Case Summaries: Civil Protection Orders
No Abuse of Discretion in Issuing CPO: The trial court’s order upholding a DV CPO entered against petitioner’s husband was not an abuse of discretion, where the husband had a history of losing his temper and hitting the children, he broke down their son’s door to get to the wife, he was taking mood stabilizer medication, he followed wife around the house, and he stated the parties would not be divorced unless a judge shot him. Donovan v. Donovan, 2012-Ohio-3521 (9th Dist., Lorain, 8/6/12).
Keywords: domestic violence danger civil protection order
No Statutory Authority to Expunge or Seal Record of CPO: The Court of Appeals affirmed the trial court’s denial of the former husband’s motion to expunge and seal the record of a DV CPO that had been issued against him but later dismissed by his former wife during subsequent divorce proceedings. The trial court lacked statutory authority of expunge or seal the record of the CPO, and the doctrine of judicial expungement was limited to criminal records. There are no statutory provisions providing for the expungement and sealing of records of a CPO, or more generally, of civil or noncriminal records. Schussheim v. Schussheim, 2012-Ohio-2573 (12th Dist., Warren, 6/11/12).
Keywords: domestic violence civil protection order false accusation
Wife Not Liable for Malicious Prosecution for Seeking CPO: The Court of Appeals held that the former wife could not be held liable for malicious prosecution in seeking a DV CPO against her former husband, absent evidence of seizure of her former husband’s property or person. Moreover, the former wife’s voluntary dismissal of her CPO case against her former husband did not constitute a termination of the proceeding in the former husband’s favor as required to establish a claim for malicious prosecution. Jones v. Nichols, 2012-Ohio-4344 (12th Dist., Warren, 9/24/12).
Keywords: retaliation domestic violence backlash civil protection order
Court Costs Improperly Taxed to DV CPO Petitioner: The Court of Appeals reversed the trial court’s assignment of court costs to the CPO petitioner. The trial court had taxed court costs to the petitioner after she voluntarily dismissed her petition for a CPO. The Court of Appeals reversed the assignment of costs based on the statutory prohibitions against charging costs to a petitioner or a victim in R.C. 3113.31(J) and 42 U.S.C. 3796(gg)(5), the fee prohibition language in the Ohio Supreme Court DV Forms, and the trial court’s failure to explain its basis for taxing costs to petitioner. Sowders v. Sowders, 2012-Ohio-4786 (5th Dist., Ashland, 12/15/12).
Keywords: domestic violence charge fee civil protection order VAWA
Husband’s Motion To Remove Children As Protected Parties In CPO Denied: The trial court did not abuse its discretion in denying the husband’s motion to modify the CPO to remove the minor children as protected parties. Respondent-husband argued that the CPO was based on acts of domestic violence that were committed before his going to prison and were thus too remote to support the issuance of a CPO. However, respondent could not challenge the domestic violence grounds for issuance of the original CPO on behalf of the children because of res judicata. In determining whether petitioner-wife’s fear for her children was reasonable, the trial court properly found that the recent letter he wrote to her placed her in fear of serious physical harm, and in making that determination the trial court was entitled to consider the parties’ previous history of domestic violence towards her and two of the minor children. All the minor children were entitled to be included as protected parties under the CPO under the Carpeno doctrine. Finally, the burden is on the moving party to prove grounds for modification of a CPO by a preponderance of the evidence, and respondent did not meet that burden. Dowhan v. Dowhan, 2013-Ohio-5830 (11th Dist., Lake, 12/10/12).
Keywords: civil protection order protected person reasonable fear imminent
Reversal of CPO for Lack of Personal Jurisdiction: The Court Of Appeals reversed the issuance of a DV CPO against respondent-husband because The Trial Court Lacked Personal Jurisdiction Over Respondent: Evidence introduced at the CPO hearing was insufficient to confer personal jurisdiction over respondent because there was no evidence as to the content of the calls and text messages that the husband, which resided in another state, made to his wife in Ohio. Moreover, evidence of abuse of threatening behavior that was introduced at an ex parte hearing on his wife’s complaint for legal separation and motion for temporary custody of the parties’ children could not be used to determine whether the trial court in the separate CPO proceeding could exercise personal jurisdiction over the husband. Burnett v. Burnett, 2012-Ohio-2673 (6th Dist., Sandusky, 6/15/12).
Keywords: civil protection order domestic violence out-of-state
Mother Improperly Named as Protected Party in CPO: The Court of Appeals affirmed the issuance of a CPO naming a child and his younger siblings as protected parties, but reversed the grant of the CPO for the wife. Petitioner-wife has sought the CPO against respondent-husband for herself and the parties’ children because respondent had pled to a sexually oriented offense against their oldest child. Even though only one child had been abused, all the children were vulnerable and at risk. However, since the mother was not a victim, no CPO should have been issued for her. Albers v. Albers, 2012-Ohio-3838 (2nd Dist., Greene, 8/24/12).
Keywords: civil protection order protected person sibling domestic violence
Children Improperly Named as Protected Parties: The Court of Appeals affirmed issuance of a CPO, but reversed in part because petitioner’s children should not have been named as protected parties. Petitioner presented sufficient evidence for a CPO, but no evidence was presented showing that respondent (her former spouse) had threatened the children, and thus they should not have been included as protected parties. Moore v. Guyton, 2013-Ohio-143 (3rd Dist., Paulding, 1/22/13).
Keywords: civil protection order protected person domestic violence
Sufficient Evidence to Warrant CPO Based on Former Husband’s Indirect “Religious” Threats: Respondent’s (former husband’s) statements concerning an impending nuclear holocaust that would lead to the end of the world and petitioner’s death by a certain date constituted sufficient evidence to warrant the issuance of a DV CPO against respondent. Respondent admitted to using his religious beliefs as indirect threats to petitioner. He specifically personalized the nuclear holocaust to coincide with petitioner’s birthdate and the coming of Jesus Christ and the “end of this age” with their dissolution date. Although respondent’s statements were cast as religious beliefs, they were threats against petitioner because of the method of conveyance (a letter via the children), early morning telephone calls, and the return of personal property in a dramatic fashion (petitioner’s wedding dress hanging on a telephone pole outside her house with a note attached saying, “Burn this,” and a box of KY jelly in a bag conveyed by the children. Blocker v. Carron, 2011-Ohio-3673 (4th Dist., Tuscarawas, 7/26/2011).
Keywords: domestic violence civil protection order
CPO Reversed because of Magistrate’s Noncompliance with Civil Rule 53(D)(3): The Court of Appeals reversed the trial court’s issuance of a DV CPO because of the magistrate’s noncompliance with the procedural requirements concerning magistrates’ decisions under Civil Rule 53(D)(3). Reversal was warranted where the magistrate failed to designate the decision as a “magistrate’s decision” in the case caption, failed to give the parties notice of the consequences of their failure to object within 14 days, and improperly denied petitioner’s (former wife’s) motion requesting findings of fact and conclusions of law within five days. Larson v. Larson, 2011-Ohio-6013 (3rd Dist., Seneca, 11/21/2011).
Insufficient Evidence for Issuance of DV CPO: The Court of Appeals reversed the trial court’s issuance of a DV CPO because the respondent’s (former boyfriend’s) facial “look” and his alleged statements that he would “whip [petitioner’s] ass” if she “was a man” could not have reasonably placed petitioner in fear of imminent serious physical harm. The alleged threat was a generalized, conditional threat based on a condition that could not be met because petitioner was not a man. While past incidents of domestic violence may be considered by the trial court, they must be coupled with threats of present or future violence such that a protection order may be granted. Bargar v. Kirby, 2011-Ohio-4904 (12th Dist., Butler, 9/26/2011).
Ex-Husband’s Indirect Threat to Kill Ex-Wife Caused Fear of Imminent Serious Physical Harm: The Court of Appeals affirmed the issuance of a DV CPO against the ex-husband based on his threat to shoot his wife which was made by the husband to a third party. The ex-wife had been charged with criminal domestic violence for running over the ex-husband’s foot with her car. After the ex-husband was told by his victim advocate that his ex-wife’s charge had been reduced to a plea of disorderly conduct, he became irate and threatened to shoot his ex-wife. The victim advocate advised court security and the ex-wife’s attorney of the threat. At the ex-wife’s CPO hearing she testified that she was in fear for her safety, her ex-husband carried a handgun, and he had previously threatened to shoot her during their marriage. The Court of Appeals concluded that the ex-wife’s fear of serious physical harm was demonstrated by a preponderance of the evidence. Wohleber v. Wohleber, 2011-Ohio-6696 (9th Dist., Lorain, 7/27/2011).
Keywords: domestic violence civil protection order
Mother and Child’s Behavior Justified Officers” Warrantless Entry Into Their Home: A student was rumored to have written a letter in which he threatened to “shoot up” his school. When police officers went to the student’s house, both the child and his mother appeared on the porch. When the officers explained that they were there to investigate the purported threats, and asked the mother if there were any guns in the house, the mother and child responded by running back into the house. The officers then entered the house, stayed for a few minutes, and concluded that the rumors of a potential shooting were false. The mother and child sued the officers for violation of their Fourth Amendment rights by entering their home without a warrant. However, the U.S. Supreme Court found that, based upon all of the facts, reasonable officers could have concluded that there was an “objectively reasonable basis for fearing that violence was imminent” and that the Fourth Amendment permitted them to enter the residence without a warrant. Ryburn v. Huff, 132 S. Ct. 987 (1/23/2012).
DV CPO Cannot Affect Title to Real Estate: The Court of Appeals found that the previously approved DV consent agreement and CPO improperly affected title to the parties’ real estate, in violation of R.C. 3113.31(E)(5). The CPO provided that respondent (female partner) would vacate the parties’ residence on the condition that petitioner (male partner) refinance the house within 90 days, but petitioner was unable to refinance the residence, and the trial court then awarded exclusive possession of the residence to respondent. Petitioner appealed. The Court of Appeals found that the refinancing would inevitably affect title to the real property because no lending institution would permit petitioner to assume the entire obligation for the note and pledge the property as security if he were not the sole owner of the property. Therefore, the trial court could not sanction petitioner for violation of the portion of the consent agreement and CPO which the trial court had no authority to issue because it affected title to real estate. Harris v. Ross, 2011-Ohio-1075 (5th Dist., Delaware, 3/8/2011).
Keywords: domestic violence civil protection order division of property property division
Availability of No-Harassment Provision in Divorce Decree Does Not Preclude Issuance of CPO: The Court of Appeals reversed the trial court’s denial of a DV CPO where the court had issued a restraining order in the parties’ divorce case in lieu of issuing a CPO. CPO remedies are in addition to, and not in lieu of, any other available civil or criminal remedies. Therefore, the availability of a no-harassment provision contained in a divorce or marriage dissolution decree did not preclude the wife from obtaining a DV CPO against her husband. Schultz v. Schultz, 2010-Ohio-3665 (9th Dist., Medina, 8/9/2010).
Keywords: domestic violence civil protection order
Standard Of Review In CPO Appeals:
The court of appeals affirmed the judgment granting a DV CPO against the father of petitioner-mother’s child. An appellate court considering a challenge to the issuance of a CPO must determine whether there was sufficient, credible evidence to support a finding that respondent engaged in acts or threats of domestic violence. Under this “highly deferential standard of review,” the reviewing court is required to uphold the judgment so long as the record, as a whole, contains some evidence from which the trier of fact could have reached its ultimate factual conclusions. Holland v. Garner, 2010-Ohio-2963 (12th Dist., Butler, 6/28/2010).
Keywords: domestic violence, civil protection order, appeal
Past Acts Of DV Admissible To Prove Fear Of Imminent Physical Harm:
The court of appeals held that the evidence was sufficient to establish that the respondent’s former girlfriend suffered fear of “imminent” physical harm at the hands of respondent for the purpose of granting a DV CPO. The trial court properly considered past occasions of domestic violence to determine whether the victim suffered fear of “imminent” physical harm at the hands of her ex-boyfriend. Since she had explicitly indicated that she was in fear of serious physical harm on the date alleged in her CPO petition, the trial court could then consider prior incidents of domestic violence to determine the reasonableness of her fear. Strassel v. Chapman, 2010-Ohio-4376 (10th Dist., Franklin, 9/16/2010).
civil protection order, domestic violence, danger, threat, pleading
Actual Notice Of Illinois Protection Order Was Insufficient For Conviction For Violating Protection Order:
The court of appeals reversed the defendant’s conviction for violation of a protection order because there was no evidence she had been served with the protection order or had actual notice of the protection order by the time of the violation. However, the court of appeals noted that “the mere lack of service of the protection [sic] is not enough to indicate lack of notice, where the evidence indicates that the respondent/defendant was otherwise aware of the protection order.” State v. Williams, 2009-Ohio-3162 (9th Dist., Summit, 6/30/2009).
Keywords: civil protection order, domestic violence, threat, danger
Provisions Affecting Parental Rights Stricken from DV CPO:
The Seventh District Court of Appeals struck two provisions—stay away and no-contact orders—from a DV CPO because they dealt with communication with the parties’ minor child, who was named a protected party in the CPO. Because the juvenile court already had jurisdiction over all issues involving the minor child in a pending custody proceeding, the stricken sections of the CPO infringed upon the prior jurisdiction of the juvenile court. McCue v. Marlin, 187 Ohio App.3d 1 (7th Dist., Mahoning, 3/26/2010).
Keywords: conflicting orders, supersedes, civil protection order, domestic violence
STANDARD OF REVIEW OF ISSUANCE OF A DV CPO
Where an appellant challenges the very issuance of a CPO—whether it should have been granted at all—an appellate court addressing such a challenge must determine whether there was "sufficient, credible evidence" to support the finding (by a preponderance of the evidence) that the respondent engaged in acts or threats of domestic violence and that the petitioner, or the petitioner’s family or household members, are in danger of domestic violence. However, a trial court’s decision on the scope of the protection order (as opposed to whether it should have been granted at all), must be reviewed under an "abuse of discretion" standard. Richter v. Richter, 2009-Ohio-3828 (12th Dist., Butler, 8/03/09).
Keywords: "civil protection order" appeal
Consent Agreement Affirmed Despite Husband’s Claim that He Could Not Understand English
The trial court did not abuse its discretion in failing to appoint an interpreter to assist the husband regarding the wife’s petition for a DV CPO and regarding the consent agreement between the parties because the husband’s counsel did not state to the court the need for an interpreter, the husband responded to all the questions directed to him, and counsel’s statements that he could interpret for husband suggested that perhaps counsel was bilingual. Appellant has not demonstrated that he did not have a full understanding of the proceedings or that he could not communicate in English. There is no evidence in the record to indicate that he did not knowingly and voluntarily consent to the terms of the agreement. Therefore, the court of appeals affirmed the trial court’s approval of a consent agreement and domestic violence civil protection order between the husband and wife. Luna-Corona v. Esquivel-Parrales, 2009-Ohio-2628 (12th Dist., Butler, 6/08/09).
Keywords: "civil protection order" LEP "Limited English Proficiency"
CPO ENTERED ON SUPREME COURT FORM IS FINAL, APPEALABLE ORDER: The Ninth District Court of Appeals ruled “that a civil protection order that is entered on [Sup. Ct. R. Superintendence] form 10/01-I or such other form approved by the Supreme Court of Ohio, and signed by a magistrate and a judge is, pursuant to R.C. 3113.31 (G), a final, appealable order.” The Court of Appeals expressly overruled a series of its own decisions, beginning with Mills v. Mills, 2008-Ohio-3774, where the Court of Appeals had concluded that a CPO signed by a magistrate and a judge was not a final, appealable order because the trial court failed to enter its own, separate judgment. Tabatabai v. Tabatabai, 2009-Ohio-3139 (9th Dist., Medina, 6/29/2009).
Keywords: validity valid order invalid order
PETITIONER DID NOT SHOW A REASONABLE FEAR OF IMMINENT SERIOUS PHYSICAL HARM The Second District Court of Appeals reversed the trials court’s issuance of a DV Civil Protection Order (CPO) after holding that the former wife (petitioner) did not show reasonable fear of imminent serious physical harm from her former husband (respondent). A person seeking a CPO must show fear of imminent serious physical harm, rather than mere fear of potential future conduct. Moreover, while it is true that past acts may be used by a person seeking a CPO to establish a genuine fear of violence in the present situation, there must be an indication that the person was fearful in that present situation. In this case the former wife, seeking a CPO against her former husband who was about to be released from prison, did not present evidence of the contents of her former husband’s alleged threats or that they were threats of imminent serious physical harm, and her testimony did not suggest that he intended to carry out the unknown threats immediately. Williamson v. Williamson, 180 Ohio App.3d 260, 2008-Ohio-6718 (2nd Dist. Greene, 12/19/2008).
STATUTORY TIME LIMIT IS NOT JURISDICTIONAL: The Fifth District Court of Appeals held that the statutory time limit of seven court days for scheduling a full hearing on a petition for a DV civil protection order (CPO) after the issuance of an ex parte CPO evicting respondent from the parties’ home. As a result, full CPOs issued outside the statutory time limit are not void or voidable. Donoghue v. Donoghue, 2009-Ohio-3834 (5th Dist., Fairfield, 7/23/2009).
UNBORN CHILD CANNOT BE A PROTECTED PERSON UNDER A DV CPO: The Tenth District Court of Appeals affirmed the trial court’s decision that refused to specifically include the victim-petitioner’s unborn child in her CPO. Petitioner had posited a situation in which a new-born infant would be unprotected if separated from the mother because it would be a hardship for the mother to return to court to obtain a civil protection order for the child immediately after giving birth. However, the DV statute, unlike certain other statutes, does not specifically include an unborn child within its protection, and under the plain language of the statute a viable fetus is outside the statutory definition of persons entitled to such relief. Smith v. Martin, 2009-Ohio-3440 (10th Dist., Franklin, 7/14/2009)
Divorce Decree May Modify Any CPO Terms: The Ohio Supreme Court held that a divorce decree can modify any of the terms of an existing domestic violence CPO. Therefore, the defendant did not violate the no-contact provision of the CPO by calling the child’s mother to arrange visitation because the visitation provisions in the subsequent divorce decree (giving him reasonable visitation without a specific visitation. State v. Price, 118 Ohio St.3d 144, 2008-Ohio-1974.
Keywords: civil protection order modification parenting time
“Thin Skull” Rule Does Not Apply to DV CPOs: The Court of Appeals reversed the trial court’s issuance of a Domestic Violence Civil Protection Order because the trial court had mistakenly applied the “thin skull” rule to civil protection orders (CPOs). Petitioner based her petition upon respondent having emailed her approximately four times over a 3 ½ month period, having dropped mail off to her work place on two occasions, and an email that respondent forwarded to petitioner, in which he told family and friends that if respondent did not accept his planned divorce settlement offer, he would “take out all of [his] anger and frustration in this family members’ [sic] death sentence out on her in court.” The trial court had granted the CPO on the grounds that “you take your victim as you find them” under the “thin skull” rule. However, according to the court of Appeals, the “thin skull” or “eggshell plaintiff” rule is a creature of tort law and does not apply to CPOs. In domestic violence threat of force cases, a court must apply both a subjective test and an objective test, which inquires whether the petitioner’s fear is reasonable under the circumstances. The record contains no evidence that respondent made an unequivocal threat of force, or that petitioner held a reasonable fear of imminent serious physical harm. Fleckner v. Fleckner, 2008-Ohio-4000 (Tenth Dist., Franklin, 8/07/08).
Keywords: reasonable fear
No Final Appealable Order In CPO Case: The Court of Appeals lacked jurisdiction to address respondent’s appeal of a Domestic Violence Civil Protection Order (CPO) because there was no final appealable order. Both the magistrate and judge had signed the CPO, with the judge thereby approving and adopting the CPO. However, the trial court failed to enter its own judgment granting the CPO. In order for a judgment to be final and appealable, a trial court cannot merely adopt a magistrate’s decision; it must enter its own judgment that sets forth “the outcome of the dispute and the remedy provided.” Mills v. Mills, 2008-Ohio-3774 (Ninth Dist., Summit, 7/30/08). See, also, Kelly v. Kelly, 2008-Ohio-3884 (Ninth Dist., Lorain, 8/04/08).
Keywords: magistrate's decision
CPO Appeal Not Moot Despite Examination of CPO
The court of appeals ruled that respondents appeal of the CPO that was issued against him is not moot even though the CPO had expired. The collateral consequences of the CPO for the respondentincluding reputation harm and the possible prejudicial impact on a future custody determinationpreclude dismissal on the mootness grounds. Wilder v. Perna, 2007-Ohio-6635 (8th App. Dist., Cuyahoga, 12/13/07). ;
Keywords: "domestic violence" "civil protection order" expiration
Consensual Sex Between Petitioner and Respondent Not Inconsistent With Request For CPO
The trial court and court of appeals rejected respondents argument that petitioners active engaging in consensual sex with respondentafter issuance of the ex parte CPO, but before the full hearingwas inconsistent with petitioners claim of fear of physical harm from respondent. The magistrate had viewed petitioners action in the context of the entire case and found that she was trying to end the parties ongoing relationship in a manner so as to avoid further separation violence. Shimman v. Germano, 2008-Ohio-717 (6th App. Dist., Lucas, 2/22/08).
Keywords: "domestic violence" "civil protection order" credibility "weight of evidence"
Appeal of CPO Dismissed On Mootness Grounds
The court of appeals dismissed the petitioners appeal of the terms of her domestic violence CPO for mootness because the CPO had expired and was no longer in effect as a result of its expiration. Hughes v. Hughes, 2007-Ohio-4774 (11th App. Dist., Lake, 9/14/07).
Keywords: "domestic violence" "civil protection order" expiration
Four-year-old Incident Was Relevant In CPO Case
The trial court properly considered a four-year-old DV incident in considering the current DV allegations in petitioners CPO petition concerning abuse of the parties minor child. While the issuance of a CPO cannot be based solely on previous incidents, the trial court properly considered evidence of the 2002 incident because the evidence concerned an incident that was similar to the current situation before the court and was especially relevant to show the reasonableness of petitioners fear for her child's safety. On another issue, the petitioners actions in inviting respondent to the childs birthday party during the pendency of the CPO action did not refute petitioner's fear of respondent because she was trying to de-escalate the situation. Tabler v. Palacio, 2008-Ohio-349 (12th App. Dist., Butler, 2/4/08).
Keywords: "domestic violence" "civil protection order" "past acts"
Court May Not Refuse To Consider Award of Child Support In CPO
The court of appeals ruled that the refusal of the trial court to consider an award of child support in a domestic violence CPO on the basis that another forum was "appropriate" constituted reversible error. The legislature clearly intended child support to be one of the remedies available to victims of domestic violence. R.C.;3113.31 required the trial court to consider the merits of petitioners request for child support. Hayes v. Gibbs, Appeal No.;C-070219 (1st App. Dist., Hamilton, 3/14/08).
Keywords: "civil protection order" relief "economic abuse"
Court Not Required To Grant Respondent Second Continuance of CPO Full Hearing
The trial court did not err or abuse its discretion in proceeding to the full hearing on petitioner's domestic violence CPO where respondents attorney filed a motion to withdraw as counsel and a motion for continuance 50 minutes before the full hearing, and this was respondents second request for a continuance. Abriani v. Abriani, 2007-Ohio-3534 (8th;App. Dist., Cuyahoga, 7/17/07).
Keywords: "due process" "domestic violence" "civil protection order"
No Statute of Limitations For DV CPO
The court of appeals rejected respondents argument that the victims petition for a CPO was barred by the four-year statute of limitations for certain torts found in R.C. 2305.09(D). A CPO is a special statutory remedy that is designed to prevent violence, not to compensate the victim for damages, and thus does not create a tort remedy. Moreover, the limitations periods in R.C. Chapter 2305 apply to civil actions, not special statutory proceedings like a CPO. Therefore, none of the statutes of limitations create a time bar for seeking a CPO. Oliver v. Johnson, 2007-Ohio-5880 (4th App. Dist., Jackson, 10/30/07).
Keywords: time limit
DV CPO Okay Even Though Respondent Was Unable To Attend Full Hearing Because of Incarceration
The court of appeals affirmed the trial courts issuance of a CPO and rejected respondent's argument that his due process rights were violated because he could not attend the full hearing at the time of his incarceration in another county. An individual does not have the absolute right to be present in a civil case to which he is a party. Moreover, respondent failed to file either a motion to transport or a motion for continuance pending his release from incarceration. The trial court had no duty to sua sponte order respondent's transport from jail to secure his attendance at the final CPO hearing. Waters v. Lattany, 2007-Ohio-1047 (3/9/07).
Court May Amend CPO Petition To Conform Date of Alleged DV To Date of Proof
The court of appeals affirmed the issuance of a DV CPO despite the discrepancy between the date of the alleged incident in the victims petition and the date given by the victim in her testimony. The petition alleged that the domestic violence threat occurred on January;7, 2006, but the petitioner-victim testified that the incident actually occurred on December;21, 2005. The trial court specifically found that the threat occurred on December;21, 2005. It was within the courts power to sua sponte amend the petition and respondent was not prejudiced by the change in the date of the alleged threat. McGuire v. Sprinkle, 2007-Ohio-2705 (12th App. Dist., Warren, 6/4/07).
Keywords: pleading amendment evidence
Sufficient Minimum Contacts With Ohio For Personal Jurisdiction Over Respondent
The court of appeals affirmed the trial courts issuance of a DV CPO against an out-of-state (Michigan) respondent. The respondent's two previous visits to petitioner in Ohio (both involving previous alleged;domestic violence;incidents) and his telephone threats made from Michigan to the victim in Ohio were sufficient contacts for the court to exercise personal jurisdiction over the respondent under Civil Rule 4.3(A)(9). While the burden on an out-of-state respondent who is forced to defend in Ohio is not insignificant, the interest in providing protection through local forums against respondents who purposely direct threatening communications into Ohio outweighs respondents burden in this instance. Haas v. Semrad, 2007-Ohio-2828 (6th App. Dist., Lucas, 6/8/07).
Keywords: due process
Motion To Withdraw CPO Petition Denied Where Court Already Had Evidence of DV
The court of appeals affirmed the trial court's issuance of a DV CPO in its denial of petitioner's motion to withdraw her CPO petition. Petitioner had moved to withdraw her petition after the commencement of the full hearing. The trial court acted within its discretion in denying the motion to withdraw because a unilateral notice of dismissal must be filed before the commencement of trial under Civil Rule 41(A), and the trial court did not err in denying the motion to withdraw when it already heard petitioner-victims testimony and heard the content of respondent's threatening text and voice messages, and the CPO served the "interest [of society] in protecting the peace of its citizens and the protection of its citizens." Edwards v. Reser, 2007-Ohio-6520 (6th App. Dist., Ottawa, 12/7/07).
Keywords: recant recantation recanting action dismissal
DV CPO Properly Issued Against Niece On Stalking Grounds For Rude, Mean and Hurtful Remarks To Aunt
The 77-year-old aunt of respondent obtained a domestic violence CPO against her niece who is living with her, and the Court of Appeals affirmed. The aunt-petitioner testified that respondent was "rude," "mean," and "hurtful" toward her, and testified regarding several instances of such conduct. She further testified that she was consequently afraid of her niece and afraid to remain in her home. She and several other witnesses also testified that she suffered mental distress, and that she sought treatment from her doctor for her "nerves." Reviewing the record as a whole, there was evidence supporting the trial courts conclusion that respondent (niece) engaged in a pattern of conduct which caused petitioner (aunt) mental distress, and thus committed menacing by stalking. Carter v. Hooks, 2006-Ohio-5987 (12th Dist., Butler, 11/17/06).
Keywords: proof relatives
DV Incident Too Remote In Time To Place Petitioner In Fear of Imminent Serious Physical Harm
Evidence was insufficient to establish that the husband placed his wife, by the threat of force, in fear of imminent serious physical harm. Petitioner-wife described a recent incident in which her husband had yelled at her, used profanity, and did nothing when their daughter had twisted the wife's arm. In another incident almost five years earlier, the husband broke the passenger window on the wifes car while she was driving. The recent incident did not involve any domestic violence perpetrated by the respondent-husband, and the earlier incident was too remote in time to place the wife in fear of imminent serious physical harm. Therefore, the Court of Appeals reversed the trial courts issuance of a domestic violence CPO. Young v. Young, 2006-Ohio-978 (2nd Dist., Greene, 3/3/06).
Keywords: statute of limitations evidence
Issuance of DV CPO Reversed Because No Threat of Force or Fear of Imminent Serious Physical Injury
Respondent's actions of "cursing" at petitioner in one incident and staring at petitioner in another incident did not constitute a threat of force, and petitioner did not testify to a fear of "imminent serious physical harm." Therefore, the Court of Appeals vacated the domestic violence CPO. Smith v. Mangan, 2007-Ohio-194 (2nd Dist., Greene, 1/19/07).
Keywords: statute of limitations threats
DV CPO May Not Be Modified
The Cuyahoga County Court of Appeals ruled that a trial court may not modify a domestic violence civil protection order (CPO). The trial court had modified the visitation provisions and the mother's CPO. The new order gradually eliminated the supervision for the father's visitation with the parties daughter, and it allowed him to drive on to the property when he came to pick up their daughter. When the mother refused to obey the modified visitation order, the father filed a motion to have her held in contempt. The trial court found the mother in contempt and sentenced her to 14 days in jail. Mother appealed, and the Court of Appeals reversed, holding that R.C. 3113.31 does not vest any authority in the court to modify the terms of the allocation of parental rights and responsibilities under the CPO. Thus the court erred in modifying the CPO, the modification order was void, and the trial court's imposition of sanctions against the mother for failing to comply with the modified visitation order were vacated. Signer v. Signer, Case;No. 85666, 2006 WL 1918155, 2006-Ohio-3580 (8th App. Dist., Cuyahoga, 7/13/2006).
Keywords: "parenting time"
Standard of Appellate Review In CPO Cases
The standard of review must depend on the nature of the challenge to the protection order. The trial court has discretion in establishing the scope of a protection order, and that judgment ought not to be disturbed absent an abuse of discretion. When the issue is whether a protection order should have issued at all, however, the resolution of that question depends on whether the petitioner has shown by a preponderance of the evidence that the petitioner or petitioners family or household member was entitled to relief. In the present case, where appellate claims that the trial court erred in issuing the protection order at all, the only question is whether the court's decision was supported by sufficient competent, credible evidence. The court of appeals agreed with the trial court that the January 15, 2005 incident (disrespectful, vulgar language) did not constitute domestic violence and that a violent incident which occurred nearly five years ago was too remote in time to have place a reasonable person in fear of imminent, serious physical harm on January 15, 2005. Young v. Young, 2006-Ohio-978 (2nd Dist., Greene, 3/3/06). See, also, Felton v. Felton, 79 Ohio St. 3d 64, paragraph 2 of Syllabus; Ferris v. Ferris, 2006-Ohio-878 (12th Dist., Clermont, 2/27/06); and various appellate case cited in Young, supra, on the issue of the appropriate standard of review.
Keywords: appeal, recent incident, danger
Siblings of Abused Child Properly Named As Protected Persons In CPO
The trial court erred in requiring each named protected party to demonstrate an independent act of abuse when the evidence established sexual abuse toward one sibling and risk to the remaining siblings. When issuing a CPO the court is prompted to consider not only the petitioner but also the petitioner's family for household members. AT the CPO hearing the trial court found that one of the children was the victim of domestic violence, i.e., sexual abuse. In such circumstances, when the court grants a protections order for one child of a family, it follows that any remaining children of the family would also fall within the ambit of the CPO. Carpeno v. Carpeno, 2005-Ohio-7046 (11th Dist., Lake, 12/29/05).
Keywords: civil protection order, evidence
DV CPO Petition Properly Dismissed On Res Judicata Grounds
The domestic relations court properly dismissed appellants second DV CPO Petition based on Res Judicata. The court had dismissed appellants first petition for lack of evidence. She then filed a second petition that asserted new allegations against the appellee, and repeated the allegations asserted in her first petition. However, the new facts alleged in the second petition do not amount to an act of domestic violence. Additionally, at the final hearing on the second petition, appellant reiterated the allegations made in support of her first petition, and appellants witnesses all testified about events that allegedly occurred prior to the first petition. Bumgardner v. Bumgardner, 2005-Ohio-3445 (12th Dist., Butler, July 11, 2005).
Keywords: civil protection order, forum shopping
Issuance of CPO Reversed Because Trial Court Improperly Disallowed Testimony of Child
Keywords: The court of appeals reversed the trials courts judgment granting a domestic violence CPO and remanded the case to the trial court for further proceedings. At the full hearing, the respondent tried to call the parties minor child Allison as a witness, but
Siblings of Abused Child Properly Named As Protected Persons In CPO
The trial court erred in requiring each named protected party to demonstrate an independent act of abuse when the evidence established sexual abuse toward one sibling and risk to the remaining siblings. When issuing a CPO the court is prompted to consider not only the petitioner but also the petitioners family for household members. AT the CPO hearing the trial court found that one of the children was the victim of domestic violence, i.e., sexual abuse. In such circumstances, when the court grants a protections order for one child of a family, it follows that any remaining children of the family would also fall within the ambit of the CPO. Carpeno v. Carpeno, 2005-Ohio-7046 (11th Dist., Lake, 12/29/05).
Keywords: civil protection order, evidence
Continual Cohabitation Not Required For Issuance of CPO
Cohabitation of victim and abuser, although not continual, was sufficient to establish the relationship of "person living as a spouse, to give the trial court jurisdiction to issue a CPO. The parties were engaged in a relationship between April and November 2004. During that time, they periodically shared the same premises and respondent rented a garage near the petitioner. Noggle v. Smith, 2005WL2727128, 2005-Ohio-5636 (5th Dist., Ashland, 10/17/06).
Keywords: length of cohabitation, duration
Vague Description of DV In Petition Is Adequate
Husbands allegation in his CPO petition that his daughter was in some way harmed or abused by wifes 18-year-old son, and that wife was endangering their children by bringing them around her son, was an adequate description of the nature and extent of the acts wife committed constituting domestic violence. Ferris v. Ferris, 2006WL456811, 2006-Ohio-878 (12th Dist., Clermont, 2/27/06).
Keywords: pleading, sufficiency of allegations
Judicial Expungement of DV CPO
Although there is no statutory authority to expunge or seal the records of a domestic violence CPO, judicial expungement is available. While it is ultimately for the legislature to provide a remedy for sealing the record of CPOs, the trial court erred in two respects: (1) concluding it required statutory authorization to seal the record of the CPO; and (2) performing an incorrect balancing test, having assumed arguendo the authority to judicially expunge the record of the CPO. Rieger v. Rieger, 2006-Ohio-482 (2nd Dist., Montgomery, 2/3/06).
Keywords: civil protection order
Father-in-laws Threat To Shoot Daughter-in-law and Her Family Warranted Issuance of CPO
Judgment affirmed. Daughter-in-laws testimony regarding father-in-laws threat to shoot daughter-in-law, her brothers and her son, father-in-laws history of violence directed toward her son, and daughter-in-laws rapid departure with her son from father-in-laws home after threat was made showed that father-in-law had by threat of force placed daughter-in-law in fear of imminent serious physical harm, warranting issuance of domestic violence civil protection order. Abuhamda-Sliman v. Sliman, 161 Ohio App.3d 541, 2005-Ohio-2836 (8th Dist., Cuyahoga, 6/09/2005).
Keywords: deadly weapon,definition,3113.31(A)(1)(b)
Threats Did Not Create A Reasonable Fear of Imminent Serious Physical Harm
The respondents threats to "take you down" and a warning that "from now on you better look over your shoulder" do not create a reasonable fear of imminent serious physical harm. Neither of these statements threaten any immediate action. Nor do they threaten the appellant or the child with physical harm. While these statements were vaguely threatening, they were not threatening in a way the statute prohibits. Therefore, the trial court did not err by finding that the appellees threats did not create a reasonable fear of imminent serious physical harm. Therefore, the trial court properly denied the petitioner-appellants motion for a domestic violence CPO. Wolf v. Rosson, Case Nos. 846034 and 84650, 2005-Ohio-1174 (8th Dist., Cuyahoga, 3/17/2005).
Respondents Suicidal Notes and oral Statements Warranted Issuance of CPO
The court of appeals found there was sufficient, competent, and credible evidence to support a finding by the trial court that the domestic violence CPO was warranted based on the threat of domestic violence and potential danger to petitioner and the parties child, particularly in light of the respondents ominous suicide notes and oral suicide threats. Harbaugh v. Jarrell, Case No. 04-COA-069, 2005-Ohio-1573 (5th Dist., Ashland, 4/13/2005).
Keywords: definition,3113.31(A)(1)(b),reasonable fees
Trial Court Properly Admitted Statements As Excited Utterances
In affirming the trial court's issuance of a domestic violence CPO, the court of appeals found that the trial court's decision to admit a police officer's testimony as to statements made by the alleged victim was reasonable under the facts. The trial court's decision to admit a declaration as an excited utterance "should not be disturbed on appeal if it was reasonable," because the determination "reflects a factual finding about whether the declarant was sufficiently startled." The statement "must be made while the declarant is still under the stress of the event and the statement may not be the result of reflective thought." The evidence in this case was that the alleged victim called for emergency assistance immediately after she had been assaulted, that the officer responded to the call "running a code 3" and traveling 90 miles per hour to get to the scene, and the alleged victim "was in shock." State v. Lampe, 2003-Ohio-3059, No. C-020708 (1st Dist., Hamilton, 6/13/2003).
Keywords: evidence, heresay,"hearsay exception
Trial Courts Issuance of Amended CPO Exceeded Scope of Rule 60(a)
The court of appeals reversed the trail court in part by rejecting the courts amended CPO, after determining that the changes made by the trial court to the final CPO were substantive, rather than clerical. The trial court had sua sponte amended the final CPO by deleting the paragraph providing that the husband would have supervised visitation with the parties child as an exception to the stay away provision of the CPO. The trial court claimed it to be exercising its authority to correct clerical mistakes in an order pursuant to Ohio Civil Rule 60(A). But the court of appeals ruled that the trial court exceeded the scope of its authority under Rule 60(A) because the changes were substantive, rather than clerical, in nature, and Rule 60(A) only authorizes changes to a judgment that is clerical in nature. The basic distinction between clerical mistakes in a judgment that can be correct and substantive mistakes in a judgment that cannot be corrected is that the former consists of blunders in execution whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because, on second thought, it has decided to exercise its discretion in a different manner. Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423 (2004).
Whether DV Is Recent Enough To Issue CPO Is For Trial Court To Decide
The trial court did not abuse its discretion in granting the wife a domestic violence CPO while their divorce action was pending. In addition, the CPO provisions ordering the husband not to remove the parties child from the United States and limiting the husbands parenting time to supervised visitation were appropriate and within the trial courts authority, where the wife alleged that the husband had threatened to harm her and absconded with their child to a foreign country. (Both parties were of Syrian nationality). Although the most recent incidents of physical violence had occurred approximately two years before the CPO petition was filed, the trial court did not abuse its discretion in considering those incidents along with the husbands continued and increasing threats to abscond with their child to Syria. Whether an occurrence of domestic violence is recent enough to warrant a CPO is a matter committed to the sound discretion of the trial court. Moreover, contrary to the husbands assertion, the Plaintiffs testimony alone was sufficient to meet the preponderance-of-the-evidence standard. Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423 (2004).
Keywords: "statute of limitations"
Trial Court Lacked Jurisdiction To order CPO Petitioner Not To Contact Respondent
The court of appeals reversed and vacated the parties CPO in part because the trail court lacked jurisdiction to order Petitioner to refrain from having contact with the Respondent. The requirements of R.C. 3113.31(E)(4) for the issuance of a mutual domestic violence CPO were not complied with. Specifically, the Respondent did not file a separate petition for a protection order. The statutory requirement that the Respondent file a separate petition for a protection order, as a prerequisite for the issuance of a protection order imposing restrictions on a petitioner, is a jurisdictional limitation upon the statutory power conferred by the statute. Wilkins v. Wilkins, 2004 WL 1366154, 2004-Ohio-3139 No. 2003-CA-31 (2nd Dist., Champaign, 6/18/2004).
Keywords: "mutual protection orders"
Denial of CPO Warranted Where Petitioner Was Not In Imminent Fear of Serious Physical Harm
The court of appeals affirmed the dismissal of Petitioners domestic violence CPO petition because the trial court could reasonable conclude that Petitioner failed to demonstrate fear of imminent serious physical harm caused by threats of force despite evidence of actual incidents of domestic violence. To obtain a CPO, a Petitioner must demonstrate fear of imminent serious physical harm caused by threat of force. Although the Petitioner filed a police report stating that Respondent pushed him, Petitioner continually brought the Respondent lunch (up to the day before filing the CPO petition), attended a public gathering together, and brought Respondent flowers the day prior to the filing of this action. This behavior undermines a finding that Petitioner was in fear of imminent serious physical harm. Moore v. Bentley, 2004 WL 2804785, 2004-Ohio-5060, No. 03AP-1003 (10th Dist., Franklin, 9/23/2004).
Respondents Death Threats and Threats To Burn Down House Were Not Imminent Threats
The court of appeals affirmed the trial courts decision denying a full hearing CPO and vacating Petitioners ex parte CPO. The trial courts finding that Respondent husbands death threats and threat to burn down the house did not place Petitioner in fear of imminent serious physical harm. Imminent means on the point of happening. Imminent does not mean that the offender will carry out the threat immediately or be in the process of carrying it out. Rather, the central inquiry is whether a reasonable person would be placed in fear of imminent (in the sense of unconditional, non-contingent), serious physical harm.... Respondents death threat was conditional: it depended upon the Petitioner taking custody of the parties minor child. Additionally, the Respondents alleged death threat was not threatening to occur immediately, and he displayed no present means of carrying out the threat. Similarly, the Respondents alleged threat to burn down the house was not imminent. In short, the Petitioner did not present any evidence that she faced imminent serious physical harm. Henry v. Henry, 2005 WL 43888, 2005-Ohio-67, No. 04CA2781 (4th Dist., Ross, 1/07/2005).
Inclusion of Minor Son In CPO Not Warranted
The court of appeals reversed in part the trial courts issuance of a domestic violence CPO against Petitioners former husband. The evidence did not support the inclusion of the parties son as a protected person in the CPO. The son was not home at the time of the incident giving rise to the CPO; the adult daughter, who was present at the time of the incident, asked not to be included in the CPO; the alleged prior incident between the Respondent and the son had not affected Petitioners agreement to the Respondents visitation in their divorce case; and the Petitioner provided the only testimony as to the sons alleged desire to be included in the CPO. Kandel v. Kandel, 2004 WL 1925690, 2004-Ohio-4548, No. 04-COA-014.
Keywords: "on behalf of"
Conduct Not Arising To Level of DV Threats of Force
The Court of Appeals affirmed the trial courts dismissal of an ex parte CPO against the husband because the wifes evidence of threats made by the husband that caused her and her daughter to fear the husband did not constitute placing of another person, by use of threat of force, in fear of imminent serious physical harm. The husbands alleged threats to evict the wife and her daughter from the marital residence, report the wife for Medicare fraud, and to take action, regardless of whether they caused the wife to be fearful, did not meet the statutory definition of domestic violence for want of threats of force. Moreover, the daughters testimonythat the husband had driven angrily and recklessly when he drove her to school one morning, he told her he was going to kick her and her mother out of the house, and he would testify that the wife was an abusive motherlack any testimony as to threats of force. The magistrates reliance on an objective test, instead of relying on a subjective test, for assessing the wifes fear of harm from her husband was harmless error, where the wifes evidence was lacking in any evidence of threats of force. Tyler v. Tyler, 2004 WL 2436594, 2004-Ohio-5784, No. 20224 (2nd Dist., Montgomery, 10/08/2004).
Litigation of Abuse Issue In Divorce Does Not Bar Re-litigation of Abuse In CPO Case
The Ohio Court of Appeals ruled that the litigation of abuse issues in divorce proceedings does not bar the issue of abuse from being re-litigated in a domestic violence civil protection order proceeding. During a motion hearing for temporary custody and exclusive use of the marital residence in a divorce case, the wife testified that her husband physically abused her 50 times. Later, the wife presented evidence of abuse in her civil protection order case. The husband appealed, claiming that the abuse issues could not be heard a second time. The court of appeals dismissed the appeal, ruling that a litigant may pursue both the remedies provided by a divorce action and a protection order action, and that evidence of abuse is applicable to both cause of action. Walton v. Walton, 2004 WL 3017265, 2004-Ohio-7151, No. WD-04-019 (6th Dist., Wood, 12/30/2004).
Keywords: interface,"special statutory proceeding"
Wilkins v. Wilkins
Respondent Must File Separate Petition for CPO: The Court of Appeals reversed the trial courts issuance of a domestic violence CPO against the original CPO petitioner because respondent had failed to file a separate petition for a CPO, and thus failed to comply with the statutory requirements for the issuance of a mutual civil protection order set forth in R.C. 3113.31(E)(4). Wilkins v. Wilkins, 2004-Ohio-3139, Case o. 2003-CA-311 (2nd Dist. Champaign 6/18/2004).
Keywords: mutual protection order,mutual,mutuality,retaliation
Solomon v. Solomon
CPO Cannot Be Based Solely on Past Acts of DV and Recent Threat Where There is No Imminent Danger: The Court of Appeals affirmed the trial courts denial of a domestic violence civil protection order (CPO) petition where petitioner had introduced evidence of respondents past acts of domestic violence and respondents recent threat to break through her house if she did not give him the children. This evidence was insufficient to justify the issuance of a CPO because petitioner did not testify that she believed respondents threat was imminent. In addition, "while the court may consider past acts to determine whether the incident at issue constitutes domestic violence, the issuance of a civil protection order cannot be based solely, on previous incidents of alleged domestic violence." While it is true that past acts may be used to establish a genuine fear of violence in the present situation, there must be an indication that the person was fearful in the present situation. Merely finding that there were past acts of domestic violence without anything more, is not enough to warrant a present civil protective order. Solomon v. Solomon, 2004-Ohio-2486, Case No. 03DV399 (7th Dist. Mahoning 5/14/2004.
Keywords: evidence,past incidents,prior acts,proof
Lang v. Lang
Child is Protected Person Under CPO Despite Lack of Physical Abuse of Child: The 2nd District Court of Appeals affirmed the trial courts decision including the parties minor child as a protected person under the mothers domestic violence CPO. The fathers repeated verbal threats against the mother made in the child's presence and constituted a form of mental or emotional abuse. In addition, the trial courts admission of the victim advocate's testimony concerning the childs statement to her concerning the fathers threatswhile potentially constituting an admissible hearsaywere not such an "obvious defect" as to constitute plain error. Lang v. Lang, 2004-Ohio-2035, Case No. 2003-CA-34 (2nd Dist. Fayette 4/23/2004).
Keywords: civil protection order,child abuse,custody,parental rights,best interest
Birkheimer v. Dean
CPO Against Father Upheld Where Father Struck Son Twice In the Mouth: The Court of Appeals affirmed the trial courts issuance of a domestic violence CPO against a father who slapped his 17-year-old son twice in the mouth with his open hand, causing cuts inside the boys mouth and inflicting pain. Both courts rejected the fathers contention that he was "merely disciplining" his son. Birkheimer v. Dean, 2004-Ohio-2996, Case No. 03LA720 (4th Dist. Pike 6/03/2004).
Keywords: corporal punishment,parental discipline,minor victim,punishment,child abuse
Burke v. Brown
Separate Magistrates Decision Not Required for Issuance of CPO: The Court of Appeals affirmed the trials courts issuance of a domestic violence civil protection order (CPO) against respondent even though the CPO was signed by both the magistrate and the trial court judge when it was issued without a separate magistrates decision. Under Ohio Civil Rule 53, a trial court is not required to wait for the filing of objections or the expiration of time before it adopts the decision of the magistrate. Moreover, respondent was not unconstitutionally denied his due process rights or his Rule 53 rights to file objections to the magistrates decision. Even though he may have mistakenly thought that he was, respondent was not precluded from filing objections to the magistrates decision, even after the trial courts adoption of the magistrates decision. Burke v. Brown, 2002-Ohio-6164, Case No. 01CA731 (4th Dist. Adams 9/27/2002).
Keywords: magistrates,magistrates' decisions,magistrate's procedure
Spigos v. Spigos
CPO Petitioner Must Be Allowed to Present Full Case: The Court of Appeals reversed the trial courts denial of wifes petition for a domestic violence CPO because the trial court only allowed petitioner to call one witness (herself), did not allow her to finish her testimony, and did not allow her to call any additional witnesses although her counsel had informed the court that their professional witnesses were on their way to court. Petitioner was entitled to a "full hearing." Spigos v. Spigos, 2004-Ohio-757, Case No. 03AP-682 (10th Dist. Franklin 2/19/2004).
Keywords: due process,full hearing,evidence,proof
Wood v. Wood
RES JUDICATA: The appellate court reversed a domestic violence CPO because the petitioner was denied one in another county. Under the doctrine of res judicata, petitioner is barred from obtaining a CPO if her first petition in another county based on the same facts was denied. Wood v. Wood, No. 2003CA004 (Coshocton, 5th Dist., 10/16/03).
Keywords: civil protection order,multiple filings,preclusion
Bahr v. Bahr
REASONABLE FEAR ON PARTICULAR DATE: Domestic violence CPO was reversed. Although petitioner had testified about defendants previous acts of domestic violence, petitioner was unable to prove she feared "imminent serious physical harm" on the exact date she stated in her petition. Bahr v. Bahr, No. 03 COA 011 (Ashland, 5th Dist., 9/23/03).
Lance-sepesi v. Goris
NO DOMESTIC VIOLENCE IF INJURY NOT INTENTIONAL OR RECKLESS: A child suffered a chest contusion when she was tipped from a chair by her stepmother to correct her seated posture. The stepmother had previously tipped her from the chair without causing injury. The trial court found this injury was not intentional, nor did the stepmothers conduct rise to the level of recklessness. Therefore, it denied the girls mothers petition for a domestic violence CPO. The appellate court affirmed. Lance-Sepesi v. Goris, No. WD-02-028 (Wood, 6th Dist., 3/31/03).
Keywords: civil protection order,state of mind,intent,scienter
Schottenstein v. Schottenstein
DOMESTIC VIOLENCE FINDING DESPITE LACK OF PHYSICAL ABUSE: Affirmed domestic violence CPO against mother;for children's protection based on;evidence she permitted absenteeism from school, alienated her children from their father, obstructed the fathers parenting time, and caused the children to become overly identified with her problems. Although there was no evidence of physical abuse, the actions constitute abuse and endangerment. Schottenstein v. Schottenstein, No. 02AP-842 (Franklin, 10th Dist., 9/23/03).
Keywords: definition,fear,physical harm,behavior,conduct,threat,child abuse
Seibert v. Seibert
"FAMILY OR HOUSEHOLD MEMBER" REQUIREMENT: A mother made a statement that she was going to shoot herself and her fourteen-year-old child. The childs paternal uncle filed for a CPO, which was granted by the magistrate who held that as a minor, the child should have been in fear of imminent serious physical harm despite the lack of evidence of reasonable fear. The court of appeals reversed, finding insufficient evidence that the minors judgment was impaired by her age, and that it was improper for her paternal uncle to file for a CPO because he did not meet the statutory filing requirements of residing with the defendant or qualifying as a family or household member. Seibert v. Seibert, No. 3-03-06 (Crawford, 3rd Dist., 7/16/03).
Keywords: civil protection order,definition,residence
State v. Lucas
PROTECTED SUBJECT OF CPO: Defendant was granted a CPO against her ex-husband, and later invited him into her home for their childs birthday. Alcohol was consumed by both, which led to a physical altercation where both suffered injuries. Defendant was charged with complicity to violate the CPO. The Ohio Supreme Court ruled that the protected subject of a CPO may not be prosecuted for "aiding and abetting" the restrainee in his/her violation of the CPO. State v. Lucas (2003), 100 Ohio St.3d 1.
Keywords: backlash,prosecution of victim,complicity,civil protection order
Osherow v. Osherow
REASONABLE FEAR: Domestic violence CPO was affirmed and the court held that threats of physical violence constitute unlawful domestic violence when reasonable fear results. When defendant stated "Ill get you next time" and followed petitioner, petitioners fear was reasonable. Osherow v. Osherow, No. 21407 (Summit, 9th Dist., 7/23/03).
Keywords: physical harm,threat
Consent Agreement Valid Despite Lack of Service and Failure To State Effective Date
The court of appeals affirmed an order overruling respondents "motion to null consent agreement." The failure of the trial court to cause a copy of the domestic violence consent agreement to be served on respondent did not invalidate the agreement because respondent had actual notice of the consent agreement and its terms when he signed it. Further, the lack of an effective date on the consent agreement did not void the agreement because it was deemed fully effective from the date the court signed and filed it. Stickel v. Pryor, 02-LW-2652, No. 01DV59 (Miami, 2nd App.Dist., 6/28/2002).
Giving Child Drugs To Sell At School Is DV
In affirming the grant of a domestic violence civil protection order to the petitioner, the court of appeals stated that the respondents action in corrupting his minor son with drugsby giving his son drugs to sell at his high school"could be considered an act of abuse pursuant to R.C. 2151.031, and subsequently [sic] as domestic violence under R.C. 3113.31." Stark v. Stark, 02-LW-0075, No. 01CAF06020 (Delaware, 5th App.Dist., 1/4/2002).
Keywords: child abuse
CPO May Protect Household or Family Member Who Is Not Family or Household Member of Respondent
The court of appeals affirmed the trial courts entry of a domestic violence civil protection order against respondent (mother) on behalf of petitioner (father), his pregnant wife, and his child. Respondent challenged the trial courts authority to issue a domestic violence civil protection order against respondents wife and daughter because they were not family or household members of respondent and were not victims of the predicate act of domestic violence alleged in the petition. The court of appeals rejected these arguments, noting that petitioner had reason to fear for the safety of his wife. Further, the fact that a person who benefits from the coverage of a domestic violence civil protection order was not a victim of a predicate act of domestic violence which that relief requires, or even a family or household member of the named respondent, is not overreaching and is consistent with R.C. 3113.31(C)(1). "[E]xtending the resulting civil protection order to other members of the victims household who are vulnerable to abuse at the respondents hands, and likely targets of abuse, makes good sense." Farris v. Thim, 02-LW-1730, No. 01-CA-39 (Miami, 2nd App.Dist., 5/10/2002).
Keywords: third party,third parties,third person,third persons
Existence of Reasonable Fear Based On Verbal Threat and Petitioners Ability To Obtain Money To Carry Out Threat
The court of appeals affirmed the granting of a domestic violence civil protection order against petitioners wife and found that it was supported by competent and credible evidence. Petitioners wife (respondent) had told him that "[w]ith the kind of money [Ms. Gatts] mom and dad have, [Ms. Gatt] can make [Mr. Gatt] disappear." Petitioner further testified that he knew his wifes parents well enough to know that they would have given their daughter money if she had requested it. Therefore, petitioner demonstrated a danger of domestic violence by showing that his wifes threat to end his life placed him in fear of imminent serious physical harm, and he adequately explained the reasonableness of his fear by describing the history between him and his wife and his knowledge of his wifes relationship with her parents. Gatt v. Gatt, 02-LW-1532, No. 3217-M (Medina, 9th App.Dist., 4/17/2002).
Daughter Entitled To DV CPO Based On Reasonable Fear Stemming From Fathers Bizarre Behavior
Father unsuccessfully appealed the grant of a CPO to his 19-year-old daughter who resided with her mother. He had gone to his daughters school and picketed it, had come into the school asking for her records, had previously picketed her mothers house, had followed her while she previously lived with her mother in Yellow Springs, and had engaged in other erratic behavior that caused his daughter emotional harm and made her fearful that he would cause her serious physical harm. Even though he did not verbally or physically intimidate his daughter, his continued ominous presence, first outside her home and then continuously outside her school, was dangerous and threatening. Threats of violence constitute domestic violence if the fear resulting from those threats is reasonable. Kreuzer v. Kreuzer, 02-LW-0004, No. 2001-CA-49 (Greene, 2nd App.Dist., 1/11/2002). See also Eichenberger v. Eichenberger (1992), 82 Ohio App.3d 809.
Keywords: verbal,physical,reasonable fear,imminent,danger,threat
Evidence of Other Acts Is Relevant and Admissible
Trial court properly considered evidence of husbands past firearms acts in issuing a CPO. Nothing in R.C. 3113.31, either explicitly or implicitly, precludes a court from considering a persons past violent acts when deciding whether or not to grant a CPO. Furthermore, Evid.R. 404(B) permitted testimony regarding the husbands past use of firearms in the context of domestic violence to prove that the wife was justified in her fear of "imminent serious physical harm." Visnich v. Visnich, Case No. 98-T-0144 (Trumbull 12/17/99).
Keywords: past acts
Evidence of Acts Not Alleged In Petition Are Admissible
Court of Appeals rejected husband-respondents argument that the trial court erred in allowing the introduction of evidence of testimony related to acts (sexual abuse of minor child) not specifically alleged in the CPO petition. The wifes petition put husband on notice that wife claimed to be "fearful of her safety and that of her child, and husband was aware that Children Services had launched an investigation of allegations of sexual abuse. The trial court acted within its discretion to hear evidence that was relevant to the safety of the minor child in order to render an appropriate decision consistent with R.C. 3113.31. Rush v. Rush, Case No. 74832 (Cuyahoga 11/18/99).
Keywords: allegation, past acts
Danger of D.v. Sufficient; Preponderance of Evidence Is Standard of Proof
The petitioner must demonstrate by a preponderance of the evidencenot clear and convincing evidencethat petitioner or petitioner's family are in danger of domestic violence. The petitioner is not required to show that violence has already occurred. No corroboration of petitioner's own testimony is required. R.C. 3113.31 gives a trial court extensive authority to tailor a domestic violence civil protection order to the exact situation before it. The remedies available in a civil protection order case may be obtained in addition to any restraining orders issued in a divorce or dissolution case. Felton v. Felton (1997), 79 Ohio St. 3d 34.
Keywords: burden of proof
Prior Criminal Violation Not Required; Recent Violence Not Required
The plain language of R.C. 3113.31 does not require a petitioner to prove a violation of R.C. 2919.25, the Ohio criminal domestic violence statute, in order to be eligible for a civil protection order. Halley v. Ashley, Case No. 18232 (Summit 11/12/97), 1007 WL 760662.
Keywords: recent, time, old
No Outer Limit On Occurrence of DV
Respondent argued that any occurrence of domestic violence must be close in time to the filing of a CPO petition. Both the trial court and the court of appeals rejected that argument. The CPO statute does not place any outer limit on when the domestic violence must have occurred. Whether an occurrence of domestic violence is recent enough to warrant a civil protection order is a matter committed to the sound discretion of the trial court. Halley v. Ashley, Case No. 18232 (Summit 11/12/97).
Keywords: statute of limitations, time, old, recent
Court Properly Relied On Four-year-old Incident In Granting CPO
The combination of recent verbal threats and more serious four-year-old incidents of stalking and harassmentincluding an incident where respondent held a gun to petitioner's facewas sufficient for trial court to conclude by a preponderance of the evidence that petitioner was in danger of domestic violence. The "staleness" of an incident is not dispositive of whether the incident shall be considered because R.C. 3113.31(A) does not require evidence of new domestic violence before a CPO may be issued or continued. Maccabee v. Maccabee, Case No. 98AP-1213 (Franklin 6/29/99).
Keywords: statute of limitations, time
Using Third Party To Violate Protection order Barred
A man could not evade a protection order awarding possession of the marital home to his wife by getting his parents, who held title to the property, to evict her. One purpose of domestic violence law is to help victims avoid further abuse by loss of accessible housing. If parents are aiding the husband to violate protection order by filing the eviction action against the wife, they are equally guilty of the violation. Even if acting independently of husband, parents may be barred by retaliatory eviction defense. Wood v. Wood, 284 111. App.3d 718, 672 N.E.2d 385 (111 App Ct 4th Dist 1996).
Keywords: third parties, third party
Petitioner Must Prove DV By A Preponderance of The Evidence
Judgment of the trial court dismissing CPO petition is reversed because it used an incorrect standard of evidencethe "clear and convincing" evidence standard instead of the correct "preponderance of the evidence" standard. Shatway v. Shatway, Case No. 76737 (2/10/00).
Keywords: proof, burden of proof
Reasonableness of Fear Determined With Reference To Petitioner's History With Respondent
The written threat "learn and let live" and respondent's answering machine message that he would "surprise" victim at court constitutes domestic violence for purposes of R.C. 3113.31 if the fear resulting from those threats is reasonable in light of respondent's past actions in threatening to kill himself, petitioner and her children, ransacking petitioner's home, and harassing her by phone or mail. The reasonableness of petitioner's fear should be determined with reference to the history a petitioner has with a respondent. Because the statute includes a provision that allows for other relief that the court considers equitable and fair, enjoining respondent from possessing guns is an acceptable state law remedy and does not conflict with the federal Gun Control Act. Conkle v. Wolf, Case No. 98CA2 (Athens 11/18/98), 1998WL853174. See, also, Bruns v. Bruns, Case No. E-99-009 (Erie 10/19/99).
Keywords: gun ban
In response to appellant's argument that a four-month old assault is too remote to establish fear of imminent physical harm, one state supreme court ruled "past actions act as relevant and pragmatic evidence in assisting the court's determination of whether domestic violence is actual or imminent." "Imminent" means "near at hand; mediate rather than immediate: closer rather than touching; impending; on the point of happening; threatening; menacing; perilous.... Imminent means close in point of time, but closeness is likewise a term of many degrees, according to the circumstances." [at 80, citations omitted]. A trial court "need not await a more tragic event to take action." Steckler v. Steckler, (N. Dakota 1992), 492 N.W.2d 76.
Deposition of Plaintiff Barred
Defendant's motion to depose the plaintiff in a domestic violence action was denied. Allowing a represented alleged perpetrator to depose a victim perpetuates the cycle of power and control that keep the victim powerless, which is inconsistent with the legislative purpose and intent. Therefore questioning of the victim must be done in the presence of the judge at a hearing to insure that it is done fairly and that victims are not revictimized by the process they turned to for protection. Depos v. Depos, 704 A.2d 1049 (N.J. 1997).
CPO May Not Be Issued Against Petitioner Unless Certain Conditions Are Met
Judgment granting CPO against first petitioner for a CPO was reversed because respondent failed to comply with the requirements of R.C. 3113.31(E)(4), and, in particular, his failure to serve petitioner with notice of the respondents petition at least 48 hours before the court hearing on petitioners petition or to obtain petitioners waiver of the right to receive the notice. Petitioner was not served with notice of respondents petition until the same day as the scheduled hearing on petitioners petition. Patterson v. Gooderham, Case No. 99CA02 (Gallia 10/20/99).
Keywords: mutual, service, mutual protection order
Stalking Behavior Is Grounds For CPO
Respondent engaged in a course of bizarre behavior over a period of about two weeks that made petitioner afraid that he would hurt her. The behavior attributed to respondent (coming uninvited to petitioner's residence, watching her from a nearby store, chasing her around the house, ripping open the screen door, lying under her car behind the rear wheels, and grilling her about reconciliation) satisfied the "pattern of conduct" requirement, and the trial court reasonably concluded that respondent knew that his bizarre behavior would cause petitioner to believe he would cause her physical harm. This is so "even if some of his actions constituting this behavior, considered in isolation, might not appear to be particularly threatening." Still v. Still, Case No. 17416 (Montgomery 4/23/99).
Keywords: danger, fear
Corroboration Need Not Be By Eyewitness
Where wife testified-to long history of insults, assaults, threats, verbal abuse, physical abuse, and intimidation, and where the only corroboration was testimony of wife's mother, who had only witnessed the consequences of the altercations, evidence was sufficient for issuing a civil protection order. As the Ohio Supreme Court has noted, "Domestic violence is seldom committed in the presence of eyewitnesses." Hoffman v. Hoffman, Case No. 18809 (Summit 7/29/98).
No Applicable Statute of Limitations For Bringing A CPO Petition
No abuse of discretion in trial court issuing a CPO against ex-husband based on domestic violence that had happened at least nine months prior to filing of the CPO petition. The occurrence of verbal, physical, and sexual abuse over a period of years in the parties marriage and the fact that the perpetrator was a law enforcement officer laid the basis for finding that there remains "a present threat of future violence." Morris v. Stonewall, Case No. CA-99-04-012 (Clinton 11/15/99).
Keywords: time, old, recent
Imminence Requirement Liberally Interpreted
Respondent's threatening phone calls and telephone messages constituted domestic violence. "Imminent" means "ready to take place," "near at hand," "impending," "hanging threateningly over one's head," or "menacingly near." Based on the ordinary definition of "imminent," the imminence requirement does not require that the offender carry out the threat immediately or be in the process of carrying it out. The critical inquiry under the statute is whether a reasonable person would be placed in fear of imminent (in the sense of unconditional, noncontingent) serious physical harm. This inquiry necessarily involves both subjective and objective elements. Strong v. Bauman, Case Nos. 17256 and 17414 (Montgomery 5/21/99).
Trial court had sufficient evidence to grant a CPO where husband grabbed wife by the throat and told her she would be sorry if she continued with her divorce action. Yoel v. Yoel, Case No 97-L-219 (Lake 11/20/98).
No Showing of Visible Marks or Injuries Required To Prove DV
Court of appeals affirmed trial courts issuance of CPO based on evidence that husband pinned wife against the wall, that her left breast was sore for three or four days afterward, and husband threw silverware and a plate into the kitchen sink. No visible marks or injuries are required. Bruns v. Bruns, Case No. E-99-009 (Erie 10/15/99).
A Pennsylvania man is entitled to have the record of a protection order case expunged after the case was dismissed for lack of timely action, according to that state's supreme court. Despite the lack of any provision in state law for expungement of protection order records, the court found that the petition which was filed against the man is damaging to his reputation as an evaluator in interstate child custody matters, and could seriously affect his credibility as an expert witness. P.E.S. v. K.L., Case No. 1592 Phil 1997 (Pa Super Ct 10/15/98), 25 FLR 1009.
CPO Denial Unjustified
The domestic relations court's denial of a civil protection order to the petitioner, with only an admonition to respondent to 'try to control yourself,' was against the manifest weight of the evidence and an error, where petitioner testified she was knocked off a chair and then choked in front of her daughter, and respondent admitted grabbing her by the neck and "knocking her over." Sroka v. Sroka (Cuyahoga 1997), 121 Ohio App.3d 728.
Goading Not A Defense To DV Charges
The court of appeals rejected respondent's argument that the judgment against him should be reversed because his mother (petitioner) "was attempting to goad him" into violence with such comments as "hit me again," "do it." The provisions of R.C. 2919.25 neither provide an exception nor make a defense for "goading by the victim of domestic violence." State v. Sayres, Case No. 95CA30 (Washington 3/26/97), 1997WL142361.
Danger of Future Violence
Court of appeals affirmed trial courts judgment granting a CPO even though no "physical violence" had occurred. The court looks for the danger of future violence, not proof of past violence. R.C. 3113.31's definition of domestic violence encompasses acts of stalking and other acts not involving physical violence. Thus, the lack of physical abuse does not foreclose a finding that a petitioner is in danger of domestic violence and entitled to a CPO. Gooderham v Patterson, Case No. 99CA01 (Gallia 11/09/99).
Threatening Behavior Without Verbal Threat Sufficient
Slashing the tires on wife's car with a 12-inch kitchen knife taken from the couple's kitchen during an argument, then forcing his way back into the home, was sufficient to justify issuance of a civil protection order against husband. Husband never threatened force against wife, but appeals court found, "a threat of force need not be conveyed expressly; it may just as well be conveyed implicitly by conduct. Conduct which is threatening in nature is no less threatening simply because it is unaccompanied by verbal expressions of the threat" (at 7). A dissenting opinion argued that husband's action would not place a reasonable person in fear of imminent serious physical harm, and thus the CPO should be denied. Siouffi v. Siouffi, Case No. 17113 (Montgomery 12/18/98).
No Protection order For Consensual Abuse
Finding that the parties practiced a dominant-submissive relationship throughout their relationship, including punishment by the man of the woman, with her consent, by hitting her on the buttocks with a belt, an Oregon Appeals Court ruled that the woman was not entitled to a restraining order against her ex-husband. Even assuming such conduct constitutes "abuse' under the state's family protection statute. the woman failed to establish that she was in immediate and present danger of further abuse. Boldt v. Boldt, Case No. A99286 (Ore Ct App 7/15/98).
Objective Basis For Fear Justifies Protection order
Court was justified in issuing a civil protection order to a woman who testified of her fear of her husband, hid out from him, and returned to the marital residence only with a police officer. Husband's allegation that wife's fear was caused by her history of mental illness was rejected where there was no evidence she was delusional on day in question and she had rational objective basis for her fear (including husband's death threats and his 75 guns in a safe at the residence). Sitton v. Sitton, Case No. 17262 (Montgomery 2/5/99).
Victim's Subjective State of Mind
The trial court reasonably believed that respondent's actions had caused his wife (respondent) to be in "fear of imminent serious harm." This is a subjective state of mind and, in Ohio, that is enough to justify a court's issuance of a civil protection order. Yoel v. Yoel, Case No. 97-L-219 (Lake 11/20/98).
Victims Testimony Alone Is Sufficient For Finding, By A Preponderance of The Evidence, Domestic Violence
Based on Felton v. Felton, the court reiterated the fact that the victims testimony alone is sufficient to prove, by a preponderance of the evidence, the alleged domestic violence, and therefore, to grant a CPO. In addition, the magistrate made specific notes about the victims demeanor and credibility, and as the trier of fact, he was in the beset position to make this decision. Stanley v. Stanley, Case No. 99-CA-203, 2001 Ohio App. LEXIS 4264 (Mahoning 9/17/01).
Keywords: corroboration, burden of proof, witness, witnesses
Prior, Dissolved CPO Is Not Enough Evidence For Granting A New order
Neither the appellants overall reputation for violent behavior nor his threat to do violence to himself, equate to an overt act of violence or a threat toward the appellee. It is not enough to rely on a prior, dissolved CPO as the sole basis for granting an entirely new order. Therefore, there was insufficient evidence to issue a new CPO. Anderson v. Anderson, Case No. 00-C.A.-89, 2001 Ohio App. LEXIS 5957 (Mahoning 12/19/01).
Keywords: renew, renewal, duration
Not Necessary To Show Immediate and Present Danger For Issuance of CPO
In order to grant a CPO, a trial court must find that petitioner has shown that the petitioner, or petitioners family or household members, are in danger of domestic violence. The standard of "immediate and present danger of domestic abuse" only refers to the issuance of temporary CPOs after an ex parte hearing. Morris v. Stonewall, Case No. CA99-04-012 (Clinton 11/15/99).
CPO Requires That Appellee/appellant Resided Together
Although there was competent evidence showing that appellant threatened the appellee, there was insufficient evidence demonstrating that appellee and appellant (brother) resided together at some time in the past. The holding did not preclude appellees from refiling for a CPO for future events, as long as they resided together at some point in the past. Maglionico v. Maglionico, Case No. 2000-P-0115, 2001 Ohio App. LEXIS 5053 (Portage 11/9/01).
Keywords: brothers, siblings, living together
Sixty-second Reporting Requirement Held Invalid
It was unreasonable for the trial court to require that the victim report a violation of her domestic violence civil protection order within 60 seconds, as the time regulation was both arbitrary and absurd. In addition, both the "60-second" language and the language ordering that the victim "shall not encourage nor permit any violation" of the order violated the statutory prohibition against the issuance of mutual protection orders in R.C. 3113.31(E)(4). The record was devoid of any reasoning for this requirement, rendering the refusal to grant a CPO an abuse of discretion. Gibson v. Redman, Case No. 00-JE-23, 2001 Ohio App. LEXIS 5221 (Jefferson 11/6/01).
Keywords: mutual restraining order, mutual protection order, against victim