M.P. v. T.P.

2024 Ohio 542

• Court: Ohio Court of Appeals
• Decided: February 14, 2024
• Docket: 30580
• Status: Published

Opinion

[Cite as M.P. v. T.P., 2024-Ohio-542.]

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

M. P. C.A. No. 30580

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE T. P. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. DR-2022-06-1577

DECISION AND JOURNAL ENTRY

Dated: February 14, 2024

FLAGG LANZINGER, Judge.

{¶1} M.P. appeals a domestic violence civil protection order (“DVCPO”) issued by the

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

I.

{¶2} M.P.’s adult son, T.P., sought a DVCPO following an altercation between the two

men. The magistrate granted an ex parte protection order and scheduled the matter for a full

hearing. Following that hearing, the magistrate recommended a three-year protection order. The

trial court adopted the magistrate’s decision, and M.P. objected, arguing, in part, that the evidence

did not demonstrate that T.P. feared that he was in danger of future harm. The trial court overruled

M.P.’s objections, and M.P. appealed. M.P.’s two assignments of error raise the same arguments,

so this Court addresses them together. 2

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING [T.P.] A [DVCPO], BY FINDING THAT HE MET HIS BURDEN OF PROOF BY PREPONDERANCE OF THE EVIDENCE THAT [T.P.] IS IN DANGER OF DOMESTIC VIOLENCE.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION BY UPHOLDING THE MAGISTRATE’S DECISION DETERMINING THAT [T.P.] SHOULD BE GRANTED A [DVCPO].

{¶3} In his assignments of error, M.P. argues that the conclusions that T.P. suffered an

incident of domestic violence and was in danger of future incidents of domestic violence are

contrary to the weight of the evidence. This Court disagrees.

{¶4} In general, the decision to issue a protection order is one entrusted to the discretion

of the trial court. See W.B. v. T.M., 9th Dist. Lorain No. 19CA011474, 2020-Ohio-853, ¶ 8, citing

Lundin v. Niepsuj, 9th Dist. Summit No. 28223, 2017-Ohio-7153, ¶ 19. In issuing a protection

order, however, the trial court must find that the petitioner established by a preponderance of the

evidence that the order should issue. See W.B. at ¶ 8, quoting Lundin at ¶ 19. Consequently, when

an appellant challenges the evidence underlying a protection order, “as in other civil cases, we

review the evidence underlying protection orders to determine whether sufficient evidence was

presented or whether the protection order is against the manifest weight of the evidence.” A.S. v.

P.F., 9th Dist. Lorain No. 13CA010379, 2013-Ohio-4857, ¶ 4 (noting that this Court reviews the

weight or sufficiency of the evidence supporting a protection order, but “[w]ith respect to the scope

of a protection order * * * we consider whether the trial court abused its discretion”).

{¶5} When a party challenges a protection order on the grounds that it is against the

manifest weight of the evidence, this Court: 3

“weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”

(Internal citations omitted and alterations in original.) Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001). A

reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily

against the protection order. A.D. v. K.S.-S., 9th Dist. Lorain No. 20CA011628, 2021-Ohio-633,

¶ 5, citing State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

{¶6} Under R.C. 3113.31(C)(1), any person may seek a [DVCPO] by filing a petition

that alleges “that the respondent engaged in domestic violence against a family or household

member * * * including a description of the nature and extent of the domestic violence * * *.”

M.P.’s first argument is that the conclusion that he committed an act of domestic violence against

T.P. is not supported by the evidence. Specifically, he argues that T.P.’s description of the incident

in question was inconsistent and was contradicted by his mother’s testimony. For purposes of R.C.

3113.31(C), “Domestic violence” includes “[a]ttempting to cause or recklessly causing bodily

injury” to a household or family member. R.C. 3113.31(A)(1)(a)(i). “Bodily injury” is not defined

by R.C. 3113.31, but courts have concluded that the definition of “physical harm to persons” that

applies to the criminal offense of domestic violence also applies to DVCPOs. Hankinson v.

Cooper, 12th Dist. Butler No. CA2021-11-137, 2022-Ohio-1896, ¶ 15, citing J.R. v. E.H., 10th

Dist. Franklin No. 16AP-431, 2017-Ohio-516, ¶ 13. Applying that definition to R.C.

3113.31(A)(1)(i), “bodily injury” consists of “any injury * * * regardless of its gravity of duration.”

R.C. 2901.01(A)(3). Similarly, courts have observed that under R.C. 3113.31(A)(1)(a)(i),

“[a] person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and justifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is 4

reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”

J.R. at ¶ 12, quoting R.C. 2901.22

{¶7} T.P. testified that on June 4, 2022, he traveled to his parents’ neighborhood with

his wife, at the request of a friend, to do some lawn work at the friend’s home. While trimming

the hedges, T.P. recalled, another neighbor asked him to trim her hedges as well. T.P. testified

that he noticed his father, but turned away so they did not make eye contact. According to T.P.,

M.P. came up behind him, yelling his name. T.P. testified that M.P. “shoved a fist into [his] back”

and recalled that he “nearly lost [his] balance while * * * hedge trimming with a gas-powered

hedge trimmer.” T.P. testified that upon seeing M.P. strike him, his wife called 911. In contrast,

T.P.’s mother testified that she saw M.P. approach T.P. from across the street but maintained that

M.P. did not hit him.

{¶8} M.P. notes that T.P. described the events at issue differently. In his petition for a

protection order, T.P. wrote that M.P. “put his hand on me with force.” During the ex parte

hearing, T.P. explained that M.P. “like pushed me, he got me off balance * * *.” T.P. used different

words to describe the action, but they are not, as M.P. maintains, contradictory. Although T.P.’s

mother’s testimony differed from his, the trial court was in the best position to assess their

credibility and was free to believe all, part, or none of their testimony. See T.M. v. R.H., 9th Dist.

Summit No. 29556, 2020-Ohio-3013, ¶ 42. The conclusion that M.P. attempted to cause or

recklessly caused bodily injury to T.P. is not contrary to the manifest weight of the evidence. See

R.C. 3113.31(A)(1)(a)(i).

{¶9} M.P. has also argued that the trial court’s judgment is against the manifest weight

of the evidence because T.P. did not establish that a [DVCPO] was necessary to prevent future 5

acts of domestic violence. Domestic violence protection orders provide the trial court with a means

“to bring about the cessation of domestic violence against [a] family or household member.”

Wetterman v. B.C., 9th Dist. Medina No. 12CA0021-M, 2013-Ohio-57, ¶ 9, quoting R.C.

3113.31(E)(1). Consequently, “[w]hen granting a protection order, the trial court must find that

petitioner has shown by a preponderance of the evidence that petitioner * * * [is] in danger of

domestic violence.” Felton v. Felton, 79 Ohio St.3d 34 (1997), paragraph two of the syllabus. “To

determine whether a petitioner is in danger of future harm in the domestic violence context, courts

routinely look to the petitioner’s and respondent’s history, including whether any past acts of

violence had ever occurred.” In re E.P., 8th Dist. Cuyahoga No. 96602, 2011-Ohio-5829, ¶ 33.

Although past incidents are relevant, the petitioner must present some evidence demonstrating a

reasonable present fear of future harm. See K.B. v. B.B., 9th Dist. Summit No. 28129, 2017-Ohio-

71, ¶ 7, quoting McElroy v. McElroy, 5th Dist. Guernsey No. 15 CA 27, 2016-Ohio-5148, ¶ 38.

{¶10} T.P. testified that as a result of this incident, he experienced fear and confusion

because it appeared that M.P. did not respect boundaries. T.P. explained that he petitioned for a

DVCPO, after M.P. also petitioned for a DVCPO, because “there is a threat of harm and [M.P.]

crossed the boundary of that. * * * I’m fearful of what he’ll do.” As background for his petition,

T.P. acknowledged that he had issues with his father related to past events. T.P. testified that he

was “very abused growing up.” Additionally, T.P. testified that M.P. struck him frequently at work

and “would hit me with anything he could grab.” T.P. also testified about three instances when he

had previously contacted the police to file a complaint about M.P.’s actions toward him. The first

occurred while T.P. was attempting to remove his belongings from M.P.’s residence. Testifying

about the second incident, T.P. stated that “[M.P.] actually attacked me, and it took three police

officers to get him off me.” After email communication from M.P., T.P. filed a third complaint 6

seeking police assistance to get M.P. to stop emailing him. Additionally, T.P. testified that his

sister has a restraining order against M.P. because “[h]e was stalking.” With respect to their recent

relationship, T.P. explained that he worked with his father’s business until 2017, when their

relationship effectively ended. Since that time, T.P. testified, he had virtually no communication

with M.P. T.P. testified that he had no contact with his father after the incident that precipitated

the petition. While T.P. did testify that he has no communication with M.P., T.P. also testified that,

“I see [M.P.] in the store. I see him driving past me. He flipped me off while he was driving. I’ve

seen him multiple times out of Bedford.”

{¶11} T.P.’s mother also testified about T.P.’s relationship with his father. Like T.P., she

explained that there is no communication between T.P. and his parents and that they only see him

if he is in their neighborhood. T.P.’s mother explained that there is no relationship between T.P.

and M.P., noting, for example, that although they knew T.P. was married, they did not know

anything about his wife.

{¶12} In order for a domestic violence protection order to issue, there must be “some

competent, credible evidence that there is a present fear of harm.” Wetterman, 2013-Ohio-57, at ¶

12. T.P. articulated a fear that “[M.P.] just felt like he could do whatever he wanted * * *.” T.P.

also stated that he was “fearful of what [M.P. will] do.” T.P. testified about past abuse by M.P. and

testified about three prior incidents where he sought police assistance. Additionally, T.P. testified

that he had seen M.P. multiple times away from M.P.’s residence.

{¶13} To the extent that the trial court’s decision relied upon a credibility determination

about the sincerity of T.P.’s fear, “that determination is entitled to considerable deference on

appeal.” R.K. v. T.K., 9th Dist. Summit No. 28576, 2017-Ohio-7855, ¶ 14, citing State v. Scheiman,

9th Dist. Medina No. 04CA0047-M, 2005-Ohio-15, ¶ 22-23. Having reviewed the entire record, 7

we cannot say that the trial court clearly lost its way when it granted the DVCPO in favor of T.P.

Accordingly, M.P.’s assignments of error are overruled.

III.

{¶14} M.P.’s assignments of error are overruled. The judgment of the Summit 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 Summit, 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 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.

JILL FLAGG LANZINGER FOR THE COURT

SUTTON, P. J. CONCURS. 8

HENSAL, J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶15} As the majority opinion notes, the conclusion that M.P. recklessly caused bodily

injury to T.P. is not against the manifest weight of the evidence, and I concur with the majority in

that regard. With respect to the conclusion that T.P. was in danger of future incidents of domestic

violence, however, I respectfully dissent.

{¶16} Standing alone, past acts of domestic violence do not warrant a present domestic

violence civil protection order. Lundin v. Niepsuj, 9th Dist. Summit No. 28223, 2017-Ohio-7153,

¶ 27, quoting Solomon v. Solomon, 157 Ohio App.3d 807, 2004-Ohio-2486, ¶ 27 (7th Dist.). The

petitioner must demonstrate a reasonable present fear of future harm. See K.B. v. B.B., 9th Dist.

Summit No. 28129, 2017-Ohio-71, ¶ 7, citing McElroy v. McElroy, 5th Dist. Guernsey No. 15 CA

27, 2016-Ohio-5148, ¶ 38. In this case, T.P.’s fear was grounded in what M.P. could have done

under the circumstances and how the situation could have escalated. Although T.P. articulated a

degree of fear, his testimony did not connect that apprehension to a present fear of ongoing harm.

T.P.’s testimony regarding M.P.’s past conduct was vague, and the basis for the petition appeared

to be the single incident between T.P. and M.P. described during the hearing. Significantly, both

T.P. and his mother testified that there was no ongoing relationship between T.P. and M.P., and

both acknowledged that the two men had no further contact after the incident at issue. Compare

A.D. v. K.S.-S., 9th Dist. Lorain No. 20CA011628, 2021-Ohio-633, ¶ 10-12 (concluding that the

decision to issue a juvenile protection order was against manifest weight of the evidence because

it was based on a single altercation, the parties had no further contact, and there was no evidence

of a fear of future harm). 9

{¶17} In the absence of any competent, credible evidence that T.P. presently feared harm

from M.P., I would conclude that the trial court’s decision to issue the domestic violence civil

protection order is against the manifest weight of the evidence. On that basis, I respectfully dissent.

APPEARANCES:

CHRISTOPHER G. THOMARIOS, Attorney at Law, for Appellant.

KENNETH MARTIN, Attorney at Law, for Appellee.