[Cite as J.M. v. L.J., 2020-Ohio-4419.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
J. M. C.A. No. 19CA011549
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
L. J. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 17DV083478
DECISION AND JOURNAL ENTRY
Dated: September 14, 2020
CARR, Presiding Judge.
{¶1} Appellant J.M. appeals the judgment of the Lorain County Court of Common Pleas.
This Court reverses and remands the matter for proceedings consistent with this decision.
I.
{¶2} At the time of the incidents leading to this appeal, J.M. and Appellee L.J. were
married and had two children. In 2017, the parties’ relationship began to deteriorate. J.M.
attributed some of the parties’ problems to L.J.’s alcohol use. A confrontation arose between the
parties in June 2017; however, J.M. was not “physically harmed” during that incident.
{¶3} In September 2017, another confrontation arose. J.M. maintained that L.J. was
intoxicated, while L.J. denied the same. L.J. followed J.M. throughout the house asking her
questions about where she had been and who she might have been seeing. L.J. also made remarks
to the children about J.M. and her behavior. The parties’ children were very upset by the incident.
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At one point, L.J. reached toward J.M. and grabbed her shoulder area, resulting in visible red marks
on J.M.’s neck, chest, and shoulder.
{¶4} Ultimately, J.M. fled the home and went to a friend’s house. The friend observed
the marks on J.M.’s neck, chest, and shoulder. On September 11, 2017, J.M. filed a petition for a
domestic violence civil protection order on behalf of herself and the two children. An ex parte
order was issued that same day, and, following a full hearing before a magistrate, a full hearing
domestic violence civil protection order was issued. At that time, a divorce action was pending.
In the entry granting the full hearing civil protection order, the magistrate found that, during the
September 2017 incident that resulted in the protection order, L.J. “was acting as if he was under
the influence of alcohol or some other substance.” The provisions of the protection order included
both that L.J. not use or possess alcohol or illegal drugs and that he not consume alcohol in the
presence of the children. The order was set to expire in September 2022.
{¶5} L.J. filed objections and oral argument was heard on the objections. Thereafter, the
trial court modified the order to remove the parties’ children as protected parties but otherwise
concluded that the order should remain in full force and effect. Neither party appealed.
{¶6} In April 2019, L.J. filed a motion pursuant to R.C. 3113.31(E)(8)(b) to terminate
the domestic violence civil protection order. In his motion, L.J. noted that, while he was originally
charged with domestic violence in relation to the September 2017 incident, the charge was reduced
to disorderly conduct persisting. L.J. believed that the protection order should be terminated
because he did not believe J.M. was still in fear of L.J., there had been no violations of the
protection order, and the parties lived within close proximity without negative contact.
{¶7} The hearing on the motion to terminate the protection order was consolidated with
the hearing on the parties’ divorce. In its judgment entry, after reviewing the factors outlined in
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R.C. 3113.31(E)(8)(c), the trial court concluded that L.J. failed to demonstrate by a preponderance
of the evidence that the protection order should be fully terminated. Nonetheless, “due to [J.M.’s]
admission that [L.J.] did not physically harm her or the children,” the trial court found that the
protection order should be reduced from five years to two years, expiring on September 11, 2019.
In addition, the court found the provision of the protection order that required L.J. to not use or
possess alcohol was over-burdensome and struck that provision from the protection order.
{¶8} J.M. has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MODIFIED THE
CIVIL PROTECTION ORDER[.]
{¶9} J.M. argues that the trial court abused its discretion in modifying the civil protection
order.
{¶10} “Either the petitioner or the respondent of the original protection order or consent
agreement may bring a motion for modification or termination of a protection order or consent
agreement that was issued or approved after a full hearing.” R.C. 3113.31(E)(8)(b). “The court
may modify or terminate as provided in division (E)(8) of [R.C. 3113.31] a protection order or
consent agreement that was issued after a full hearing under this section.” R.C. 3113.31(E)(8)(a).
“The moving party has the burden of proof to show, by a preponderance of the evidence, that
modification or termination of the protection order or consent agreement is appropriate because
either the protection order or consent agreement is no longer needed or because the terms of the
original protection order or consent agreement are no longer appropriate.” R.C. 3113.31(E)(8)(b).
In considering whether to modify or terminate a protection order or consent
agreement issued or approved under this section, the court shall consider all
relevant factors, including, but not limited to, the following:
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(i) Whether the petitioner consents to modification or termination of the protection
order or consent agreement;
(ii) Whether the petitioner fears the respondent;
(iii) The current nature of the relationship between the petitioner and the
respondent;
(iv) The circumstances of the petitioner and respondent, including the relative
proximity of the petitioner’s and respondent’s workplaces and residences and
whether the petitioner and respondent have minor children together;
(v) Whether the respondent has complied with the terms and conditions of the
original protection order or consent agreement;
(vi) Whether the respondent has a continuing involvement with illegal drugs or
alcohol;
(vii) Whether the respondent has been convicted of, pleaded guilty to, or been
adjudicated a delinquent child for an offense of violence since the issuance of the
protection order or approval of the consent agreement;
(viii) Whether any other protection orders, consent agreements, restraining orders,
or no contact orders have been issued against the respondent pursuant to this
section, section 2919.26 of the Revised Code, any other provision of state law, or
the law of any other state;
(ix) Whether the respondent has participated in any domestic violence treatment,
intervention program, or other counseling addressing domestic violence and
whether the respondent has completed the treatment, program, or counseling;
(x) The time that has elapsed since the protection order was issued or since the
consent agreement was approved;
(xi) The age and health of the respondent;
(xii) When the last incident of abuse, threat of harm, or commission of a sexually
oriented offense occurred or other relevant information concerning the safety and
protection of the petitioner or other protected parties.
R.C. 3113.31(E)(8)(c).
{¶11} A trial court’s judgment modifying a domestic violence civil protection order is
reviewed for an abuse of discretion. See Y.H. v. C.C., 8th Dist. Cuyahoga No. 107892, 2019-Ohio-
2922, ¶ 13.
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{¶12} Here, the trial court concluded that L.J. failed to meet his burden to demonstrate an
immediate termination of the protection order was warranted. The trial court noted that the
protection order was having its intended effect. Nonetheless, the trial court “place[d] significant
weight to [J.M.’s] testimony and admission that [L.J.] never physically harmed her or the parties’
children.” The trial court then stated that it “question[ed] the timing of [J.M.] seeking a DVCPO
against [L.J.] at the emotion[al] conclusion of their relationship, and whether [J.M.] used the
DVCPO to prevent [L.J.] from seeing his own children which was traumatic for both the children
and [L.J.].” “[D]ue to [J.M.’s] admission that [L.J.] did not physically harm her or the children,
the Court [found] that the DVCPO should be reduced from a five year DVCPO to a two year
DVCPO with an expiration date of September 11, 2019.”
{¶13} The trial court then stated that the “provision #16 of the DVCPO [which] order[ed]
[L.J.] to not use or possess alcohol [was] over-burdensome, and that the allegations by [J.M.]
regarding [L.J.’s alcohol use [were] questionable at best, and only focuse[d] on isolated incidents
of drinking alcohol in 2017 that involved no physical harm to [J.M.] or the minor children. Further,
these incidents [were] unrelated to the event that gave rise to the issuance of the DVCPO on
September 11, 2017.”
{¶14} Unfortunately, the primary factual finding that that the trial court relied on in
concluding that a modification was warranted is not supported by the record. The trial court, by
its own admission, placed significant weight on its finding that J.M. admitted that L.J. did not
physically harm her or the children. First, we note that the children were not protected parties
under the protection order following the trial court’s July 2018 entry ruling on L.J.’s objections.
In that entry, the trial court concluded that L.J. never caused or attempted to cause physical harm
to the children.
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{¶15} With respect to the trial court’s finding that J.M. admitted that L.J. did not cause
her physical harm, we cannot say that finding is supported by the record. This finding appears to
come from L.J.’s counsel’s cross-examination of J.M. at the 2019 termination hearing. There,
L.J.’s counsel asked J.M. to review her testimony from the 2017 hearing. L.J.’s counsel had J.M.
read her response to the question “Were you physically harmed?” J.M. read her response which
was, “I wasn’t physically harmed.” While J.M. did provide that response to that question at the
2017 hearing, a review of the 2017 hearing transcript reveals it was not in the context of the
September 2017 incident. Instead, when J.M. was asked that question at the 2017 hearing, she
was being asked about the June 2017 incident, which was not the incident that formed the basis
upon which the protection order was granted. At the 2019 termination hearing, J.M. was then
asked if she would agree that L.J. caused her no physical harm at all on September 9, 2017, based
upon her answers at the 2017 hearing. J.M. answered that that was incorrect. J.M. pointed out
that she had marks on her neck.
{¶16} The record does not support that J.M. admitted at the 2019 termination hearing that
she suffered no physical harm during the September 2017 incident that formed the basis of the
protection order. Instead, the record discloses that J.M. admitted during the original 2017 hearing
that she suffered no physical harm during the June 2017 incident. Notably, during closing
argument at the 2019 termination hearing, L.J.’s counsel requested that the trial court review the
transcript of the 2017 hearing to confirm that J.M. did not suffer physical harm. As noted above,
review of that transcript does not support the trial court’s finding.
{¶17} This finding, that J.M. admitted that she did not suffer physical harm during the
September 2017 incident appears to be the primary basis upon which the trial court determined it
was appropriate to shorten the duration of the protection order. It also appears that this finding
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influenced the trial court’s decision to eliminate the requirement that L.J. not use or possess
alcohol. In eliminating that requirement, the trial court noted that “the allegations by [J.M.]
regarding [L.J.’s alcohol use [were] questionable at best, and only focuse[d] on isolated incidents
of drinking alcohol in 2017 that involved no physical harm to [J.M.] or the minor children.”
{¶18} Given the substantial weight that the trial court put on a finding that is not supported
by the record before this Court, we can only conclude that the trial court abused its discretion in
modifying the protection order. This Court takes no position on whether the protection order
should be modified; instead, this Court concludes that the trial court’s basis for modifying the
protection order is not supported by the record.
{¶19} J.M.’s assignment of error is sustained.
III.
{¶20} J.M.’s assignment of error is sustained. The judgment of the Lorain County Court
of Common Pleas is reversed, and this matter is remanded for proceedings consistent with this
decision.
Judgment reversed,
and cause remanded.
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
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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 Appellee.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
WAYNE R. NICOL, Attorney at Law, for Appellant.
R.J. BUDWAY, Attorney at Law, for Appellee.