[Cite as T.M. v. R.H. , 2020-Ohio-3013.]

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

T.M. Appellant

v. R.H. Appellee C.A. No. 29556

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2018-08-2274

DECISION AND JOURNAL ENTRY Dated: May 20, 2020

SCHAFER, Judge. {¶1} Plaintiff-Appellant, T.M., appeals the judgment of the Summit C ounty Court of Common Pleas Domestic Relations Division denying her petition f or a domestic violence civil protection order against Defend ant-Appellee, R.H. For the reas ons that follow, this Court affirms.

I. {¶2} On August 24, 2018, T.M. filed a petition for a domestic violen ce civil protection order (“DVCPO”) pursuant to R.C. 3113.31. The trial court gran ted an ex parte CPO, and the matter proceed to a full hearing before a magistrate. Followin g the full hearing, the magistrate denied T.M.’s petition. The trial court adopted the magistrate ’s decision that same day. T.M. timely filed preliminary objections to the trial court’s adopti on of the magistrate’s decision and, upon leave of court, filed supplemen tal objections after the tr anscript of the hearing was prepared

and filed. The trial court subs equently overruled T.M.’s objec tions and dismissed the petition and the ex parte order.2

{¶3} T.M. filed this timely appeal, raising two assignments of error for our review. We have reordered the assignments of error for ease of analysis.

II. Assignment of Error II

The trial court erred as a matter of law and abused its discret ion in denying [T.M.]’s petition objections to the trial court’s adoption of t he magistrate’s decision. {¶4} In her second assignment of error, T.M. contends that the trial court erred when it reviewed her objections pursuant to Civ.R. 53(D) rather than Ci v.R. 65.1. Specifically, T.M. argues that in applying Civ.R. 53( D), the trial court “failed t o apply the appropria te standard as set forth in Civ.R. 65.1 when ruling on [T.M.]’s objections to the magistrate’s denial of the [DV]CPO[.]” Upon review, we ove rrule T.M.’s second assignment of error because the trial court applied the proper standard despite citing the incorrect rule i n its decision. We note that in addition to argument above, T.M. also asserts in this assignment of erro r that she established in her objections that the denial of th e DVCPO was not supported by cr edible evidence in the record. However, because this argument i s also raised in assignment of error one and considered below,

we will not review it here. {¶5} The procedural rules governing the issuance of civil protection orders are set forth in Civ.R. 65.1. Pursuant to Civ.R. 65.1(F)(3), a petition for a civil protection order may be referred to a magistrate for determinati on, but “[a] magistrate’s denial or grant of a protection order after full hearing * * * does not constitute a magistrate’s order or a magistrate’s decision under Civ.R. 53(D)(2) or (3) and is not subject to the requirements of those rules.” Civ.R. 65.1(F)(3)(b). A trial court may adopt a magistrate’s de nial of a protection order “up on review of the order and a

determination that there is no error of law or other defect evi dent on the face of the order.” Civ.R.3

65.1(F)(3)(c)(ii). Thereafter, a party may file written object ions “to a court’s adoption, modification, or rejection of a m agistrate’s denial or granting of a protection order after a full hearing * * * within fourteen days of the court’s filing of the order.” Civ.R. 65.1(F)(3)(d)(i). {¶6} The party filling the objections “has the burden of showing tha t an error of law or other defect is evident on the face of the order, or that the c redible evidence of record is insufficient to support the granting or denial of the protection order, or t hat the magistrate abused the magistrate’s discretion in including or failing to include spec ific terms in the protection order.” Civ.R. 65.1(F)(3)(d)(iii). Additi onally, any objection based o n the evidence in the record, must “be supported by a transcript of all the evidence submitted to the magistrate or an affidavit of that evidence if a transcript is not available.” Civ.R. 65.1(F)(3)( d)(iv). {¶7} In this case, the trial court stated that it conducted its revi ew pursuant to Civ.R. 53(D)(4)(d), which provides tha t, when ruling on objections to a magistrate’s decision issued pursuant to Civ.R. 53, a trial co urt “shall undertake an indepe ndent review as to the objected matters to ascertain that the magistrate has properly determine d the factual issues and appropriately applied the law.” Wh ile the issuance of a DVCPO is governed by Civ.R. 65.1, at least one of our sister districts has recognized that “the rule does not preclud e the trial court from engaging in a de novo or independent review of the record prior to ruling on a p arty’s objections,” but rather “implies that an independent review of the record by the trial court is required.” Pinkston v. White , 12th Dist. Butler No. C A2019-06-094, 2019-Ohio-5165, ¶ 15. {¶8} In Pinkston , the Twelfth District conclude d that “it would be inconsistent with Civ.R. 65.1 to prohibit the tria l court from conducting an inde pendent de novo review of the record prior to ruling on [a party]’s objections” because an objecting party has the burden to prove “‘an error of law or other defect [wa]s evidenced on the face of the [magistrate’s] order, or that the4

credible evidence of record [wa]s insufficient to support the d enial of the protection order[,]’” and must support the objections with a transcript of “‘all evidence submitted to the magistrate[.]’” Id. , quoting Civ.R. 65.1. Citing the language of the Staff Notes ac companying Civ.R. 65.1(G), the

Twelfth District further reasoned that the recent amendment of Civ.R. 65.1(G) requiring a party to file objections prior to appealin g the trial court’s adoption o f a magistrate’s ruling also supports the implication of an independent review by the trial court. Id. at ¶ 16. That Staff Note states one of the amendment’s key principles is that it “promotes the fair administration of justice, including affording the trial court an oppor tunity to review the transcri pt and address any insufficiency of

evidence or abuse of discretion that would render the order or a term of the order unjust.” Civ.R. 65.1, 2016 Staff Notes. The Twelft h District concluded that su ch language gave the appearance that “one purpose of filing objections pursuant to Civ.R. 65.1 is to afford the trial court an opportunity to conduct a n independent review of the evidence.” Pinkston at ¶ 16

. {¶9} Although we find the Twelfth Di strict’s reasoning persuasive, w e need not adopt the holding in Pinkston here because despite the trial court’s citation to Civ.R. 53, the court applied the appropriate standard unde r Civ.R. 65.1. In this case, the magistrate denied T .M.’s petition for a DVCPO because she determined “[b]ased on the totality of the testimony, evidence, and contents

of the case file” that T.M. “fa iled to prove by a preponderance of the evidence that [R.H.] has committed acts of violence as defined by [R.C.] 3113.31, agains t [T.M.].” The magistrate’s decision includes a notification that pursuant to Civ.R. 65.1, any objections to the decision must be filed within fourteen days and that the party filing the obj ections has the burden to show: (1) an error of law or other defect evident on the face of the order; (2) that the credible evidence of record is insufficient to support the gr anting or denial of the protec tion order; or (3) the magistrate abused the magistrate’s discretion in including or failing to include specific terms in the protection order.5

See Civ.R. 65.1(F)(3)(d)(iii). Althoug h the trial c ourt purported to adopt the magistrate’s decision pursuant to Civ.R. 53(D), the trial court included in its journ al entry the same Civ.R. 65.1 notifications regarding objecti ons that were included in the ma gistrate’s decision. {¶10} T.M. timely filed “preliminary objections” asserting, inter ali a, that R.H. committed acts of violence against T.M. T.M. also requested leave to fil e supplemental objections 30 days after the preparation and filing of the hearing transcript. Th e trial court granted T.M.’s request. After the transcript was filed, T.M. filed her “supplemental ob jections” asserting T.M. had established by a preponderance of the evidence that she was ent itled to a DVCPO protecting her

and her minor children from R.H. {¶11} Upon review, the trial court ove rruled T.M.’s objections after concluding that T.M. had failed to demonstrate by a preponderance of the evidence th at a protection order was necessary to prevent future acts of domestic violence. Prior to making t his determination, the trial court

stated that its revie w of the magistrate’s decision was governe d by Civ.R. 53(D)(4)(d). However,

the trial court also cited to this Court’s statement in A.D. v. B.D. , 9th Dist. Medina No. 15CA0095- M, 2017-Ohio-229, that “[i]n order for a [DV]CPO to issue, ‘the trial court must find that petitioner has shown by a preponderance of the evidence that petitioner or petitioner’s family or household members are in danger of domestic violence.’” A.D. at ¶ 6 quoting C.Q. v. P.S. , 9th Dist. Medina No. 15CA0065-M, 2016-Ohio-4988, ¶ 7. A review of the trial cou rt’s journal entry shows that despite its citation of Civ.R. 53, the trial court applied the appropriate standard of review and considered, based on the evidence presented at the hearing, whe ther T.M. had demonstrated by a preponderance of the evidence th at a protection order was neces sary to prevent future acts of

domestic violence. See Civ.R. 65.1(F)(3)(d)(iii) (“A party filing objections under thi s division has the burden of showing * * * that the credible evidence of r ecord is insufficient to support the6

granting or denial of the protec tion order[.]”). Consequently, any error by the trial court in citing

to Civ.R. 53 was harmless and does not constitute reversible er ror. See Civ.R. 61. {¶12} T.M.’s second assignment of error is overruled. Assignment of Error I

The trial court erred as a matter of law and abused its discret ion in denying [T.M.]’s petition for domestic violence civil protection order. {¶13} In her first assignment of error , T.M. contends that the trial court erred and abused its discretion when it overruled ruled her objections to the tr ial court’s adoption of the magistrate’s decision. We disagree. {¶14} In this case, the magistrate denied T.M.’s petition for a DVCPO because she determined “[b]ased on the totality of the testimony, evidence, and contents of the case file[,]” that T.M. had “failed to prove by a preponderance of the evidence th at [R.H.] has committed acts of violence as defined by [R.C.] 3113.31, against [T.M.].” The tr ial court adopted the magistrate’s ruling the same day. T.M. object ed to the trial court’s adopti on of the magistrate’s decision arguing, inter alia, that the evidence presented at the hearing established by a preponderance of the evidence that she was entitled to a DVCPO protecting her and he r minor children from R.H. As noted above and relevant to this assignment of error, as the pa rty filling the objections, T.M. had the burden of showing the credible evidence of record was insuf ficient to support the denial of the protection order. Civ.R. 65.1(F) (3)(d)(iii). Though the trial court concluded th at T.M. had failed to demonstrate by a preponderance of the evidence that a protec tion order was necessary to prevent future acts of domestic violence, the court based this determin ation on the finding that the evidence presented at the hearing was insufficient to support the granti ng of a DVCPO on the basis that R.H. had committed an act of domestic violence against T.M.7

{¶15} “The decision whether to issue a protection order is within the discretion of the trial

court.” W.B. v. T.M. , 9th Dist. Lorain No. 19CA011474, 2020-Ohio-853, ¶ 8. An abus e of discretion implies that a trial court’s decision is unreasonabl e, arbitrary, or unconscionable.

Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). “[A ] trial court’s decision to grant or deny a protection order is reviewed on appeal under a civil man ifest weight standard.” Wetterman

v. B.C. , 9th Dist. Medina No. 12CA0021-M, 2013-Ohio-57, ¶ 8. Therefore, we sit as a “thirteenth juror” and review the record , weigh the evidence and all reasonable inferences, consider the credibility of witn esses, and determine whether the trier of fact clearly lost its way and created a ma nifest miscarriage of justice[.] In weighing the evidence, however, we are always mi ndful of the presumption in favor of the trial court’s factual findings. [T ]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. (Internal quotations a nd citations omitted.) T.S. v. R.S. , 9th Dist. Summit No. 27955, 2017-Ohio281, ¶ 4. {¶16} The issuance of a DVCPO is governed by R.C. 3113.31. Pursuant to that statute, a court may grant a protection orde r after a full hearing “to bri ng about the cessation of domestic violence against the family or household members or persons wit h whom the respondent is or was in a dating relationship.” R.C. 3113.31(E)(1). In order to gr ant a DVCPO pursuant to R.C. 3113.31, “the trial court must find that [the] petitioner has s hown by a preponderance of the evidence that petitioner or pe titioner’s family or household me mbers are in danger of domestic

violence.” Felton v. Felton , 79 Ohio St.3d 34 (1997), paragra ph two of the syllabus. For the purposes of issuing a DVCPO, “[d]omestic violence” is defined, in relevant part, as “[a]ttempting to cause or recklessly causing bodily injury” or “[c]omitting a ny act with respect to a child that would result in the child being an abused child, as defined in [R.C. 2151.031,]” against a family or household member. R.C. 3113.31( A)(1). Pursuant to R.C. 2151 .031(B), the definition of an8

“abused child” includes a chil d who would be consi dered “endang ered” pursuant to R.C. 2919.22 regardless of whether a person has been convicted under that st atute. R.C. 2919.22 states, in pertinent part, that a person w ho is the parent of a minor chil d is guilty of endangering that child if he “create[s] a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.” R.C. 2919.22(A)/(E)(1). {¶17} T.M. and R.H. both testified at the hearing. T.M. also called New Franklin Police Department Officer Robert Kaaikaula to testify on her behalf. T.M. testified that she and R.H.

were divorced in March 2013 and that the parties have a minor c hild together. She stated that R.H.

had court ordered vis itation with the child every other weekend and one evening a week. She claimed that R.H. had requested to see the child on a non-sched uled visitation day because T.M. was planning to leave the next day for a vacation with her boyf riend and the child. R.H. wanted to meet T.M.’s boyfriend and also planned to take the child out to dinner. T.M. asserted she did not have a problem with him visiting the child before the vacat ion because she wanted to “facilitate a healthy relationship.” {¶18} T.M. testified that she agreed to meet R.H. at her new residenc e on July 31, 2018. T.M. and the child had recently moved into T.M.’s boyfriend’s h ouse which was located in a private lake community. When R.H. arrived, she and the child w ere waiting outside for him. She stated that she told R.H. her boyfriend was not present, but wa s expected home soon. Upon hearing this, she alleged that R.H. became agitated and that “he had hi s chest puffed” and “a scowl on his face.” Upon observing R.H.’s body language, her “stomach kind of dropped.” T.M. stated that R.H. said he would wait, and then grabbed the child’s hand and began heading toward a member’s only area near the lake. T.M. asserted that when she tried to tell him that he could not enter that area, that he first ignored her, and then started screaming pro fanities at her in front of their child.9

She said that R.H. appeared “an gry and hostile” and “infuriated .” She stated that she repeatedly told R.H. he had to leave. She further stated that their daugh ter came over to her and was grabbing her leg and holding on to her. She then asserted that R.H. app roached her and struck her on the breast bone with the palm of his hand. She claimed that he hit her hard enough to cause her to “stumble back.” When asked why she thought he struck her, she stated “I think it was a reaction to the strong profanity language. I think it was a reaction to [the child] holding onto my leg with her crying.” {¶19} T.M. testified that she began yelling for help. She stated tha t R.H. then grabbed the child and tried to put her in his truck. She maintained that t here was also a German Shepherd in

the truck that R.H. had trained to attack her. She stated that during this time the child “was crying and incredibly upset” and that she feared for the child’s safet y. She stated that she then took the child out of the truck. She stated that when she began to walk away, R.H. grabbed her by the bicep and pulled her back. She asserted that he grabbed her hard eno ugh to leave a handprint on her

arm. She stated that R.H. continued to yell profanities at her throughout the incident. {¶20} T.M. testified that she conti nued to yell for help and that, i n response, her teenaged son and her boyfriend’s teenaged son both came out of the house . She stated that her son had a bb gun in his hands. T.M. claimed that R.H. then began yelling pr ofanities at her son while grabbing his own genitalia and gesturing to him. T.M. stated that R.H. eventually got into his truck, but before he left, he backed the t ruck “way up” to the point she h ad to move out of the way. {¶21} T.M. testified that she called the police after R.H. left and t hat the responding officer arrived within fifteen minutes. She gave the officer a statement, showed him the marks on her arm and chest, and he took pictures of the marks. She stat ed that she went to the police department after returning fro m vacation and the police took an other picture of the mark on her10

chest. She claimed during cross-examination that she told the responding officer there were security cameras on the house th at should have recorded the inc ident, but that she did not know if the officer ever reviewed them. When asked whether she specifi cally asked the officer that “[R.H. be charged” or that the officer “bring charges also for [her] b oyfriend,” she claime d that she could not remember whether she specifically asked the officer to char ge R.H., or if she asked whether the officer was going to arrest R.H. {¶22} T.M. acknowledged on cross-examin ation that pursuant to court o rder, the parties are required to communicate via Family Wizard, a court-monitore d website, and that visitation exchanges of their child are re quired to occur at the Jackson T ownship Police Department. When asked if she remembered sending R .H. a text message asking to c ommunicate outside of Family Wizard because her subscription had expired, she maintained tha t she did not, but that she did remember “sending a text message trying to have a healthy relat ionship, trying to step outside – you know, have normal communica tion.” She also could not remem ber if she sent that text message in June or July. {¶23} T.M. testified that as a result of the above incident, R.H. was charged with domestic

violence in the Barberton Munici pal Court and that a temporary protection order was issued. She stated that despite this TPO, R.H. instructed his son to call t heir child to wish her a happy birthday. As a result of this contact, R.H. was also charged with violati ng the TPO. T.M. stated that no other contact had occurred while any p rotection order was pending. T .M. acknowledged on crossexamination that she had made previous police reports regarding confrontations between herself and R.H. that had occurred at the Jackson Township Police Stati on. She also acknowledged that she had previously called the police because she believed R.H. was harassing her over the phone.11

T.M. stated that despite her testimony that their child fears R .H., she has not taken the child to see a counselor as a result of the July 31, 2018 incident. {¶24} Officer Kaaikaula testified that on July 31, 2018, T.M. called the Franklin Township Police Department and he was dispatched as a result. Officer Kaaikaula stated that T.M. made a statement regarding the incident. He said that T.M. tol d him R.H. had yelled obscenities at her, threatened to harm her, struck her on the chest, and gr abbed her arm. He stated that he

observed red marks on her chest and arm. He asserted that the red mark on her chest was consistent with being struck and the red ma rks on her arm were consistent with being grabbed. Officer Kaaikaula acknowledged on cross-ex amination that T.M.’s first w ords to him upon his arrival at the scene were, “see the red mark they disappear?” He further stated that when he arrived, “[t]hey were looking at a security footage on their phone [to s]ee if t hey could find anything of the incident that took place.” On cross-exa mination, Officer Kaaikaula clar ified that T.M.’s boyfriend was the individual who presented the security footage to him, suggestin g that the incident should have been captured by the camera. Officer Kaaikaula stated that he revie wed the footage, but “[t]here was nothing on the video.” He also acknowledged that T.M. suggeste d to him that R.H. had a history of domestic violence and that he had trained his dog to attack her. Officer Kaaikaula stated that he attempted to follow up with the Jackson Police Department re garding T.M.’s allegation that R.H. had a history of domestic vi olence, but that he “never hea rd anything back.” {¶25} Officer Kaaikaula stated that T. M. told him she wanted R.H. to be charged with a crime before he was able to ask if she was willing to go forwar d with charges. He stated that he

had decided to arrest R.H. before he left scene. Officer Kaaik aula described T.M.’s demeanor during their conversation as “ shaky a little bit” and again on cross-examination as not “really that shaken up.”12

{¶26} Officer Kaaikaula stated that la ter that day he also took a sta tement from R.H. at the police station. He noted that R.H. had also called the pol ice that day and that R.H. voluntarily

came in for an interview. The officer stated that R.H. arrived at the station before he had left

T.M.’s house. Officer Kaaikaula st ated that R.H. did not “open ly admit to anything[,]” but that he

still determined to cha rge him with a crime based on T.M.’s sta tements. {¶27} Although Officer Kaaikaula brought his case file to the hearing , he stated that he did not have the official poli ce photographs because they were “sitting with the Prosecutor.” Officer Kaaikaula did bring a copy of his body-camera footage. Officer Kaaikaula asserted he had

no reason to believe that T.M. w as lying and did not believe sh e was feigning or manipulating the

scene. Officer Kaaikaula did ac knowledge on cross-examination, however, that T.M. had given him a couple of different vers ions of the alleged incident. {¶28} R.H. testified that he and T.M. had been divorced for five year s at the time of the incident and that the parties had one daughter together. He al so stated that the parties were supposed to communicate through Family Wizard. He further stat ed that his account was still active, but that T.M. had stopped using the service. R.H. stat ed that he and T.M. were supposed to pick up and drop off their daught er at the Jackson Police St ation pursuant to court order. {¶29} R.H. testified that the week of the incident, T.M. denied him h is regular courtordered Wednesday visitation because their daughter had been wi th him the entire week prior for

vacation. He asserted that T.M. invited him to her new home be cause T.M. had denied him his visitation and he wanted to see the child before they left on v acation. R.H. maintained that his understanding of what would occur was that he would pick up the child and take her out to dinner, spend a few hours with her, and meet T.M.’s boyfriend. He stat ed that he arrived at the agreed13

time and that T.M. and their child were on the front porch wait ing, but that T.M. said her boyfriend

would be back in a few minutes. H e said his daughter ran to hi m and gave him a big hug. {¶30} R.H. stated that his daughter wanted to show him where she swam , so they started walking toward the lake. He s aid that when he and his daughter had walked the distance of about two houses, T.M. ran out into the yard and began screaming, “Th is is private. You can’t leave the yard. This is private.” He re sponded by saying that their dau ghter just wanted to show him where she swims, that they were “not doing anything,” and that they w ould be right back. He testified that in response to his statement, T.M. started screaming, “Wel l, you’re not taking her then.” R.H. stated that he understood this to mean that T.M. would deny him his visit with his daughter if he continued. Consequently, he and his daughter turned around and went back to the yard. When

asked on cross-examination if t his angered him, R.H. responded, “No. Why would I care?” and that he “was just trying to kill some time before [T.M.]’s boyf riend got there.” {¶31} R.H. asserted that when he came back to the yard, T.M. “was bei ng very nasty.”

He stated that T.M. said he wa s “a piece of sh*t,” and that her new boyfriend was a better dad and that because he had more money than R.H. he would take better c are of their daughter. He stated that while T.M. was yelling these things at him, he was holding their daughter. He asserted that

he then walked around his truck and strapped his daughter into the backseat. R.H. stated on crossexamination that he decided to l eave because T.M. “was acting c razy.” {¶32} R.H. asserted that T.M. came running around the front of the tr uck yelling that he was not taking their daughter. When he asked why he could not take her, he claimed that T.M. screamed “I’m a c**t, c**t, c**t , c**t.” He testified that he told T.M. not to touch his truck, but that she grabbed the door and hit him with it. He stated that she forced the door open with her body and started screaming for help. Throughout his testimony, R.H. maintained that T.M. was14

the aggressor in the incident . When asked on cross-examination whether T.M. was “aggressively going after” him, R.H. responded t hat T.M. was “[v]ery aggressi vely trying to get into [his] car.” {¶33} As a result of her screams, he said he took his hands off the d oor and backed off. R.H. testified that T.M. then started to take their daughter ou t of the truck. He stated that their daughter said “no, mommy. I want to go with daddy[,]” but that T.M. took her out of the truck anyway. R.H. testified that two boys, T.M.’s son and a boy he presumed to be T.M.’s boyfriend’s son, came running out of the backyard pointing guns at him. He asserted that T.M.’s son had a 1911 stainless pistol and the othe r boy had an a ir rifle. R.H. stated that he tol d the boys to put the guns down. He stated that he then said, “[T.M.], what are thes e kids doing? I mean, they were pointing the guns at my daughter and everybody.” He conceded t hat he may have told the boys to “put the f-ing guns down” a few times, but R.H. denied the accu sation that he grabbe d his genitalia. He asserted that T.M. was “making that up” and that it was “100 percent lie.” R.H. maintained on cross-examination that T.M.’s son was carrying a real firearm a nd not a pellet gun and that he was scared for his life and his daughter’s life. {¶34} R.H. testified that he went b ack to his truck, got in, got back out, but then got back in and left. He stated that when he was backing out, T.M. was standing in front of his truck by the porch with their daughter. R.H. said that he thought he “spun out a little” in the driveway when put the truck in reverse. R.H. asserted that T.M. then came ru nning around the truck as he was backing out and tried to take a picture of his license plate. {¶35} R.H. testified that when he was driving down the main lane in t he development to leave, T.M.’s boyfriend was driving by. He stated they both st opped their vehicles and an exchange took place. On cross-exa mination, R.H. stated that he had concerns about T.M.’s boyfriend spanking his daughter because she told him that the b oyfriend “hit her a couple times15

and cried to [R.H.] about it.” D espite theses concerns, he sta ted it was not his intention to speak the boyfriend about it. He stated that the first thing T.M.’s boyfriend said to him was, “Go back to your piece of sh*t box of a house.” In response, R.H. told the boyfriend that he did not come

over to start trouble and that hi s “girlfriend is acting crazy. ” {¶36} R.H. testified that he called the police following the above in cident because T.M. had “made false accusations in the past.” He claimed that she had “accused [him] of some stuff” at the Jackson Police Station, but that it was “all on video, a nd it didn’t happen.” He stated he took his dog home and then went directly to the New Franklin Police Station and spoke to a female

officer who took a written statem ent from him. He stated that Officer Kaaikaula came in after he

had written his statement and that he handed the statement to h im. On cross-examination he said that guns being pointed at and around his daughter scared him a nd was another reason he called the police. {¶37} Regarding the red marks on T.M.’s chest and arms, R.H. testifie d on crossexamination that he did not know where the marks came from, but that he did not cause them. When asked whether he believed T.M. was “manufacturing this sto ry,” he stated “yes.” R.H.

further testified that he did not have any physical contact wit h T.M. and when asked on crossexamination whether there was a chance that he accidentally str uck her in the chest or grabbed her,

he stated “no.” {¶38} R.H. testified that he was charged with domestic violence and m enacing as a result of the incident and that a temporary protection order was put i n place. He asserted that he has not had contact with his daughter si nce the incident. R.H. acknowl edged during cross-examination that he was charged with violating the temporary protection ord er, but denied directing his son to16

contact T.M. to wish their daughter a happy birthday. R.H. mai ntained that he was found not guilty on all charges. However, during cross-examination, R.H. stated the menacing charge was dropped. {¶39} On appeal, T.M. first asserts that the trial court’s determinat ion that T.M. failed to establish that a protection orde r was necessary to prevent futu re acts of domestic violence was “based solely” on the trial cour t’s observation of T.M.’s demea nor on the body-camera footage. This argument is belied by a review of the trial court’s journa l entry. In the entry, the trial court first outlines the procedural history of the case, the magistra te’s decision, and T.M.’s objections before stating the court’s own analysis. In considering T.M.’s objections, the trial court cites R.C. 3113.31 and explains what acts c onstitute domestic violence und er that statute. The court then provides a lengthy outline of the testimony presented at the he aring. After outlining the testimony presented at the hearing, the trial court notes that the magist rate was able to use her observation of the witnesses and their demeanors to weigh their credibility. A lthough the magistrate did not make an explicit determination regarding the credibility of the witn esses in this case, it is evident from the magistrate’s denial of T.M.’s petition for a DVCPO, that th e magistrate did not find her assertion that R.H. committed an act of domestic violence again st her to be credible. The trial court’s journal entry notes that the magistrate had the ability to review T.M.’s 9-1-1 call and Officer Kaaikaula’s body-camera footage. It is only after this statement that the trial court summarizes its own observations of T.M.’s body-language. Thus, it is apparent from the trial court’s journal entry that the c ourt’s intent was to give defer ence to the magistrate’s credibility determination in light of the evidence. {¶40} T.M. also argues that the evidence presented in the record esta blished that R.H. “attempted to cause, and did cause , bodily injury to [T.M.] in the presence of [their] minor child.” In making this argument, T.M. cites extensively to her own test imony and a portion of Officer17

Kaaikaula’s testimony. T.M.’s merit brief, however, completely ignores the contradictory testimony of R.H. and his consistent assertion that he did not strike or grab T.M. T.M.’s brief makes no attempt to explain why the magistrate erred in finding that testimony credible or why the trial court erred in deferring to the magistrate’s determin ation after reviewing the evidence presented. {¶41} In her reply brief, T.M. attempts to clarify her argument by as serting that the trial court’s interpretation of T.M.’ s demeanor on the body-camera fo otage was inconsistent with Officer Kaaikaula’s testimony and appears to argue that the tri al court should have deferred to

Officer Kaaikaula’s first-hand observations rather than its own judgment or that of the magistrate. The only testimony Officer Kaaikaula presented regarding T.M. ’s demeanor was that she appeared a little shaky. Upon its own examination of the evide nce, however, the trial court noted that T.M. did not appear shaken on the body-camera footage and that she sounded calm on the 9- 1-1 call. As stated above, under the civil manifest weight of the evidence standard, a reviewing court, we must always be “mindful of the presumption in favor o f the trial court’s factual findings” and mindful that the “weight to be given the evidence and the c redibility of the witnesses are primarily for the trier of the facts. T.S. , 2017-Ohio-281 at ¶ 4. Moreover, neither the body-camera footage nor the recording of the 9-1-1 call that the trial cour t relied on were made a part of the appellate record. This Court ha s consistently held that the ap pellant has the duty of ensuring that record on appeal is complete. State v. Daniels , 9th Dist. Lorain No. 08CA009488, 2009-Ohio1712, ¶ 22. “In the absence of a complete record, this Court i s obligated to presume regularity in the proceedings below.” King v. Carleton , 9th Dist. Lorain No. 13CA010347, 2013-Ohio-5781, ¶

30.18

{¶42} Moreover, this Court has long reco gnized that “‘the trier of fa ct is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.’” A.M.

v. D.L. , 9th Dist. Medina No. 16CA0059-M, 2017-Ohio-5621, ¶ 20, quotin g State v. Johnson , 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. Because the trie r of fact is in the best position to assess matters of credibility, this Court is generally loath to disturb those determinations on appeal.

Wiseman v. Wiseman , 9th Dist. Medina No. 13CA0009-M, 2014-Ohio-2002, ¶ 28. “[T]he trier of fact is free to believe ‘all, part, or none of the testimony of any witness who appeared before it[.]’” Chuparkoff v. Ohio Title Loans , 9th Dist. Summit No. 29008, 2019-Ohio-209, ¶ 15, quoting Bradley v. Cage , 9th Dist. Summit No. 20713, 2002 WL 274638, *2. {¶43} Upon review of the record, we cannot say that the trial court c learly lost its way and created a manifest miscarriage of justice in this case. Althou gh conflicting testimony was presented, there was competent, credible evidence in the record to support the trial court’s

determination that T.M. had not shown by a preponderance of the evidence that she was entitled to a DVCPO. Although T.M. asserted that R.H. had struck her in on the chest and grabbed her arm, R.H. testified that T.M. wa s the aggressor and that he nev er made physical contact with her.

R.H. further testified that T.M. had made unsubsta ntiated alleg ations of violence against him in the past. Because this Court di d not have the benefit of obser ving the parties at the hearing and because there is evidence in record to support the trial court’ s findings, we conclude that this is not the exceptional case where the evidence weighs heavily in f avor of reversal. {¶44} T.M.’s first assignment of error is overruled.

III. {¶45} T.M.’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Domestic R elations Division is affirmed.19

Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, 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 consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

TEODOSIO, J. CONCURS. CARR, P. J. CONCURS IN JUDGMENT ONLY.

APPEARANCES: JOSEPH G. STAFFORD and NICOLE A. CRUZ, Attorneys at Law, for Ap pellant. CHRISTOPHER DIONISIO, Attorney at Law, for Appellee.