[Cite as Charles v. Peters, 2016-Ohio-1259.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
CARLA A. CHARLES : : Appellate Case No. 2015-CA-52 Petitioner-Appellant : : Trial Court Case No. 12-DV-162 v. : : (Civil Appeal from Common Pleas JOHN J. PETERS : Court, Domestic Relations) : Defendant-Appellee : :
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OPINION
Rendered on the 25th day of March, 2016.
JENNIFER E. MARIETTA, Atty. Reg. No. 0089642, 77 West Main Street, Xenia, Ohio 45385 Attorney for Petitioner-Appellant
DAVID M. McNAMEE, Atty. Reg. No. 0068582, 2625 Commons Boulevard, Suite A, Beavercreek, Ohio 45431 Attorney for Respondent-Appellee
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FAIN, J.
{¶ 1} Petitioner-appellant Carla A. Charles appeals from an order of the Greene
County Common Pleas Court, Domestic Relations Division, overruling her motion to -2-
extend an Agreed Domestic Violence Protection Order for an additional two years.
Charles argues that the trial court abused its discretion by refusing to adopt the
Magistrate’s decision sustaining the motion, and that the evidence is sufficient to support
the factors required to obtain a protection order.
{¶ 2} We conclude that the trial court did not abuse its discretion in sustaining the
objections to the Magistrate’s order. We conclude that the order of the trial court overruling
the motion to extend the protection order is not against the manifest weight of the
evidence. Consequently, the order from which this appeal is taken is Affirmed.
I. The Relationship of the Parties
{¶ 3} John Peters is the father of Charles’s nine-year-old daughter. Charles has
sole custody of their daughter pursuant to an order of the Greene County Juvenile Court.
Peters exercises visitation with his child at the Greene County Visitation Center.
{¶ 4} At the hearing, Charles testified to six incidents that caused her to live in
fear, “afraid of what actions [Peters] has done and what he is going to do.” Transcript at
15. First, Charles testified that she believed it was Peters who entered her garage and
stole a copy of the protection order from her car, and left a single flower from her garden.
She admitted that no one saw Peters enter her garage, and that the incident occurred
more than a year prior to the filing of her petition to extend the order. Second, Charles
testified that she believes Peters entered her home, when she was not present, based on
her observation that the back door was left ajar, and a cigarette butt was left behind. She
admitted that no one saw Peters enter her home, and that the incident occurred more
than a year prior to the filing of her petition to extend the order. Third, Charles testified
that a key to her home was missing from her daughter’s backpack, after her daughter left -3-
her backpack at the home of Peters’s sister, where supervised visitation had occurred.
Charles had no other evidence from which to conclude that Peters was responsible for,
or in possession of, the missing key. Fourth, Charles testified that her neighbor saw
Peters’s car parked in her driveway, when she was not home. Charles attempted to
introduce a photograph of the car in her driveway, but could not establish when the photo
was taken. Fifth, Charles testified that she found two documents, written on the type of
yellow carbon paper used by the Greene County Visitation Center. The first document
was found on the service door to her home garage, and it stated, “Time is running out.”
The second document was a drawing her daughter brought home from the visitation
center that contained a drawing of a tombstone, with the words “Mom,” and “R.I.P.” She
testified that it was not a child’s handwriting. Sixth, Charles testified that she received a
phone call from Peters’s sister, and could hear Peters yelling in the background. Charles
testified that since the initial protection order was issued, she has had no personal contact
with Peters, with the exception of seeing him once at the visitation center. Charles testified
that she has filed several police reports to complain that Peters was violating the
protection order, but the police have never charged Peters with any offense as a result of
her complaints.
{¶ 5} Peters testified that the last time he was at Charles’s residence was in 2012.
He denied leaving her any notes, sending her any messages, making any drawings, or
having any desire to see Charles. Peters acknowledged that the photograph Charles
attempted to introduce into evidence did depict the car he owned for 7 or 8 years, and
that he did drive it to her house many times before the protection order was issued, in
2012. Peters testified that he has never seen Charles at the visitation center. Peters -4-
denied committing any act of domestic violence toward Charles, and explained that he
only entered into the consent agreement in 2012 in order to obtain visitation with his
daughter. Peters testified that he has not been charged with any criminal offense in the
past five years.
II. The Course of Proceedings
{¶ 6} In October 2012, Charles petitioned for a Domestic Violence Protection
Order against Peters, alleging that Peters had verbally threatened her. Peters and
Charles entered into a Consent Agreement, and an agreed Domestic Violence Protection
Order was issued. The order specified a term of two years, with an expiration date of
December 21, 2014. The child is not designated as a protected person under the terms
of the Protection Order. The order prohibits Peters from abusing Charles by harming,
attempting to harm, threatening, following, stalking, harassing, forcing sexual relations
upon, or by committing sexually oriented offenses against, her. Peters was also
prohibited from entering Charles’s home, business, or place of employment, including the
buildings, grounds or parking lots. Peters was required to stay at least 500 feet away from
Charles, wherever she may be found. Peters was prohibited from having any contact with
Charles, including any text, e-mail, writings or other communication. Peters was also
prohibited from causing or encouraging any other person from doing anything prohibited
by the order. The protection order recognized that Peters has certain limited rights to
visitation with the child.
{¶ 7} Shortly before the Protection Order was scheduled to expire, Charles moved
to modify the terms of the consent agreement, seeking to extend the order for an
additional two years. The motion specified as grounds, “continued fear of the respondent -5-
due to ongoing stalking, harassment by both the respondent and a family member of
respondent, threatening notes/writings and verbal threats made by respondent through
another person. Incident reports of suspected violations were filed with the City of Xenia
Police Department and the Greene County Sheriff.” A hearing on the motion to modify
the consent order was set before the court’s magistrate. A magistrate’s order was issued,
extending the protection order for three months, for “good cause shown,” without
identifying whether any evidence was presented or considered. The magistrate
conducted a second hearing, and then issued a modified order extending the protection
order for an additional two years. The magistrate’s order did not include any findings of
fact or conclusions of law. The magistrate’s order does not state who testified at the
hearing, or what evidence was presented or considered to meet the factors required by
statute or upon which to judge the witnesses’ credibility. Initially, the trial court approved
the magistrate’s order, but reconsidered after Peters filed objections, and Charles
responded to the objections. The trial court reviewed the transcript of the hearing, and
rendered a decision sustaining the objections and vacating the protection order upon the
ground that the petitioner had not met her burden of proving the elements required by
R.C. 3113.31 for the issuance of a domestic violence protection order. From the order
overruling the motion to extend the protection order, Charles appeals.
III. Standard of Review
{¶ 8} This court has applied an abuse-of-discretion standard in reviewing a trial
court's decision whether to grant or terminate a civil protection order. Sweet v. Hunt, 2d
Dist. Greene No. 2013-CA-37, 2014-Ohio-631, ¶¶ 13-14. Brown v. Naff, 2d Dist. Miami
No. 2011-CA-17, 2012-Ohio-1770, ¶ 9. See also Walker v. Edgington, 2d Dist. Clark No. -6-
07-CA-75, 2008-Ohio-3478, ¶ 24; Bryant v. Spear-Hardy, 2d Dist. Montgomery No.
23449, 2010-Ohio-1903, ¶ 23. While Charles argues that the standard of review in this
appeal should be based on a determination whether the order overruling her motion to
modify the protection order is based on sufficient evidence, Peters assumes that the
standard of review is whether the trial court abused its discretion.
{¶ 9} We have joined other districts in recognizing a distinction between
challenges to the scope or terms of a protection order and whether a protection order
should issue at all or should be extended, in which case, our review is based on whether
there is “sufficient competent, credible evidence” to support a finding that the respondent
engaged in acts or threats of domestic violence. Young v. Young, 2d Dist. Greene No.
2005-CA-19, 2006-Ohio-978, ¶ 22. See also Schneider v. Razek, 2015-Ohio-410,
28 N.E.3d 591, ¶ 29-40 (8th Dist.); Abuhamda-Sliman v. Sliman, 161 Ohio App. 3d 541,
2005-Ohio-2836, 831 N.E. 2d 453, ¶ 8-10 (8th Dist.).
{¶ 10} A protection order, or an order extending a protection order, requires
sufficient evidence. By contrast, no evidence is required to support an order overruling
a motion for a protective order, or a motion to extend a protection order. In a hypothetical
proceeding on a motion to extend a protection order in which no evidence is presented,
the trial court would be required to overrule the motion. We conclude, therefore, that in
reviewing an order overruling a motion to extend a protection order, the standard of review
is not whether there is sufficient evidence to support the order of the trial court overruling
the motion (no quantum of evidence is required for that order), but whether that order is
against the manifest weight of the evidence. Under the manifest-weight-of-the-evidence
standard the appellate court must review the entire record, weigh the evidence and all -7-
reasonable inferences, consider the credibility of witnesses and determine whether in
resolving conflicts in the evidence, the factfinder clearly lost its way and created a
manifest miscarriage of justice. Folck v. Redman, 2d Dist. Clark No. 2013-CA-35, 2013-
Ohio-3646, ¶ 8. In Eastley, the court also stressed that
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
(Citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 21.
{¶ 11} We have also established that an abuse-of-discretion standard is to be
applied upon appellate review of a trial court’s decision to adopt, modify or vacate the
order of the trial court’s magistrate. L.L.L. v. Junies, 2d Dist. Greene No. 2013 CA 31,
2014-Ohio-141, ¶ 12, citing Proctor v. Proctor, 48 Ohio App.3d 55, 60–61, 548 N.E.2d
287 (3d Dist.1988). A court abuses its discretion by acting in a manner that is
unreasonable, arbitrary or unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio
St.3d 608, 610, 665 N.E.2d 200 (1996). Decisions are unreasonable if they are not
supported by a sound reasoning process. AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). -8-
IV. The Trial Court Did Not Abuse its Discretion to Vacate the Magistrate’s Order
{¶ 12} For her First Assignment of Error, Charles asserts as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN SUSTAINING
RESPONDENT’S OBJECTIONS AND DENYING PETITIONER’S
MOTIONS FOR MODIFICATION/EXTENSION OF THE CIVIL
PROTECTION ORDER.
{¶ 13} Charles argues that the trial court abused its discretion by refusing to adopt
the magistrate’s decision to grant the extended protection order. When reviewing
objections to a magistrate's decision, the trial court is not required to follow or accept the
findings or recommendations of its magistrate. New Lebanon v. Krahn, 2d Dist.
Montgomery No. 26659, 2015-Ohio-4791, ¶ 86, citing Breece v. Breece, 2d Dist. Darke
No. 99-CA-1491, 1999 WL 999759 (Nov. 5, 1999); Seagraves v. Seagraves, 2d Dist.
Montgomery Nos. 15047 and 15069, 1995 WL 559970 (Aug. 25, 1995). In accordance
with Civ.R. 53, the trial court must conduct an independent review of the facts and
conclusions contained in the magistrate's report and enter its own judgment. Dayton v.
Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671 (2d Dist.1996).
{¶ 14} An appellate court reviews a trial court's decision to adopt, modify, or
vacate a magistrate's decision for an abuse of discretion, and that decision will only be
reversed where it appears that the trial court's actions are arbitrary or unreasonable.
L.L.L. v. Junies, 2d Dist. Greene No. 2013 CA 31, 2014-Ohio-141, ¶ 12, citing Proctor v.
Proctor, 48 Ohio App.3d 55, 60–61, 548 N.E.2d 287 (3d Dist.1988). Claims of trial court
error must be based on the actions taken by the trial court, itself, rather than the -9-
magistrate's findings or proposed decision. Howard v. Wilson, 186 Ohio App.3d 521,
2010-Ohio-1125, 928 N.E.2d 1180, ¶ 8 (2d Dist.).
{¶ 15} In its consideration of the objections to the magistrate’s decision, the trial
court reviewed the transcript, correctly applied the law, and concluded that the evidence
did not prove the statutory requirements for a domestic violence protection order. We
conclude that the trial court did conduct an independent de novo review and did not err in
entering its own judgment.
{¶ 16} Charles’s First Assignment of Error is overruled.
V. The Trial Court’s Judgment Is Not Against the Manifest Weight of the Evidence
{¶ 17} For her Second Assignment of Error, Charles asserts:
THE MAGISTRATE CORRECTLY FOUND THAT THERE WAS
SUFFICIENT CREDIBLE EVIDENCE AND THAT BY A
PREPONDERANCE OF THE EVIDENCE, RESPONDENT COMMITTED A
VIOLATION OF R.C. 2903.211 AND A CIVIL PROTECTION ORDER WAS
EXTENDED.
{¶ 18} Charles argues that the trial court erred by failing to find sufficient evidence
to support the issuance of the protection order. Although Charles admits that she did not
present direct evidence that Peters was responsible for any of the incidents that caused
her to fear him, Charles argues that she presented sufficient evidence to create an
“assumption” that it is more likely than not that Peters perpetrated the conduct. We
recognize that the trial court, as the trier of fact, is entitled to make reasonable inferences,
not assumptions, from the facts shown with direct proof, but an “inference cannot be
based upon evidence that is too uncertain or speculative or which raises merely a -10-
conjecture or possibility.” Haughey v. Twins Group, Inc., 2d Dist. Champaign No. 2004-
CA-7, 2005-Ohio-1371, ¶ 30, citing 20 American Jurisprudence, 169, Section 165. In the
case before us, it was not only disputed that Peters was the perpetrator of the incidents
upon which Charles based her claim, it was also a disputed question of fact as to
whether those actions could reasonably have led Charles to believe that she was in
imminent danger of domestic violence.
{¶ 19} We have recently discussed the evidence necessary to meet the
requirements of the domestic violence statute for a protection order:
Under R.C. 3113.31(E)(1), a court may grant a protection order to
“bring about a cessation of domestic violence.” When a trial court grants a
protection order, it must find that the “petitioner has shown by a
preponderance of the evidence that petitioner or petitioner's family or
household members are in danger of domestic violence.” Felton v. Felton,
79 Ohio St.3d 34, 679 N.E.2d 672 (1997), at paragraph two of the syllabus.
Domestic violence is defined in pertinent part by R.C. 3113.31(A)(1) as
“[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”.
Barton v. Barton, 2d Dist. Greene No. 2014-CA-21, 2015-Ohio-3869, ¶ 7.
{¶ 20} Therefore, a petitioner seeking a domestic violence protection order must
produce evidence to meet the factors set forth in one of three statutes; R.C.
3113.31(A)(1), R.C. 2903.211, or R.C. 2911.211. Under the first statutory grounds, R.C.
3113.31(A)(1), Charles must prove by the preponderance of the evidence that (a) -11-
petitioner has a reasonable belief that she was in fear of imminent serious physical harm,
(b) as a direct result of the respondent’s force or threat of force. R.C. 2901.01(A)(1)
defines force as “any violence, compulsion, or constraint physically exerted by any means
upon or against a person or thing.” With regard to imminence, this court has previously
held that because civil protection orders are intended to prevent violence before it
happens, imminence does not require an offender to carry out a threat immediately or to
be in the process of carrying it out. Young v. Young, 2d Dist. Greene No. 2005-CA-19,
2006-Ohio-978, ¶ 105. Instead, “the critical inquiry under the statute is whether a
reasonable person would be placed in fear of imminent (in the sense of unconditional,
non-contingent), serious physical harm. This inquiry necessarily involves both subjective
and objective elements. * * * Therefore, we must determine whether [the petitioner] * * *
had a reasonable belief that * * * [the offender] would cause her imminent, serious
physical harm.” Id. at ¶ 106.
{¶ 21} R.C. 2901.01(A)(5) defines “serious physical harm to persons” 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; or (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.”
{¶ 22} In the case before us, Charles did not present sufficient evidence from -12-
which any reasonable trier of fact could find that Charles was placed, by force or threat
of force, in fear of imminent serious physical harm from any action of Peters. There was
no evidence that Peters ever engaged in any act of violence, or ever made any specific
threat of violence. Charles did not present sufficient, credible evidence to meet the
statutory factors required under R.C. 3113.31(A)(1).
{¶ 23} The second ground for a protection order is set forth in the menacing by
stalking statute, R.C. 2903.211, which requires a petitioner to produce evidence to
establish that (a) respondent has engaged in a pattern of conduct to knowingly cause the
petitioner (b) to have a reasonable belief that the respondent will cause her physical harm
or mental distress. R.C. 2901.22(B) provides that a “person acts knowingly, regardless of
his purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist.” “As to whether the offender engaged in
the conduct at issue in order to ‘cause another person to believe that the offender will
cause physical harm to the other person or cause mental distress to the other person,’
the State need not prove that the offender explicitly threatened the victim.” State v. Smith,
9th Dist. Summit No. 25869, 2012–Ohio–335, ¶ 20. “Instead, the offender's knowledge
that the conduct will result in the victim fearing physical harm or suffering mental distress
can be inferred by the circumstances.” Id. Pursuant to R.C. 2901.01(A)(3), physical
harm includes “any injury, illness, or other physiological impairment, regardless of its
gravity or duration.” “Mental distress” is defined in R.C. 2903.211(D)(2) as:
(a) Any mental illness or condition that involves some temporary substantial
incapacity; [or] -13-
(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.
{¶ 24} In the case before us, the trial court’s order is not against the manifest
weight of the evidence. Charles contends that her testimony regarding a missing key, an
open back door, an anonymous note and a drawing was sufficient to give rise to an
inference that Peters was engaging in a pattern of conduct for the purpose of causing her
harm. But although a finder of fact is permitted to draw reasonable inferences from proven
facts, it is not required to do so. OJI-Civil, 305.01(5). Nash v. General Electric
Company, 64 Ohio App.2d 25, 28, 410 N.E.2d 792 (1st Dist. 1979).
{¶ 25} The third ground for a domestic violence protection order is based on the
Trespass statute, R.C. 2911.211, which provides, “No person shall enter or remain on the
land or premises of another with purpose to commit on that land or those premises a
misdemeanor, the elements of which involve causing physical harm to another person or
causing another person to believe that the offender will cause physical harm to him.”
Therefore, to obtain a protection order on the basis of a violation of R.C. 2911.211,
Charles was required to prove by the preponderance of the evidence that (a) Peters
trespassed on her property, (b) causing physical harm, or (c) to cause Charles to believe
that he would cause physical harm to her. See, e.g., Bach v. Crawford, 2d Dist.
Montgomery No. 19531, 2003-Ohio-1255, ¶ 22. Again, the order of the trial court is not
against the manifest weight of the evidence. At most, Charles presented evidence from
which the trial court was permitted to draw an inference that Peters trespassed on her -14-
property. But the trial court was not required to draw that inference.
{¶ 26} We conclude that the trial court’s order overruling the motion to extend the
protection order is not against the manifest weight of the evidence. There was no
evidence of any physical contact between the parties for more than three years. There
was no evidence of a past or present history of domestic violence. None of the incidents
involved a threat of physical harm.
{¶ 27} Charles’s Second Assignment of Error is overruled.
VI. Conclusion
{¶ 28} Both of Charles’s assignments of error having been overruled, the order of
the trial court overruling her motion to extend the protection order is Affirmed.
DONOVAN, P.J., and WELBAUM, J., concur.
Copies mailed to:
Jennifer E. Marietta David M. McNamee Hon. Steven L. Hurley