[Cite as Calzo v. Lynch, 2012-Ohio-1353.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
KARRIE J. CALZO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Petitioner-Appellee : Hon. Sheila G. Farmer, J. : Hon. Julie A. Edwards, J. -vs- : : Case No. 11CA45 TIMOTHY J. LYNCH : : : Respondent-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2011-CPO-0319
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 20, 2012
APPEARANCES:
For Appellant: For Appellee:
JEFFREY S. REAM KARRIE J. CALZO, Pro Se Benham & Ream Co., L.P.A. Address Not Available 150 Mansfield Ave. Shelby, Ohio 44875 [Cite as Calzo v. Lynch, 2012-Ohio-1353.]
Delaney, J.
{¶1} Respondent-Appellant Timothy J. Lynch appeals the April 19, 2011
Order of Protection granted by the Richland County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Petitioner-Appellee Karrie J. Calzo were involved in a
romantic relationship from April 2007 until December 1, 2010. Appellant and Appellee
were not married but lived together at Appellant’s residence with Appellee’s daughter,
K.C. (DOB Jan. 29, 2004). Appellant is not the biological or adoptive father of K.C.
{¶3} On March 28, 2011, Appellee filed a Petition for a Domestic Violence
Civil Protection Order pursuant to R.C. 3113.31 against Appellant. In the petition,
Appellee stated she broke off her relationship with Appellant on November 26, 2010
due to Appellant’s behavior during the relationship towards her and her daughter.
However, Appellant and Appellant’s sister continued to contact Appellee through
numerous text messages, emails, and phone calls. Although Appellant and Appellee
were no longer in a relationship, Appellant attended the school Christmas program of
Appellee’s daughter, came to the home of Appellee’s babysitter looking for Appellee,
and came to the home of Appellee’s mother on Christmas day to propose marriage to
Appellee. Appellee feared for her and her daughter’s safety. An ex parte hearing was
held before the magistrate and the ex parte CPO was granted on March 28, 2011.
The trial court scheduled a full hearing on the CPO for April 11, 2011.
{¶4} Appellant and Appellee appeared for the full hearing represented by
counsel. The hearing was held before the magistrate. The following evidence was
adduced at the hearing. Richland County, Case No. 11CA45 3
{¶5} Appellee testified in June 2010, Appellant was working in his barn and
K.C. was outside riding her bicycle. Appellant called to K.C. and K.C. parked her bike
in the driveway and went to Appellant. Appellant told K.C. to stay where she was and
Appellant proceeded to pull his truck out of the barn, running over K.C.’s bicycle.
Appellee alleged Appellant knew K.C.’s bicycle was in the driveway before he pulled
out of the barn and he refused to purchase K.C. a new bicycle to teach her a lesson
about leaving her bicycle in the driveway. Appellee stated Appellant was angry with
her for purchasing K.C. a new bicycle.
{¶6} Appellant admitted he ran over K.C.’s bicycle, but denied running over
the bicycle on purpose. He did not know K.C.’s bicycle was in front of the truck when
he pulled it out of the barn.
{¶7} In November 2010, Appellee testified she and Appellant got into an
argument about putting new rotors on Appellee’s car. At dinner, Appellee asked
Appellant if he could put new rotors on her car or if she should have someone else
change them. Appellee stated Appellant stood up from the table, threw his plate
down, and started screaming that he hated Appellee. He went out to the garage,
picked up the jack, and began repeatedly slamming the jack under the car while
screaming he hated Appellee and he hated their relationship. K.C. witnessed the
incident and brought out her own suitcase because she wanted to leave the home.
{¶8} Appellant denied Appellee’s version of that night’s events. He stated
Appellee and Appellant possibly had an argument that night. However, he did not
repeatedly slam the jack under Appellee’s car. Appellant stated that while the car was Richland County, Case No. 11CA45 4
on the jack, Appellee got into the car and drove the car off the jack. Appellant testified
he left that night for a short period of time.
{¶9} On November 26, 2010, Appellee met Appellant for dinner at the
Mansfield Restaurant. Appellee told Appellant she was ending the relationship and
was moving out. Appellee states after she told this to Appellant, Appellant “bent
across the table and looked at me, and he said, Karrie, you don’t care about me. You
just care whether you’re going to get hurt tonight or I’m going to get hurt tonight. And
you go home and you wait for me, and I’ll be there in a little while.” (T. 24.) Appellee
did not return to the home that night out of fear for herself and her daughter. Appellant
denied making that statement.
{¶10} Appellee and her daughter returned to the home on December 1, 2010,
to retrieve their belongings. Appellant was present when she and her daughter went
to the home.
{¶11} Appellee also testified while she considered Appellant and Appellee to
have terminated their relationship, Appellant continued to contact Appellee. Appellant
went to see K.C. at the Christmas program at K.C.’s elementary school. Appellant did
not feel he needed to be invited to the Christmas program because it was an open
program in a school within his district. On December 25, 2010, Appellant appeared at
the home of Appellee’s mother. Appellee and Appellant spoke outside and Appellant
proposed marriage to Appellee. Appellee states Appellant also presented her with a
clock wrapped in a towel. Appellee testified Appellant stated he was there to take
back control of the relationship, she had long enough to do what she needed to do, Richland County, Case No. 11CA45 5
and it was time for her to come home. Appellant agreed he asked her to marry him
and returned Appellee’s clock to her, but denied making those statements to Appellee.
{¶12} Appellant also went to the home of Appellee’s babysitter. On March 19,
2011, Appellant went to the babysitter’s home and no one answered the door. He
returned on March 21, 2011 and spoke to the babysitter. Appellant first stated he was
visiting a neighbor, but then stated the neighbor had been Appellee’s babysitter for
over a year while Appellant and Appellee were dating. He stated he went to the
neighbor to make sure Appellee and her daughter were okay. Appellant then called
the babysitter on March 22, 2011 to tell her she was a liar and he would never contact
her again.
{¶13} Appellee testified she has saved 53 text messages and email messages
from Appellant. Appellee has also received phone calls from Appellant’s sister.
{¶14} On March 21, 2011, Appellee contacted the Richland County Sheriff’s
Department. The Sheriff’s Department contacted Appellant to tell him to stop
contacting Appellee. (Appellee’s Exhibit 1.) Since the Sheriff’s Department
communicated with Appellant, Appellee testified Appellant has ceased contacting her.
{¶15} Appellee stated Appellant never physically harmed her or her daughter.
She did consider Appellant’s statement and demeanor on November 26, 2010 to be a
threat to Appellee. Appellee filed for the CPO because Appellant would not stop
contacting her even though she has asked him to stop. Appellee is afraid Appellant
will come by her house or will make physical contact with her daughter. Appellee’s
daughter requests that Appellee put chairs under the locked doors because she is
concerned can break through the door if he is angry. Appellee’s daughter is afraid to Richland County, Case No. 11CA45 6
participate in school activities because she is fearful Appellant will come to the activity
and take her.
{¶16} At the conclusion of the hearing, the magistrate notified the parties on
the record they would receive a magistrate’s decision. The parties would have
fourteen days to file written objections.
{¶17} On April 19, 2011, the trial court granted Appellee a Domestic Violence
Civil Protection Order against Appellant for five years. The trial court utilized Form
10.01-I, authorized by Sup.R.10.01, as the Order of Protection. The order states the
court made findings of fact and refers to Exhibit A, attached. Attached to the Order of
Protection is “Exhibit A: Findings of Fact and Conclusions of Law.” Form 10.01-I
provides a space for the signature of the magistrate and to the right of the magistrate’s
signature line, there is a second signature line for the judge beneath the phrase
“APPROVED AND ADOPTED.” In this case, the magistrate and the judge both signed
the Order. Form 10.01-I also includes a section entitled, “NOTICE OF FINAL
APPEALABLE ORDER.”
{¶18} Appellant did not file objections to the Order of Protection, but rather filed
an immediate appeal of the April 19, 2011 Order.
ASSIGNMENTS OF ERROR
{¶19} Appellant raises five Assignments of Error:
{¶20} “I. THE MAGISTRATE’S DECISION AND THE JUDGMENT ENTRY
ADOPTING SAME ARE DEFECTIVE AND REQUIRE REVERSAL AND REMAND
FOR THE PURPOSE OF ISSUING A MAGISTRATE’S DECISION THAT COMPLIES Richland County, Case No. 11CA45 7
WITH CIVIL RULE 53 AND PROVIDES THE PARTIES WITH A MEANINGFUL
OPPORTUNITY TO FILE OBJECTIONS.
{¶21} “II. THE COURT ERRED IN FINDING BY A PREPONDERANCE OF
THE EVIDENCE THAT APPELLANT HAS ENGAGED IN THE OFFENSE OF
MENACING BY STALKING AGAINST APPELLEE AND HER DAUGHTER AND THE
FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶22} “III. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT
COMMITTED DOMESTIC VIOLENCE WITHIN THE MEANING OF R.C. 3113.31 AND
SUCH FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶23} “IV. THE COURT COMMITTED ERROR IN GRANTING THE EX PARTE
ORDER, AS THERE WAS NO GOOD CAUSE SHOWN AND THE PROVISIONS
UNDER R.C. 3113.21(D)(1) WERE NOT MET.
{¶24} “V. THE MAGISTRATE’S FINDINGS IN FAVOR OF THE CPO AND THE
TRIAL COURT’S IMMEDIATE ADOPTION OF THE SAME CONSTITUTE
REVERSIBLE ERROR UNDER THE ABUSE OF DISCRETION STANDARD.”
ANALYSIS
I.
{¶25} Appellant argues in his first assignment of error the issuance of the
Order of Protection on April 19, 2011 does not comply with Civ.R. 53, therefore
requiring a reversal and remand. In this case, the full hearing was held before the
magistrate on April 11, 2011. On April 19, 2011, the trial court issued the Order of
Protection utilizing Form 10.01-I, signed by the magistrate and approved and adopted
by the judge. The magistrate attached her findings of fact and conclusions of law to Richland County, Case No. 11CA45 8
the Order. Form 10.01-I contains final, appealable order language, but does not state
the Civ.R. 53 language applicable to matters heard by a magistrate. Appellant did not
file objections to the Order of Protection, but instead appealed the decision
{¶26} Appellant’s first assignment of error raises the question as to the
applicability of Civ.R. 53 to the use of the standardized civil protection order forms
created and recommended by the Supreme Court of Ohio pursuant to Sup.R. 10.01.
While not cited by Appellant in his Assignment of Error, research by this Court has
shown the Ninth District and the Third District Courts of Appeal have specifically
addressed the issue presented by Appellant. We review both cases in turn and
conclude that while an Order of Protection issued under R.C. 3113.31 is a final,
appealable order, the mandates of Civ.R. 53 are applicable to this case because the
matter ultimately arose from a magistrate’s decision.
{¶27} R.C. 3113.31 governs the issuance of a domestic violence civil
protection order. It states that any order that grants or denies a petition for a
protection order or a motion to modify or terminate a protection order is a final,
appealable order. R.C. 3113.31(G); Yun v. Yun, 5th Dist. No. 2002CA00353, 2003-
Ohio-2644, ¶ 35.
{¶28} The Supreme Court of Ohio, in consultation with the Domestic Violence
Task Force and by request from the General Assembly under H.B. 335, developed
forms to allow a petitioner to file a petition for a civil protection order without the
assistance of an attorney. Sup.R. 10.01(C). The further goal of the creation of the
forms was to create uniform protection orders that were easily recognizable to law
enforcement agencies across the state. Id. Under Sup.R. 10.01(C), the courts of Richland County, Case No. 11CA45 9
common pleas are required to use forms provided by the Supreme Court of Ohio or
substantially similar forms to issue civil protection orders. The rule states, “In every
case in which the domestic relations division of a court of common pleas issues or
approves an ex parte civil protection order, a full hearing civil protection order, or a
consent agreement pursuant to section 3113.31 of the Revised Code, the court shall
use, as applicable, forms that are substantially similar to ‘Forms 10.01-H through
10.01-J.’” The Form in the present case is Sup.R. Form 10.01-I. This form is used to
issue an Order of Protection after the full hearing on a domestic violence civil
protection order petition.
{¶29} With this background, the Ninth District Court of Appeals in Tabatabai v.
Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, analyzed the question of
whether a civil protection order entered on Form 10.01-I and signed simultaneously by
a magistrate and judge was a final, appealable order. The Court overruled its
previous holding in Mills v. Mills, 9th Dist. No. 24063, 2008-Ohio-3774, to find that
such an order was final and appealable. The court stated:
Form 10.01-I, authorized by Rule 10.01, is the Order of Protection
recommended by the Supreme Court of Ohio. It consists of four pages,
on which the court of common pleas must fill in all appropriate blanks
and check all boxes that apply to the petition at hand. These options
reflect the restrictions that may be imposed by the court of common
pleas pursuant to R.C. 3113.31(E). In other words, the form permits the
court of common pleas to define in a concise and standard way the
contours of the order of protection in a given case. Page one of Form Richland County, Case No. 11CA45 10
10.01-I sets forth a “Federal Full Faith & Credit Declaration” pursuant to
the Violence Against Women Act, 18 U.S.C. § 2265. The last page of
Form 10.01-I sets forth instructions to the clerk of court for service upon
the parties, local law enforcement agencies, and other agencies specific
to the terms of the order. The body of the final page ends with the
statement, “IT IS SO ORDERED.”
The form contains three notice components: (1) notice to the
respondent of the consequences of violating the order; (2) notice to the
petitioner that the terms of the order can only be changed by order of the
court; and (3) notice to law enforcement agencies that the terms of the
protection order must be enforced. In this respect, use of the form
adopted by the Supreme Court of Ohio is especially significant because
the concise, uniform nature of the document enables agencies that
receive notice to verify the validity and terms of a civil protection order
efficiently and to act in furtherance of the order without unnecessary
delay or confusion.
R.C. 3113.31(G) explains that the Ohio Rules of Civil Procedure
apply to proceedings for civil protection orders. Consequently, these
proceedings may be heard by a magistrate as provided by Civ.R. 53.
Form 10.01-I contemplates this scenario by providing space for the
signature of a magistrate and, immediately to the right of the magistrate's
signature line, a second signature line for the judge beneath the phrase
“APPROVED AND ADOPTED.” It is in this context that R.C. 3113.31(G) Richland County, Case No. 11CA45 11
provides that any order that grants or denies a petition for a protection
order or a motion to modify or terminate a protection order is a final,
appealable order.
We conclude that a civil protection order that is entered on Form
10.01-I, or such other form approved by the Supreme Court of Ohio, and
signed by a magistrate and a judge is, pursuant to R.C. 3113.31(G), a
final, appealable order. See, generally, Dobos v. Dobos, 179 Ohio
App.3d 173, 901 N.E.2d 248, 2008-Ohio-5665, at ¶ 8 (concluding that a
magistrate's decision on a civil protection order “was later signed by the
trial court, making the decision a final, appealable order.”); Burke v.
Melton, 8th Dist. No. 81994, 2003-Ohio-7054, at ¶ 21-23 (determining
that a civil protection order was final and appealable when it “was signed
by both the magistrate and the judge [,][o]n a preprinted section of the
journal entry[.]”); Burke v. Brown, 4th Dist. No. 01CA731, 2002-Ohio-
6164, at ¶ 18-25 (analyzing the merits of an appeal from a civil protection
order when “the magistrate decided to issue the civil protection order as
evidenced by its signature on the order [and][t]he trial court adopted the
magistrate's decision as indicated by its signature on the same order.”)
Tabatabai at ¶ 8-11.
{¶30} In making this decision, the Ninth District overruled its earlier holding in
Mills v. Mills, supra, where a CPO was signed by the magistrate and the trial court
judge before objections were filed.1 Tabatabai at ¶ 5. In Mills, the court held that
1 Judge Whitmore dissented in Tabatabai, stating she could not agree with the majority’s departure from the precedent set in Mills, supra. Richland County, Case No. 11CA45 12
because it appeared the trial court judge did not make an independent review of the
order granting the CPO, the appellate court lacked jurisdiction over the appeal. Id.
Based on R.C. 3113.31(G) and Sup.R. 10.01, the Tabatabai court overruled Mills to
find a CPO was a final, appealable order and therefore the appellate court had
jurisdiction to review the case. The Tabatabai court went on then to analyze the
merits of the Order of Protection. In that case, unlike the case sub judice, the
appellant filed objections to the magistrate’s decision, which the trial court overruled.
The appellant argued the judge did not conduct an independent review of the subject
matter of his objections and erred by overruling his objections. The Ninth District
utilized the standards found in Civ.R. 53 under which a trial court judge is to review a
magistrate’s decision to affirm the trial court’s decision. Tabatabai at ¶ 14.
{¶31} In summary, it was the decision of the Ninth District Court of Appeals in
Tabatabai that an Order of Protection using Form 10.01-I, granted by a magistrate and
approved and adopted by the judge on the same day, is a final, appealable order
pursuant to R.C. 3113.31. The Third District Court of Appeals in Larson v. Larson, 3rd
Dist. No. 13-11-25, 2011-Ohio-6013, further discussed the use of Form 10.01-I and
Civ.R. 53.
{¶32} In Larson, the magistrate granted a CPO using Form 10.01-I. The trial
court signed the order the same day. The appellant filed a motion for a magistrate’s
decision and requested the magistrate issue findings of fact and conclusions of law.
The magistrate denied the motion. Larson at ¶ 4-5. The appellant appealed, arguing
the magistrate must still proceed under Civ.R. 53 regardless of the forms promulgated
under Sup.R. 10.01. Id. at ¶ 10. The issue on appeal was whether the magistrate’s Richland County, Case No. 11CA45 13
use of Form 10.01-I as written complied with Civ.R. 53. Id. The Larson court found it
did not.
{¶33} The Larson court recognized Form 10.01-I contemplated magistrates
hearing petitions for civil protection orders because the form provided a space for the
magistrate’s signature. Id. at ¶ 11 citing Tabatabai, 2009-Ohio-3139 at ¶ 10. The
form, however, does not provide a designated space to note the decision was a
“magistrate’s decision” and does not contain the Civ.R. 53 language regarding
objections to a magistrate’s decision. Civ.R. 53(D)(3)(a)(i) states that
“a magistrate shall prepare a magistrate’s decision respecting any matter referred
under Civ.R. 53(D)(1).” Civ.R. 53(D)(3)(a)(iii) provides:
A magistrate's decision shall be in writing, identified as a magistrate's
decision in the caption, signed by the magistrate, filed with the clerk, and
served by the clerk on all parties or their attorneys no later than three
days after the decision is filed. A magistrate's decision shall indicate
conspicuously that a party shall not assign as error on appeal the court's
adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to
that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
{¶34} The Larson court noted Form 10.01-I fails to meet the Civ.R. 53
requirements. Id. at ¶ 11. As such, it held a magistrate issuing a domestic violence
civil protection order under R.C. 3113.31 may not use Form 10.01-I as written. Id.
The court found Sup.R. 10.01(C) allowed adjustment to Form 10.01-I to comply with Richland County, Case No. 11CA45 14
Civ.R. 53 in that the rule did not require the courts of common pleas to use the exact
forms found in 10.01-H to 10.01-J. Id. at ¶ 12. Sup.R. 10.01(C) stated courts could
use forms “substantially similar to Forms 10.01-H through 10.01-J,” allowing a
magistrate to comply with both Sup.R. 10.01(C) and Civ. R. 53 by including the
necessary language of Civ.R. 53 on Form 10.01-I. Id.
{¶35} In reviewing the CPO on appeal, the Larson court found the CPO failed
to comply with Civ.R. 53 because it did not designate it was a magistrate’s decision
and did not give notice to the parties they may file objections to the decision with
fourteen days. Id. at ¶ 14. The court noted, however, if the order fails to give notice to
the parties of the requirement to file objections, the appealing parties are relieved from
the waiver rule found in Civ.R. 53(D)(3)(b)(iv) and are permitted to raise their
arguments for the first time on appeal. Id. In the Larson case, the appellant’s sole
assignment of error was the magistrate’s failure to abide by Civ.R. 53, so the court
reversed and remanded the decision for the magistrate to issue findings of fact and
conclusions of law and to allow the appellant to file objections before the magistrate.
Id.
{¶36} We reconcile the holdings of Tabatabai and Larson to find pursuant to
R.C. 3113.31(G), an order that grants a protection order or refuses to grant a
protection order is a final, appealable order. However, the dictates of Civ.R. 53 still
come into play with an Order of Protection granted by a magistrate utilizing Form
10.01-I. Specifically, Civ.R. 53(D)(3)(a)(iii) requires a magistrate's decision to include
conspicuous language informing the parties of their responsibility to object to the
decision. As the Larson case noted, however, if the magistrate fails to provide the Richland County, Case No. 11CA45 15
parties with the notice pursuant to Civ.R. 53(D)(3)(a)(iii), a party may raise their
arguments for the first time on appeal. Larson at ¶ 14. See also, In re A.W.C., 4th
Dist. No. 09CA31, 2010-Ohio-3625, ¶ 18; Picciano v. Lowers, 4th Dist. No. 08CA38,
2009-Ohio-3780, ¶ 17; Chibinda v. Depositors Ins., 12th Dist. No. CA2010-09-254,
2011-Ohio-2597, ¶ 37; D.A.N. Joint Venture III, L.P. v. Armstrong, 11th Dist. No. 2006-
L089, 2007-Ohio-898, ¶ 22-23; Ulrich v. Mercedes-Benz USA, L.L.C., 9th Dist. No.
23550, 2007-Ohio-5034, ¶ 15. Accordingly, an Order of Protection issued by a
magistrate and simultaneously signed by a judge utilizing Form 10.01-I is a final,
appealable order and because Form 10.01-I does not contain Civ.R. 53(D)(3)(a)(iii)
language, parties are relived from the waiver rule and may raise their arguments for
the first time on appeal. This resolution is supported by both the rationale for adoption
of the forms under Sup.R. 10.01 and the dictates of Civ.R. 53.
{¶37} In our case, the April 19, 2011 Order of Protection does not contain
language stating it was a magistrate’s decision or give notice to the parties of the
requirement to file objections. As such, we find Appellant is relieved of the waiver rule
and is permitted to raise his arguments for the first time on appeal. Further, the
magistrate issued findings of fact and conclusions of law with the Order of Protection,
obviating the need to remand the decision for further proceedings as was required in
Larson.
{¶38} Appellant’s first assignment of error is overruled.
II., V.
{¶39} Appellant argues in his second assignment of error the trial court erred in
finding Appellant committed domestic violence in violation of R.C. 3113.31(A)(1)(b). Richland County, Case No. 11CA45 16
Appellant reiterates his argument in his fifth assignment of error utilizing a different
standard of review. Under both standards, manifest weight of the evidence or abuse
of discretion, we find the trial court did not err in granting the Order of Protection.
{¶40} R.C. 3113.31(A)(1)(b) defines domestic violence as “the occurrence of
one or more of the following acts against a family member: * * * (b) [p]lacing another
person by the threat of force in fear of imminent serious physical harm or committing a
violation of section 2903.211 or 2911.211 of the Revised Code.” The trial court
determined Appellant was in violation of R.C. 3113.31(A)(1)(b) pursuant to R.C.
2903.211, menacing by stalking. According to R.C. 2903.211(A), “[n]o person by
engaging in a pattern of conduct shall knowingly cause another person to believe that
the offender will cause physical harm to the other person or cause mental distress to
the other person.”
{¶41} The statute further defines “pattern of conduct” as two or more actions or
incidents closely related in time, whether or not there has been a prior conviction
based on any of those actions or incidents. R.C. 2903.211(D)(1). “Mental distress”
means any of the following: (a) any mental illness or condition that involves some
temporary substantial incapacity; (b) any mental illness or condition that would
normally require psychiatric treatment, psychological treatment, or other mental health
services, whether or not any person requested or received psychiatric treatment,
psychological treatment, or other mental health services. R.C. 2903.211(D)(2).
{¶42} The decision whether to grant a civil protection order lies within the
sound discretion of the trial court. Halton v. Crossley, 5th Dist. Nos. 11CA10,
11CA11, 2012-Ohio-550, ¶ 49 citing Olenik v. Huff, 5th Dist. No. 02-COA-058, 2003- Richland County, Case No. 11CA45 17
Ohio-4621, at ¶ 21. Therefore, an appellate court should not reverse the decision of
the trial court absent an abuse of discretion. In order to find an abuse of discretion,
this court must determine that the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶43} We further note a judgment supported by some competent, credible
evidence will not be reversed by a reviewing court as against the manifest weight of
the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376
N.E.2d 578 (1978). A reviewing court must not substitute its judgment for that of the
trial court where there exists some competent and credible evidence supporting the
judgment rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 614 N.E.2d
742 (1993). The underlying rationale for giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses
and observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proffered testimony. Seasons Coal Co.
v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶44} The weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact, in this case, the trial court. State v. Jamison,
49 Ohio St.3d 182, 552 N.E.2d 180 (1990), certiorari denied, 498 U.S. 881, 111 S.Ct.
228, 112 L.Ed.2d 183 (1990). The trier of fact “has the best opportunity to view the
demeanor, attitude, and credibility of each witness, something that does not translate
well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159
(1997). Richland County, Case No. 11CA45 18
{¶45} Appellant contends in this case Appellee has failed to establish a pattern
of conduct or that Appellee suffered mental distress. We disagree. The trial court’s
decision to issue a protection order was not against the manifest weight of the
evidence nor did the trial court abuse its discretion in issuing the order. The record
shows Appellant’s behavior in sending Appellee at least 53 text messages and emails,
appearing at the Christmas program of Appellee’s daughter, appearing at Appellee’s
mother’s home on Christmas day, and twice coming to Appellee’s babysitter’s home
all after Appellee had broken off their relationship establishes a pattern of conduct.
Appellee further testified to the mental distress suffered by Appellee and her daughter
by Appellant’s appearances. Appellee’s daughter asks that her mother place a chair
under the locked doors in case Appellant breaks down the door. Appellee’s daughter
is concerned Appellant will take her from her mother and avoids participating in school
activities.
{¶46} We find the record establishes Appellant, by continuously contacting
Appellee after the termination of their relationship, has knowingly caused Appellee and
her daughter mental distress. The magistrate, who was in the best position to observe
the witnesses, noted often in her findings of fact she determined Appellee’s testimony
was more credible than Appellant is based upon the parties’ demeanor in the
courtroom. This court has previously noted that in civil protection order cases,
demeanor and attitude are very important but do not translate well on the written page.
Halton v. Crossley, supra at ¶ 56. Richland County, Case No. 11CA45 19
{¶47} Upon these facts, we find the trial court’s decision to grant the Order of
Protection was based on competent, credible evidence and was not an abuse of
discretion. Appellant’s second and fifth assignments of error are overruled.
III.
{¶48} Appellant contends in his third assignment of error the trial court erred in
finding Appellant committed domestic violence pursuant to R.C. 3113.31(A)(1)(b). At
the full hearing, Appellee testified on November 26, 2010, Appellant made the
following statement to her after Appellee informed Appellant she was breaking up with
him: “You just care whether you’re going to get hurt tonight or I’m going to get hurt
tonight. And you go home and you wait for me, and I’ll be there in a little while.”
Based on Appellant’s statement and demeanor, Appellee and her daughter did not
return to Appellant’s home that evening because she feared for their safety. The trial
court found Appellant’s statement and his angry demeanor while making the statement
was an implied threat of domestic violence.
{¶49} R.C. 3113.31(A)(1)(b) defines domestic violence as placing another
person by the threat of force in fear of imminent serious physical harm.
{¶50} Appellant argues Appellee could not have perceived Appellant’s
statement as a threat of imminent serious physical harm because Appellee came to
Appellant’s home unescorted on December 1, 2010 to retrieve her belongings. Upon
our review of the record, we find there was competent, credible evidence upon which
the trial court could support its decision that on November 26, 2010, Appellant’s
statement to Appellee was a perceived threat of force placing Appellee in fear of
imminent serious physical harm to herself or her daughter that evening. As stated Richland County, Case No. 11CA45 20
above, the trial court is in the best position to determine the credibility of the
witnesses. Appellee may have returned to Appellant’s home on December 1, 2010,
but the record shows on November 26, 2010, Appellant’s statement caused Appellee
to be in fear of imminent serious physical harm.
{¶51} Appellant’s third assignment of error is overruled.
IV.
{¶52} Appellant’s fourth assignment of error contends the trial court erred in
granting Appellee’s petition for an ex parte civil protection order.
{¶53} On March 28, 2011, Appellee filed a petition for an ex parte domestic
violence civil protection order. The trial court granted the ex parte civil protection
order after finding Appellee was in immediate and present danger of domestic
violence and for good cause shown. The ex parte order was set for a full hearing on
April 11, 2011. After the full hearing, the trial court granted the Order of Protection.
{¶54} Based on our findings that the Order of Protection was supported by
competent and credible evidence, we find no error in granting the ex parte civil
protection order.
{¶55} Appellant’s fourth assignment of error is overruled. Richland County, Case No. 11CA45 21
CONCLUSION
{¶56} For the reasons stated herein, Appellant’s five assignments of error are
overruled. The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Farmer, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS [Cite as Calzo v. Lynch, 2012-Ohio-1353.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KARRIE J. CALZO : : : Petitioner-Appellee : : -vs- : JUDGMENT ENTRY : TIMOTHY J. LYNCH : : : Case No. 11CA45 Respondent-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. JULIE A. EDWARDS