[Cite as A.M. v. M.J.M. , 2022

- Ohio

- 2945.]

COURT OF APPEALS

MORGAN COUNTY, OHIO

FIFTH APPELLATE DISTRICT

A.M. : JUDGES:

:

: Hon. William B. Hoffman, P.J.

Petitioner

- Appellant : Hon. John W. Wise, J.

: Hon. Patricia A. Delaney, J.

- vs

- :

: Case No. 21AP0004

:

M.J.M. :

:

:

Respondent

- Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court

of Common Pleas, Case No. 21DV0091

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: August 23, 2022

For Petitioner

- Appellant: For Respondent

- Appellee:

CHARLES A. COHARA NO APPEARANCE

MIRANDA ANANDAPPA

954 E. State St.

Athens, OH 45701Morgan County, Case No. 21AP0004 2

Delaney, J.

{¶1} Petitioner

- Appellant A.M. appeals the August 31, 2021 judgment entry of

the Morgan County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶2} On May 24, 2021, Petitioner

- Appellant A.M. filed a Petition for Domestic

Violence Civil Protection Order (“DVCPO”) against Respondent

- Appellee M.J.M. in the

Morgan County Court of Common Pleas. Petitioner sought a protection order against

Respondent to protect her, their minor son, and Petitioner’s two minor daughters.

Attached to the petition was a complaint and summons from the Morgan County Sheriff’s

Office and a sheriff’s report detailing that Respondent had been arrested on May 12, 2021

for domestic violence and child endangering.

{¶3} The trial court granted an ex parte DVCPO and set the matter for full hearing

on June 2, 2021. Respondent requested a continuance of the full hearing because the

domestic violence charge was pending in the Morgan County Court. The full hearing was

continued to August 24, 2021.

{¶4} The following evidence was adduced at the August 24, 2021 full hearing.

Petitioner was represented by counsel and Respondent proceeded pro se.

{¶5} Petitioner and Respondent are the biological parents of an infant son.

Petitioner and Respondent are not married but on May 12, 2021, they lived together in a

home located in Morgan County, Ohio. Respondent’s parents owned the home, and they

lived next door.

{¶6} On or about May 12, 2021, Petitioner was at the home with the baby and

her younger sister. Petitioner was planning on taking their two

- month

- old son to haveMorgan County, Case No. 21AP0004 3

dinner with her family. She placed the baby in the car seat while she waited for her two

daughters to get off the school bus. When Respondent returned home, he told Petitioner

that she was not leaving or taking his son away from him. Petitioner said Respondent

started screaming at her, which caused the baby to cry. Petitioner’s sister picked up the

baby. Respondent went to the sister and took the baby from her. Respondent went into

the living room and put the baby in the car seat, but did not strap him in.

{¶7} Petitioner and Respondent continued to argue that she was going to dinner

and not taking the baby away from him. Petitioner testified that Respondent went to pick

up the car seat to make a turn and run. Petitioner saw her sister move to push the car

seat down because the baby was not strapped in. As the sister came towards

Respondent, he elbowed the sister and she fell to the ground. Petitioner heard her sister

gasp for breath.

{¶8} When Respondent elbowed the sister, Petitioner saw the baby flip out of

the car seat onto the couch and almost hit the floor. Respondent caught the baby before

he hit the floor.

{¶9} Petitioner said she got to her knees to try to get to the baby. She told

Respondent to put the baby down because he could hurt him. She told her sister to go

next door to Respondent’s parents’ home, so Respondent’s father could call the police.

Respondent’s father arrived shortly thereafter, and he sat with Respondent to calm him

down.

{¶10} Petitioner called her father who told her to take the children and leave the

house. She went to the Morgan County Sheriff’s Office to make a report after she left the

home with the children.Morgan County, Case No. 21AP0004 4

{¶11} Petitioner testified the incident with the baby was not the first time

Respondent had displayed that type of behavior. While she was pregnant with their child,

Petitioner reprimanded Respondent for punishing her daughter by hitting her on the back

of the head. He asked Petitioner if she wanted him to parent or not parent. She told him

that if he was going to take parenting too far, she would let him know. Petitioner stated

that Respondent backed her up against the stairs, got in her face, and told her, “his

parents had enough money to bury me under the courthouse and he’d make sure that

happened before I took his son from him.” (T. 19).

{¶12} Petitioner requested the trial court grant her a DVCPO against Respondent

for five years. She wanted Respondent to do anger management or have a mental health

evaluation. She felt an order was necessary because she was scared for her and her

son’s life. She stated, “If he takes a spell like that where he’s acting crazy like that, shows

up at my house, anything, there’s nothing I can do. Just like last time, I was powerless

with my son.” (T. 20

- 21).

{¶13} Petitioner’s sister testified about her experiences on May 12, 2021. She

stated that when she went to push the car seat down, Respondent swung the car seat to

push her off. When he did that, Respondent’s elbow swung into her and hit her in the

chest, causing her to fall to the floor and knocking the wind out of her. The baby then

flipped out of the car seat and fell. The paramedics examined the sister after the sheriff

was called and she said they found bruising and some marks where her necklace was

indented into her chest. Petitioner took her sister to the doctor a couple of days after the

incident. The doctor’s report was admitted as an exhibit.Morgan County, Case No. 21AP0004 5

{¶14} Respondent was cross

- examined at the hearing, and he did not present any

evidence on direct other than information regarding his conviction in the Morgan County

Court. He was originally charged with domestic violence and child endangering in the

Morgan County Court, but pursuant to a plea agreement, the State dismissed the child

endangering charge, and the domestic violence charge was amended to disorderly

conduct. Respondent entered a no contest plea. The Morgan County Court sentenced

Respondent to 30 days in jail, 28 days suspended, and 2 days credit for time served. He

was placed on probation for one year and had to obtain a mental health evaluation and a

drug and alcohol assessment, which he had scheduled for September 8, 2021.

Respondent had no prior convictions for domestic violence.

{¶15} At the conclusion of the hearing, the trial court took the matter under

advisement. On August 31, 2021, the trial court issued its judgment entry that found in

pertinent part:

The State’s reduction of the domestic violence charge is an indication that

the State came to believe the Respondent’s conduct did not arise to the

level of domestic violence or the State did not believe it could prove

domestic violence at a trial beyond a reasonable doubt. * * * The Court finds

there is no credible evidence that the Petitioner and her household

members presently are in danger from the Respondent. The Court further

finds that the Respondent’s behavior during May 12, 2021 did not constitute

domestic violence as defined by R.C. 3113.31(A).

(Judgment Entry, August 31, 2021). The trial court condoned Respondent’s behavior and

stated it would be relevant in a future custody dispute between the parties, but becauseMorgan County, Case No. 21AP0004 6

the preponderance of the evidence did not demonstrate domestic violence under R.C.

3113.31(A), the petition for the DVCPO was denied.

{¶16} It is from this judgment entry that Petitioner now appeals.

ASSIGNMENTS OF ERROR

{¶17} Petitioner raises two Assignments of Error:

{¶18} “I. THE TRIAL COURT IMPROPERLY CONSIDERED THE OUTCOME OF

APPELLEE RESPONDENT’S CRIMINAL DOMESTIC VIOLENCE CASE IN DENYING

APPELLANT PETITIONER’S REQUEST FOR A CIVIL PROTECTION ORDER UNDER

R.C. 3113.31.

{¶19} “II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

APPELLANT PETITIONER MET HER BURDEN OF PROOF TO OBTAIN A CIVIL

PROTECTION ORDER UNDER R.C. 3113.31.”

ANALYSIS

{¶20} For ease of discussion, we consider Petitioner’s first and second

Assignments of Error together because they raise similar issues. Petitioner contends in

both Assignments that the trial court erred when it denied her petition for a domestic

violence civil protection order.

Standard of Review

{¶21} The decision whether to grant a civil protection order lies within the sound

discretion of the trial court. Singhaus v. Zumbar

, 5th Dist. Tuscarawas No.

2015AP020007, 2015

- Ohio

- 4755. Therefore, an appellate court should not reverse the

decision of the trial court absent an abuse of discretion. To find an abuse of discretion,

we must determine that the trial court's decision was unreasonable, arbitrary, orMorgan County, Case No. 21AP0004 7

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶22} A reviewing court must not substitute its judgment for that of the trial court

where there exists some competent and credible evidence supporting the judgment

rendered by the trial court. Eastley v. Volkman

, 132 Ohio St.3d 328, 2012

- Ohio

- 2179, 972

N.E.2d 517. The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison

, 49 Ohio St.3d 182, 552 N.E.2d 180

(1990). “Under this highly deferential standard of review, we do not decide whether we

would have come to the same conclusion as the trial court.” Henry v. Henry

, 4th Dist.

Ross No. 04CA2781, 2005

- Ohio

- 67, 2005 WL 43888, ¶ 14. Rather, we are required to

uphold the judgment so long as the record contains some evidence from which the trier

of fact could have reached its ultimate factual conclusions. Id

. Our deference is because

the trier of fact “has the best opportunity to view the demeanor, attitude, and credibility of

each witness, something that does not translate well on the written page.” Davis v.

Flickinger

, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

Domestic Violence Civil Protection Order

{¶23} Pursuant to R.C. 3113.31, to obtain a domestic violence civil protection

order, the petitioner must prove by a preponderance of the evidence that the respondent

has engaged in an act of domestic violence against petitioner or petitioner's family or

household members. Felton v. Felton

, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997).

“Preponderance of the evidence” is “evidence which is of greater weight or more

convincing than the evidence which is offered in opposition to it; that is, evidence which

as a whole shows that the fact sought to be proved is more probable than not.” Horne v.Morgan County, Case No. 21AP0004 8

Stafford

, 5th Dist. Fairfield No. 20

- CA

- 17, 2020

- Ohio

- 5073, 2020 WL 6306049, ¶ 10 citing

Black's Law Dictionary 1182 (6th Ed.1990).

{¶24} As defined by 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,

in relevant part:

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

(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;

(iii) 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;

(iv) Committing a sexually oriented offense. * * *

* * *

{¶25} The “statutory criterion to determine whether or not to grant a civil protection

order pursuant to R.C. 3113.31 is the existence or threatened existence of domestic

violence.” Henry v. Henry

, 4th Dist. Ross No. 04CA2781, 2005

- Ohio

- 67, 2005 WL 43888,

¶ 16 quoting Thomas v. Thomas

, 44 Ohio App.3d 6, 8, 540 N.E.2d 745 (1988). In this

case, the trial court found the preponderance of the evidence did not show the incident

between Petitioner and Respondent was domestic violence, nor was there the threatened

existence of domestic violence between the parties. Petitioner argues on appeal that the

trial court erred in denying her petition because (1) the trial court impermissibly

considered the result of Respondent’s concurrent criminal proceedings arising out of theMorgan County, Case No. 21AP0004 9

events on May 12, 2021 and (2) Petitioner presented uncontroverted evidence

establishing her burden of proof under R.C. 3113.31.

{¶26} Petitioner first contends the trial court improperly considered Respondent’s

conviction for disorderly conduct when determining whether Petitioner had established

that she was entitled to a DVCPO. Based on the events that occurred on May 12, 2021,

Respondent was arrested and charged with child endangering and domestic violence.

Pursuant to a plea agreement with the State, the State amended the domestic violence

charge to disorderly conduct and dismissed the child endangering charge. Respondent

entered a no contest plea and was found guilty of disorderly conduct. In its judgment entry

denying the DVCPO, the trial court noted the concurrent criminal proceeding and found,

“the State’s reduction of the domestic violence charge is an indication that the State came

to believe the Respondent’s conduct did not arise to the level of domestic violence or the

State did not believe it could prove domestic violence at a trial beyond a reasonable

doubt.” (Judgment Entry, Aug. 31, 2021).

{¶27} Petitioner correctly states that a petition for a domestic violence civil

protection order pursuant to R.C. 3113.31 is separate and distinct from a criminal

proceeding for domestic violence brought under R.C. 2919.25. While the statutory civil

and criminal proceedings may arise from the same set of facts and may be pursued at

the same time in the same jurisdiction, the proceedings have different burdens of proof

and different penalties. Petitioner contends that because of those differences, it was

improper for the trial court to consider that the State amended Respondent’s criminal

charge from domestic violence to disorderly conduct when determining whether Petitioner

met her burden of proof under R.C. 3113.31.Morgan County, Case No. 21AP0004 10

{¶28} To grant or deny a DVCPO, the trial court is tasked to determine whether

Respondent engaged in an act of domestic violence against Petitioner and/or Petitioner’s

family. The weight to be given to a past conviction for domestic violence is a matter within

the trial court’s discretion. Henry v. Henry

, 4th Dist. Ross No. 04CA2781, 2005

- Ohio

- 67,

2005 WL 43888, ¶ 5. The trial court as the factfinder is permitted to weigh the evidence

of Respondent’s past convictions for domestic violence to determine if under R.C.

3113.31, Respondent placed Petitioner “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.” The evidence in this case, raised by Petitioner upon cross

- examination of

Respondent and corroborated by Respondent’s direct examination, showed that based

on the events of May 12, 2021, Respondent was charged with domestic violence but

convicted of disorderly conduct after the State amended the charge. There was no

support in the record, however, for the trial court’s speculation in the August 31, 2021

judgment entry as to the basis for the State’s amendment of the charge from domestic

violence to disorderly conduct. Respondent did not give a reasoning for the amendment

of the charge and there was no testimony from the parties involved with the criminal

proceedings.

{¶29} We find the trial court’s speculation as to why the State amended the charge

is not harmful error in this case. In the August 31, 2021 judgment entry, the trial court

went on to consider whether Petitioner established by a preponderance of the evidence

that she and her household members were in danger and have been a victim of domestic

violence as defined by R.C. 3113.31(A). The trial court then independently determined

there was no credible evidence that Petitioner and her household were in present dangerMorgan County, Case No. 21AP0004 11

from Respondent and that Respondent’s behavior on May 21, 2021 did not constitute

domestic violence as defined by R.C. 3113.31.

{¶30} Petitioner next argues the trial court abused its discretion when it denied

her petition for a domestic violence civil protection order. The trial court found the

preponderance of the evidence did not demonstrate domestic violence as defined by R.C.

3113.31(A). Petitioner contends she presented uncontroverted evidence of Respondent’s

behavior on May 12, 2021 and his previous statement to her that if she tried to take their

child, he would “bury her under the courthouse,” which demonstrated by a preponderance

of the evidence that Respondent placed her by the threat of force in fear of imminent

serious physical harm under R.C. 3113.31(A). Based on the uncontroverted evidence,

Petitioner argues the trial court should have granted the DVCPO.

{¶31} We examine the evidence to determine if the trial court abused its

discretion. In support of her petition, Petitioner testified that Respondent once told her

after an argument about parenting, that “his parents had enough money to bury me under

the courthouse and he’d make sure that happened before I took his son from him.” (T.

19). Was Respondent’s statement to Petitioner the threat of serious physical harm or the

threat of a costly custody action? As to the events on May 12, 2021, Petitioner testified

that Respondent argued with her about taking the baby to dinner. Respondent took the

baby from her sister, put the baby in the car seat, and when the sister tried to push down

the car seat, Respondent turned the car seat away from the sister. When he turned away,

he elbowed the sister, which caused her to fall to the ground. The baby was not strapped

into the car seat, so it fell out of the seat when it was abruptly moved.Morgan County, Case No. 21AP0004 12

{¶32} The trial court found that while Respondent’s behavior on May 12, 2021 was

inappropriate, negligent, and reckless, it was not intentional or purposeful. (Judgment

Entry, Aug. 31, 2021). It found there was no evidence that Petitioner and her household

were in imminent danger from Respondent. Upon the record before us and within the

bounds of our limited standard of review, we find the trial court’s determination that

Petitioner failed to establish domestic violence pursuant to R.C. 3113.31(A) was

supported by competent, credible evidence and the decision to deny the DVCPO was not

an abuse of discretion. The trial court as factfinder had the duty to consider the testimony,

the parties’ credibility, and weigh the evidence to determine if the preponderance of the

evidence supported a finding under R.C. 3113.31. We find there was competent, credible

evidence in the record to support the trial court’s finding that Respondent did not place

Petitioner or her household members by the threat of force in fear of imminent serious

physical harm.

{¶33} Petitioner’s first and second Assignments of Error are overruled.Morgan County, Case No. 21AP0004 13

CONCLUSION

{¶34} The judgment of the Morgan County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, John, J., concur.