[Cite as Elkins v. Manley, 2016-Ohio-8307.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104393
SHELLY L. ELKINS PLAINTIFF-APPELLEE
vs.
DOLORES J. MANLEY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861618
BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 22, 2016 FOR APPELLANT
Dolores J. Manley, pro se 3634 E. 47th Street Cleveland, Ohio 44127
FOR APPELLEE
Shelly L. Elkins, pro se 7208 Deveny Avenue Cleveland, Ohio 44105 EILEEN T. GALLAGHER, J.:
{¶1} Appellant, Dolores Manley (“Manley”), pro se, appeals from the trial court’s
judgment granting petitioner, Shelly L. Elkins’s (“Elkins”), petition for a civil stalking
protection order (“CSPO”). Manley raises the following assignments of error for review:
1. The court acted unprofessional with the defendant.
2. The court made false statements about what the defendant said.
3. The court didn’t want to hear the defendant’s side at all.
4. The court wouldn’t let the defendant see documents, letters, calls, professional people, etc.
{¶2} After careful review of the record and relevant case law, we affirm the trial
court’s order.
I. Procedural History
{¶3} On April 5, 2016, Elkins filed a petition for a CSPO against Manley pursuant
to R.C. 2903.214. The petition alleged that Manley was harassing her and her daughter,
H.K., by telephone and mail. Elkins further alleged that Manley followed her in public
places, made false accusations, and has closed Elkins’s personal bank accounts without
permission.
{¶4} On April 11, 2016, the trial court granted a temporary CSPO from April 8,
2016, until May 31, 2016, “or until further order of this court.” A full hearing on the
petition was held on April 21, 2016, where the following testimony was adduced. {¶5} At the hearing, Elkins testified that she is the legal guardian of H.K. Manley
is the biological mother of H.K., but has had no contact with her since her birth. Elkins
stated that over the course of 20 years, Manley has continuously harassed her and her
family. Specifically, Elkins testified that Manley has repeatedly made disruptive phone
calls and has made false accusations against her with the Cuyahoga County Children and
Family Services “at least 180 times.” In addition, Elkins stated that Manley has canceled
her bank accounts without permission and has made threatening statements. Elkins
testified that Manley’s pattern of conduct has caused her mental distress and depression.
{¶6} At the conclusion of the hearing, the trial court found that Elkins carried her
burden of proof and entered a protection order “in favor of [Elkins] and against [Manley]
for a term of five (5) years.”
{¶7} Manley now appeals from the trial court’s order granting Elkins a CSPO.
II. Law and Analysis
A. Judicial Bias
{¶8} In her first, second, and fourth assignments of error, Manley collectively
argues the trial court’s judgment was the product of judicial bias. Specifically, Manley
contends that the trial court (1) treated her unprofessionally throughout the proceedings,
(2) accused her of making derogatory statements that she did not make, and (3) did not
allow her to view letters submitted to the court by Elkins during the CSPO hearing.
Judicial bias is defined as “a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and facts.”
State v. Miller, 6th Dist. Lucas No. L-08-1314, 2009-Ohio-3908, ¶ 20, quoting State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. “A trial judge is
‘presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set
forth evidence to overcome the presumption of integrity.’” Weiner v. Kwiat, 2d Dist.
Montgomery No. 19289, 2003-Ohio-3409, ¶ 90, quoting Eller v. Wendy’s Internatl., Inc.,
142 Ohio App.3d 321, 340, 755 N.E.2d 906 (10th Dist.2000).” Id. at ¶ 21. “[T]he
appearance of bias or prejudice must be compelling to overcome these presumptions.” In
re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶
5.
{¶9} In this case, we find no evidence to overcome the trial court’s presumption of
integrity. Our review of the transcript in this case indicates that the trial judge provided
Elkins and Manley with the opportunity to explain their respective sides of the alleged
incidents, properly considered all arguments before granting the CSPO, and treated the
parties equally and professionally. We do not perceive a hostile feeling or spirit of ill
will towards Manley. In addition, there is nothing in the record to suggest the trial
judge treated Elkins favorably. While Manley maintains that the trial court incorrectly
believed that she called Elkins a “b****” immediately before the hearing started, there is
nothing in the record to suggest the court misheard Manley or that the statement
influenced the court’s judgment. Moreover, given the circumstances of the allegations
raised against Manley, we find the trial court did not act arbitrarily in exercising caution by refusing to provide Manley with copies of the letters submitted by members of
Elkins’s family in support of her petition. As the court stated in its journal entry:
During the hearing, the court accepted into evidence and briefly reviewed certain documents submitted by petitioner. Said documents consisted principally of letters of support. Respondent demanded copies of the documents, but the court rebuffed that request for two reasons: first, respondent’s behavior at the hearing strongly suggested she might retaliate against the individuals who authored letters. Second, the court unequivocally states that it would have reached precisely the same decision on the protection order in the absence of the letters of support.
{¶10} Accordingly, we find no merit to Manley’s claim of judicial bias.
Manley’s first, second, and fourth assignments of error are overruled.
B. Weight of the Evidence
{¶11} In her third assignment of error, Manley argues the trial court failed to
consider her side of the story. We interpret Manley’s third assignment of error as a
challenge to the weight of the evidence supporting the CSPO.
{¶12} The decision to grant a CSPO is well within the sound discretion of the trial
court and will not be reversed absent an abuse of discretion. Rufener v. Hutson, 8th Dist.
Cuyahoga No. 97635, 2012-Ohio-5061, ¶ 12. An abuse of discretion occurs when the
trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶13} For a trial court to grant a CSPO, it must hold a full hearing and proceed as
in a normal civil action. R.C. 2903.214(D)(3). The petitioner must show, by a
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[Cite as Elkins v. Manley, 2016-Ohio-8307.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104393
SHELLY L. ELKINS PLAINTIFF-APPELLEE
vs.
DOLORES J. MANLEY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861618
BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 22, 2016 FOR APPELLANT
Dolores J. Manley, pro se 3634 E. 47th Street Cleveland, Ohio 44127
FOR APPELLEE
Shelly L. Elkins, pro se 7208 Deveny Avenue Cleveland, Ohio 44105 EILEEN T. GALLAGHER, J.:
{¶1} Appellant, Dolores Manley (“Manley”), pro se, appeals from the trial court’s
judgment granting petitioner, Shelly L. Elkins’s (“Elkins”), petition for a civil stalking
protection order (“CSPO”). Manley raises the following assignments of error for review:
1. The court acted unprofessional with the defendant.
2. The court made false statements about what the defendant said.
3. The court didn’t want to hear the defendant’s side at all.
4. The court wouldn’t let the defendant see documents, letters, calls, professional people, etc.
{¶2} After careful review of the record and relevant case law, we affirm the trial
court’s order.
I. Procedural History
{¶3} On April 5, 2016, Elkins filed a petition for a CSPO against Manley pursuant
to R.C. 2903.214. The petition alleged that Manley was harassing her and her daughter,
H.K., by telephone and mail. Elkins further alleged that Manley followed her in public
places, made false accusations, and has closed Elkins’s personal bank accounts without
permission.
{¶4} On April 11, 2016, the trial court granted a temporary CSPO from April 8,
2016, until May 31, 2016, “or until further order of this court.” A full hearing on the
petition was held on April 21, 2016, where the following testimony was adduced. {¶5} At the hearing, Elkins testified that she is the legal guardian of H.K. Manley
is the biological mother of H.K., but has had no contact with her since her birth. Elkins
stated that over the course of 20 years, Manley has continuously harassed her and her
family. Specifically, Elkins testified that Manley has repeatedly made disruptive phone
calls and has made false accusations against her with the Cuyahoga County Children and
Family Services “at least 180 times.” In addition, Elkins stated that Manley has canceled
her bank accounts without permission and has made threatening statements. Elkins
testified that Manley’s pattern of conduct has caused her mental distress and depression.
{¶6} At the conclusion of the hearing, the trial court found that Elkins carried her
burden of proof and entered a protection order “in favor of [Elkins] and against [Manley]
for a term of five (5) years.”
{¶7} Manley now appeals from the trial court’s order granting Elkins a CSPO.
II. Law and Analysis
A. Judicial Bias
{¶8} In her first, second, and fourth assignments of error, Manley collectively
argues the trial court’s judgment was the product of judicial bias. Specifically, Manley
contends that the trial court (1) treated her unprofessionally throughout the proceedings,
(2) accused her of making derogatory statements that she did not make, and (3) did not
allow her to view letters submitted to the court by Elkins during the CSPO hearing.
Judicial bias is defined as “a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and facts.”
State v. Miller, 6th Dist. Lucas No. L-08-1314, 2009-Ohio-3908, ¶ 20, quoting State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. “A trial judge is
‘presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set
forth evidence to overcome the presumption of integrity.’” Weiner v. Kwiat, 2d Dist.
Montgomery No. 19289, 2003-Ohio-3409, ¶ 90, quoting Eller v. Wendy’s Internatl., Inc.,
142 Ohio App.3d 321, 340, 755 N.E.2d 906 (10th Dist.2000).” Id. at ¶ 21. “[T]he
appearance of bias or prejudice must be compelling to overcome these presumptions.” In
re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶
5.
{¶9} In this case, we find no evidence to overcome the trial court’s presumption of
integrity. Our review of the transcript in this case indicates that the trial judge provided
Elkins and Manley with the opportunity to explain their respective sides of the alleged
incidents, properly considered all arguments before granting the CSPO, and treated the
parties equally and professionally. We do not perceive a hostile feeling or spirit of ill
will towards Manley. In addition, there is nothing in the record to suggest the trial
judge treated Elkins favorably. While Manley maintains that the trial court incorrectly
believed that she called Elkins a “b****” immediately before the hearing started, there is
nothing in the record to suggest the court misheard Manley or that the statement
influenced the court’s judgment. Moreover, given the circumstances of the allegations
raised against Manley, we find the trial court did not act arbitrarily in exercising caution by refusing to provide Manley with copies of the letters submitted by members of
Elkins’s family in support of her petition. As the court stated in its journal entry:
During the hearing, the court accepted into evidence and briefly reviewed certain documents submitted by petitioner. Said documents consisted principally of letters of support. Respondent demanded copies of the documents, but the court rebuffed that request for two reasons: first, respondent’s behavior at the hearing strongly suggested she might retaliate against the individuals who authored letters. Second, the court unequivocally states that it would have reached precisely the same decision on the protection order in the absence of the letters of support.
{¶10} Accordingly, we find no merit to Manley’s claim of judicial bias.
Manley’s first, second, and fourth assignments of error are overruled.
B. Weight of the Evidence
{¶11} In her third assignment of error, Manley argues the trial court failed to
consider her side of the story. We interpret Manley’s third assignment of error as a
challenge to the weight of the evidence supporting the CSPO.
{¶12} The decision to grant a CSPO is well within the sound discretion of the trial
court and will not be reversed absent an abuse of discretion. Rufener v. Hutson, 8th Dist.
Cuyahoga No. 97635, 2012-Ohio-5061, ¶ 12. An abuse of discretion occurs when the
trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶13} For a trial court to grant a CSPO, it must hold a full hearing and proceed as
in a normal civil action. R.C. 2903.214(D)(3). The petitioner must show, by a
preponderance of the evidence, that the respondent’s conduct violates the menacing by
stalking statute. Strausser v. White, 8th Dist. Cuyahoga No. 92091, 2009-Ohio-3597, citing Felton v. Felton, 79 Ohio St.3d 34, 42-43, 679 N.E.2d 672 (1997). R.C.
2903.211(A)(1) defines the offense of menacing by stalking: “[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.”
On appeal, we consider whether there is some competent, credible evidence to support
each element of menacing by stalking. Id. at ¶ 33.
{¶14} “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.” R.C. 2901.22(B). “‘Purpose or intent to cause physical harm or
mental distress is not required. It is enough that the person acted knowingly.’”
McWilliam v. Dickey, 8th Dist. Cuyahoga No. 99277, 2013-Ohio-4036, ¶ 25, quoting
Jenkins v. Jenkins, 10th Dist. Franklin No. 06AP-652, 2007-Ohio-422, ¶ 16.
{¶15} To be granted a CSPO, therefore, Elkins was required to show that Manley
knowingly engaged in a pattern of conduct that caused her mental distress. Strausser,
8th Dist. Cuyahoga No. 92091, 2009-Ohio-3597, at ¶ 34. R.C. 2903.211(D)(2) defines
“mental distress” as either of the following:
(a) [a]ny mental illness or condition that involves some temporary substantial incapacity; (b) [a]ny 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. “Mental distress need not be incapacitating or debilitating.” Jenkins at ¶ 19.
Furthermore, “[i]t is the duty of the trier of fact to determine whether a victim suffered
mental distress as a result of the offender’s actions.” Taylor v. Taylor, 2d Dist. Miami
No. 2012-CA-14, 2012-Ohio-6190, ¶ 16. “Expert testimony is not required to establish
mental distress, and the trier of fact ‘may rely on its knowledge and experience in
determining whether mental distress has been caused.’” Strausser at ¶ 32. Further, the
testimony of the victims themselves as to their fear is sufficient to establish mental
distress. Id., citing State v. Horsley, 10th Dist. Franklin No. 05AP-350,
2006-Ohio-1208, ¶ 48.
{¶16} A pattern of conduct is defined 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). “[T]he temporal period within
which the two or more actions or incidents must occur * * * [is a] matter to be determined
by the trier of fact on a case-by-case basis.” Ellet v. Falk, 6th Dist. Lucas No.
L-09-1313, 2010-Ohio-6219, ¶ 22.
{¶17} Having reviewed the testimony presented at the CSPO hearing, we find
Elkins presented competent, credible evidence that Manley knowingly engaged in a
pattern of conduct that caused Elkins mental distress. The trial court was presented with
testimony establishing that Manley has repeatedly interfered with Elkins and her family’s
lives by making intrusive phone calls at their home, reporting Elkins to CCDCFS over
180 times, following Elkins in public places, making threatening statements, and closing Elkins’s bank account without permission. Further, Elkins testified that Manley’s
pattern of conduct has caused her mental distress, which has led to periods of depression.
Under these circumstances, the trial court did not abuse its discretion in granting
Elkins’s petition for a CSPO.
{¶18} Manley’s third assignment of error is overruled.
III. Conclusion
{¶19} The trial court’s judgment granting Elkins a CSPO was supported by
competent and credible evidence. Moreover, there is nothing in the record to suggest
that the trial court’s judgment was the product of judicial bias.
{¶20} 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 the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and SEAN C. GALLAGHER, J., CONCUR