Donovan v. Donovan

2012 Ohio 3521

• Court: Ohio Court of Appeals
• Decided: August 6, 2012
• Docket: 11CA010072
• Status: Published

Opinion

[Cite as Donovan v. Donovan, 2012-Ohio-3521.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

HEATHER DONOVAN C.A. No. 11CA010072

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MICHAEL DONOVAN COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 11DV073621

DECISION AND JOURNAL ENTRY

Dated: August 6, 2012

WHITMORE, Presiding Judge.

{¶1} Appellant, Michael Donovan (“Husband”), appeals from the judgment of the

Lorain County Court of Common Pleas, Domestic Relations Division. This Court affirms.

I

{¶2} Husband and Heather Donovan (“Wife”) were married in 1997 and had two

children together: E.D., born in 1996, and M.D., born in 2003. The relationship ultimately broke

down, and Husband’s behavior caused Wife to fear for her safety as well as her children’s safety.

On April 13, 2011, Wife filed a petition for a domestic violence civil protection order. An ex

parte protection order was issued the same day after a hearing at which Wife testified. The

matter was then set for a full hearing before a magistrate. After the full hearing, the magistrate

issued a domestic violence civil protection order that was approved and adopted by the trial

court. Husband filed objections to the magistrate’s decision, and the court held another hearing 2

to permit argument on the objections. On August 23, 2011, the trial court overruled Husband’s

objections and held that the protection order remained in full force and effect.

{¶3} Husband now appeals from the trial court’s decision and raises one assignment of

error for our review.

II

Assignment of Error

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT UPHELD APPELLEE’S PETITION FOR A DOMESTIC VIOLENCE CIVIL PROTECTION ORDER PURSUANT TO R.C. 3113.31[.]

{¶4} In his sole assignment of error, Husband argues that the trial court erred by

overruling his objections and upholding the protection order against him. Specifically, he argues

that Wife failed to demonstrate by a preponderance of the evidence that she was ever in danger

of domestic violence.

{¶5} Generally, absent an error of law, “the decision to adopt, reject, or modify a

magistrate’s decision lies within the discretion of the trial court and should not be reversed on

appeal absent an abuse of discretion.” Barlow v. Barlow, 9th Dist. No. 08CA0055, 2009-Ohio-

3788, ¶ 5. “In so doing, we consider the trial court’s action with reference to the nature of the

underlying matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, ¶ 18.

“The Ohio Supreme Court has explained that ‘[w]hen 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.’” Schultz v.

Schultz, 9th Dist. No. 09CA0048-M, 2010-Ohio-3665, ¶ 5, quoting Felton v. Felton, 79 Ohio

St.3d 34 (1997), paragraph two of the syllabus. This Court applies a civil manifest weight

standard when reviewing a trial court’s decision to grant a protection order. Wohleber v. 3

Wohleber, 9th Dist. No. 10CA009924, 2011-Ohio-6696, ¶ 7. The standard encompasses both a

legal sufficiency and manifest weight determination. Eastley v. Volkman, Slip Opinion No.

2012-Ohio-2179, ¶ 11-12, quoting State v. Thompkins, 78 Ohio St.3d 380, 386-387 (1997). See

also Smith v. Stanley, 9th Dist. 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.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 trial, to

support one side of the issue rather than the other.’” (Emphasis sic.) Thompkins at 387, quoting

Black’s at 1594.

{¶6} R.C. 3113.31 governs the issuance of domestic violence civil protection orders.

The statute defines “domestic violence” as the commission 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 of section 2903.211 or 2911.211 of the Revised Code;

(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.

R.C. 3113.31(A)(1)(a)-(d). “Threats of violence will constitute ‘domestic violence’ if the fear

resulting from those threats is reasonable.” Rhodes v. Gunter, 9th Dist. Nos. 02CA008156 &

02CA008157, 2003-Ohio-2342, ¶ 4. “Reasonableness is determined by referencing the 4

petitioner’s history with the respondent.” Id. “[B]oth the totality of the circumstances, as well as

the victim’s state of mind, are relevant to the determination that the threat of harm was

imminent.” Chafin v. Chafin, 9th Dist. No. 09CA009721, 2010-Ohio-3939, ¶ 22.

{¶7} Wife testified that she filed for a domestic violence civil protection order because

she was afraid of Husband. As Wife expressed her discontent with the parties’ marriage,

Husband began to act oddly. Specifically, Husband would follow Wife throughout their house

and try to look at the content on her phone. Wife also would awake in bed to find Husband, who

regularly arrived home from work at 4:30 a.m., sitting on the foot of the bed staring at her or

trying to talk to her while she slept. Wife confirmed that Husband had a tendency to explode for

no apparent reason and had been diagnosed as bipolar. Wife testified that Husband constantly

yelled at her and that the stress she felt as a result of Husband’s behavior had exacerbated her

multiple sclerosis.

{¶8} Wife described one particular incident that took place in late March, shortly

before she filed for the protection order. Wife testified that she went out with a few of her

friends to wish one of them well on an upcoming, overseas deployment. Wife’s night out greatly

upset Husband to the point that he told Wife he “would show [her]” because he was going out

drinking the next night. The following night, Husband went out drinking, came home late, and

approached Wife in bed. Wife stated that Husband tried to lie on top of her, but that she left and

went into her son’s room. Husband soon came into her son’s room, however, so Wife returned

to her bedroom. Once again, Husband came into the room and tried to lie on top of Wife. Wife

managed to extricate herself, returned to her son’s room, and locked the door. Husband followed

Wife and repeatedly banged on the door. He then broke the door open, damaging its hinges and

jamb. Wife later took pictures of the damage to the door and the jamb, which she introduced at 5

the hearing. E.D., the parties’ daughter, also testified that she saw the broken door when she

came home the following day. E.D. testified that the handle of the door was broken and there

were wood chips everywhere.

{¶9} E.D. testified that Husband frequently lost control and told her that he would not

sign any papers to divorce Wife “unless the judge put a gun to his head.” E.D. often witnessed

Husband hit her younger brother, either spanking him “really hard” or grabbing him by the neck

or arm. E.D. testified that Husband had hit her as well and had grabbed her by the back of the

neck. Husband also yelled at her and Wife frequently. E.D. testified that she is afraid of

Husband and that Husband’s behavior makes E.D. fear for Wife and her little brother.

{¶10} Barbara Harrell, Wife’s mother, testified that she never witnessed any physical

violence take place between Husband and Wife. She had observed, however, what she

considered to be excessive yelling, screaming, and name calling on the part of Husband when he

dealt with his children. She also saw Husband grab his son by the neck and shove him on at least

one occasion. Harrell testified that Husband frequently screamed at his children and used

profanity both toward them and around them.

{¶11} Sandra Harrell, Wife’s stepmother, testified that Wife was finished with her

marriage before she filed for the protection order and “felt stalked, harassed, [and] fearful” for

herself and her children. After Wife filed for the protection order, Sandra saw Husband while

she was driving to Target. Husband followed Sandra into Target’s parking lot and tried to speak

to her. According to Sandra, Husband expressed his desire for Wife to go to marriage counseling

with him. He also wanted to clarify that he had heard a rumor about his having had an affair and

that the rumor was not true. Sandra felt that Husband suggested he might retaliate against

whoever started the rumor. 6

{¶12} Husband also attempted to contact Wife’s friend, Shelly Carrico. Carrico testified

that Husband left a voicemail message on her phone, asking her to speak with Wife and try to get

Wife to postpone their divorce proceedings so that the two could try marriage counseling.

Carrico came to the parties’ house for Thanksgiving the previous year and witnessed Husband

become incensed over a problem with the turkey fryer. Carrico testified that Husband was

walking around screaming during the incident. She also testified that the parties’ relationship

had negatively affected Wife. Carrico described Wife as being “stressed out completely” and as

having lost a lot of weight. Carrico stated that Wife had installed a security system in her home

because she was afraid to be there and afraid for her children. Wife confirmed that she had

installed a security system because she was afraid that Husband might try to come into the house.

Wife specified that she saw Husband drive by the home the day before the full hearing. Further,

she testified that when she told Husband she wanted a divorce he told her “a judge would have to

shoot his head before * * * [she] would be granted a divorce.” Wife interpreted Husband’s

response to mean that she would never be able to get away from him.

{¶13} Husband testified to a completely different version of events than did the other

witnesses at the full hearing. Husband admitted that he was currently taking Depakote for his

mood, but rejected the contention that he ever had been formally diagnosed as bipolar. Husband

denied that he had a tendency to lose his temper or that he was ever confrontational with his

children. He denied ever having driven by the house after the issuance of the ex parte protection

order. Moreover, Husband denied taking part in the March 2011 incident Wife described,

wherein she testified that Husband came home after drinking, tried to lie on top of her, and broke

down their son’s bedroom door. Husband testified his son’s bedroom door was damaged when

the parties moved into the home because they had purchased it after it was repossessed from the 7

prior owner. According to Husband, he did not go out drinking on the night Wife described.

Instead, Husband went to work, went to his sister’s house to help clean up after a party, and then

went home. Husband acknowledged that Wife left their bed when he came home, but denied that

there was anything more to the incident. He also denied ever having acted inappropriately at his

daughter, E.D.’s, school despite the fact that the assistant principal banned him from coming

onto school grounds after he had some type of exchange with E.D.’s classmate.

{¶14} Husband primarily relies upon Fleckner v. Fleckner, 177 Ohio App.3d 706, 2008-

Ohio-4000 (10th Dist.), in support of his argument that no basis exists for the protection order

the trial court ordered. The only acts of domestic violence alleged in Fleckner were the wife’s

assertions that her estranged husband had continually contacted her, her family, and her friends

and had threatened to channel his frustration into the parties’ upcoming court proceedings.

Fleckner at ¶ 2. The wife testified that all of the husband’s attempts to contact her scared her,

but did not identify any specific, recent threatening action or statement on the part of the husband

that caused her belief. Id. at ¶ 4. The Tenth District determined that the wife failed to prove that

she was in danger of domestic violence because threats of legal action do not constitute domestic

violence and there was no evidence that the husband “made any threat of force, that [the wife]

feared serious physical harm as a result of any of [the husband’s] actions or statements, or that

she feared that [husband] would undertake to harm her imminently.” Id. at ¶ 30.

{¶15} Here, Wife’s protection order petition listed the following reasons as support for

the filing of the petition:

Threatening to take his life to friends, myself + children, Broke down son’s door in where I + Son was sleeping, threats of suicide, The only way I was gettin divorced is if a judge shot him. Constant texting + calling myself + daughter, trying to get her to tell mom not to leave, Diagnosed with Being Bipolar[.] 8

(Sic.) The incident wherein Husband allegedly broke down his son’s bedroom door to reach

Wife took place shortly before Wife filed the protection order. Unlike the petitioner in Fleckner,

therefore, Wife identified a recent threatening action of Husband’s in filing her petition and in

her testimony before the court. Husband’s actions, if believed, also distinguish this case from the

other supporting authority upon which Husband relies: Rangel v. Woodbury, 6th Dist. No. L-09-

1084, 2009-Ohio-4407 (petition dismissed when sole allegation was that husband had previously

threatened wife and followed her for approximately eight blocks while she drove in her car).

{¶16} Wife set forth evidence that Husband had a history of losing his temper with their

children. Several witnesses testified that Husband would succumb to screaming fits and grabbed

and shoved his children when he was angry with them. Although he admitted that he was

prescribed a mood stabilizer, Husband blatantly denied having a problem with anger or ever

acting in a confrontational manner toward his family. He also denied breaking down his son’s

bedroom door, despite Wife’s testimony, E.D.’s testimony, and the pictures Wife introduced of

the broken door hinge and jamb. Wife testified that Husband’s behavior, particularly his

breaking down their son’s door, following her around the house, and stating that they would not

be divorced unless a judge shot him, caused her to fear for her own safety as well as her

children’s safety. Wife was not required to wait until a distinct act of domestic violence

occurred. “[C]ivil protection orders are intended to prevent violence before it happens.”

Strassell v. Chapman, 10th Dist. No. 09AP-793, 2010-Ohio-4376, ¶ 7, quoting Young v. Young,

2d Dist. No. 2005-CA-19, 2006-Ohio-978, ¶ 105. To obtain a protection order, Wife only was

required to prove that she or her children were in danger of domestic violence. Schultz, 2010-

Ohio-3665, at ¶ 5, quoting Felton, 79 Ohio St.3d at paragraph two of the syllabus. Both Wife

and her daughter offered testimony from which the trial court reasonably could have found the 9

situation between Husband, Wife, and the children was escalating over a period of time.

Numerous witnesses described Husband’s temper, and both Wife and daughter expressed their

concerns over the explosive nature of Husband’s outbursts, culminating in Husband’s violent

behavior of breaking down a bedroom door. Wife described herself as feeling that she “was

being backed into corners,” not knowing when Husband finally might cause her or her children

bodily injury. She described Husband as suffering from mood swings, “laughing one minute and

screaming and running after one of the kids the next,” such that the entire family “was walking

on eggshells.” Based upon our review of the record, we cannot conclude that the trial court erred

when it determined that Wife set forth sufficient evidence that she and/or her children were in

danger of domestic violence.

{¶17} Moreover, the record does not support Husband’s argument that the judgment

here is against the manifest weight of the evidence. Assuming to be true that Husband broke

down son’s bedroom door, Husband argues that the incident did not cause Wife to be in fear of

imminent, serious physical harm. Husband points to Wife’s admission that, several days after

the incident, she left the house for a few days to go to Florida and did not take the children with

her. If Wife truly feared him, Husband argues, Wife would not have left the children under his

care while she left the state. Wife testified, however, that she visited her cousin in Florida after

the bedroom door incident because she was suffering from extreme stress and previously stress

had caused her to suffer a multiple sclerosis attack. Wife testified that Husband worked while

she was gone, so he only would have had about two hours of interaction a day with the children.

Even so, Wife testified that her daughter stayed with a friend while she was gone and Wife’s

niece came to the house to help with her son. She testified that she had to leave for a few days

because after the bedroom door incident Husband “kept coming after [her] * * * to stress [her] 10

out, [and] to wear [her] down.” She further stated multiple times that she feared for her safety as

well as the safety of her children.

{¶18} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. Violett, 9th Dist. No. 11CA0106-M, 2012-Ohio-

2685, ¶ 11, quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

Based on all the evidence in the record, we cannot conclude that the trier of fact lost its way in

choosing to believe Wife’s version of the events and by concluding that Wife and/or one or more

of her children were in danger of domestic violence. See Schultz at ¶ 5, quoting Felton at

paragraph two of the syllabus. Consequently, the trial court did not abuse its discretion by

adopting the magistrate’s decision and issuing a domestic violence civil protection order against

Husband. Husband’s assignment of error is overruled.

III

{¶19} Husband’s assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed.

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 Lorain, 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 11

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 Appellant.

BETH WHITMORE FOR THE COURT

DICKINSON, J. BELFANCE, J. CONCUR.

APPEARANCES:

WAYNE R. NICOL, Attorney at Law, for Appellant.

ALLEN SPIKE, Attorney at Law, for Appellee.