[Cite as J.M. v. D.H., 2020-Ohio-108.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

J.M., : 

 Petitioner-Appellee, : 

 No. 108303 

 v. : 

 

D.H., : 

 

 Respondent-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: January 16, 2020 

 

Civil Appeal from the Cuyahoga County Common Pleas Court 

Domestic Relations Division 

Case No. DV-19-375232 

 

Appearances: 

Zukerman, Lear & Murray Co., L.P.A., and S. Michael 

Lear, for appellee. 

D.H., pro se. 

SEAN C. GALLAGHER, J.: 

Appellant-respondent D.H. appeals from a domestic-violence civil 

protection order that expired on August 11, 2019. We find that the appeal is not 

moot because the collateral-consequences exception to the mootness doctrine 
applies in this particular case. Upon review of the matter, we affirm the judgment 

of the trial court. 

Collateral Consequences 

Initially, we find that the appeal is not moot. The Supreme Court of 

Ohio has held that “absent a showing of legal collateral consequences resulting from 

an expired domestic-violence civil protection order, an appeal of that order is moot.” 

Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 1. Appellant, 

who is an inactive attorney, filed with the trial court a notice of continuing legal 

collateral consequences with an affidavit in support stating that she will suffer legal 

collateral consequences with regard to her ability to serve as a guardian ad litem or 

court-appointed special advocate (“CASA”). Appellant has demonstrated legal 

collateral consequences and that the exception to the mootness doctrine applies to 

her appeal. 

Background

On January 25, 2019, appellee-petitioner J.M. filed a petition for a 

domestic-violence civil protection order (“DVCPO”) against appellant-respondent 

D.H. Appellee alleged in the petition that he and appellant had been in a romantic 

relationship and that during the relationship appellant cohabitated with him at his 

residence on alternating weeks. Appellee indicated that he became concerned about 

appellant’s possessiveness and that he terminated the relationship with appellant. 

The record reflects that around that time, appellant entered appellee’s residence 

when he was not home and accessed his iCloud account on his personal computer 
without his permission. Appellee further maintained that appellant continued to 

contact him, his friends, and his family on a regular basis despite his repeatedly 

instructing her to stop contacting him. Appellee set forth specific factual allegations 

in his petition and claimed that appellant knowingly and continuously engaged in 

an obsessive pattern of conduct that caused him to suffer significant mental distress 

in violation of R.C. 2911.211, menacing by stalking. 

The trial court issued an ex parte domestic-violence civil protection 

order and set the matter for a full hearing, which was held on February 6 and 12, 

2019, before a court magistrate. On February 15, 2019, the magistrate issued a 

DVCPO, effective until August 11, 2019. The magistrate made the following findings 

of fact in the DVCPO: 

Petitioner was sworn and gave testimony that supports finding that 

Respondent committed domestic violence as defined in R.C. §3113.31 

and that the Petitioner is in danger of domestic violence. Petitioner’s 

testimony is found to be credible. Petitioner testified with basic 

credibility. In 2017[,] he and Respondent shared a household and 

were in a dating relationship. Respondent would live in the shared 

house every other week and used the mailing address as her own. 

Petitioner told Respondent on several occasions throughout 2018 to 

cease contact. On at least three occasions, Respondent willfully 

contacted the Petitioner. Petitioner testified that such contact 

[caused] him extreme mental distress that caused him to lose 30 

pounds and seek medical treatment. Petitioner and respondent are 

currently involved in a criminal matter of Telecommunication 

Harassment. Respondent testified with basic credibility. Respondent 

believes there is an unknown third party involved. Respondent 

testified that the unknown person is “spoofing” both parties and 

trying to set her up. Respondent does admit to initiating contact after 

she was told to cease contact. No other witnesses gave testimony that 

offered anything of value. 

The DVCPO was adopted by the trial court and also was corrected, nunc pro tunc. 
Appellant filed objections to the DVCPO and then filed a notice of 

appeal. This court remanded the case for the trial court to rule on the objections. 

On August 1, 2019, the trial court overruled appellant’s objections along with the 

supplemental objections that were raised in her appellate brief. 

In its decision, the trial court found that appellant’s preliminary 

objection and some of her supplemental objections challenged whether appellee had 

a reasonable fear of imminent harm. The trial court aptly noted that “those 

objections are ‘strawmen’” because the DVCPO was not issued on that basis, but 

rather, “is premised on Respondent’s violation of R.C. 2903.211 — menacing by 

stalking.” The trial court found competent, credible evidence in the record to 

support each of the elements of menacing by stalking and concluded that “a 

preponderance of the evidence establishes that Respondent has committed 

domestic violence against Petitioner by engaging in menacing by stalking.” 

The appeal is now before us for review. 

Law and Analysis 

Appellant raises four assignments of error, all challenging the trial 

court’s issuance of the DVCPO. Before a trial court may issue a DVCPO pursuant to 

R.C. 3113.31, the trial court must find that the petitioner has shown by a 

preponderance of the evidence that petitioner or petitioner’s family or household 

members are in danger of domestic violence. Felton v. Felton, 79 Ohio St.3d 34, 42, 

1997-Ohio-302, 679 N.E.2d 672. A reviewing court must determine whether the 
record shows sufficient credible evidence to support the trial court’s determination. 

Id. at 43; L.T.C. v. G.A.C., 8th Dist. Cuyahoga No. 107110, 2019-Ohio-789, ¶ 9. 

In relevant part, R.C. 3113.31(A)(1) defines “domestic violence” as 

follows: 

(a) The occurrence of one or more of the following acts against a 

family or household member: 

* * * 

(ii) 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; 

(Emphasis added.) R.C. 3113.31(A)(1)(a)(ii). A “family or household member” 

includes a “person living as a spouse,” which is defined to include a person “who 

otherwise has cohabitated with the respondent within five years prior to the date of 

the alleged occurrence of the act in question.” R.C. 3113.31(A)(3) and (4). 

Here, the trial court found that appellee proved by a preponderance 

of the evidence that appellant’s actions constituted domestic violence as defined in 

R.C. 3113.31; specifically, a violation of R.C. 2903.211, menacing by stalking. 

Relevant hereto, R.C. 2903.211(A)(1) provides as follows: 

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

* * *. 

(Emphasis added.) 

“Pattern of conduct” is defined as “two or more actions closely related 

in time[.]” R.C. 2903.211(D). “Mental distress” is defined in relevant part as “[a]ny 
mental illness or condition that would normally require psychiatric treatment, 

psychological treatment, or other mental health services, whether or not any person 

requested or received psychiatric treatment, psychological treatment, or other 

mental health services.” R.C. 2903.211(D)(2)(b). 

Under her first assignment of error, appellant claims the evidence was 

not sufficient to establish a pattern of conduct or the mens rea of knowingly placing 

appellee in fear of physical harm or mental distress. Under her second assignment 

of error, appellant claims there was an absence of any evidence of violence between 

the parties. In overruling the objections to the DVCPO, the trial court rejected 

appellant’s arguments pertaining to fear of physical harm because the DVCPO did 

not issue on that basis. We agree and summarily reject these arguments. 

In finding the evidence established appellant engaged in a “pattern of 

conduct,” the trial court cited evidence in the record establishing that after appellee 

had asked appellant to stop contacting him, appellant made more than 20 telephone 

calls to appellee and sent emails, texts, a post card, and a planter to appellee. The 

trial court also found there was evidence that appellant acted “knowingly” because 

not only did appellee tell appellant on several occasions to cease contact, but also 

the police instructed her to cease and appellant admitted she persisted in her pattern 

of conduct. Although appellant disputes the trial court’s findings and maintains that 

she was responding to appellee, as was found by the trial court and reflected in the 

record — “appellant acknowledged that it was clear to her for over a year that 

Petitioner did not want any contact from her.” Further, there was evidence that 
appellant became aware that appellee was “afraid she is going to do me harm 

physically and emotionally[,]” yet she proceeded to send him an olive branch plant 

in the mail with a note stating, “I am afraid even as I am sending this that it will 

come off wrong.” Finally, the trial court found that appellee’s testimony that he 

suffered weight loss and incurred hospital treatment from the stress caused by 

appellant’s actions was sufficient to establish that appellant’s actions caused 

appellee mental distress. There is ample other testimony and evidence in the record 

supporting the trial court’s determinations. 

Although appellant claims under her third assignment of error that 

the trial court employed an eggshell test, instead of a reasonableness test as to 

appellee’s reported fear, the record demonstrates that the trial court engaged in the 

appropriate analysis. Indeed, the trial court properly evaluated the elements for the 

issuance a DVCPO and found by a preponderance of the evidence that “Respondent 

has committed domestic violence against Petitioner by engaging in menacing by 

stalking.” Finally, appellant’s fourth assignment of error challenges the appellee’s 

motivation for filing his petition for a DVCPO. Our review of the entire record 

reflects that there is sufficient credible evidence in the record to support the trial 

court’s decision. We overrule the assignments of error presented by appellant. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the 

common pleas court, domestic relations division, to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

SEAN C. GALLAGHER, JUDGE 

MARY J. BOYLE, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR