Byron v. Byron

2012 Ohio 1632

• Court: Ohio Court of Appeals
• Decided: April 13, 2012
• Docket: C-110576
• Status: Published

Opinion

[Cite as Byron v. Byron, 2012-Ohio-1632.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ELIZABETH M. BYRON, : APPEAL NO. C-110576 TRIAL NO. DV1100054 Petitioner-Appellee, : O P I N I O N. vs. :

MARK EDWARD BYRON, :

Respondent-Appellant. :

Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 13, 2012

Moskowitz & Moskowitz, LLC, James H. Moskowitz and Joel S. Moskowitz, for Petitioner-Appellee,

Heekin & Heekin and Christopher R. Heekin, for Respondent-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

D INKELACKER , Judge.

{¶1} Respondent-appellant Mark Byron appeals the decision of the trial

court issuing a civil protection order against him, which ordered him to stay away

from petitioner-appellee Elizabeth Byron. In his sole assignment of error, he

contends that the trial court erred in granting the order. He argues that the evidence

was insufficient to support the court’s finding that he had placed Elizabeth in fear of

imminent serious physical harm. He also argues that the court’s judgment was

against the manifest weight of the evidence. The assignment of error is not well

taken.

{¶2} R.C. 3113.31(E)(1) provides that “the court may grant any protection

order * * * to bring about a cessation of domestic violence against the family or

household members.” When granting a protection order, the trial court must find

that the petitioner has shown by a preponderance of the evidence that the petitioner

or the petitioner’s family or household members are in danger of domestic violence.

Felton v. Felton, 79 Ohio St.3d 34, 1997-Ohio-302, 679 N.E.2d 672, paragraph two of

the syllabus.

{¶3} A court may grant a domestic violence protection order if a person

places a family or household member in fear of imminent physical harm by force or

threat of force. Richter v. Richter, 12th Dist. No. CA2009-02-055, 2009-Ohio-3828,

¶ 9-17; Hunter v. Hunter, 2nd Dist. No. 21285, 2006-Ohio-6307, ¶ 9-13. The

petitioner’s fear of imminent danger must be reasonable. Evidence of a history of

domestic violence by the respondent against the petitioner is relevant to determining

the reasonableness of the petitioner’s fear. Fleckner v. Fleckner, 177 Ohio App.3d

706, 2008-Ohio-4000, 895 N.E.2d 896, ¶ 21 (10th Dist.).

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} In a civil case, the tests for reviewing the weight and sufficiency of the

evidence are essentially the same. In re E.S., 1st Dist. Nos. C-100725 and C-100747,

2011-Ohio-586, ¶ 3. We will not reverse the trial court’s findings as long as they were

supported by competent, credible evidence. Myers v. Garson, 66 Ohio St.3d 610,

614-615, 1993-Ohio-9, 614 N.E.2d 742; Capeheart v. O’Brien, 1st Dist. No. C-

040223, 2005-Ohio-3033, ¶ 11.

{¶5} A magistrate specifically found that Mark had held Elizabeth down on

the bed with a clenched fist held in front of her face, and had threatened to “end” her.

He had also grabbed the parties’ infant son and had “shoved” him on the bed. Mark

admitted that he had behaved inappropriately to Elizabeth’s mother the day after the

incident and in several subsequent emails to Elizabeth. Additionally, evidence was

presented at the full hearing on the petition for the protection order that Mark had

already violated the ex parte order by calling Elizabeth on the telephone.

{¶6} Under the circumstances, the trial court’s finding that Elizabeth had

an objectively reasonable fear of imminent danger was supported by competent,

credible evidence. See Richter, 2009-Ohio-3828, at ¶ 14-18; Hunter, 2006-Ohio-

6307, at ¶ 9-13. Therefore, we overrule Mark’s assignment of error and affirm the

trial court’s judgment.

Judgment affirmed.

H ILDEBRANDT , P.J., and F ISCHER , J., concur.

Please note: The court has recorded its own entry this date.