[Cite as J.M. v. M.M.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

J. M. C.A. No. 15CA0057-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE M. M. COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 15DV0113

DECISION AND JOURNAL ENTRY

Dated: August 15, 2016

SCHAFER, Judge.

{¶1} Respondent-Appellant, M.M. (“Father”), appeals the judgment of the Medina

County Court of Common Pleas, Domestic Relations Division, granting a domestic violence civil

protection order in favor of Petitioner-Appellee, J.M. (“Mother”), and their two children, G.M.

and A.M. We reverse.

I.

{¶2} Mother and Father were divorced in 2008 after approximately 15 years of

marriage. The parties have two minor children, G.M., and A.M. As part of the parties’ shared

parenting plan, Father was granted parenting time with his three children. In 2014, Father was

exercising his parenting time when a physical altercation transpired between him and his two

teenage sons, G.M. and A.M. This altercation resulted in G.M. and A.M. being charged with

aggravated assault against their father in the Medina County Court of Common Pleas, Juvenile

Division, where the Juvenile Court ultimately adjudicated the children delinquent. The Juvenile 2

Court ordered that Father’s parenting time with his children be held only in public places and

prohibited Father from transporting G.M. and A.M. If G.M. and A.M. did not cooperate with the

Juvenile Court’s visitation order, they faced a potential penalty of 86 days in juvenile detention.

{¶3} On May 15, 2015, Mother and Father agreed to meet in a public place so that

Father could exercise his parenting time with G.M. and A.M. The location that the parties

mutually selected was a McDonald’s restaurant in Jackson Township, Ohio, which is located

directly across the street from Walsh University. Mother testified that she and her two sons

arrived at the McDonald’s at 6:00 p.m. and waited inside the restaurant for Father to arrive.

According to Mother, Father’s mother arrived to pick up the children and take them back to her

house where they would visit with Father. However, G.M. and A.M. both refused to go with

their grandmother because they were only permitted to visit with their father in a public place,

per the Juvenile Court’s visitation order. The grandmother then called Father and informed him

of the children’s refusal to go home with her. Father subsequently drove to the McDonald’s to

confront his sons and ex-wife.

{¶4} Mother testified that when Father arrived at the McDonald’s, he appeared very

agitated and instructed his sons to leave with their grandmother or else he would call the police

and have them sent to juvenile detention. G.M. and A.M. again refused to leave, citing the

Juvenile Court’s visitation order. According to Mother, Father sat down nearly on top of A.M. in

one of the booths and yelled in A.M.’s ear that if he and his brother did not leave with their

grandmother, they would go to juvenile detention. Mother testified that Father’s actions and

demeanor made G.M. feel uncomfortable, to the point where G.M. walked away and sat down at

another table. When the boys again refused to leave the McDonald’s, Father began filming 3

everybody on his cellphone, which Mother said frightened and intimidated her. Father then

called the police and walked outside of the restaurant.

{¶5} Two police officers soon arrived at the scene, where one officer spoke with Father

and the two children outside of the restaurant while the other officer spoke to Mother inside of

the McDonald’s. G.M. and A.M. soon rejoined their mother inside of the restaurant, where they

all waited for Father to drive away. When Father did not leave after several minutes, one of the

officers escorted Mother and her two sons to their vehicle. As Mother attempted to drive out of

the McDonald’s parking lot, she observed Father in his truck waiting for them to leave, as if he

was going to follow them once they pulled out of the McDonald’s driveway. Sensing that Father

was trying to follow them, Mother quickly drove across the street into the Walsh University

parking lot in an effort to lose Father. However, Father quickly followed Mother’s vehicle and

“chase[d] [her] through the parking lot” at a speed of approximately 20 miles per hour. Upon

noticing Father driving “on [her] tail,” Mother elected to turn around and drive back to the

McDonald’s parking lot, where the police officers were still located. Upon entering the

McDonald’s parking lot, one of the police officers waved for Mother to drive back towards him.

Father followed Mother’s vehicle in his truck, but when the police officers approached his truck,

Father drove away.

{¶6} On May 18, 2015, Mother petitioned for a domestic violence civil protection

order on behalf of herself and the parties’ three children, C.M., G.M., and A.M. A magistrate

held a full evidentiary hearing on Mother’s petition on May 25, 2015. At the full hearing, both

parties were represented by counsel, were provided with an opportunity to testify and ask

questions of the other party, and were given an opportunity to present evidence. Mother testified

at the full hearing that Father’s conduct on the day in question made her feel intimidated, unsafe, 4

and afraid. Mother stated that she filed for the domestic violence civil protection order because

she was “scared to death of [Father]”, not only because of his actions on the day in question, but

also because of his “lengthy history of abuse” against her and their children, which has transpired

“numerous times over multiple years.”

{¶7} At the conclusion of the hearing, the magistrate issued a five-year domestic

violence civil protection order that named Mother, G.M., and A.M. as protected persons. The

trial court approved and adopted the domestic violence civil protection order.

{¶8} Father filed this timely appeal, raising three assignments of error for this Court’s

review.

II.

Assignment of Error I

The trial court erred as a matter of law and abused its discretion in finding by a preponderance of the evidence that [Petitioner] or [Petitioner’s] family or household members are in danger or have been a victim of domestic violence or sexually oriented offenses denied in R.C. 3113.31(A) committed by [Respondent].

{¶9} In his first assignment of error, Father argues that Mother failed to offer sufficient

evidence to support the issuance of a domestic violence civil protection order against him.

Specifically, Father contends that Mother presented insufficient evidence demonstrating that

Father committed an act of domestic violence against either her or their children. We agree.

{¶10} “‘In order to grant a [domestic violence civil protection order], the court must

conclude that the petitioner has demonstrated by a preponderance of the evidence that the

petitioner * * * [is] in danger of domestic violence.’” M.K. v. J.K., 9th Dist. Medina No.

13CA0085–M, 2015–Ohio–434, ¶ 7, quoting B.C. v. A.S., 9th Dist. Medina No. 13CA0020–M,

2014–Ohio–1326, ¶ 7. When assessing the sufficiency of the evidence for a trial court's decision 5

to grant a civil protection order, “we must determine whether, viewing the evidence in the light

most favorable to [the petitioner], a reasonable trier of fact could find that the petitioner

demonstrated by a preponderance of the evidence that a civil protection order should issue.”

R.C. v. J.G., 9th Dist. Medina No. 12CA0081–M, 2013–Ohio–4265, ¶ 7, citing Eastley v.

Volkman,

, 2012–Ohio–2179, ¶ 11, and State v. Jenks,

(1991), paragraph two of the syllabus. A sufficiency challenge tests the adequacy of the

evidence.

. In applying the sufficiency standard, “‘we neither resolve evidentiary

conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of

fact.’” State v. Jarvis, 9th Dist. Lorain No. 14CA010667,

, quoting State

v. Jones, 1st Dist. Hamilton Nos. C–120570, C–120571, 2013–Ohio–4775, ¶ 33.

{¶11} Here, the trial court decided to issue the domestic violence civil protection order

based on its determination that the parties are “family or household members” as the phrase is

defined in R.C. 3113.31(A)(3), that Mother or members of Mother’s family or household are in

danger of or have been a victim of domestic violence by Father, and that the issuance of a

domestic violence civil protection order is “equitable, fair, and necessary to protect” Mother and

her children from future domestic violence. Father does not contest the trial court’s finding that

he and the Petitioners are family or household members. Rather, Father disputes the trial court’s

finding that he committed an act of “domestic violence,” as the phrase is defined under Ohio law.

{¶12} As defined in R.C. 3113.31(A)(1), the phrase “domestic violence” means the

occurrence of one or more of the following acts against a family or household member:

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

(b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 or 2911.211 of the Revised Code; 6

(c) Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Revised Code;

(d) Committing a sexually oriented offense.

In its order granting Mother’s petition for a domestic violence civil protection order, the trial

court did not specify which subsection of R.C. 3113.31(A)(1) that Father was found to have

committed. At the outset, we note that the only three subsections even remotely applicable to the

facts in the instant matter are R.C. 3113.31(A)(1)(a), (b), and (c). As such, we will address each

relevant subsection of R.C. 3113.31(A)(1) to determine whether sufficient evidence was

presented at the full hearing to justify the trial court’s issuance of a domestic violence civil

protection order.

A. Attempting to Cause or Recklessly Causing Bodily Injury

{¶13} The magistrate might have found Father to have violated section A of this

provision which prohibits “attempting to cause or recklessly causing bodily injury.” Bodily

injury encompasses “any injury, illness, or other physiological impairment, regardless of its

gravity or duration.” R.C. 2901.01(A)(3) (defining “physical harm to persons”). “A person acts

recklessly when, with heedless indifference to the consequences, the person disregards a

substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is

likely to be of a certain nature. A person is reckless with respect to circumstances when, with

heedless indifference to the consequences, the person disregards a substantial and unjustifiable

risk that such circumstances are likely to exist.” R.C. 2901.22(C).

{¶14} After a thorough review of the record, we determine that insufficient evidence

was presented to warrant the issuance of a domestic violence civil protection order pursuant to

R.C. 3113.31(A)(1)(a). None of the evidence presented during the full hearing on Mother’s

petition demonstrated by a preponderance of the evidence that Father attempted to cause bodily 7

injury to any of the Petitioners in this matter. In support of her argument that Father committed

an act of domestic violence under this subsection, Mother points to the fact that Father followed

and “tailed” her car in the Walsh University parking lot at a speed of 20 miles per hour. Mother

notes on appeal that a car can be used as a deadly weapon, and thus Father’s conduct of

following her in a car constitutes an act of domestic violence. Moreover, Mother testified that

this conduct by Father greatly frightened and intimidated her. However, we conclude that

Mother’s argument is without merit, as we cannot conclude that following another car at a

relatively low rate of speed in a parking lot, standing alone, constitutes an act of domestic

violence pursuant to R.C. 3113.31(A)(1)(a).

B. Fear of Imminent Serious Physical Harm

{¶15} Next, Father argues that insufficient evidence was presented at the full hearing to

warrant the issuance of a domestic violence civil protection order under R.C. 3113.31(A)(1)(b),

prescribing placing a family member in fear of imminent serious physical harm. When

reviewing a finding of domestic abuse under R.C. 3113.31(A)(1)(b), “the critical inquiry is

‘whether a reasonable person would be placed in fear of imminent (in the sense of unconditional,

non-contingent) serious physical harm[.]’” State v. McKinney, 9th Dist. Summit No. 24430,

2009–Ohio–2225, ¶ 11, quoting State v. Tackett, 4th Dist. Jackson No. 04CA12, 2005–Ohio–

1437, ¶ 14. In carrying out this inquiry, we refer to the Petitioners’ history with the respondent.

E.g., Wohleber v. Wohleber, 9th Dist. Lorain No. 10CA009924, 2011–Ohio–6696, ¶ 13.

However, previous incidents of domestic violence do not support a finding that the Petitioners’

fear of imminent serious physical harm was reasonable “‘absent an initial, explicit indication that

[they were] in fear of imminent serious physical harm on the date contained in the petition.’”

Chafin v. Chafin, 9th Dist. Lorain No. 09CA009721, 2010–Ohio–3939, ¶ 22, quoting Fleckner v. 8

Fleckner,

, 2008–Ohio–4000, ¶ 27 (10th Dist.); see also Wetterman v. B.C.,

9th Dist. Medina No. 12CA0021–M, 2013–Ohio–57, ¶ 11 (“The purpose of the civil protection

order is not to address past abuse.”). Additionally, “both the totality of the circumstances, as

well as the victim's state of mind, are relevant to the determination that the threat of harm was

imminent.” Chafin at ¶ 22.

{¶16} R.C. 2901.01(A)(1) defines “force” as “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing.” “Serious physical harm,” on

the other hand, is defined as any of the following:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5).

{¶17} At the full evidentiary hearing, Mother supported her petition with her own

testimony. Mother cites the following in support of her argument that she and her sons are in

fear of imminent serious physical harm from Father: (1) that Father closely followed them in his

truck in the Walsh University parking lot at a speed of roughly 20 miles per hour; (2) that Father

physically assaulted her during their marriage and she has obtained a domestic violence civil

protection order against him in the past; (3) that Father assaulted their two minor sons roughly

six months before the date in question; (4) that Father continues to harass and verbally abuse her, 9

including making insulting comments about her weight while at the McDonald’s on the day in

question; (5) that Father sat nearly on top of A.M. while at the McDonald’s and loudly yelled in

the child’s year demanding that he leave with their grandmother; (6) that Father videotaped his

two sons in the McDonald’s and threatened to call the police on them if they did not leave with

their grandmother; (7) that Father videotaped her in the McDonald’s and yelled at her in public;

and (8) that Father assaulted a police officer in the past. Mother testified at the full hearing that

Father’s conduct on the day in question made her feel intimidated, unsafe, and afraid. Mother

stated that she filed for the domestic violence civil protection order because she was “scared to

death of [Father]”, not only because of his actions on the day in question, but also because of his

“lengthy history of abuse” against her and their children, which has transpired “numerous times

over multiple years.”

{¶18} After carefully reviewing the record and considering the evidence in a light most

favorable to Mother, we conclude that insufficient evidence was presented from which the trial

court could have found that Father made a recent threat of domestic violence upon which Mother

could reasonably fear imminent harm either to herself or to her minor children. To begin, there

was no competent, credible evidence presented at the full hearing to support Mother’s contention

that Father assaulted their two sons in 2014 or that Father assaulted a police officer in the past.

Indeed, with regard to the allegation that Father assaulted their two sons in 2014, the Medina

County Court of Common Pleas, Juvenile Division, has already adjudicated G.M. and A.M.

delinquent for this incident based upon the children’s own admission.

{¶19} With regard to Father’s aforementioned conduct on May 15, 2015, we similarly

determine that insufficient evidence was presented to warrant a domestic violence civil

protection order under R.C. 3113.31(A)(1)(b). The May 15, 2015 incident did not involve Father 10

making any threats of violence and, outside of Father sitting “nearly atop” of A.M. and yelling in

the boy’s ear, did not involve any contact between the parties. Rather, the record reflects that

Father became frustrated and irate when his children refused to leave the McDonald’s with their

paternal grandmother. We conclude that Father’s conduct inside of the McDonald’s restaurant,

while not to be condoned, did not rise to the level of domestic abuse. See Young v. Young, 2d

Dist. Greene No. 2005-CA-19,

(“[Respondent] may have acted childishly

and inappropriately * * *, but that is not a basis for a civil protection order.”)

{¶20} Even Mother admitted at the full hearing that her fear of Father stemmed not only

from Father’s temperament on the day in question, but also from a lengthy history of verbal and

physical abuse at the hands of Father, which dates back several years. However, while evidence

of past abuse “is relevant and may be an important factor in determining whether [Mother] had a

reasonable fear of further harm,” Wetterman,

, we must consider both the

victim’s state of mind and the totality of the circumstances when determining whether a

reasonable fear or present harm existed, Chafin,

, ¶ 22. And, after a careful

examination of the record, we determine that the record does not disclose that Mother had a

reasonable fear of imminent physical harm. The only plausible basis for Mother fearing

imminent serious harm at the hands of Father would have been the so-called car chase in the

Walsh University parking lot. But, Mother admitted that the “car chase” occurred at a relatively

slow rate of speed. Additionally, this encounter did not result in Father being arrested, despite

the fact that the police were present at the time. Based on the foregoing, we conclude that

Mother’s fear of Father was not reasonable and could not sustain a finding of domestic violence

of the issuance of a domestic violence civil protection order under R.C. 3113.31(A)(1)(b). 11

C. Committing an Act with Respect to a Child that Would Result in the Child Being an Abused Child

{¶21} Lastly, Father argues that insufficient evidence was presented at the full hearing

to warrant the issuance of a domestic violence civil protection order under R.C.

3113.31(A)(1)(c). Under this subsection of the statute, domestic violence includes

“[c]ommitting any act with respect to a child that would result in the child being an abused

child.” As relevant to this case, an “abused child” includes any child who “[i]s endangered as

defined in section 2919.22 of the Revised Code, except that the court need not find that any

person has been convicted under that section in order to find that the child is an abused child.”

R.C. 2151.031(B).

{¶22} On appeal, Mother argues that Father committed an act of child endangering by

creating “a substantial risk to the health or safety of [their children], by violating a duty of care,

protection, or support[.]” R.C. 2919.22(A). Specifically, Mother contends that by engaging “in

the car chase through the Walsh U[niversity] parking lot, [Father] * * * attempted to inflict

physical harm * * * upon [G.M. and A.M.] who were in [Mother’s] car.” A “substantial risk” is

defined as “a strong possibility, as contrasted with a remote or significant possibility, that a

certain result may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).

{¶23} After reviewing the record in this matter, we determine that insufficient evidence

was presented to warrant the issuance of a domestic violence civil protection order pursuant to

R.C. 3113.31(A)(1)(c). As noted earlier, Mother conceded at the full hearing that the “car chase”

occurred at a relatively low speed of approximately 20 miles per hour and that this encounter did

not result in Father being arrested, despite the fact that the police were present at the time of the

incident. While Mother is correct in noting that a vehicle can be used as a “deadly weapon,” 12

there is no evidence in the record to suggest that Father intended to inflict serious bodily harm to

his children when he followed Mother’s vehicle through the Walsh University parking lot on the

day in question or that injury to the teenage boys was a strong probability as opposed to a remote

or significant possibility. As such, we conclude that no evidence presented during the full

hearing on Mother’s petition demonstrated by a preponderance of the evidence that Father

committed an act with respect to either of his children that resulted in either G.M. or A.M. being

an abused child.

{¶24} Accordingly, we determine that the trial court erred by granting Mother’s petition

for a domestic violence civil protection order on behalf of herself and her two sons.

Accordingly, Father’s first assignment of error is sustained.

Assignment of Error II

The trial court’s decision to grant [Petitioner’s] petition for a domestic violence civil protection order is against the manifest weight of the evidence.

Assignment of Error III

The trial court erred, abused its discretion and denied [Respondent] due process by adding a provision to a preexisting Medina County Juvenile Court visitation order when the trial court lacked jurisdiction to add such provision and when such new provision was subject to more than one interpretation.

{¶25} Our resolution of Father’s first assignment of error renders his second and third

assignments of error moot and we decline to address them. See App.R. 12(A)(1)(c).

III.

{¶26} Having sustained Father’s first assignment of error, we reverse the judgment of

the Medina County Court of Common Pleas, Domestic Relations Division and remand this

matter for further proceedings consistent with this opinion. 13

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JULIE A. SCHAFER FOR THE COURT

MOORE, P. J. CONCURS.

HENSAL, J. DISSENTING.

{¶27} I respectfully dissent. As the majority points out, domestic violence under

Revised Code Section 3113.31(A)(1)(b) includes “[p]lacing another person by the threat of force

in fear of imminent serious physical harm * * *.” In light of the evidence presented at the 14

evidentiary hearing, including testimony regarding M.M.’s actions on May 15, 2015, as well as

testimony regarding past incidents of abuse, I would hold that sufficient evidence existed for

purposes of establishing that J.M. was “in fear of imminent serious physical harm[.]”

{¶28} To the extent that the majority concludes that M.M. did not threaten force against

J.M. as required under Section 3113.31(A)(1)(b), “threats need not be verbalized * * * [and] can

be apparent from conduct.” Williams v. Hupp, 7th Dist. Mahoning No. 10 MA 112, 2011-Ohio-

3403, ¶ 25; Siouffi v. Siouffi, 2d Dist. Montgomery No. 17113,

, *3 (Dec. 18,

1998) (stating that “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.”). Based upon the

testimony adduced at the hearing, I would hold that J.M. presented sufficient evidence to

establish a threat of force, which – while not explicit – can be implied by M.M.’s conduct.

{¶29} In light of the foregoing, I would overrule M.M.’s first assignment of error and

address the merits of his second and third assignments of error.

APPEARANCES:

GERALD D. PISZCZEK, Attorney at Law, for Appellant.

JACQUENETTE S. CORGAN, Attorney at Law, for Appellee.