[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