[Cite as Kranek v. Richards,

.]

STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

CHRISTIAN KRANEK ) CASE NO. 11 JE 2 ) PETITIONER-APPELLEE ) ) VS. ) OPINION ) SARAH J. RICHARDS ) ) RESPONDENT-APPELLANT )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 10DR227

JUDGMENT: Affirmed in part. Reversed in part. Remanded.

APPEARANCES:

For Petitioner-Appellee: Christian Kranek, Pro se 111 Euclid Street Amsterdam, Ohio 43903

For Respondent-Appellant: Atty. Peter S. Olivito 606-612 Sinclair Building Steubenville, Ohio 43952

Atty. Kristopher M. Haught 2021 Sunset Boulevard Steubenville, Ohio 43952

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: December 7, 2011 [Cite as Kranek v. Richards,

.] WAITE, P.J.

{1} Appellant Sarah J. Richards appeals the judgment of the Jefferson

County Court of Common Pleas which issued a four-year Civil Stalking Protection

Order (“CSPO”) against her in favor of Appellee Christian Kranek (“Christian”), along

with Appellee’s wife Nicholette Kranek (“Nicholette”), and three children, C.K.1 (one

month old), C.K.2 (one year old), and J.K. (ten years old). Appellant and Christian

were talking on the phone about visitation issues regarding their child J.K. when

Appellant threatened to kill him and his family. Three weeks later, Christian received

a threatening message on his answering machine, and identified Appellant’s voice on

the recording. A CSPO must be based on a pattern of conduct, and two incidents

closely related in time constitutes a pattern of conduct. R.C. 2903.211(D)(1). Even

though Christian has not responded to this appeal, the record does not reasonably

support reversal. However, the record does reflect that the court told the parties it

would dismiss the CSPO with respect to the child J.K., as all custody issues

pertaining to that child file was under the jurisdiction of another court. The trial court

failed to dismiss as to J.K. Hence, the judgment is partially reversed and the case

remanded for the trial court to file a corrected judgment entry removing J.K. from the

CSPO.

{2} On August 3, 2010, Christian filed a petition for a CSPO against

Appellant. Appellee sought relief for himself, his wife, and three children. The court

granted a temporary protection order and set a full hearing for August 20, 2010.

Appellant, Christian and Nicholette testified at the hearing. Christian and Nicholette

both described the phone call of July 30, 2010. Christian had called Appellant to -2-

discuss visitation issues regarding their child J.K. (Tr., p. 14.) J.K. was speaking to

Appellant, but the child became upset and started to cry, then left the room. (Tr., p.

6.) Christian picked up the phone and Nicholette activated the speaker phone

feature so that she could hear the conversation. Nicholette heard Appellant say, “I’ll

kill you and your family.” (Tr., p. 6.) Christian heard Appellant say: “I’ll kill you and

your whole family.” (Tr., p. 15.) Christian also heard Appellant say: “You know I’m

capable of it and if I can’t do it I know someone who will.” (Tr., p. 15.)

{3} Approximately 30 minutes after the phone call, a police officer arrived at

the house due to a report of child abuse made by Appellant to the Madison County

Sheriff’s Department. (Tr., p. 8.) The officer found that J.K. was fine, and took a

report about the threatening phone call made by Appellant. When Nicholette wrote

down what Appellant had said, she left out the word “kill” and wrote: “I’m going to

and you and your family.” (Tr., p. 9.) She testified in court, though, that Appellant

said she was going to kill them.

{4} Christian and Nicholette also testified about a message left on their

telephone answering machine on August 19, 2010, in which the caller said: “I’m

going to get you. I’m hiding. I’m waiting for you[.]” (Tr., p. 18.) Christian and

Nicholette both recognized Appellant’s voice leaving this message. (Tr., pp. 11, 18.)

{5} Christian testified that, sometime before J.K.’s birth in 2000, Appellant

threw an ashtray at him that left a permanent scar. (Tr., p. 21.) There was also

testimony that Appellant displayed a gun to Nicholette during a custody exchange of

J.K. (Tr., p. 11.) This incident occurred in a McDonald’s restaurant approximately 18 -3-

months prior to the death threat in July of 2010. One other incident mentioned in the

record is a threat Appellant made to Nicholette: “About a year-and-a-half ago

[Appellant] was telling me, you know, I just need to butt out, mind my own business

or else she’ll kick my butt.” (Tr., p. 13.)

{6} During the CSPO hearing, the parties explained to the court that

Appellant had permanent custody of J.K. and that Christian had visitation rights.

Custody and visitation had initially been decided by the Jefferson County Court of

Common Pleas, Juvenile Division. Jurisdiction over the juvenile was then transferred

to the Madison County Court of Common Pleas, Juvenile Division, after Appellant

moved to that county. The trial judge determined that judicial custody of J.K. fell

under the jurisdiction of Madison County and that the CSPO would be dismissed as

to J.K. (Tr., pp. 35-36.)

{7} On August 26, 2010, the court filed its judgment entry making the

CSPO permanent until August 3, 2014. On September 1, 2010, Appellant filed a

request for findings of fact and conclusions of law. On January 5, 2011, the court

issued its findings. The court made several findings: that custody, visitation and

child support were contested; that Appellant threatened to kill Christian and his family

due to the custody dispute; and that Appellant was responsible for multiple threats of

physical harm that were designed to cause mental distress in order to influence the

outcome of the custody dispute. The court determined that the evidence showed a

pattern of threats of physical harm against the persons listed on the CSPO petition. -4-

{8} Appellant filed this timely appeal on February 3, 2011. Appellee has

not responded to this appeal. According to App.R. 18(C), we “may accept the

appellant's statement of the facts and issues as correct and reverse the judgment if

appellant's brief reasonably appears to sustain such action.”

{9} Although Appellant lists four assignments of error, the first three

assignments deal with specific facts found by the court and these findings all relate to

the fourth assignment of error challenging the manifest weight of the evidence. For

these reasons, all the assignments will be treated together.

ASSIGNMENTS OF ERROR 1, 2, 3, AND 4

{10} “THE TRIAL COURT ERRED IN FINDING THAT CUSTODY,

VISITATION AND SUPPORT ARE CONTESTED.

{11} “THE TRIAL COURT ERRED IN FINDING THAT SARAH J.

RICHARDS MADE MULTIPLE THREATS OF PHYSICAL HARM DESIGNED TO

CAUSE MENTAL DISTRESS IN ORDER TO INDUCE CHRISTIAN KRANEK TO

FORGO ANY CUSTODY CHALLENGES.

{12} “THE TRIAL COURT ERRED IN FINDING THAT THE CONDUCT OF

SARAH J. RICHARDS CONSTITUTES A PATTERN OF THREATS OF PHYSICAL

HARM AND CAUSING MENTAL DISTRESS TO CHRISTIAN KRANEK AND THE

PERSONS LISTED ON THE PETITION FOR A DOMESTIC STALKING CIVIL

PROTECTION ORDER. -5-

{13} “THE TRIAL COURT [SIC] DECISION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY COMPETENT,

CREDIBLE EVIDENCE.”

{14} In this appeal, Appellant is challenging the factual basis of the trial

court’s judgment. Thus, Appellant’s manifest weight of the evidence argument

encompasses all issues raised in this appeal. R.C. 2903.214 governs the issuance

of a CSPO. The petitioner must demonstrate, by a preponderance of the evidence,

that the respondent has engaged in menacing by stalking. Strausser v. White, 8th

Dist. No. 92091,

, ¶30 The decision whether to grant a CSPO is

within the trial court's sound discretion. See, e.g., Smith v. Wunsch,

,

,

. “The term ‘abuse of discretion’

connotes more than an error of law or of judgment; it implies that the court's attitude

is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983),

,

. Moreover, “an appellate court may not simply

substitute its judgment for that of the trial court so long as there is some competent,

credible evidence to support the lower court findings.” State ex rel. Celebrezze v.

Environmental Enterprises, Inc. (1990),

,

.

{15} When an appellate court reviews a trial court's judgment, the appellate

court must generally defer to the fact-finder's weighing of the evidence credibility

determination. See, e.g., Seasons Coal Co., Inc. v. Cleveland (1984),

,

. -6-

{16} Appellant first contends that the trial court made findings and issued

rulings over the custody and child support of J.K. that were outside its authority

because another court, the Madison County Court of Common Pleas, Juvenile

Division, already has jurisdiction over custody matters regarding J.K. Although

Appellant does not cite any law to support this contention, she is correct. A standard

CSPO contains many sections that potentially relate to parental rights and child

custody issues. Sup.R. Form 10.03-F. If a child is protected by the order and a

parent is the respondent bound by the order, then most aspects of the CSPO will

necessarily affect parental rights in some way. The order may prohibit a parent from

having contact with a child, from visiting the child, or from residing with the child. The

CSPO may order the parent not to be in the same vehicle with the child, take

vacations with the child, or enter the child’s school or day care center. Custody and

visitation would terminate, as a practical matter, if the order contains the standard

provision requiring the respondent to stay 500 feet away from the victim.

{17} We recently held that “when the domestic relations court presiding over

the [civil protection order] is not the court that has jurisdiction over parental rights and

responsibilities, the domestic relations court has no authority to issue orders

regarding parental rights or visitation. Every court that has looked at this issue has

come to the same conclusion.” McCue v. Marlin,

, 2010-Ohio-

1298,

. “A common pleas court does not have jurisdiction * * *

where a juvenile court in the same county has already made a determination of

parental rights and responsibilities.” Couch v. Harrison (Feb. 12, 2001), 12th Dist. -7-

No. CA2000-08-063, *4. “[A] trial court issuing a CPO may temporarily allocate

parental rights and responsibilities for the minor children if no other court has

previously or is concurrently doing so.” Parker v. Jamison, 4th Dist. No.

02CA002857,

. Any provisions of a civil protection order that

attempt to usurp the final child custody orders of another court cannot be enforced.

{18} The trial court in this case recognized that the juvenile court of Madison

County had issued custody orders regarding J.K., and thus, the judge notified the

parties at the CSPO hearing that J.K. would be removed from the CSPO. The court

failed to do this in its judgment entry, and for that reason, the case must be

remanded to the trial court to make that correction.

{19} The second and third issues raised by Appellant involve the court’s

finding that she made multiple threats that constituted a pattern of conduct.

Appellant does not agree that there were multiple threats involved, here. To review

this matter, we must first look to the elements that must be proven to warrant the

issuance of a CSPO. R.C. 2903.214 contains the procedure for filing a “petition for

protection order.” R.C. 2903.214(C) provides:

{20} “A person may seek relief under this section for the person, or any

parent or adult household member may seek relief under this section on behalf of any

other family or household member, by filing a petition with the court. The petition

shall contain or state all of the following: -8-

{21} “(1) An allegation that the respondent is eighteen years of age or older

and engaged in a violation of section 2903.211 of the Revised Code against the

person to be protected by the protection order or committed a sexually oriented

offense against the person to be protected by the protection order, including a

description of the nature and extent of the violation;” (Emphasis added.)

{22} At the heart of a CSPO is an allegation that the accused committed

menacing by stalking as defined by R.C. 2903.211. Before a court may grant a

CSPO, a petitioner must demonstrate, by a preponderance of the evidence, that the

respondent has engaged in menacing by stalking. Strausser v. White, 8th Dist. No.

92091,

, ¶30; Caban v. Ransome, 7th Dist. No. 08MA36, 2009-Ohio-

1034, ¶7. Turning, then, to the appropriate statute governing stalking, R.C.

2903.211(A)(1), it provides: “No person by engaging in a pattern of conduct shall

knowingly cause another person to believe that the offender will cause physical harm

to the other person or cause mental distress to the other person.”

{23} “ ‘Pattern of conduct’ means two or more actions or incidents closely

related in time, whether or not there has been a prior conviction based on any of

those actions or incidents.” R.C. 2903.211(D)(1). One incident is insufficient to

establish a “pattern of conduct.” McKinley v. Kuhn, 4th Dist. No. 10CA5, 2011-Ohio-

134, ¶15; State v. Scruggs (2000),

,

. In

determining what constitutes a pattern of conduct for purposes of R.C.

2903.211(D)(1), courts must take every action into consideration “even if some of the

person's actions may not, in isolation, seem particularly threatening.” Guthrie v. -9-

Long, 10th Dist. No. 04AP-913,

; Miller v. Francisco, 11th Dist.

No.2002-L-097,

, ¶11.

{24} The pattern of conduct described in R.C. 2903.211(D)(1) must occur

“closely related in time”. “R.C. 2903.211 does not attempt to define or give further

meaning to the phrase ‘closely related in time.’ ” State v. Bone, 10th Dist. No. 05AP-

565,

. “Consequently, ‘whether the incidents in question were

“closely related in time” should be resolved by the trier of fact “considering the

evidence in the context of all the circumstances in the case.” ’ ”

quoting State v.

Dario (1995),

,

. It has been held that “[t]he

incidents need not occur within any specific temporal period.” Jenkins v. Jenkins,

10th Dist. No. 06AP-652,

. A period of eight months has been

accepted as being closely related in time to support a CSPO. McKinley, supra.

{25} The CSPO in this case appears to have been based on two main

incidents. The first occurred on July 30, 2010. This was the phone call in which

Appellant threatened to kill Christian and his family. The second is the phone

message from August 19, 2010, in which the caller said: “I’m going to get you. I’m

hiding. I’m waiting for you[.]” (Tr., p. 18.) Christian and Nicholette both testified that

they heard Appellant’s voice leave this message. (Tr., pp. 11, 18.) Although the

second incident is not as threatening as Appellant’s initial statement that she would

kill Christian and his family, it can be seen as shorthand repetition of the initial threat.

Since a pattern of conduct can be established with two incidents, the record supports

the trial court’s findings, and, thus, supports the issuance of the CSPO. Additional -10-

relevant evidence can also be found in the record. Appellant has inflicted bodily

harm in the past, as related in the incident in which Appellant threw an ashtray at

Appellee that left a permanent scar. Christian and Nicholette were also aware that

Appellant had purchased a handgun, and she publicly displayed it to Nicholette

during a custody exchange at a McDonald’s Restaurant in Zanesville, Ohio. (Tr., p.

11.) Nicholette also testified that Appellant threatened to do her some harm. (Tr., p.

13.) Thus, there appeared to be an extended pattern of threats and violence,

culminating in the two instances occurring on July 30 and August 19, 2010. Because

these two incidents occurred less than three weeks apart, there can be no question

that the two incidents were closely related in time to one another.

{26} At the CSPO hearing, Appellant contradicted the testimony of Christian

and Nicholette. She stated that she never made a death threat. (Tr., p. 27.) The

court apparently did not believe her version of the events. “The trier of fact is free to

believe or disbelieve any witness * * *.” Sims v. Dibler,

, 2007-

Ohio-3035,

. “The trier of fact is free to believe all, part or none

of the testimony of each witness.” State v. Jackson (1993),

,

.

{27} Appellant’s fourth assignment of error simply restates that she is

challenging the manifest weight of the evidence. Since there is some competent,

credible evidence that, if believed, supports the trial court’s findings, there is nothing

unreasonable, arbitrary or unconscionable in its determination that the findings

warrant the issuance of a permanent CSPO. While the issuance of this CSPO is -11-

valid, it is apparent from the record that the trial court should have deleted J.K. from

the CSPO because jurisdiction of this child fell to the juvenile court of Madison

County. Because the trial judge stated on the record that it would dismiss the CSPO

as to J.K., the judgment entry should have been so modified.

{28} In conclusion, the record supports a pattern of threats made by

Appellant against Christian Kranek, Nicholette Kranek, and the three children listed in

petition for a CSPO. A pattern may be established with two incidents, and two

incidents are clearly proven in the record. The trial court erred, however, in failing to

comply with its decision to dismiss the minor child J.K. from the CSPO. The court

found that J.K. was under the jurisdiction of the juvenile court of Madison County and

announced to the parties in open court that J.K. would be deleted from the CSPO. In

light of the trial judge’s finding and the fact that Appellee has not filed a brief in this

appeal, we partially sustain Appellant’s first and fourth assignments of error. The

judgment of the trial court is reversed with respect to J.K., and the case is remanded

for the trial court to remove J.K. from the CSPO.

Donofrio, J., concurs.

Vukovich, J., concurs.