J.M. v. D.H.

2020 Ohio 108

• Court: Ohio Court of Appeals
• Decided: January 16, 2020
• Docket: 108303
• Status: Published

Opinion

[Cite as J.M. v. D.H., 2020-Ohio-108.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

J.M., :

Petitioner-Appellee, : No. 108303 v. :

D.H., :

Respondent-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 16, 2020

Civil Appeal from the Cuyahoga County Common Pleas Court Domestic Relations Division Case No. DV-19-375232

Appearances:

Zukerman, Lear & Murray Co., L.P.A., and S. Michael Lear, for appellee.

D.H., pro se.

SEAN C. GALLAGHER, J.:

Appellant-respondent D.H. appeals from a domestic-violence civil

protection order that expired on August 11, 2019. We find that the appeal is not

moot because the collateral-consequences exception to the mootness doctrine applies in this particular case. Upon review of the matter, we affirm the judgment

of the trial court.

Collateral Consequences

Initially, we find that the appeal is not moot. The Supreme Court of

Ohio has held that “absent a showing of legal collateral consequences resulting from

an expired domestic-violence civil protection order, an appeal of that order is moot.”

Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 1. Appellant,

who is an inactive attorney, filed with the trial court a notice of continuing legal

collateral consequences with an affidavit in support stating that she will suffer legal

collateral consequences with regard to her ability to serve as a guardian ad litem or

court-appointed special advocate (“CASA”). Appellant has demonstrated legal

collateral consequences and that the exception to the mootness doctrine applies to

her appeal.

Background

On January 25, 2019, appellee-petitioner J.M. filed a petition for a

domestic-violence civil protection order (“DVCPO”) against appellant-respondent

D.H. Appellee alleged in the petition that he and appellant had been in a romantic

relationship and that during the relationship appellant cohabitated with him at his

residence on alternating weeks. Appellee indicated that he became concerned about

appellant’s possessiveness and that he terminated the relationship with appellant.

The record reflects that around that time, appellant entered appellee’s residence

when he was not home and accessed his iCloud account on his personal computer without his permission. Appellee further maintained that appellant continued to

contact him, his friends, and his family on a regular basis despite his repeatedly

instructing her to stop contacting him. Appellee set forth specific factual allegations

in his petition and claimed that appellant knowingly and continuously engaged in

an obsessive pattern of conduct that caused him to suffer significant mental distress

in violation of R.C. 2911.211, menacing by stalking.

The trial court issued an ex parte domestic-violence civil protection

order and set the matter for a full hearing, which was held on February 6 and 12,

2019, before a court magistrate. On February 15, 2019, the magistrate issued a

DVCPO, effective until August 11, 2019. The magistrate made the following findings

of fact in the DVCPO:

Petitioner was sworn and gave testimony that supports finding that Respondent committed domestic violence as defined in R.C. §3113.31 and that the Petitioner is in danger of domestic violence. Petitioner’s testimony is found to be credible. Petitioner testified with basic credibility. In 2017[,] he and Respondent shared a household and were in a dating relationship. Respondent would live in the shared house every other week and used the mailing address as her own. Petitioner told Respondent on several occasions throughout 2018 to cease contact. On at least three occasions, Respondent willfully contacted the Petitioner. Petitioner testified that such contact [caused] him extreme mental distress that caused him to lose 30 pounds and seek medical treatment. Petitioner and respondent are currently involved in a criminal matter of Telecommunication Harassment. Respondent testified with basic credibility. Respondent believes there is an unknown third party involved. Respondent testified that the unknown person is “spoofing” both parties and trying to set her up. Respondent does admit to initiating contact after she was told to cease contact. No other witnesses gave testimony that offered anything of value.

The DVCPO was adopted by the trial court and also was corrected, nunc pro tunc. Appellant filed objections to the DVCPO and then filed a notice of

appeal. This court remanded the case for the trial court to rule on the objections.

On August 1, 2019, the trial court overruled appellant’s objections along with the

supplemental objections that were raised in her appellate brief.

In its decision, the trial court found that appellant’s preliminary

objection and some of her supplemental objections challenged whether appellee had

a reasonable fear of imminent harm. The trial court aptly noted that “those

objections are ‘strawmen’” because the DVCPO was not issued on that basis, but

rather, “is premised on Respondent’s violation of R.C. 2903.211 — menacing by

stalking.” The trial court found competent, credible evidence in the record to

support each of the elements of menacing by stalking and concluded that “a

preponderance of the evidence establishes that Respondent has committed

domestic violence against Petitioner by engaging in menacing by stalking.”

The appeal is now before us for review.

Law and Analysis

Appellant raises four assignments of error, all challenging the trial

court’s issuance of the DVCPO. Before a trial court may issue a DVCPO pursuant to

R.C. 3113.31, the trial court 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, 42,

1997-Ohio-302, 679 N.E.2d 672. A reviewing court must determine whether the record shows sufficient credible evidence to support the trial court’s determination.

Id. at 43; L.T.C. v. G.A.C., 8th Dist. Cuyahoga No. 107110, 2019-Ohio-789, ¶ 9.

In relevant part, R.C. 3113.31(A)(1) defines “domestic violence” as

follows:

(a) 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;

(Emphasis added.) R.C. 3113.31(A)(1)(a)(ii). A “family or household member”

includes a “person living as a spouse,” which is defined to include a person “who

otherwise has cohabitated with the respondent within five years prior to the date of

the alleged occurrence of the act in question.” R.C. 3113.31(A)(3) and (4).

Here, the trial court found that appellee proved by a preponderance

of the evidence that appellant’s actions constituted domestic violence as defined in

R.C. 3113.31; specifically, a violation of R.C. 2903.211, menacing by stalking.

Relevant hereto, R.C. 2903.211(A)(1) provides as follows:

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 * * *.

(Emphasis added.)

“Pattern of conduct” is defined as “two or more actions closely related

in time[.]” R.C. 2903.211(D). “Mental distress” is defined in relevant part as “[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.” R.C. 2903.211(D)(2)(b).

Under her first assignment of error, appellant claims the evidence was

not sufficient to establish a pattern of conduct or the mens rea of knowingly placing

appellee in fear of physical harm or mental distress. Under her second assignment

of error, appellant claims there was an absence of any evidence of violence between

the parties. In overruling the objections to the DVCPO, the trial court rejected

appellant’s arguments pertaining to fear of physical harm because the DVCPO did

not issue on that basis. We agree and summarily reject these arguments.

In finding the evidence established appellant engaged in a “pattern of

conduct,” the trial court cited evidence in the record establishing that after appellee

had asked appellant to stop contacting him, appellant made more than 20 telephone

calls to appellee and sent emails, texts, a post card, and a planter to appellee. The

trial court also found there was evidence that appellant acted “knowingly” because

not only did appellee tell appellant on several occasions to cease contact, but also

the police instructed her to cease and appellant admitted she persisted in her pattern

of conduct. Although appellant disputes the trial court’s findings and maintains that

she was responding to appellee, as was found by the trial court and reflected in the

record — “appellant acknowledged that it was clear to her for over a year that

Petitioner did not want any contact from her.” Further, there was evidence that appellant became aware that appellee was “afraid she is going to do me harm

physically and emotionally[,]” yet she proceeded to send him an olive branch plant

in the mail with a note stating, “I am afraid even as I am sending this that it will

come off wrong.” Finally, the trial court found that appellee’s testimony that he

suffered weight loss and incurred hospital treatment from the stress caused by

appellant’s actions was sufficient to establish that appellant’s actions caused

appellee mental distress. There is ample other testimony and evidence in the record

supporting the trial court’s determinations.

Although appellant claims under her third assignment of error that

the trial court employed an eggshell test, instead of a reasonableness test as to

appellee’s reported fear, the record demonstrates that the trial court engaged in the

appropriate analysis. Indeed, the trial court properly evaluated the elements for the

issuance a DVCPO and found by a preponderance of the evidence that “Respondent

has committed domestic violence against Petitioner by engaging in menacing by

stalking.” Finally, appellant’s fourth assignment of error challenges the appellee’s

motivation for filing his petition for a DVCPO. Our review of the entire record

reflects that there is sufficient credible evidence in the record to support the trial

court’s decision. We overrule the assignments of error presented by appellant.

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 issue out of this court directing the

common pleas court, domestic relations division, 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.

SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR