex parte protection order ordering for a period of one year, among other things, that
Mother stay 500 feet away from Father and the three children, that she not have any contact with
the children, that Father be designated as the temporary legal custodian and residential parent of
the three children, and that Mother’s visitation with the children be suspended. The court
scheduled the matter for a full hearing.
{¶4} After a full hearing before the magistrate, the domestic relations court issued a
domestic violence civil protection order against Mother, naming all three children as protected
persons. The court ordered, among other things, that Mother would not have any contact with
the children, except that Mother was permitted to “exercise parenting time in public places as
agreed by [the] parties. Such contact shall be no less than three days per week and no less than
two hours in duration.” The protection order temporarily allocated physical custody of the
children to Father pending post-decree disposition of parental rights in case number 09DR0266,
the parties’ divorce action.
{¶5} Mother obtained counsel for the first time after the domestic violence civil
protection order was issued. Through counsel, she filed timely objections to the order. Mother
did not file a supplemental brief in support, but the trial court held a hearing on the objections.
Although there is no transcript of that hearing in the record, the trial court’s judgment entry
indicates that both Mother and Father and their respective attorneys attended the hearing on
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Mother’s objections. The domestic relations court noted that Mother had challenged the issuance
of the domestic violence civil protection order on the basis that it was against the manifest
weight of the evidence. The trial court overruled Mother’s objections and found that “[Father]
showed by a preponderance of the evidence that [Mother] committed acts of domestic violence
as defined by R.C. []3113.31 by recklessly causing bodily harm and placing the minor children
in fear of imminent bodily harm through a continuing pattern of excessively aggressive and
violent conduct.” The domestic relations court reaffirmed its prior domestic violence civil
protection order. Mother filed a timely appeal in which she raises one assignment of error for
review.
{¶6} As a preliminary matter, this Court notes that, although the domestic violence
civil protection order has expired, Mother’s appeal is not moot. Because Mother may be subject
to adverse collateral consequences as a result of having had a protection order issued against her,
her challenge to the propriety of the imposition of the now-expired order is not moot. See D.R. v.
J.R., 9th Dist. Summit No. 26743, 2013-Ohio-2987, ¶ 9 (noting that “collateral consequences can
include, but are not limited to, the effect on one’s credit rating, the ability to drive certain
vehicles, the ability to obtain a weapons permit, and the ability to obtain employment.”).
Accordingly, this Court addresses the substantive issues raised in this appeal.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN FINDING THAT ANY OF THE THREE
CHILDREN WERE VICTIMS OF DOMESTIC VIOLENCE IN NEED OF A
[DOMESTIC VIOLENCE CIVIL PROTECTION ORDER].
{¶7} Mother argues that the domestic relations court’s finding that a domestic violence
civil protection order was warranted in this case was against the manifest weight of the evidence.
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This Court agrees. She, moreover, argues that the trial court erred by allowing Father to present
hearsay evidence.
{¶8} To the extent that Mother argues that the trial court erred by admitting hearsay
evidence, we decline to address that issue.1 Mother failed to object to the admission of any of
Father’s evidence during the full hearing.2 Moreover, she failed to raise the issue of hearsay by
way of objections to the magistrate’s decision. As Mother failed to raise the issue below, she has
forfeited the issue on appeal; and we decline to address it. White v. Summa Health Sys., 9th Dist.
Summit No. 24283, 2008-Ohio-6790, ¶ 24.
{¶9} When reviewing the trial court’s decision to issue a civil protection order, this
Court applies the civil manifest weight of the evidence standard of review. Donovan v.
Donovan, 9th Dist. Lorain No. 11CA010072, 2012-Ohio-3521, ¶ 5, citing Wohleber v.
Wohleber, 9th Dist. Lorain No. 10CA009924, 2011-Ohio-6696, ¶ 7. As we wrote in Donovan:
The standard encompasses both a legal sufficiency and manifest weight
determination. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 11-
12, quoting State v. Thompkins, 78 Ohio St. 3d 380, 386-387 (1997). See also
Smith v. Stanley, 9th Dist. Lorain No. 11CA009997, 2012-Ohio-2828, ¶ 5-7
(Eastley applied to appeal from the violation of a mutual protection order). “With
respect to sufficiency of the evidence, ‘sufficiency’ is a term of art meaning that
legal standard which is applied to determine whether the case may go to the jury
or whether the evidence is legally sufficient to support the jury verdict as a matter
of law.” Thompkins at 386, quoting Black’s Law Dictionary 1433 (6th Ed.1990).
Weight, on the other hand, tests the believability of the evidence offered and
“concerns ‘the inclination of the greater amount of credible evidence, offered in a
1
We remain troubled, however, by Husband’s nearly exclusive reliance on hearsay
evidence in support of his petition on behalf of the children. The record contains no testimony
by any of the children regarding the imposition of bodily injury or any threat of imminent serious
physical harm to the persons sought to be protected. Rather, Father presented the testimony of
others including himself who reported statements the children allegedly made.
2
We note that, while Father was represented by counsel at the hearing, Mother was not.
In his appellate brief, Father does not argue that Mother has forfeited the issue on appeal for
failure to object below. Instead, Father presents an ad hominem argument that Mother’s
evidence consisted of her testimony regarding things the children and others had reported to
Mother.
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trial, to support one side of the issue rather than the other.’” (Emphasis sic.)
Thompkins at 387, quoting Black’s at 1594.
Donovan at ¶ 5.
{¶10} Before the trial court may grant a domestic violence civil protection order
pursuant to R.C. 3113.31, it must have found “‘that petitioner has shown by a preponderance of
the evidence that petitioner or petitioner’s family or household members are in danger of
domestic violence.’” Chafin v. Chafin, 9th Dist. Lorain No. 09CA009721, 2010-Ohio-3939, ¶ 7,
quoting Felton v. Felton, 79 Ohio St. 3d 34, 42 (1997).
{¶11} R.C. 3113.31(C) allows a person to seek a domestic violence civil protection
order on his own behalf or on behalf of a family or household member by filing a petition with
the appropriate court. The domestic relations court constituted the proper forum for this matter.
See id. Children of the respondent/Mother constituted “family or household member[s].” R.C.
3113.31(A)(3)(a)(ii). The statute requires that the petition contain or state all of the following:
(1) An allegation that the respondent engaged in domestic violence against a
family or household member of the respondent, including a description of the
nature and extent of the domestic violence;
(2) The relationship of the respondent to the petitioner, and to the victim if other
than the petitioner;
(3) A request for relief under this section.
R.C. 3113.31(C).
{¶12} R.C. 3113.31(A)(1) states:
“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 section 2903.211 [menacing by stalking]
or 2911.211 [aggravated trespass] 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.
{¶13} The domestic relations court found by a preponderance of the evidence that
Mother committed domestic violence against L.T. by “recklessly causing bodily harm” (R.C.
3113.31(A)(1)(a)), and against all three children by “placing [them] in fear of imminent bodily
harm through a continuing pattern of excessively aggressive and violent conduct” (R.C.
3113.31(A)(1)(b). Accordingly, we constrain our review to the relevant subsections.
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} 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”).
{¶15} “Force” is defined as “any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing.” R.C. 2901.01(A)(1). “Serious physical harm”
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;
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(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).
{¶16} Within the context of a domestic violence civil protection order, this Court
recognizes “imminent” to mean “ready to take place,” “near at hand,” or menacingly near.” B.C.
v. A.S., 9th Dist. Medina No. 13CA0020-M, 2014-Ohio-1326, ¶ 21. In determining imminence
of the threat, this Court uses a subjective and objective test, considering “both the totality of the
circumstances, as well as the victim’s state of mind[.]” Chafin at ¶ 22. While the respondent’s
history with the victim is relevant to the reasonableness of the victim’s fear, “fear of imminent
serious physical harm may not be determined by incidents of prior domestic violence absent an
initial, explicit indication that she was in fear of imminent serious physical harm on the date
contained in the petition.” B.C. at ¶ 21, quoting Chafin at ¶ 22. In essence, “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[.]” (Internal quotations omitted) B.C. at ¶
21.
{¶17} In his petition for a domestic violence civil protection order, Father alleged that
Mother threw a glass at L.T., and that the glass bounced off the wall and hit L.T. in the head.
Father further alleged that Mother told the children that “children services” was coming to take
them away.
{¶18} With regard to the allegation of domestic violence against T.T. and E.T., the
petition was deficient on its face. Even if Mother told the children that a child protective agency
was “coming to take them away[,]” such an act by Mother could not rise to the level of
attempting to cause or recklessly causing bodily injury, or of placing the children by threat of
force in fear of imminent serious physical harm. Accordingly, Father’s petition did not comport
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with the requirements of R.C. 3113.31(C)(1) in regard to T.T. and E.T. See Williamson v.
Williamson, 180 Ohio App. 3d 260, 2008-Ohio-6718, ¶ 38 (2d Dist.). Assuming arguendo,
however, that the petition was sufficient to allege that Mother had committed an act of domestic
violence against all of the children, this Court concludes that such a finding was against the
manifest weight of the evidence.
{¶19} Father filed his petition on October 4, 2013. At the full hearing on the petition,
Father testified that he received a call from L.T.’s school on October 2, 2013, informing him that
L.T. had told a counselor that she had an argument with Mother and that L.T. got hit in the head
with a tea cup that bounced off the wall. He testified that he filed a petition for a protection
order based on that event because L.T. was afraid to go home to Mother’s home because she
feared repercussions by Mother as a result of L.T.’s telling the counselor about the incident.
Father testified that he sought protection for the other two children as a precautionary measure
based on his belief that Mother might direct her anger at them if L.T. was not living in the home.
{¶20} Father testified that there had been seven or eight reports made to the child
protective agency during the past four years; but, with the exception of two instances, he did not
explain the nature of the reports or submit any evidence documenting such reports or the
dispositions thereof. The only details Father provided were as follows. On one occasion, the
agency investigated a claim, found that it was not substantiated, but determined that Mother’s
“house was high risk.” There is no evidence regarding the nature of the risk. On another
occasion, Father made an allegation of neglect against Mother because she had failed to take L.T.
to get glasses. Father testified that he ultimately made an appointment for L.T. but, because
Mother had not called the office, he was accused of Medicaid fraud.
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{¶21} Father testified that there were several reports made to the police regarding
Mother. He submitted four police reports into evidence. A report on April 17, 2012, eighteen
months before Father filed his petition, indicated that the police investigated Mother’s hitting
T.T. on the hand with a hair brush after he refused to “fix his hair.” The officer investigating the
matter wrote that he told Father that the “incident would most likely be considered discipline[.]”
A May 14, 2013 report stated only that L.T. was afraid that Mother was going to hit her. The
June 18 and August 6, 2013 reports involve Husband’s current wife’s allegation that Mother
threatened to run her over after an argument and that Mother would not comply with requests to
contact Father and his wife only via email, rather than by text or phone. Mother reported to the
police that she did not have email on her phone and did not have a computer. She told the police
that she had the right to check on the children when they were with Father. Nevertheless, the
officer advised her to refrain from calling or texting.
{¶22} Father testified that a guardian ad litem had been appointed for the children two
years ago for purposes of the parties’ divorce action. He testified that the guardian spoke with
the children and both parents and submitted her report. Father did not submit the report into
evidence; accordingly, the substance and context of the report are unknown. It is not possible to
tell from the record whether the guardian ad litem had any involvement with the family with
regard to the incident underlying Father’s petition for a protection order.
{¶23} Father testified that the children told him about several incidents when Mother
took her anger out on them when they failed to clean their rooms or when they mentioned they
wanted to stay with Father. The incidents involved Mother’s throwing things like hair brushes,
costume jewelry, and magazines. According to Father, these objects sometimes hit the children.
Father testified that L.T. tells him frequently that she does not feel safe at Mother’s home. He
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testified that T.T. has also told him that he sometimes does not feel safe with Mother when she is
mad.
{¶24} Father testified that he believes the children are in danger if they remain with
Mother because the situation has gotten progressively worse in her home. He cited “little things”
like yelling, hitting with belts, and “smacking” hard enough to leave hand prints, to throwing
objects and hitting the children with them. He testified that he had no opportunity to observe any
violent behavior by mother during their ten-year marriage because they only lived together for
two-and-a-half years because Mother had gotten restraining orders against Father.
{¶25} Father admitted that there have been issues in his home that the children have
disclosed to Mother. He further admitted that there have been police reports involving E.T. and
Father’s wife, but that none involved violence. Finally, Father testified that pursuant to the
parties’ divorce decree, Mother was the residential parent of the children. He denied filing the
petition as an attempt to get custody of the children.
{¶26} Father’s wife Susan testified that her relationship with Mother is “back and forth.”
She admitted that Father’s children test one’s patience. She further admitted that she has never
seen Mother hit or throw anything at the children. Susan testified that she believes that the
children require protection to prevent future incidents. When asked for clarification, she
admitted that E.T. is not really in danger and “hardly gets picked on[,]” that T.T. is not as much
of a target, but that L.T. is Mother’s main target.
{¶27} Mother testified regarding her relationship with her daughter. She described the
then eleven-year old L.T. as a very defiant and difficult child who frequently behaved “like a two
year old.” She testified that L.T. “fabricates a lot” and that Father has even admitted this to
Mother and her boyfriend. Mother further testified that L.T. is disruptive in social situations
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such as church, and that she frequently picks on her siblings. She described an incident the
previous summer when a neighbor called the police because L.T. was screaming that someone
was killing her. Mother’s air conditioner had broken, and L.T. was throwing a tantrum and
screaming because she was hot. L.T. kicked a hole in the wall because she could not cope with
the heat. Mother testified that when the officer arrived he told her that she could spank and
discipline L.T. Mother testified that she takes L.T. to counseling and that she herself sees a
counselor and takes parenting classes to help the situation.
{¶28} Mother testified regarding the incident underlying Father’s petition. On the day
of the incident, L.T. was playing with $10 she had received as a gift. Mother testified that she
asked L.T. for the money so she could put it in a safe place. L.T. refused and accused Mother of
wanting the money for herself. L.T. continued being disrespectful, so Mother told her she would
not be allowed to go on a class trip if she maintained a bad attitude. Mother testified that she
was doing dishes at the time and that a tea cup she was washing flew out of her hand and hit the
wall. Mother admitted that the cup left a hole in the wall where the bottom of the cup made
contact. The picture of the tea set submitted by Mother shows a small, flat tea pot and small
cups without handles. Two other photographs show an indentation in the wall where Mother
claimed the bottom of the cup hit the wall. It is not possible to determine from the photographs
the size or extent of the damage to the wall. Mother testified that a piece of the cup landed on
the child after the cup hit the wall. L.T. accused Mother of throwing the cup at her, and Mother
apologized, saying she did not mean to do it.
{¶29} Mother testified that later that day she received a call from L.T.’s school,
informing her that the child was afraid to go home and that the school had called Father. Mother
went to the school where she was able to speak with and calm L.T. down. L.T. admitted to
12
Mother that she knew that the incident with the tea cup was an accident. Mother testified that
both the principal and a counselor spoke with L.T. and asked her if she felt safe going home with
Mother. L.T. responded that she did, and Mother took her home.
{¶30} Because of L.T.’s disclosure to the school counselor, the school notified the local
child protective agency. A caseworker coordinated with Mother to select a time for a home visit.
When the caseworker was called away on another emergency, Mother took the children
shopping. Mother’s boyfriend called her and told her to return home immediately, because a
sheriff’s deputy was there with an order to remove the children. Mother returned home
immediately. All three children were upset at the prospect of being removed from Mother’s
home. T.T. accused L.T. of causing the situation, and then T.T. ran to hide from the deputy.
{¶31} Mother testified that she has never harmed L.T. She admitted that she yells at the
children, spanks them, and takes away privileges to discipline them. She asserted that the
children are happy and healthy in her care, and that she poses no threat to their safety. Mother
opined that Father, who was awarded much less companionship time with the children under the
parties’ shared parenting plan, is attempting to use this petition for a protection order as a means
to obtain custody where he has not been able to attain such results within the context of the
parties’ divorce action.
{¶32} Mother’s boyfriend Matthew testified that he had been dating Mother for six
months as of the time of the hearing. Although he does not live with Mother, he testified that he
spends time in her home almost every day. He testified that L.T. acts out with Mother and has
been disrespectful to him. Matthew testified that Mother addresses L.T.’s issues and behavior by
sitting with her and talking, by taking away privileges, and by engaging her in church and
counseling activities. He has never seen Mother throw anything at any of the children.
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{¶33} Finally, Mother’s sister Tina testified that she spends a lot of time with Mother
and her children, and that she has offered advice to Mother regarding how to cope with L.T.’s
bad attitude. The children also discuss issues with their aunt. Tina testified that she has
witnessed L.T. act out towards Mother. In the eight years Mother has raised the children
effectively as a single parent, Tina never saw Mother show anger or physical violence towards
the children.
{¶34} At the conclusion of the presentation of evidence at the hearing, the magistrate
asked Father what he was seeking in this case. The magistrate emphasized that she could not
order a change in custody in these proceedings, and that any such custodial modification would
have to occur within the context of the parties’ divorce action as a post-decree matter. Father
replied that he recognizes the mutual love between Mother and the children. He asserted that he,
therefore, wanted the children to still see Mother, although he requested that Mother’s visitation
with L.T. be supervised. The magistrate told Father that she did not think he understood the
limitations on her vis-à-vis these proceedings, and she reiterated, “I don’t have the authority to
make a custody or allocation of parental rights and times * * *. So I can’t do supervised
visitation * * *.” Father’s attorney then asserted that Father was seeking for all three children to
remain protected parties based on Father’s concerns arising out of what the children had told
him.
{¶35} None of the children testified at the hearing. Moreover, no evidence was
presented from any professional such as a nurse, counselor, or guardian ad litem, who might
have interviewed or observed L.T. (or the other two children) after the incident. Father failed to
present any evidence regarding any injury actually sustained by L.T. as a result of the tea cup
having bounced off the wall and hitting her in the head. There was no evidence of any cut or
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bruising to L.T.’s head. There was no evidence that L.T. experienced any physical pain as a
result. In fact, the only evidence regarding L.T.’s reaction was Mother’s testimony that L.T. was
indignant and defiant. Based on a review of the record, Father did not meet his burden of
proving by a preponderance of the evidence that Mother caused any bodily injury to L.T. While
throwing a cup across the room close to another person rises to the level of recklessness, in the
absence of any evidence regarding injury to the child, the trial court’s finding that Mother
recklessly caused bodily injury to L.T. was against the manifest weight of the evidence.
{¶36} Moreover, Father did not satisfy his burden of demonstrating by a preponderance
of the evidence that Mother placed any of the children by the threat of force in fear of imminent
serious physical harm. Even the trial court did not find the threat of serious physical harm, but
rather only physical harm. There was evidence that Mother on occasion had thrown objects like
costume jewelry, magazines, a hair brush, and in this case a tea cup, to get the children’s
attention or when they were misbehaving. There was no evidence that any of those incidents
resulted or could have resulted in the type of harm that could be considered “serious.”
Moreover, such past acts by Mother do not demonstrate a reasonable belief by the children that
they were in danger of imminent serious physical harm, “absent an initial, explicit indication that
[the children] w[ere] in fear of imminent serious physical harm on the date contained in the
petition.” See Chafin at ¶ 22. There was no evidence presented that T.T. or E.T. witnessed the
tea cup incident involving L.T., or that they expressed any fear on that date. Accordingly, there
was no evidence of their fear of imminent serious physical harm on the date contained in the
petition. In fact, Father did not even reference the other children in his narrative statement
underlying the grounds for the petition. See R.C. 3113.31(C)(1).
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{¶37} Father, moreover, failed to meet his burden of showing that L.T. expressed fear of
imminent serious physical harm on the date of the incident.3 Although L.T. disclosed the
incident to a school counselor, L.T.’s alleged fears were not significant enough that school
personnel shielded L.T. from Mother. It was not contested that both the school counselor and the
principal asked L.T. if she felt safe going home with Mother, and the child confirmed that she
did. Moreover, at the time of the incident, the evidence indicated that, rather than running away
or hiding from Mother, L.T. continued yelling at Mother. Mother testified that the child was so
defiant, in fact, that Mother threatened to take her to “juvey” after she returned from work that
day so the child could talk with someone there about the ramifications of behaving in an unruly
manner.
{¶38} Accordingly, the domestic relations court’s finding that a domestic violence civil
protection order was warranted in this case was against the manifest weight of the evidence.
Mother’s assignment of error is sustained.
III.
{¶39} Mother’s sole assignment of error is sustained. The judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, is reversed and the cause
remanded for further proceedings consistent with this opinion.
Judgment reversed,
and cause remanded.
3
This Court reiterates our concern that the trial court failed to make the requisite finding
of fear of imminent serious physical harm as enunciated in the statute. It is not possible to
determine whether the trial court inadvertently omitted a finding as to one of the necessary
elements or whether it found that L.T. feared imminent physical harm but not serious physical
harm. We further note our concerns regarding Father’s presentation of arguably hearsay and
double hearsay evidence and how the trial court was able to assess and accord credibility to
Father under those circumstances. We decline to address these issues, however, as we have
constrained our discussion to the issues raised below and in the appellate briefs.
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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.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
CONCURS.
HENSAL, P. J.
DISSENTING.
{¶40} I do not agree that the trial court’s conclusion that mother committed an act of
domestic violence against L.T. was against the manifest weight of the evidence. The majority
claims that there was no evidence that L.T. suffered any injury from being struck by the piece of
teacup. Father testified, however, that when he received a call from the school on the day of the
17
incident, L.T. told him that she was afraid to go home with Mother because “[s]he had already
got hurt[.]” The magistrate was in the best position to assess the credibility of the witnesses and
it specifically found Father’s evidence more credible than Mother’s. After a thorough review of
the record, I do not believe this is the exceptional case in which this Court should exercise its
power to reverse a judgment as against the manifest weight of the evidence. See State v. Roper,
9th Dist. Summit No. 27025, 2014-Ohio-4786, ¶ 15. I, therefore, respectfully dissent.
APPEARANCES:
GREGORY A. PRICE, Attorney at Law, for Appellant.
JUSTIN MILLER, Attorney at Law, for Appellee.