[Cite as Detrick v. Preece,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

LINDSAY DETRICK,

PETITIONER-APPELLEE, CASE NO. 8-12-17

v.

CHAD PREECE, OPINION

RESPONDENT-APPELLANT.

Appeal from Logan County Common Pleas Court Domestic Relations Division Trial Court No. CP12-04-0068

Judgment Reversed and Cause Remanded

Date of Decision: June 17, 2013

APPEARANCES:

Miranda A. Warren for Appellant

Scott Nelson Barrett for Appellee Case No. 8-12-17

WILLAMOWSKI, J.

{¶1} Respondent-Appellant Chad Preece (“Preece”) brings this appeal from

the judgment of the Common Pleas Court of Logan County, Domestic Relations

Division granting a civil protection order (“CPO”) to Petitioner-Appellee Lindsay

Detrick (“Detrick”) preventing Preece from having contact with Detrick, her

family, or their daughter Alexandrea. For the reasons set forth below, the

judgment is reversed.

{¶2} Preece and Detrick were married on December 31, 2001, and

Alexandrea was born on August 27, 2002. On September 25, 2009, the trial court

granted a divorce to Preece and Detrick following a contentious divorce which

involved a lengthy custody battle. Detrick was named the residential parent by the

trial court. On November 8, 2010, Preece filed a motion for shared parenting time.

On April 11, 2012, Detrick contacted Children’s Services of Logan County and

claimed that Preece had made a threat against her life to Alexandrea. She also

alleged that Preece was viewing pornography while Alexandrea was in the home,

had twisted Alexandrea’s arm, and had taken Alexandrea’s toys away from her

during visits. As a result, she claimed that Alexandrea was suffering emotional

harm and was afraid of her father. Detrick also filed a motion for a CPO based

upon the above allegations along with alleged prior threats to her safety that

Preece allegedly said to Alexandrea. An ex parte order of protection for Detrick

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and Alexandrea was issued requiring Preece to stay 100 yards away from them

and Preece’s visitation rights were suspended.

{¶3} A full hearing was held on July 11, 2012. At the hearing, Megan

Christenson (“Christenson”), an investigator for Children’s Services of Logan

County, testified that she had investigated the allegations. She testified that

Detrick had told her that Alexandrea had told her that Preece had told Alexandrea

that she better learn to drive a car so that she could stop the car when he shot

Detrick in the head. Preece’s attorney objected to the triple hearsay of the

statement. The objection was overruled on the grounds that the statement was not

offered to prove the truth of the matter asserted, but merely to show why she

conducted the investigation. Christenson also testified that she had interviewed

Alexandrea. Christenson testified that Alexandrea had told her that Preece made

the statement while they were all sitting in the living room watching television.

Christenson then stated that Alexandrea’s fear and concern were resulting in her

having trouble sleeping and that Alexandrea was wetting the bed. Christenson

also testified that she spoke to Detrick and questioned her. She testified that she

found Alexandrea and Detrick to be credible. Preece’s counsel objected to her

testifying as to the credibility of Alexandrea and Detrick, but the objection was

overruled.

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{¶4} Christenson further testified that she spoke with Preece as well. He

denied all of the allegations. He also denied that he even owned a firearm. Due to

the nightmares and bedwetting, Christenson found the claim to be substantiated

and sent a letter stating that Preece had committed emotional maltreatment. The

case was then closed with no further action by the agency. On cross-examination,

Christenson admitted that she had been unaware of the lengthy and antagonistic

custody battle. She also admitted that she did not really know how long the

nightmares and bedwetting had been occurring. Finally, she admitted that some

children subjected to custody battles could exhibit similar symptoms.

{¶5} Detrick was the next party to testify. She testified that Alexandrea

told her that Preece had told Alexandrea that she needed to learn to stop the car

because he was going to drive up beside them and shoot Detrick in the head.

Preece’s attorney again objected due to hearsay, but it was again admitted as not

being offered to prove the truth of the matter asserted, but to lay a foundation for

her actions. She claimed that Alexandrea was very afraid of her father. She also

testified that the fear manifested itself by Alexandrea having nightmares and

wetting the bed. She then recounted to the court an incident where they saw

Preece in his vehicle while leaving a store. She claimed that Alexandrea was so

terrified that she could barely walk. She testified that Alexandrea kept saying

“there’s my dad” and that he had seen them. According to Detrick, Alexandrea

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had cried for an hour afterward. She interpreted that as Alexandrea being afraid of

her father and testified that Alexandrea was terrified of going to her father’s home.

On cross-examination she admitted that she wanted Preece’s visitation reduced,

though she was willing to still allow him to see his daughter. She did admit that

Alexandrea had had ongoing problems with bedwetting and nightmares since the

divorce several years prior.

{¶6} The final witness was Alexandrea. Alexandrea testified that she was a

fourth grade student. On direct examination, she was asked whether she had told

her mother anything her father had said about her mother. Her answer was no.

When asked if her father had ever told her that she should learn to drive a car, her

response again was no. Upon questioning by the court, Alexandrea stated that if

she could make the decision, she would like equal time with both parents. She

testified that she missed her father. She stated that she had seen her father at the

store, but did not remember being upset by it. She also testified that she did not

have nightmares and was not wetting the bed anymore. She did not testify that

any negative statements concerning her mother’s safety had been made. She did

not testify that she was afraid of her father harming anyone.

{¶7} At the conclusion of the hearing, the magistrate granted the request for

the CPO. The order was for six months. Preece filed objections to the

magistrate’s decision on September 18, 2012. On November 7, 2012, the trial

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court overruled the objections and adopted the magistrate’s decision. Preece

brings this appeal from that decision and raises the following assignments of error.

First Assignment of Error

It was an abuse of discretion and against the manifest weight of the evidence when the trial court granted an order of protection to [Detrick] and her minor child.

Second Assignment of Error

The court committed plain error by permitting the admission of hearsay testimony over the objection of [Preece].

{¶8} Initially, this court notes two things. First, Detrick has chosen to not

file a brief in response to Preece’s. Pursuant to Appellate Rule 8(C), this court

may accept Preece’s statement of facts as accurate. Second, the CPO has expired.

Although the CPO has expired, the issue is not moot as the existence of such is a

factor to consider in any future custody proceedings.

{¶9} In the first assignment of error, Preece claims that the granting of the

CPO was against the manifest weight of the evidence. A CPO can be granted

when the petitioner shows by a preponderance of the evidence that the petitioner

or the petitioner’s family members are in danger of domestic violence. R.C.

3113.31(D). Domestic violence has been defined as follows.

“Domestic violence” means the occurrence of one or more of the following acts against a family or household member:

(a) Attempting to cause or recklessly causing bodily injury;

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(b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of [R.C. 2903.211 or 2911.211];

(c) Committing any act with respect to a child that would result in the child being an abused child, as defined in [R.C. 2151.031];

(d) Committing a sexually oriented offense.

R.C. 3113.31(A)(1). Generally, judgments regarding CPO’s that are supported by

competent, credible evidence going to all of the essential elements will not be

reversed as being against the manifest weight of the evidence. Bryan-Wollman v.

Domonko,

,

.

{¶10} A review of the evidence shows that Detrick did not know if the

alleged statement was actually made or not. She testified that she was only afraid

if the allegations were true. She also testified that she had previously heard that

Preece had threatened her two years prior, but again, the statements were not made

to her and she had no knowledge if they were actually made. She did know that

Preece had never acted on the alleged first threat. Detrick claimed that Alexandrea

was terrified, but Alexandrea testified to the opposite. She stated that she missed

her father and wanted to spend time with him and her mother equally. The only

testimony to the alleged statement was made by Christenson in the form of double

and triple hearsay and Detrick repeating a double hearsay statement. This

evidence was not offered for the truth of the matter asserted, but rather to provide

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a background as to why certain actions were taken. Alexandrea, the only witness

to have allegedly heard the statement denied that it was made. The supposed

physical manifestations of Alexandrea’s fear were not limited to the time when the

alleged statement was made. Instead, the nightmares and bedwetting were a

recurring problem that had been resurfacing periodically whenever Alexandrea

was stressed. Most of the stress seemed to be coming from her parents’ ongoing

custody disputes. Without any evidence offered to prove that the alleged

statement by Preece was ever made and the allegation being denied by the person

to whom it was allegedly made, there is no evidence to support the conclusion that

a CPO was necessary. Thus, the trial court erred in granting the CPO. The first

assignment of error is sustained.

{¶11} Having sustained the first assignment of error and found that the trial

court’s order granting the CPO was against the manifest weight of the evidence,

the second assignment of error is moot. Therefore, this court will not address the

issue further. App.R. 12(A)(1)(c).

{¶12} The judgment of the Court of Common Pleas of Logan County,

Domestic Relations Division is reversed and remanded.

Judgment Reversed and Cause Remanded

PRESTON, P.J. and SHAW, J., concur.

/jlr

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