[Cite as A.M. v. M.J.M., 2022-Ohio-2945.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
A.M. : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Petitioner-Appellant : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 21AP0004
:
M.J.M. :
:
:
Respondent-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morgan County Court
of Common Pleas, Case No. 21DV0091
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 23, 2022
APPEARANCES:
For Petitioner-Appellant: For Respondent-Appellee:
CHARLES A. COHARA NO APPEARANCE
MIRANDA ANANDAPPA
954 E. State St.
Athens, OH 45701
Morgan County, Case No. 21AP0004 2
Delaney, J.
{¶1} Petitioner-Appellant A.M. appeals the August 31, 2021 judgment entry of
the Morgan County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} On May 24, 2021, Petitioner-Appellant A.M. filed a Petition for Domestic
Violence Civil Protection Order (“DVCPO”) against Respondent-Appellee M.J.M. in the
Morgan County Court of Common Pleas. Petitioner sought a protection order against
Respondent to protect her, their minor son, and Petitioner’s two minor daughters.
Attached to the petition was a complaint and summons from the Morgan County Sheriff’s
Office and a sheriff’s report detailing that Respondent had been arrested on May 12, 2021
for domestic violence and child endangering.
{¶3} The trial court granted an ex parte DVCPO and set the matter for full hearing
on June 2, 2021. Respondent requested a continuance of the full hearing because the
domestic violence charge was pending in the Morgan County Court. The full hearing was
continued to August 24, 2021.
{¶4} The following evidence was adduced at the August 24, 2021 full hearing.
Petitioner was represented by counsel and Respondent proceeded pro se.
{¶5} Petitioner and Respondent are the biological parents of an infant son.
Petitioner and Respondent are not married but on May 12, 2021, they lived together in a
home located in Morgan County, Ohio. Respondent’s parents owned the home, and they
lived next door.
{¶6} On or about May 12, 2021, Petitioner was at the home with the baby and
her younger sister. Petitioner was planning on taking their two-month-old son to have
Morgan County, Case No. 21AP0004 3
dinner with her family. She placed the baby in the car seat while she waited for her two
daughters to get off the school bus. When Respondent returned home, he told Petitioner
that she was not leaving or taking his son away from him. Petitioner said Respondent
started screaming at her, which caused the baby to cry. Petitioner’s sister picked up the
baby. Respondent went to the sister and took the baby from her. Respondent went into
the living room and put the baby in the car seat, but did not strap him in.
{¶7} Petitioner and Respondent continued to argue that she was going to dinner
and not taking the baby away from him. Petitioner testified that Respondent went to pick
up the car seat to make a turn and run. Petitioner saw her sister move to push the car
seat down because the baby was not strapped in. As the sister came towards
Respondent, he elbowed the sister and she fell to the ground. Petitioner heard her sister
gasp for breath.
{¶8} When Respondent elbowed the sister, Petitioner saw the baby flip out of
the car seat onto the couch and almost hit the floor. Respondent caught the baby before
he hit the floor.
{¶9} Petitioner said she got to her knees to try to get to the baby. She told
Respondent to put the baby down because he could hurt him. She told her sister to go
next door to Respondent’s parents’ home, so Respondent’s father could call the police.
Respondent’s father arrived shortly thereafter, and he sat with Respondent to calm him
down.
{¶10} Petitioner called her father who told her to take the children and leave the
house. She went to the Morgan County Sheriff’s Office to make a report after she left the
home with the children.
Morgan County, Case No. 21AP0004 4
{¶11} Petitioner testified the incident with the baby was not the first time
Respondent had displayed that type of behavior. While she was pregnant with their child,
Petitioner reprimanded Respondent for punishing her daughter by hitting her on the back
of the head. He asked Petitioner if she wanted him to parent or not parent. She told him
that if he was going to take parenting too far, she would let him know. Petitioner stated
that Respondent backed her up against the stairs, got in her face, and told her, “his
parents had enough money to bury me under the courthouse and he’d make sure that
happened before I took his son from him.” (T. 19).
{¶12} Petitioner requested the trial court grant her a DVCPO against Respondent
for five years. She wanted Respondent to do anger management or have a mental health
evaluation. She felt an order was necessary because she was scared for her and her
son’s life. She stated, “If he takes a spell like that where he’s acting crazy like that, shows
up at my house, anything, there’s nothing I can do. Just like last time, I was powerless
with my son.” (T. 20-21).
{¶13} Petitioner’s sister testified about her experiences on May 12, 2021. She
stated that when she went to push the car seat down, Respondent swung the car seat to
push her off. When he did that, Respondent’s elbow swung into her and hit her in the
chest, causing her to fall to the floor and knocking the wind out of her. The baby then
flipped out of the car seat and fell. The paramedics examined the sister after the sheriff
was called and she said they found bruising and some marks where her necklace was
indented into her chest. Petitioner took her sister to the doctor a couple of days after the
incident. The doctor’s report was admitted as an exhibit.
Morgan County, Case No. 21AP0004 5
{¶14} Respondent was cross-examined at the hearing, and he did not present any
evidence on direct other than information regarding his conviction in the Morgan County
Court. He was originally charged with domestic violence and child endangering in the
Morgan County Court, but pursuant to a plea agreement, the State dismissed the child
endangering charge, and the domestic violence charge was amended to disorderly
conduct. Respondent entered a no contest plea. The Morgan County Court sentenced
Respondent to 30 days in jail, 28 days suspended, and 2 days credit for time served. He
was placed on probation for one year and had to obtain a mental health evaluation and a
drug and alcohol assessment, which he had scheduled for September 8, 2021.
Respondent had no prior convictions for domestic violence.
{¶15} At the conclusion of the hearing, the trial court took the matter under
advisement. On August 31, 2021, the trial court issued its judgment entry that found in
pertinent part:
The State’s reduction of the domestic violence charge is an indication that
the State came to believe the Respondent’s conduct did not arise to the
level of domestic violence or the State did not believe it could prove
domestic violence at a trial beyond a reasonable doubt. * * * The Court finds
there is no credible evidence that the Petitioner and her household
members presently are in danger from the Respondent. The Court further
finds that the Respondent’s behavior during May 12, 2021 did not constitute
domestic violence as defined by R.C. 3113.31(A).
(Judgment Entry, August 31, 2021). The trial court condoned Respondent’s behavior and
stated it would be relevant in a future custody dispute between the parties, but because
Morgan County, Case No. 21AP0004 6
the preponderance of the evidence did not demonstrate domestic violence under R.C.
3113.31(A), the petition for the DVCPO was denied.
{¶16} It is from this judgment entry that Petitioner now appeals.
ASSIGNMENTS OF ERROR
{¶17} Petitioner raises two Assignments of Error:
{¶18} “I. THE TRIAL COURT IMPROPERLY CONSIDERED THE OUTCOME OF
APPELLEE RESPONDENT’S CRIMINAL DOMESTIC VIOLENCE CASE IN DENYING
APPELLANT PETITIONER’S REQUEST FOR A CIVIL PROTECTION ORDER UNDER
R.C. 3113.31.
{¶19} “II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE
APPELLANT PETITIONER MET HER BURDEN OF PROOF TO OBTAIN A CIVIL
PROTECTION ORDER UNDER R.C. 3113.31.”
ANALYSIS
{¶20} For ease of discussion, we consider Petitioner’s first and second
Assignments of Error together because they raise similar issues. Petitioner contends in
both Assignments that the trial court erred when it denied her petition for a domestic
violence civil protection order.
Standard of Review
{¶21} The decision whether to grant a civil protection order lies within the sound
discretion of the trial court. Singhaus v. Zumbar, 5th Dist. Tuscarawas No.
2015AP020007, 2015-Ohio-4755. Therefore, an appellate court should not reverse the
decision of the trial court absent an abuse of discretion. To find an abuse of discretion,
we must determine that the trial court's decision was unreasonable, arbitrary, or
Morgan County, Case No. 21AP0004 7
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶22} A reviewing court must not substitute its judgment for that of the trial court
where there exists some competent and credible evidence supporting the judgment
rendered by the trial court. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517. The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180
(1990). “Under this highly deferential standard of review, we do not decide whether we
would have come to the same conclusion as the trial court.” Henry v. Henry, 4th Dist.
Ross No. 04CA2781, 2005-Ohio-67, 2005 WL 43888, ¶ 14. Rather, we are required to
uphold the judgment so long as the record contains some evidence from which the trier
of fact could have reached its ultimate factual conclusions. Id. Our deference is because
the trier of fact “has the best opportunity to view the demeanor, attitude, and credibility of
each witness, something that does not translate well on the written page.” Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
Domestic Violence Civil Protection Order
{¶23} Pursuant to R.C. 3113.31, to obtain a domestic violence civil protection
order, the petitioner must prove by a preponderance of the evidence that the respondent
has engaged in an act of domestic violence against petitioner or petitioner's family or
household members. Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997).
“Preponderance of the evidence” is “evidence which is of greater weight or more
convincing than the evidence which is offered in opposition to it; that is, evidence which
as a whole shows that the fact sought to be proved is more probable than not.” Horne v.
Morgan County, Case No. 21AP0004 8
Stafford, 5th Dist. Fairfield No. 20-CA-17, 2020-Ohio-5073, 2020 WL 6306049, ¶ 10 citing
Black's Law Dictionary 1182 (6th Ed.1990).
{¶24} As defined by R.C. 3113.31(A)(1), the phrase “domestic violence” means
the occurrence of one or more of the following acts against a family or household member,
in relevant part:
(i) Attempting to cause or recklessly causing bodily injury;
(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;
(iii) Committing any act with respect to a child that would result in the child
being an abused child, as defined in section 2151.031 of the Revised Code;
(iv) Committing a sexually oriented offense. * * *
***
{¶25} The “statutory criterion to determine whether or not to grant a civil protection
order pursuant to R.C. 3113.31 is the existence or threatened existence of domestic
violence.” Henry v. Henry, 4th Dist. Ross No. 04CA2781, 2005-Ohio-67, 2005 WL 43888,
¶ 16 quoting Thomas v. Thomas, 44 Ohio App.3d 6, 8, 540 N.E.2d 745 (1988). In this
case, the trial court found the preponderance of the evidence did not show the incident
between Petitioner and Respondent was domestic violence, nor was there the threatened
existence of domestic violence between the parties. Petitioner argues on appeal that the
trial court erred in denying her petition because (1) the trial court impermissibly
considered the result of Respondent’s concurrent criminal proceedings arising out of the
Morgan County, Case No. 21AP0004 9
events on May 12, 2021 and (2) Petitioner presented uncontroverted evidence
establishing her burden of proof under R.C. 3113.31.
{¶26} Petitioner first contends the trial court improperly considered Respondent’s
conviction for disorderly conduct when determining whether Petitioner had established
that she was entitled to a DVCPO. Based on the events that occurred on May 12, 2021,
Respondent was arrested and charged with child endangering and domestic violence.
Pursuant to a plea agreement with the State, the State amended the domestic violence
charge to disorderly conduct and dismissed the child endangering charge. Respondent
entered a no contest plea and was found guilty of disorderly conduct. In its judgment entry
denying the DVCPO, the trial court noted the concurrent criminal proceeding and found,
“the State’s reduction of the domestic violence charge is an indication that the State came
to believe the Respondent’s conduct did not arise to the level of domestic violence or the
State did not believe it could prove domestic violence at a trial beyond a reasonable
doubt.” (Judgment Entry, Aug. 31, 2021).
{¶27} Petitioner correctly states that a petition for a domestic violence civil
protection order pursuant to R.C. 3113.31 is separate and distinct from a criminal
proceeding for domestic violence brought under R.C. 2919.25. While the statutory civil
and criminal proceedings may arise from the same set of facts and may be pursued at
the same time in the same jurisdiction, the proceedings have different burdens of proof
and different penalties. Petitioner contends that because of those differences, it was
improper for the trial court to consider that the State amended Respondent’s criminal
charge from domestic violence to disorderly conduct when determining whether Petitioner
met her burden of proof under R.C. 3113.31.
Morgan County, Case No. 21AP0004 10
{¶28} To grant or deny a DVCPO, the trial court is tasked to determine whether
Respondent engaged in an act of domestic violence against Petitioner and/or Petitioner’s
family. The weight to be given to a past conviction for domestic violence is a matter within
the trial court’s discretion. Henry v. Henry, 4th Dist. Ross No. 04CA2781, 2005-Ohio-67,
2005 WL 43888, ¶ 5. The trial court as the factfinder is permitted to weigh the evidence
of Respondent’s past convictions for domestic violence to determine if under R.C.
3113.31, Respondent placed Petitioner “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.” The evidence in this case, raised by Petitioner upon cross-examination of
Respondent and corroborated by Respondent’s direct examination, showed that based
on the events of May 12, 2021, Respondent was charged with domestic violence but
convicted of disorderly conduct after the State amended the charge. There was no
support in the record, however, for the trial court’s speculation in the August 31, 2021
judgment entry as to the basis for the State’s amendment of the charge from domestic
violence to disorderly conduct. Respondent did not give a reasoning for the amendment
of the charge and there was no testimony from the parties involved with the criminal
proceedings.
{¶29} We find the trial court’s speculation as to why the State amended the charge
is not harmful error in this case. In the August 31, 2021 judgment entry, the trial court
went on to consider whether Petitioner established by a preponderance of the evidence
that she and her household members were in danger and have been a victim of domestic
violence as defined by R.C. 3113.31(A). The trial court then independently determined
there was no credible evidence that Petitioner and her household were in present danger
Morgan County, Case No. 21AP0004 11
from Respondent and that Respondent’s behavior on May 21, 2021 did not constitute
domestic violence as defined by R.C. 3113.31.
{¶30} Petitioner next argues the trial court abused its discretion when it denied
her petition for a domestic violence civil protection order. The trial court found the
preponderance of the evidence did not demonstrate domestic violence as defined by R.C.
3113.31(A). Petitioner contends she presented uncontroverted evidence of Respondent’s
behavior on May 12, 2021 and his previous statement to her that if she tried to take their
child, he would “bury her under the courthouse,” which demonstrated by a preponderance
of the evidence that Respondent placed her by the threat of force in fear of imminent
serious physical harm under R.C. 3113.31(A). Based on the uncontroverted evidence,
Petitioner argues the trial court should have granted the DVCPO.
{¶31} We examine the evidence to determine if the trial court abused its
discretion. In support of her petition, Petitioner testified that Respondent once told her
after an argument about parenting, that “his parents had enough money to bury me under
the courthouse and he’d make sure that happened before I took his son from him.” (T.
19). Was Respondent’s statement to Petitioner the threat of serious physical harm or the
threat of a costly custody action? As to the events on May 12, 2021, Petitioner testified
that Respondent argued with her about taking the baby to dinner. Respondent took the
baby from her sister, put the baby in the car seat, and when the sister tried to push down
the car seat, Respondent turned the car seat away from the sister. When he turned away,
he elbowed the sister, which caused her to fall to the ground. The baby was not strapped
into the car seat, so it fell out of the seat when it was abruptly moved.
Morgan County, Case No. 21AP0004 12
{¶32} The trial court found that while Respondent’s behavior on May 12, 2021 was
inappropriate, negligent, and reckless, it was not intentional or purposeful. (Judgment
Entry, Aug. 31, 2021). It found there was no evidence that Petitioner and her household
were in imminent danger from Respondent. Upon the record before us and within the
bounds of our limited standard of review, we find the trial court’s determination that
Petitioner failed to establish domestic violence pursuant to R.C. 3113.31(A) was
supported by competent, credible evidence and the decision to deny the DVCPO was not
an abuse of discretion. The trial court as factfinder had the duty to consider the testimony,
the parties’ credibility, and weigh the evidence to determine if the preponderance of the
evidence supported a finding under R.C. 3113.31. We find there was competent, credible
evidence in the record to support the trial court’s finding that Respondent did not place
Petitioner or her household members by the threat of force in fear of imminent serious
physical harm.
{¶33} Petitioner’s first and second Assignments of Error are overruled.
Morgan County, Case No. 21AP0004 13
CONCLUSION
{¶34} The judgment of the Morgan County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, John, J., concur.