[Cite as Lowman v. Lowman, 2021-Ohio-2395.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JACLYN LOWMAN, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
JEFFREY LOWMAN II., : Case No. 2021 CA 00001
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
20-DV-12
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 13, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
HOLLY R. REGOLI SCOTT P. WOOD
Law Office of Holly P. Regoli Conrad/Wood
124 W. Main Street, Suite 203 120 E. Main Street, Suite 200
Lancaster, Ohio 43130 Lancaster, Ohio 43130
Fairfield County, Case No. 2021 CA 00001 2
Baldwin, J.
{¶1} Appellant Jeffrey Lowman II appeals from the December 10, 2020
Judgment Entry of the Fairfield County Court of Common Pleas, Domestic Relations
Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 11, 2020, appellee Jaclyn Lowman filed a Petition for a
Domestic Violence Civil Protection Order pursuant to R.C. 3113.31 against her husband,
appellant Jeffrey Lowman II. On the same date, appellee was granted an ex parte
Domestic Violence Civil Protection Order.
{¶3} On March 13, 2020, a full hearing on the petition was held before a
Magistrate. At the hearing, appellee called four witnesses to testify and appellant called
three witnesses. At the start of the hearing, the Magistrate advised the parties that since
the parties did not wish to reset the matter and wanted to address it that day, she would
have to limit each party to a total of forty (40) minutes to argue their case, call witnesses
and cross-examine witnesses. Counsel for appellee then requested a continuance due
to the limited amount of time for the hearing, but appellant’s counsel objected to the
continuance. The Magistrate denied the request and the hearing went forward. Several
times during the hearing, the Magistrate advised the parties on how much time each had
left to present their respective case. The time was later expanded to fifty (50) minutes per
side.
{¶4} At the hearing, appellee testified that the parties were married on May 30,
2009 and had two minor children. The parties previously lived together in Carroll, Ohio,
but they separated and appellee moved out of the marital home on January 18, 2020
Fairfield County, Case No. 2021 CA 00001 3
because she “didn’t feel that I could keep myself and my boys safe.” Transcript at 8. She
testified this was due to appellant’s drinking and his behavior when he drank. According
to appellee, appellant had thrown things at them and stumbled when he drank and his
behavior was “erratic.” Transcript at 9. Appellee testified that she was locking herself and
her children downstairs in the basement when appellant would come home on the
weekends after drinking and that he was verbally abusive to her and/or her sons when he
was under the influence of alcohol.
{¶5} Appellee testified that on February 9, 2020, she went to the marital home to
retrieve some personal property and found marijuana in a cabinet. When she went to take
a picture of the marijuana, appellant “got enraged, and he grabbed me and was holding
me, trying to get at my phone…at the time, I had the jar of marijuana in my hand and
trying to get at it to try to get it away from me and my phone and he was (indiscernible)
like pulling me from behind.” Transcript at 10. Appellant, she testified, grabbed her arms
and held her head. The parties’ sons were yelling at appellant to let appellee go and to
not hurt her. Appellee testified that she had bruises as a result of the altercation and that
her sister took pictures of them.
{¶6} Appellee also testified as to a prior incident in 2010 when the parties were
residing together in Virginia. She testified that appellant was intoxicated and holding their
son and when she went to get their son, appellant hit her in the face and broke her
glasses. When asked if appellant committed any other acts of domestic violence against
her when she lived in Virginia, appellee testified, in relevant part, as follows:
{¶7} A. He continually threw things at me, stopped me from leaving a few times,
flipped tables. He’s defecated on the couch, urinated on the couch. He threw bottles - -
Fairfield County, Case No. 2021 CA 00001 4
beer bottles and a wine glass holding Zachary and near miss, it hit the wall, but it was
right towards us.
{¶8} Q. Okay. Was he angry at the time?
{¶9} A. Yes.
{¶10} Q. Do you know if he was under the influence of alcohol at that time?
{¶11} A. Absolutely.
{¶12} Transcript at 16.
{¶13} Appellee testified that after Virginia, they moved to Michigan in 2013. While
they were in Michigan, appellant was verbally abusive toward her and flipped furniture
and threw things when he was angry. The parties then moved to Ohio for appellant’s job.
Before moving to the house in Carroll, the parties lived in a house in Lithopolis. While in
Lithopolis, appellant threw things, flipped furniture and was aggressive towards the
children.
{¶14} At the hearing, Stephanie Folt, appellee’s sister, testified that she had
witnessed appellant being very aggressive towards appellee and testified as follows when
asked to describe what incidents she had witnessed:
{¶15} A. So the most recent was when we were getting things out of Jaclyn’s
[appellee’s] home.
{¶16} Q. Was that around February 6th of 2020?
{¶17} A. That was around February 6th of 2018 - - or 2020. Sorry.
{¶18} Q. This year?
{¶19} A. Yes, this year.
{¶20} Q. Okay. What happened?
Fairfield County, Case No. 2021 CA 00001 5
{¶21} A. So we were out at the house to get items out of the home. And he was
at the house at the time and became very angry that we were there and was screaming,
yelling, slamming doors, blocking entry into certain rooms so much so that we exited to
the garage, stayed in the garage. I was fearful for myself and for my sister at the time
until the police were called, and they showed up and told everyone that she has every
right to be there and to get her items out of the house.
{¶22} Q. Okay, were there any - - did Mr. Lowman [appellant] make any
threatening statements to either yourself or to Jackie [appellee], that you recall?
{¶23} A. I mean, by calling names and saying that she wasn’t allowed to be there
and that kind of stuff.
{¶24} Transcript at 68-69.
{¶25} Folt testified that, on February 15, 2020, she took pictures of appellee’s
bruises and marks from the incident on February 9, 2020. The bruises were on appellee’s
arms. She further testified that while the parties were residing in Virginia, appellee called
her in the middle of the night and told her that appellant had hit her in the face and broken
her glasses while she was holding their baby son. She testified that after drinking,
appellant became “very, very aggressive, mean, loud, calling names at both my sister
and his boys.” Transcript at 74.
{¶26} At the conclusion of the hearing, the Magistrate took the matter under
advisement. On March 17, 2020, the Magistrate ordered a five-year Domestic Violence
Civil Protection Order against appellant in favor of appellee. It did not cover the parties’
minor children. Appellant filed objections to the Magistrate’s Decision.
Fairfield County, Case No. 2021 CA 00001 6
{¶27} As memorialized in a Judgment Entry filed on December 10, 2020, the trial
court upheld the Magistrate’s Decision, but found that there was no basis to order a
firearms restriction. The trial court issued a modified Domestic Violence Civil Protection
Order against appellant for a period of five years.
{¶28} Appellant now appeals, raising the following assignment of error on appeal:
{¶29} “I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW WHEN THE TRIAL COURT UNREASONABLY LIMITED THE
AMOUNT OF TIME FOR APPELLANT’S CASE.”
{¶30} II. THE TRIAL COURT ERRED IN GRANTING THE CIVIL PROTECTION
ORDER AGAINST APPELLANT.”
I
{¶31} Appellant, in his first assignment of error, argues that he was denied his
constitutional right to due process of law when the trial court limited the amount of time
for each party’s’ case. We disagree.
{¶32} With respect to due process, we note that, in civil proceedings, due process
requires notice and a meaningful opportunity to be heard. State v. Hayden, 96 Ohio St.3d
211, 2002–Ohio–4169, 773 N.E.2d 502.
{¶33} The full hearing in this matter was originally scheduled for 1:00 p.m., but
was delayed to 2:32 p.m. After the Magistrate stated that it was his understanding that
the parties did not wish to reset the matter and wanted to address it that day, appellant’s
counsel stated “[t]hat’s correct.” Transcript at 4. The following discussion then took place
on the record:
Fairfield County, Case No. 2021 CA 00001 7
{¶34} THE COURT. Okay. And so with regard to that, I’m happy to do that. We’re
just going to have to limit everyone’s time. I originally told you you get an hour each, and
that’s now down to about 40 – probably 40 - - 40 minutes each, giving a few minutes for
me to keep time. So I’ll give you 40 minutes each.
And at this point in time, then, Attorney Regoli [appellee’s counsel], would
you like to make any opening statement?
{¶35} MS. REGOLI: Your Honor, before I do, I would like to say that I - - I don’t
necessarily agree to - - to not continue this. I mean, if I have a choice in the matter, you
know, now we’re down to 40 minutes each. Each side has four or five witnesses, and
they have important things to say. So I’m very concerned about being able to adequately
put forth my case in 40 minutes. So I will ask for a continuance.
{¶36} THE COURT: Okay. And Attorney Trolinger?
{¶37} MR. TROLINGER: Yes. My client, obviously, is impacted by the CPO
greatly. And there are witnesses out in the hallway that have traveled from all over the
country, some traveled by car eight hours to be here, others by plane from Florida and
otherwise.
{¶38} THE COURT: Okay.
{¶39} MR. TROLINGER: So we would obviously object to a continuance.
{¶40} THE COURT: Okay. I’m inclined to - - I’m inclined to deny the continuance
and continue on with the hearing today. We all know that CPOs are very relevant, and it
is important that we get through this today. So we are going to proceed, and I’ll just kind
of keep time. Obviously, the issues should be very constricted to whether or not there’s
Fairfield County, Case No. 2021 CA 00001 8
a domestic violence civil protection order necessary. So I would just remind you not to
get too far into other issues at this point in time.
{¶41} Transcript at 4-6.
{¶42} We concur with appellee that, if appellant did not wish to be limited on time,
he could have agreed to the continuance requested by appellee. Appellant, however, did
not do so and thus agreed to be bound by the time limitation. We find that there was no
due process violation in this case.
{¶43} Appellant’s first assignment of error is, therefore, overruled.
II
{¶44} Appellant, in his second assignment of error, contends that the trial court
erred in granting the civil protection order against appellant. We disagree.
{¶45} A petition for a domestic violence civil protection order is governed by R.C.
3113.31. Subsection (A) states the following in relevant part:
{¶46} (A) As used in this section:
{¶47} (1) “Domestic violence” means the occurrence of one or more of the
following acts against a family or household member:
{¶48} (a) Attempting to cause or recklessly causing bodily injury;
{¶49} (b) Placing another person by the threat of force in fear of imminent serious
physical harm or committing a violation of section 2903.211 [menacing by stalking] or
2911.211 [aggravated trespass] of the Revised Code[.]
{¶50} “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. R.C. 3113.31(D).” Felton v.
Fairfield County, Case No. 2021 CA 00001 9
Felton, 79 Ohio St.3d 34, 1997-Ohio-302, paragraph two of the syllabus. “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 show that
the fact sought to be proved is more probable than not.” Black's Law Dictionary 1182 (6th
Ed.1990).
{¶51} 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). 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, 1997-Ohio-260, 674 N.E.2d 1159.
{¶52} The decision whether to grant a civil protection order lies within the sound
discretion of the trial court. L.L. v. R.B., 5th Dist. Guernsey No. 17 CA 02, 2017-Ohio-
7553; Singhaus v. Zumbar, 5th Dist. Tuscarawas No. 2015AP020007, 2015-Ohio-4755.
In order to find an abuse of discretion, this court must determine that the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶53} On March 13, 2020, the Magistrate conducted a full hearing. In granting the
five-year civil protection order, the Magistrate, who was the trier of fact, made the following
relevant findings of fact:
Fairfield County, Case No. 2021 CA 00001 10
The Petitioner has proven by a preponderance of the evidence that
she has been the victim of domestic violence at the hands of the
Respondent. Petitioner testified that she has been punched in the face and
that Respondent broke her glasses in 2010. Petitioner testified that on
February 9, 2020, Respondent grabbed her arms so violently that he left
significant bruising. Petitioner further testified of Respondent’s behaviors for
almost their entire marriage of habitual drunkenness which would include
verbal abuse to herself, as well as Respondent throwing things at her and
flipping furniture.
{¶54} In addition, photos of appellee’s injuries from the February 9, 2020 incident
were submitted to the trial court.
{¶55} In its Judgment Entry filed on December 10, 2020, the trial court determined
that the Magistrate’s findings were supported by competent and credible evidence and
that Petitioner met her burden of preponderance of the evidence establishing that she
was in danger of domestic violence. We agree. As is stated above, appellee testified as
to events in 2010 and February 9, 2020. The Magistrate, as trier of fact, was in the best
position to assess her credibility.
{¶56} Appellant’s second assignment of error is, therefore, overruled.
Fairfield County, Case No. 2021 CA 00001 11
{¶57} Accordingly, the judgment of the Fairfield County Court of Common Pleas,
Domestic Relations Division is affirmed.
By: Baldwin, P.J.
Hoffman, J. and
Wise, John, J. concur.
Lowman v. Lowman
Combined Opinion