C.A.P. v. M.D.P.

2021 Ohio 3030

• Court: Ohio Court of Appeals
• Decided: September 2, 2021
• Docket: 109882
• Status: Published

Opinion

[Cite as C.A.P. v. M.D.P., 2021-Ohio-3030.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

C.A.P., :

Petitioner-Appellee, : No. 109882 v. :

M.D.P., :

Respondent-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 2, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DV-19-377122

Appearances:

Ellen S. Mandell, for appellee.

Michael Drain, for appellant.

LISA B. FORBES, J.:

M.D.P. (“Respondent”) appeals from the lower court’s judgment

entry that states that the domestic violence civil protection order (“DVCPO”) issued

against him “shall remain in full force and effect.” After reviewing the facts of the

case and pertinent law, we affirm the lower court’s judgment. Respondent and C.A.P.’s (“Petitioner”) marriage ended by dissolution

in September 2018. Pertinent to this appeal, the parties have a child together, A.P.,

who was 12 years old when the hearing in this case took place. Petitioner and

Respondent had shared parenting of A.P., who would rotate spending one week with

each parent. Respondent has a history of mental-health issues and domestic-

violence issues against Petitioner and A.P.

In April 2019, A.P. was staying at Respondent’s house while

Petitioner was in Florida. Respondent told A.P. he was going to kill himself and left

the house. Respondent also texted Petitioner that he was going to kill himself.

When Respondent returned home, he would not let A.P. leave. Petitioner returned

to Ohio two days later to get A.P.

Petitioner did not allow Respondent to see A.P. after this incident,

until he showed up at Petitioner’s house on June 11, 2019, with prescriptions from

the pharmacy for Petitioner and A.P. The next day, Petitioner filed a DVCPO against

Respondent, and the court held an ex parte hearing and granted Petitioner’s request.

The court held a full hearing on the DVCPO on October 16, 2019. On

October 24, 2019, the magistrate granted the DVCPO for approximately five years,

with an expiration date of October 15, 2024. Respondent filed objections to the

magistrate’s decision, raising the following issues: 1) The evidence presented at the

October 16, 2019 hearing does not support a finding of domestic violence as defined

in R.C. 3113.[31](A)(1)(a); and 2) There was no evidence presented at the hearing of an “act that placed another person by the threat of force in fear of imminent serious

physical harm.”

On July 10, 2020, the court overruled Respondent’s objections and

“ordered that [the DVCPO] entered on October 25, 2019, shall remain in full force

and effect.” It is from this order that Respondent appeals.

I. DVCPO Hearing Testimony

The following people testified at the DVCPO hearing: A.P.;

Respondent; Petitioner; Wihletta Davis, who is a counselor referred to the family by

the Cuyahoga County Division of Children and Family Services; and Karen Dudley,

who is Petitioner’s sister.

A.P. testified that Respondent choked her in 2017. Specifically, she

testified that “he grabbed me by the neck and started carrying me to my bedroom.

And then he threw me on the bed, sat on me, and then continued to choke me.”

A.P. also testified that in August 2018, she overheard Respondent

telling Petitioner that he was going to “snap A.P.’s neck.” A.P. called the police after

she heard this and told them she did not feel safe. Additionally, A.P. testified that

she “had experienced [Respondent] harming me before in the past. And it

traumatized me to the point where I would believe he would do something harmful

to me again.”

A.P. testified that she stayed with Respondent in April 2019 while

Petitioner was in Florida. Respondent withheld A.P.’s medication and would not let

her out of the house. Respondent threatened suicide and left the house. According to A.P., “the screen door was jammed and no one could really get it open other than

him.”

Additionally, A.P. testified that she has been diagnosed with

depression and post-traumatic stress disorder (“PTSD”), was in counseling with an

individual therapist and a family therapist, and takes “a number of medications”

that are prescribed by a psychiatrist. A.P. testified that she is afraid of Respondent,

does not feel safe with him, suffers from nightmares of him, and sleeps with a

baseball bat.

Respondent testified that he choked A.P., who was 11 years old at the

time, after she punched him in the eye. Respondent admitted that he told Petitioner

that he was going to snap A.P.’s neck, but he did not know A.P. was listening to the

conversation. Respondent also admitted sending the following text message to

Petitioner while she was in Florida and A.P. was in his custody:

I have figured out the way I’m going to end it. Today’s a good day for it. [A sibling] will get [A.P.]. She will be safe. I’m going to take an overdose of pills, and then get into my car and start driving, and see what happens. One of my kids will call you later today or tomorrow to tell you what happened. This is it. I mean it. I am living in hell. So I might as well go to hell. I will always love you. Take care of yourself and [A.P.]. This is the last rodeo. Goodbye.

Petitioner corroborated the testimony that Respondent choked A.P.

in 2017, and A.P. called the police. Petitioner did not corroborate Respondent’s

testimony that A.P. punched him first. Petitioner also corroborated the testimony

that in August 2018, Respondent told Petitioner over the phone that he was going to

“snap [A.P.’s] neck.” Additionally, Petitioner testified that Respondent texted her in April

2019, threatening to kill himself and threatening to take A.P. to another state.

During the week that Petitioner was in Florida, Respondent called her

approximately 150 times. When Petitioner blocked Respondent’s phone number,

Respondent took A.P.’s phone to continue contacting Petitioner.

Petitioner testified that she was in counseling and had been

diagnosed as being codependent. Petitioner testified that she is afraid for her own

and A.P.’s “emotional health and safety” because of Respondent. Asked whether she

believed Respondent’s threats, Petitioner testified “As much as I believed his threats

over the last 10 years. What I have come to understand is [Respondent] uses those

threats to control.”

Davis testified that A.P. suffers from PTSD and nightmares “that

[Respondent] was going to come get her from her school.” According to Davis, A.P.

disclosed to her that Respondent choked her and held her hostage. Davis also

testified that Petitioner corroborated A.P.’s disclosures. Furthermore, Davis

testified that Petitioner suffers from PTSD and codependency.

Dudley corroborated the testimony that Respondent choked A.P. in

2017. Dudley was living in Petitioner’s home at the time and witnessed the incident.

She did not see what occurred immediately prior to this, so she could not

corroborate Respondent’s testimony that A.P. punched him first. Dudley also

corroborated testimony that A.P. sleeps with a baseball bat. II. Law and Analysis

A. DVCPO

A domestic relations court may issue a DVCPO under Civ.R. 65.1 and

R.C. 3113.31. The Ohio Supreme Court has held that “when granting a protection

order, the trial court must find 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.” R.C. 3113.31(D).” Felton v. Felton, 79 Ohio St.3d 34, 42, 649

N.E.2d 672 (1997). “Domestic violence” is defined, in pertinent part, as

The occurrence of one or more of the following acts against a family or household member:

***

(ii) Placing 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;

(iii) 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 * * *.

R.C. 3113.31(A)(1)(a).

R.C. 2903.211(A) governs menacing by stalking, and it states, in

pertinent part, as follows: “(1) No 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.”

R.C. 2151.03 defines, in part, an “abused child” as a child who “(D)

Because of the acts of his parents * * * suffers physical or mental injury that harms

or threatens to harm the child’s health or welfare.” In other words, a court may issue a DVCPO based on evidence of

menacing by stalking or child abuse and both of these offenses may be established

absent an “act that placed another person by the threat of force in fear of imminent

serious physical harm.”

B. Standard of Review

“[W]hen a respondent contends that it was error to issue a protection

order, the question on review is whether there was sufficient credible evidence to

support a finding that the respondent had engaged in acts or threats of domestic

violence.” Abuhamda-Sliman v. Sliman, 161 Ohio App.3d 541, 2005-Ohio-2836,

831 N.E.2d 453, ¶ 10 (8th Dist.). Furthermore, a “trial court’s ruling on objections

to a magistrate’s decision will not be reversed absent an abuse of discretion.” In re

M.I.S., 8th Dist. Cuyahoga No. 98138, 2012-Ohio-5178, ¶ 11.

C. Domestic Relations Court Judgment Entry

In overruling Respondent’s objections to the magistrate’s decision

and upholding the DVCPO, the lower court found the following:

[Respondent’s] arguments focus almost completely on his claim that there is no “act” or “acts” committed by him which caused serious bodily harm or placed either [Petitioner] or A.P. by threat of force in fear of imminent serious harm. This argument is a “strawman” argument. Notwithstanding the evidence regarding the history of violence toward A.P., it is not necessary for there to be such evidence in order for a DVCPO to issue.

The clauses of R.C. 3113.31(A)(1)(a)(ii) are written in the disjunctive: Domestic violence may consist of “[p]lacing another person by threat of force in fear of imminent serious physical harm” or “by committing a violation of section 2903.211 * * * of the Revised Code” or by “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.” As such, a DVCPO can issue on the basis of evidence of violations of R.C. 2903.211 and/or R.C. 2151.031 alone.

The Court finds the Magistrate properly found the evidence supporting a finding of domestic violence for each protected party. Because the basis for each finding is different, the Court will examine the evidence in the record regarding the findings of domestic violence with respect to the Petitioner as a protected person and A.P. as a protected person.

(Emphasis sic.)

The lower court found that Respondent engaged in a pattern of

conduct that knowingly caused mental distress to Petitioner, which are the elements

needed to prove menacing by stalking as a subset of domestic violence. The court

found that “[t]here is a long history of [Respondent] using abusive and emotional

manipulation upon both [Petitioner] and A.P.” The court found that “the only

purpose” Respondent had in threatening suicide while Petitioner was in Florida and

A.P. was staying with him “would be to cause fear and panic.” The court noted that

Petitioner “testified that while she was in Florida, Respondent called ‘150 times, over

and over.’” The court overruled Respondent’s objections to the magistrate’s decision

and ordered that the DVCPO “shall remain in full force and effect.”

The court found that in “November 2017, while the parties still lived

together, [Respondent] strangled [A.P.], dragged her into a bedroom, sat on her and

otherwise restrained her.” In April 2019, Respondent “effectively locked A.P. in the

house * * * telling her he was going to kill himself.” The court found that “A.P.’s fear

and the effect of [Respondent’s] behavior on her mental health was corroborated by

other witnesses” including Respondent, Dudley, and Davis. The lower court found

that A.P. was an “abused child” as defined by R.C. 2151.031, and “there is competent credible evidence in the record to support a finding of domestic violence with respect

to A.P.” when it ordered that the DVCPO “shall remain in full force and effect.”

D. Analysis

Upon review, we find that there is sufficient credible evidence in the

record to support a finding that Respondent engaged in acts or threats of domestic

violence. In the lower court’s well-reasoned judgment entry, it found that

Respondent “has failed to show any error of law or other defect is evident on the face

of the order, or that the credible evidence of record is insufficient to support the

granting or denial of the protection order.”

Respondent’s argument that there is no evidence of domestic violence

because nothing was presented at the hearing showing “threat of force in fear of

imminent serious physical harm” is without merit. The court found that

Respondent committed domestic violence against Petitioner based on menacing by

stalking. Menacing by stalking does not require a showing of “threat of force” or

“physical harm.” See R.C. 3113.31(A)(1)(a); 2903.211(A). See also Caramico v.

Caramico, 12th Dist. Clermont No. CA2015-03-025, 2015-Ohio-4232, ¶ 27

(“Husband’s argument that he did not commit the other acts contained in

R.C. 3113.31, i.e., * * * by placing another person in fear of imminent serious physical

harm, is without consequence as the trial court determined that Husband satisfied

the relevant statute through his conduct constituting the act of menacing by

stalking.”). Additionally, the court found that Respondent committed domestic

violence against A.P. based on child abuse, which can stem from a “mental injury.”

See R.C. 3113.31(A)(1)(a); R.C. 2151.03(D). See also Lang v. Lang, 2d Dist. Miami

No. 2003-CA-34, 2004-Ohio-2035 (evidence that the child suffered a mental injury

because of the father’s threats amounted to child abuse, which supported a finding

of domestic violence and the issuance of a DVCPO); Kohus v. Daly, 12th Dist.

Clermont No. CA2015-05-042, 2016-Ohio-73 (a mother’s conduct of leaving her

young children in the car overnight while she worked amounted to child abuse,

which supported a finding of domestic violence and the issuance of a DVCPO).

Upon review, we hold that the lower court’s findings of fact are

supported by overwhelming evidence in the record, presented by each of the

witnesses including the testimony and text messages of Respondent himself. The

court did not abuse its discretion by upholding the DVCPO against Respondent, and

both of his assignments of error are overruled. Accordingly, we affirm the lower

court’s judgment.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry out this

judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and MICHELLE J. SHEEHAN, J., CONCUR