Tredenary v. Fritz

2017 Ohio 8632

• Court: Ohio Court of Appeals
• Decided: November 20, 2017
• Docket: 2017-L-045
• Status: Published

Opinion

[Cite as Tredenary v. Fritz, 2017-Ohio-8632.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

ANTOINETTE TREDENARY, et al., : OPINION

Plaintiff-Appellant, : CASE NO. 2017-L-045 - vs - :

DANIEL FRITZ, :

Defendant-Appellee. :

Appeal from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 2016 DV 000181.

Judgment: Affirmed.

David M. Lynch, 333 Babbitt Road, Suite 333, Euclid, OH 44123 (For Plaintiff- Appellant).

Elaine Tassi, 34955 Chardon Road, Willoughby Hills, OH 44094 (For Defendant- Appellee).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} Appellant, Antoinette Tredenary, appeals the judgment of the Lake County

Court of Common Pleas, Domestic Relations Division, denying her petition for a

domestic violence civil protection order against her former husband, appellee, Daniel

Fritz. At issue is whether the trial court abused its discretion in denying the petition. For

the reasons that follow, we affirm.

{¶2} While the parties were married, they adopted D.T., the biological son of

Antoinette’s brother, Dominic Tredenary. The parties were divorced in Lake County in 2011. Daniel was granted legal custody of D.T. and Antoinette was given visitation. At

the time of the hearing in this case, D.T. was 12 years old.

{¶3} On September 6, 2016, Antoinette filed a petition for a domestic violence

civil protection order for herself and D.T. against Daniel. In support, she alleged Daniel

committed an act of domestic violence against her on August 23, 2016. The magistrate

granted an ex parte protection order, but only in favor of her, not D.T. The case came

on for a full hearing protection order.

{¶4} Dominic testified he lives on the west side of Cleveland. He said that on

August 22, 2016, D.T. asked him to come with him and Daniel that evening to the

Captains baseball game at Eastlake Park. Antoinette picked up Dominic because his

driver’s license had expired, and dropped him off at Daniel’s house in Willoughby at

about 7:00 p.m. Before leaving for the game, Dominic had a beer at Daniel’s house.

{¶5} Dominic said that he and D.T. walked around the stadium most of the

game, while Daniel watched the game from his stadium seat. D.T. is a hyperactive

child with autism. Dominic said it was Dollar Beer Night. Daniel gave D.T. $10 to $12

for refreshments, and, according to Dominic, D.T. used it to buy him beers throughout

the game. Dominic said that, by the end of the game, he was “buzzed.” Daniel said

that Dominic had ten to 12 beers at the stadium; that he was not walking steadily; and

that his speech was slurred.

{¶6} After the game, Dominic and D.T. met up with Daniel and they got in his

car. D.T. called Antoinette and asked her to come to Daniel’s house to pick up Dominic.

{¶7} Daniel said that when the three of them arrived at his house, he made

them a pizza. Dominic said that, while waiting for the pizza, he had a beer. Daniel said

2 that D.T. was tired, hungry, and “acting out.” He said Dominic and D.T. were arguing

with each other and both were agitated, and he tried to calm them down.

{¶8} Daniel said that a short time later, Antoinette came over and they visited.

D.T. was running around the house and, at about 10:30 p.m., he ran in the bathroom

and started vomiting. It is at this point that the witnesses disagree as to what occurred.

{¶9} Dominic said Antoinette got up to check on D.T. She went in the hallway.

Daniel, who was also in the hallway, put out his hand and said “no, he’s okay."

Antoinette insisted on going in the bathroom to check on him. The trial court noted that

Dominic testified, “with much dramatic flair,” that Daniel grabbed Antoinette, bounced

her off the wall in the hallway, and threw her to the right.

{¶10} Antoinette’s version was even more dramatic. She said D.T. started to

cough and choke and ran into the bathroom. She went down the hallway to the

bathroom to help him. She said Daniel was in the hall; said “no;” and slammed the door

shut. She said she continued going forward and Daniel hit her on her shoulder “really

hard” with an open hand; grasped her bra strap and shirt; and, while she was dangling

in the air, threw her against the wall.

{¶11} Daniel testified that when he heard D.T. throwing up in the bathroom, he

headed for the bathroom to help him. He said that as Antoinette was walking toward

the bathroom, he put his arm under her upper arm and said, “Don’t go in there” because

D.T. was throwing up. He said, “I’ll take care of it.” Daniel said Antoinette became

argumentative. He escorted her to the front door and said she should take Dominic

home.

{¶12} Daniel went in the bathroom. He said that D.T. was vomiting, but not

choking. Daniel said he patted D.T. on the back and, in a few minutes, he was fine.

3 Daniel said that D.T. often throws up when he is upset. D.T. then left the bathroom and

Daniel cleaned up the floor.

{¶13} Daniel came out of the bathroom and again told Antoinette to take her

brother home. Dominic said that things did not escalate any further. He said that when

he left the house, he shook hands with Daniel and took another beer. Daniel said he

thought the evening ended “on an amicable note.” Daniel denied pushing Antoinette

against the wall or any other violence.

{¶14} Dominic said that Antoinette did not go to the police station or to the

hospital that night.

{¶15} Antoinette testified that on the following morning, August 23, 2016, she

went to the Willoughby Police Station and made a police report against Daniel. She

said the police noticed she was in pain and offered to get her an ambulance, but she

refused. She said she waited so long to go to the police department because she was

hoping Daniel would apologize, but he did not. She said she would not have gone to

the police department if Daniel had just apologized.

{¶16} Antoinette said that at about 1:30 p.m. that day, she went to the hospital

for treatment. She said the hospital gave her a sling, prescribed pain medication for

her, and told her she had a shoulder strain. She admitted her discharge instructions

told her to follow up with a doctor, but she said she never did and did not seek any

further treatment.

{¶17} Willoughby Police Officer Kevin Rastall identified his police report, which

stated that “Antoinette had no visible injuries to her shoulder.” He testified he did not

see any injuries on her shoulder. Officer Rastall said he later called Daniel and asked

4 him to come in for a written statement and he complied. Daniel was only charged with

disorderly conduct, and the case was dismissed after the pretrial.

{¶18} The trial court issued a highly-detailed, four-page judgment entry

concluding that Antoinette had failed to show by a preponderance of the evidence that a

full hearing protection order should be issued and terminating the ex parte order. In its

entry, the trial court made the following findings regarding the witnesses’ credibility:

{¶19} Based upon the foregoing testimony adduced during the hearing, the Court finds [Antoinette] and her brother’s recollections of the August 22, 2016 incident differ significantly. It is undisputed by [Dominic’s] own testimony he was drinking beer before the ball game, during the ball game, after the ball game, and on his way out of [Daniel’s] house. His testimony is questionable as to what he saw or if he was even in a position to have witnessed anything. * * * In addition, the Court finds [Daniel’s] testimony in the transcript credible.

{¶20} Antoinette appeals the trial court’s judgment, asserting the following for

her sole assignment of error:

{¶21} “The trial court committed error by ruling that the petitioner did not meet

the burden of proof by a preponderance of the evidence in dismissing her protection

order.”

{¶22} While Antoinette’s assignment of error suggests the court erred in finding

she failed to present sufficient evidence, she argues that the court’s judgment was

against the manifest weight of the evidence because her and Dominic’s testimony was

more credible than Daniel’s. She also argues the court erred in finding Dominic was not

credible.

{¶23} This court has repeatedly held, “‘[t]he decision to issue a civil protection

order lies within the sound discretion of the trial court.’” Nicola v. Nicola, 11th Dist. Lake

No. 2015-L-057, 2015-Ohio-4017, ¶23, quoting Hoyt v. Heindell, 191 Ohio App.3d 373,

5 2010-Ohio-6058, ¶39 (11th Dist.) (citing other cases so holding). “Absent an abuse of

that discretion, a reviewing court will not disturb the trial court’s judgment.” Hoyt, supra.

{¶24} We note that other Ohio Appellate Districts apply the manifest-weight

standard of review. E.g., Blocker v. Carron, 5th Dist. Tuscarawas No. 10AP110042,

2011-Ohio-3673, ¶6. Still other Districts apply the abuse-of-discretion standard to

challenges to the scope of the order and the manifest-weight standard to challenges to

the issuance of the order. E.g., McBride v. McBride, 12th Dist. Butler No. CA2011-03-

061, 2012-Ohio-2146, ¶10.

{¶25} “When 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.” Felton v. Felton, 79 Ohio

St.3d 34 (1997), paragraph two of the syllabus. R.C. 3113.31(A)(1) defines “domestic

violence” as: “(1) * * * the occurrence of one or more of the following acts against a

family or household member: (a) Attempting to cause or recklessly causing bodily injury

* * *.”

{¶26} As noted above, Antoinette argues the court’s judgment was against the

manifest weight of the evidence. “[A]n appellate court will not reverse a judgment as

being contrary to the weight of the evidence as long as there is some competent,

credible evidence supporting the judgment.” In re Kangas, 11th Dist. Ashtabula No.

2006-A-0084, 2007-Ohio-1921, ¶81. The manifest-weight standard of review is the

same in a civil case as in a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶17.

{¶27} When applying the manifest-weight standard of review, the reviewing court

reviews the entire record, “‘weighs the evidence and all reasonable inferences,

6 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.’”

Eastley, supra, ¶20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th

Dist.2001). “The finder of fact is entitled to believe all, part, or none of the testimony of

any witness.” River Oaks Homes, Inc. v. Twin Vinyl, Inc., 11th Dist. Lake No. 2007-L-

117, 2008-Ohio-4301, ¶27.

{¶28} “Under the manifest weight standard of review, we are ‘guided by a

presumption’ that the fact-finder’s findings are correct.” Terry v. Kellstone, Inc., 6th Dist.

Erie No. E-12-061, 2013-Ohio-4419, ¶13, citing Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 79-80 (1984). See also Eastley at ¶21. We must make “‘every

reasonable presumption * * * in favor of the judgment and the finding of facts.’” Id.,

quoting Seasons Coal Co. at 80, fn. 3. “‘If the evidence is susceptible of more than one

construction,’” we are “‘bound to give it that interpretation which is consistent with the * *

* judgment [and] most favorable to sustaining the * * * judgment.’” Eastley, supra,

quoting Seasons Coal Co., supra.

{¶29} We note that Antoinette does not reference any inconsistencies in Daniel’s

testimony or give any other reasons to support her argument that she and Dominic were

more credible than Daniel. Instead, she merely asks this court to compare her and

Dominic’s testimony to that of Daniel. However, it is not this court’s function to comb

the record to search for evidence supporting a party’s argument.

{¶30} The witnesses obviously disagreed as to what happened in Daniel’s home

that night. In determining their credibility, the trial court was entitled to consider, among

other things, that Dominic was drinking beer the entire evening so that, by his own

7 admission, by the time he left the park, he was buzzed. And, although Antoinette said

Daniel hit her on her shoulder “real hard;” picked her up; and threw her against the wall,

the officer saw no injury; Antoinette sought no follow-up treatment; and she said she

would not have even gone to the police department if Daniel had apologized.

{¶31} In denying Antoinette’s petition for a civil protection order, the trial court

obviously found that Daniel was more credible than Antoinette and Dominic and that

Antoinette failed to present any competent, credible evidence that Daniel attempted to

cause or recklessly caused her bodily injury. The trial court was in the best position to

view the witnesses and weigh the credibility of their testimony. We cannot say the trial

court’s finding was against the manifest weight of the evidence. Further, because the

record contains evidence, which, if believed, supported the court’s denial of Antoinette’s

petition, the court’s judgment was not an abuse of discretion.

{¶32} For the reasons stated in this opinion, Antoinette’s assignment of error is

overruled. It is the order and judgment of this court that the judgment of the Lake

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

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.