[Cite as Miner v. Miner, 2024-Ohio-1302.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
BRANDI MINER JUDGES: Hon. W. Scott Gwin, P.J. Petitioner-Appellant Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2023CA00077 ALEX MINER
Respondent-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2022CV133
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: April 5, 2024
APPEARANCES:
For Petitioner-Appellant For Respondent-Appellee
JEFFREY JAKMIDES ANDREW GLANTZ JULIE A. JAKMIDES Glantz Law Offices 325 East Main Street 3722 Whipple Avenue, N.W. Alliance, Ohio 44601 Canton, Ohio 44718 Stark County, Case No. 2023CA00077 2
Hoffman, J. {¶1} Petitioner-appellant Brandi Miner appeals the June 22, 2023 Judgment
Entry entered by the Stark County Court of Common Pleas, Family Court Division, which
found respondent-appellee Alex Miner not guilty of willful contempt.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 28, 2022, Appellant filed a pro se Petition for Domestic
Violence Civil Protection Order (“DVCPO”) against Appellee, who is Appellant’s spouse
and the father of Appellant’s minor children. Therein, Appellant alleged Appellee is
verbally and physically abusive towards her, and she was hospitalized in March, 2022,
following one such incident. Further, Appellee was charged with child endangering in
2020, due to a 4-wheeling accident involving one of the minor children. Appellant
requested an ex parte order pursuant to R.C. 3113.31, and sought protection for herself
and her two minor children. The magistrate granted the ex parte order of protection on
the same day and scheduled a full hearing for October 11, 2022.
{¶3} After the full hearing, at which Appellee failed to appear, the trial court
issued a two-year DVCPO. The DVCPO identified Appellant and the two minor children
as protected parties. The Stark County Sheriff’s Office served Appellee with a copy of
the DVCPO on October 14, 2022.
{¶4} The DVCPO provides, in relevant part:
9. RESPONDENT [APPELLEE] SHALL NOT REMOVE, DAMAGE,
HIDE, OR DISPOSE OF ANY PROPERTY owned or possessed by the
protected persons named in this Order.
October 11, Order of Protection at p. 4, unpaginated. Stark County, Case No. 2023CA00077 3
{¶5} On January 3, 2023, Appellant filed a motion for contempt. Therein,
Appellant moved the trial court to find Appellee in contempt for removing a Can Am
Outlander and other machines from the marital property, in violation of the DVCPO. The
hearing on the motion originally was scheduled for January 23, 2023, but was continued
multiple times, and finally conducted on June 22, 2023.
{¶6} Prior to the June 22, 2023 hearing, on May 18, 2023, Appellant filed a
motion to show cause, asking the trial court to order Appellee to show cause why he
should not be held in contempt for violating the DVCPO. Appellant explained, on April
22, 2023, she received phone calls from blocked and unblocked numbers, which she did
not answer. Appellant then received a text message from an unknown number, stating,
“Happy bday baby girl,” to which Appellant responded by asking the identity of the sender.
The sender texted from the same unknown number, “take care of my babies for me.”
Appellant believed the phone number belonged to Appellee’s girlfriend. Appellant
reported the incident to the Louisville Police Department on April 22, 2023.
{¶7} The trial court conducted a hearing on the motion on June 22, 2023. The
following evidence was presented at the hearing.
{¶8} Whitney Harden testified she lives at 112 Liberty Street East, East Canton,
Ohio, which is “right down the road” from Appellant’s home, which is 123 Liberty Street
East. Transcript of Proceedings at pp. 6-7. Harden stated she has a clear view of
Appellant’s home and garage from her residence. Sometime between 11 a.m. and noon
on October 26, 2022, Harden left her residence to go visit her mother at the hospital.
Harden drove through an alley between the houses, but could not pass through as
Appellee had the road blocked with his truck. Harden observed Appellee removing four- Stark County, Case No. 2023CA00077 4
wheelers from the garage of the 123 Liberty Street East residence and loading the
vehicles onto his truck. Harden later learned Appellant had reported the incident to police.
{¶9} Appellant testified she stored personal property in the garage at 123 Liberty
Street East. The real property is owned by her father. Appellant stated Appellee did not
have any personal property in the garage. Appellant explained two four-wheelers were
stored in the garage, one a Polaris which belonged to her children who purchased it using
their Covid stimulus checks, and the other a Can Am Outlander purchased by her father,
but titled in her name. In late October, 2022, Appellant discovered the two four-wheelers
and a derby car were missing from the garage.
{¶10} Appellant recalled, on October 29, 2022, officers from the East Canton
Police Department came to the residence to take a report regarding the missing vehicles.
When Harden saw the police with Appellant, she walked over and explained what she
had witnessed.
{¶11} On cross-examination, Appellant acknowledged she did not reside at the
123 Liberty Street East residence. Appellant stated her understanding, pursuant to the
DVCPO, Appellee was prohibited from removing, damaging, hiding, or disposing of any
property, including her sole property as well as marital property. Appellant indicated her
father gave her permission to store the four-wheelers and the derby car at the property.
{¶12} Appellee testified on his own behalf. He stated he and Appellant never lived
together at the 123 Liberty Street East residence. Appellee explained, in April, 2022, the
four-wheelers had been moved into a storage unit as the apartment the parties rented did
not have a garage. The four-wheelers were later moved to the garage at 123 Liberty
Street East. After being served with the DVCPO, Appellee moved the four-wheelers back Stark County, Case No. 2023CA00077 5
to the storage unit. He added no one ever asked him where he had taken the vehicles.
Appellee indicated the four-wheelers were obtained during the marriage.
{¶13} On cross-examination, Appellee stated he believed there was no problem
with him removing the four-wheelers from the garage at 123 Liberty Street East because
the vehicles were “community property,” purchased during the marriage. Appellee
admitted Appellant’s father did not give him permission to remove items from the garage,
but added, “Why would he have to give me permission to take?” Tr. at p. 46. Appellee
further admitted Appellant did not give him permission to remove items, asserting, “We
couldn’t talk so.” Id. at p. 47. Appellant also acknowledged he did not have permission
from the trial court to remove any property.
{¶14} Via Judgment Entry filed June 22, 2023, the trial court found Appellee not
guilty of willful contempt. The trial court found Appellee removed a Polaris ATV and an
Outlander ATV from the East Liberty Street residence, real property owned by Appellant’s
father. The trial court further found Appellant did not live at the property and the property
was not the parties’ marital residence.
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[Cite as Miner v. Miner, 2024-Ohio-1302.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
BRANDI MINER JUDGES: Hon. W. Scott Gwin, P.J. Petitioner-Appellant Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2023CA00077 ALEX MINER
Respondent-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2022CV133
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: April 5, 2024
APPEARANCES:
For Petitioner-Appellant For Respondent-Appellee
JEFFREY JAKMIDES ANDREW GLANTZ JULIE A. JAKMIDES Glantz Law Offices 325 East Main Street 3722 Whipple Avenue, N.W. Alliance, Ohio 44601 Canton, Ohio 44718 Stark County, Case No. 2023CA00077 2
Hoffman, J. {¶1} Petitioner-appellant Brandi Miner appeals the June 22, 2023 Judgment
Entry entered by the Stark County Court of Common Pleas, Family Court Division, which
found respondent-appellee Alex Miner not guilty of willful contempt.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 28, 2022, Appellant filed a pro se Petition for Domestic
Violence Civil Protection Order (“DVCPO”) against Appellee, who is Appellant’s spouse
and the father of Appellant’s minor children. Therein, Appellant alleged Appellee is
verbally and physically abusive towards her, and she was hospitalized in March, 2022,
following one such incident. Further, Appellee was charged with child endangering in
2020, due to a 4-wheeling accident involving one of the minor children. Appellant
requested an ex parte order pursuant to R.C. 3113.31, and sought protection for herself
and her two minor children. The magistrate granted the ex parte order of protection on
the same day and scheduled a full hearing for October 11, 2022.
{¶3} After the full hearing, at which Appellee failed to appear, the trial court
issued a two-year DVCPO. The DVCPO identified Appellant and the two minor children
as protected parties. The Stark County Sheriff’s Office served Appellee with a copy of
the DVCPO on October 14, 2022.
{¶4} The DVCPO provides, in relevant part:
9. RESPONDENT [APPELLEE] SHALL NOT REMOVE, DAMAGE,
HIDE, OR DISPOSE OF ANY PROPERTY owned or possessed by the
protected persons named in this Order.
October 11, Order of Protection at p. 4, unpaginated. Stark County, Case No. 2023CA00077 3
{¶5} On January 3, 2023, Appellant filed a motion for contempt. Therein,
Appellant moved the trial court to find Appellee in contempt for removing a Can Am
Outlander and other machines from the marital property, in violation of the DVCPO. The
hearing on the motion originally was scheduled for January 23, 2023, but was continued
multiple times, and finally conducted on June 22, 2023.
{¶6} Prior to the June 22, 2023 hearing, on May 18, 2023, Appellant filed a
motion to show cause, asking the trial court to order Appellee to show cause why he
should not be held in contempt for violating the DVCPO. Appellant explained, on April
22, 2023, she received phone calls from blocked and unblocked numbers, which she did
not answer. Appellant then received a text message from an unknown number, stating,
“Happy bday baby girl,” to which Appellant responded by asking the identity of the sender.
The sender texted from the same unknown number, “take care of my babies for me.”
Appellant believed the phone number belonged to Appellee’s girlfriend. Appellant
reported the incident to the Louisville Police Department on April 22, 2023.
{¶7} The trial court conducted a hearing on the motion on June 22, 2023. The
following evidence was presented at the hearing.
{¶8} Whitney Harden testified she lives at 112 Liberty Street East, East Canton,
Ohio, which is “right down the road” from Appellant’s home, which is 123 Liberty Street
East. Transcript of Proceedings at pp. 6-7. Harden stated she has a clear view of
Appellant’s home and garage from her residence. Sometime between 11 a.m. and noon
on October 26, 2022, Harden left her residence to go visit her mother at the hospital.
Harden drove through an alley between the houses, but could not pass through as
Appellee had the road blocked with his truck. Harden observed Appellee removing four- Stark County, Case No. 2023CA00077 4
wheelers from the garage of the 123 Liberty Street East residence and loading the
vehicles onto his truck. Harden later learned Appellant had reported the incident to police.
{¶9} Appellant testified she stored personal property in the garage at 123 Liberty
Street East. The real property is owned by her father. Appellant stated Appellee did not
have any personal property in the garage. Appellant explained two four-wheelers were
stored in the garage, one a Polaris which belonged to her children who purchased it using
their Covid stimulus checks, and the other a Can Am Outlander purchased by her father,
but titled in her name. In late October, 2022, Appellant discovered the two four-wheelers
and a derby car were missing from the garage.
{¶10} Appellant recalled, on October 29, 2022, officers from the East Canton
Police Department came to the residence to take a report regarding the missing vehicles.
When Harden saw the police with Appellant, she walked over and explained what she
had witnessed.
{¶11} On cross-examination, Appellant acknowledged she did not reside at the
123 Liberty Street East residence. Appellant stated her understanding, pursuant to the
DVCPO, Appellee was prohibited from removing, damaging, hiding, or disposing of any
property, including her sole property as well as marital property. Appellant indicated her
father gave her permission to store the four-wheelers and the derby car at the property.
{¶12} Appellee testified on his own behalf. He stated he and Appellant never lived
together at the 123 Liberty Street East residence. Appellee explained, in April, 2022, the
four-wheelers had been moved into a storage unit as the apartment the parties rented did
not have a garage. The four-wheelers were later moved to the garage at 123 Liberty
Street East. After being served with the DVCPO, Appellee moved the four-wheelers back Stark County, Case No. 2023CA00077 5
to the storage unit. He added no one ever asked him where he had taken the vehicles.
Appellee indicated the four-wheelers were obtained during the marriage.
{¶13} On cross-examination, Appellee stated he believed there was no problem
with him removing the four-wheelers from the garage at 123 Liberty Street East because
the vehicles were “community property,” purchased during the marriage. Appellee
admitted Appellant’s father did not give him permission to remove items from the garage,
but added, “Why would he have to give me permission to take?” Tr. at p. 46. Appellee
further admitted Appellant did not give him permission to remove items, asserting, “We
couldn’t talk so.” Id. at p. 47. Appellant also acknowledged he did not have permission
from the trial court to remove any property.
{¶14} Via Judgment Entry filed June 22, 2023, the trial court found Appellee not
guilty of willful contempt. The trial court found Appellee removed a Polaris ATV and an
Outlander ATV from the East Liberty Street residence, real property owned by Appellant’s
father. The trial court further found Appellant did not live at the property and the property
was not the parties’ marital residence.
{¶15} It is from this judgment entry Appellant appeals, raising the following
assignment of error:
THE TRIAL COURT ERRED IN NOT FINDING RESPONDENT-
APPELLEE GUILTY OF CONTEMPT ON THE UNDISPUTED FACTS;
[SIC] TO WIT; [SIC] THE ITEMS OF PROPERTY WERE IN THE
PETITIONER-APPELLANT’S POSSESSION AND WERE HER
PROPERTY OR MARITAL PROPERTY. Stark County, Case No. 2023CA00077 6
I
{¶16} In her sole assignment of error, Appellant contents the trial court erred in
failing to find Appellee in contempt.
{¶17} Our standard of review regarding a finding of contempt is limited to a
determination of whether the trial court abused its discretion. Sloat v. James, 5th Dist.
Stark No. 2008 CA 00048, 2009-Ohio-2849, 2009 WL 1677850, ¶ 19. In order to find an
abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983).
{¶18} The burden of proof in a civil contempt action is proof by clear and
convincing evidence. Sloat v. James, supra at ¶ 20. The determination of “clear and
convincing evidence” is within the discretion of the trier of fact. Id. The trial court's
decision should not be disturbed as against the manifest weight of the evidence if the
decision is supported by some competent and credible evidence. C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court should not
reverse a decision simply because it holds a different opinion concerning the credibility of
the witnesses and evidenced submitted before the trial court. Geary v. Geary, 5th Dist.
Delaware, 2015-Ohio-259, 27 N.E.3d 877.
{¶19} In its June 22, 2023 Judgment Entry, the trial court made the following
Findings of Fact:
Evidence presented indicates that [Appellee] removed a Polaris and
Outlander ATV from property located at E. Liberty, E. Canton. That property Stark County, Case No. 2023CA00077 7
is owned by [Appellant’s] father and is not the residence of Appellant or the
marital residence. The parties are currently going through divorce. No
determination of martial [sic] property vs. non-marital has been made at this
point.
Id.
{¶20} Based upon those findings, the trial court found Appellee was “not guilty of
willful contempt.” Id. We find the trial court’s finding is not supported by some competent
and credible evidence.
{¶21} The evidence presented at the hearing revealed Appellant stored the two
four-wheelers as well as personal property in the garage at 123 Liberty Street East,
property owned by her father. Although the parties presented contradictory testimony as
to the nature of the four-wheelers as marital or separate property, the evidence
established Appellant was in possession of the vehicles at the time Appellee removed the
items from the garage. The terms of the DVCPO expressly prohibit Appellee from
removing, damaging, hiding, or disposing “of any property owned or possessed by the
protected persons named in this Order.” Provision 9 of October 11, 2023 Order of
Protection (Emphasis added).
{¶22} Additionally, the trial court found the property at which the four-wheelers
were stored was neither Appellant’s residence nor the marital residence. We find such
finding is irrelevant to a determination of whether Appellee violated the DVCPO. The
DVCPO did not limit the removal, damage, concealment, or disposal “of any property Stark County, Case No. 2023CA00077 8
owned or possessed by the protected persons” to property only located at the protected
persons’ residences or the marital residence.
{¶23} Because Appellee removed property which was in Appellant’s possession,
we find he was in direct violation of the DVCPO and the trial court abused its discretion
in failing to find him in contempt.
{¶24} Appellant’s sole assignment of error is sustained.
{¶25} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is reversed and the matter remanded for further proceedings consistent with this
Opinion and the law.
By: Hoffman, J. Gwin, P.J. and Baldwin, J. concur