[Cite as J.W. v. D.W., 2019-Ohio-4018.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

J.W., : 

 Petitioner-Appellee, : 

 No. 19AP-52 

v. : (C.P.C. No. 18DV-719)

D.W., : (REGULAR CALENDAR) 

 Respondent-Appellant. : 

 

D E C I S I O N 

Rendered on September 30, 2019 

 

On brief: D.W., pro se. Argued: D.W.

 

APPEAL from the Franklin County Court of Common Pleas, 

Division of Domestic Relations, Juvenile Branch 

SADLER, J. 

{¶ 1} Respondent-appellant, D.W., appeals the January 23, 2019 judgment of the 

Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, 

issuing a domestic violence civil protection order ("CPO") to petitioner-appellee, J.W. For 

the following reasons, we affirm the trial court order. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Appellee is the adult child of appellant. On May 29, 2018, appellee filed a 

petition for a CPO against appellant alleging appellant has engaged in telephone 

harassment, stalking, and trespassing for years, has made veiled threats to C.W. (his wife), 

talked about getting a gun, and has paranoid schizophrenia that she refuses to treat. 

According to the petition, due to appellant's behavior, appellee, C.W., and their roommate 

fear for their safety, and the stress of appellant's continued harassment is effecting C.W.'s 
No. 19AP-52 2 

mental state and recovery from a surgery. The trial court granted an ex parte CPO and set 

the matter for a full hearing. Multiple continuances followed. 

{¶ 3} On January 3, 2019, appellant filed a motion for deposition and discovery 

asking the court for an order to depose appellee at appellant's home in order to "establish 

foundation for this hearing and litigation." (Mot. for Disc. & Dep. at 1.) In her motion, 

appellant stated appellee's only complaint is he does not want to hear from her and does 

not want anything from her. According to appellant, "this needs to change" due to her 

serious health condition, and she "no longer [has] time to be patient." (Mot. for Disc. & 

Dep. at 1, 2.) She states that "[u]p to now, I've kept my distance and just called. Even when 

dropping his belongings off, I left them on the porch and waited at a distance for him to 

acknowledge receipt. And he did want his stuff. I've called for wellness checks since his 

Dad passed away." (Mot. for Disc. & Dep. at 2.) Appellant also states that the allegations 

of mental health are serious and causing her problems and that both C.W. and their mutual 

friend, B.S., are showing up at her work, following her, working with people who appellant 

is building a case against with the "fraud unit," and are trying to extort money from her. 

(Mot. for Disc. & Dep. at 2.) Appellant adds that pictures of appellant and appellee are 

being "used/sold." (Mot. for Disc. & Dep. at 2.) 

{¶ 4} In early January 2019, appellant issued subpoenas to 19 people. A full 

hearing was held before a judge on January 23, 2019. Both appellant and appellee 

appeared, pro se, at the full hearing and testified on their own behalf.1

{¶ 5} At the outset of the hearing, appellant asked the trial court judge about her 

pending motion. The trial court denied the motion to conduct a deposition of appellee and 

stated appellant could ask appellee questions related to the CPO at the hearing itself. 

{¶ 6} Appellee then testified on his own behalf. According to appellee, he wanted 

no contact with appellant but appellant nevertheless persisted in emailing him, texting him, 

showing up at his home, and having the police conduct wellness checks on him. Appellee 

offered a binder of exhibits in support of his testimony but did not bring a copy of the 

exhibits for appellant. Appellant told the trial court it was okay for the judge to look at the 

exhibits and then show the exhibits to appellant. 

 

1 On July 31, 2019, appellant filed a motion to supplement the record with the transcript of the full hearing. 

Appellee did not oppose the motion. In the interest of justice, we granted appellant's motion to supplement 

the record on September 6, 2019. App.R. 9(E); D.M.W. v. E.W., 10th Dist. No. 17AP-359, 2018-Ohio-821, ¶ 8. 
No. 19AP-52 3 

{¶ 7} Appellee's exhibits included: a notarized affidavit from C.W. attesting to her 

stress, anxiety, and fear regarding his mother; medical records of C.W.; a case index of a 

1988 criminal trespass case brought against appellant by a public school system; a May 

2018 police report from appellant calling the police to conduct a wellness check on appellee; 

a May 2018 police report documenting C.W.'s call to police when appellant was looking at 

the property next door to their property, which was for sale; three years of time clock 

records from C.W.'s place of employment to counter appellant's contention that C.W. was 

following her; information about the 22-caliber, tactical pellet rifle appellant received from 

an online store; approximately two years of emails from appellant to appellee, which 

appellee testified were unsolicited and unresponded to; text messages from appellant to 

appellee beginning in 2016; and a retail description of the pellet rifle owned by appellant. 

(Ex. at 253.) 

{¶ 8} Appellee described some of the email content as documenting appellant's 

ongoing, decade-long contention that various people behind the house yell things at her, 

and her belief that C.W. was involved with these people in the backyard. According to 

appellee, other emails from appellant to appellee show appellant recognized appellee 

wanted nothing to do with her but nonetheless persisted in emailing and texting him, 

sending the police to his house to conduct wellness checks when he would not respond to 

her, threatening to sue him and others if he did not respond to her, and stating she was 

including him in a lawsuit so that she could depose him since he would not talk to her. 

{¶ 9} Appellant testified on her own behalf. According to appellant, she does not 

have paranoid schizophrenia. Appellant stated she was being followed by people related to 

an actual FBI case, and this has to do with her son since C.W. has shown up at places 

appellant was working. On further questioning, appellant could not produce any dates 

C.W. followed her. Appellant repeatedly testified that her desire to make sure appellee is 

taken care of after she passes away motivates her to contact appellee and that she would 

continue to contact appellee regardless of his cooperation or desire to be left alone. "[T]here 

isn't anything that the Court * * * can do about this. * * * [O]ne way or another, I am going 

to make sure that [appellee is] taken care of after I die. Now, we can do that with your 

cooperation * * * or we can do it without your cooperation." (Tr. at 49-50.) 
No. 19AP-52 4 

{¶ 10} Regarding her interest in buying the house next to appellee, appellant 

testified she did not intend to live in the house but would buy it as a "rehab house"; she 

disagreed that her text to appellee stating "wanna be neighbors? Oh, you could give me a 

phone call" instead was pushing herself on appellee. (Tr. at 55, 64.) Appellant suggested 

she would sue appellee for loss of income from not purchasing the property next door from 

him due to the protection order. 

{¶ 11} Appellant further testified she did not believe her contact with appellee meets 

the threshold for the protection order since there had not been any violence, since offering 

appellee assistance does not equate to harassment, and having the police conduct wellness 

checks on him two or three times a year is not stalking. Appellant released the police officer 

who she subpoenaed for the hearing, called no other witnesses, and submitted no other 

evidence. 

{¶ 12} On the same day as the hearing, the trial court granted appellee a CPO against 

appellant, effective for five years. The CPO directs appellant, in pertinent part, to: not 

abuse, harm, attempt to harm, threaten, follow, stalk, or harass appellee or C.W.; not enter 

or interfere with appellee and C.W.'s residence, school, business, or place of employment; 

stay away from appellee and C.W. and, specifically, to not be present within 100 yards of 

appellee and C.W. or any place appellant knows or should know they are likely to be; not 

initiate or have any contact with appellee or C.W.; not remove, damage, hide, or dispose of 

any property owned or possessed by appellee or C.W.; not cause or encourage any person 

to do acts prohibited by the CPO; and not possess, use, carry, or obtain any deadly weapon 

while the CPO is active. 

{¶ 13} Appellant filed a timely appeal. 

II. ASSIGNMENTS OF ERROR 

{¶ 14} Appellant assigns the following as trial court error: 

[1.] The court errored procedurally by not requiring the 

petitioner [J.W.] to provide a copy of the 2 inch binder of 

exhibits which he submitted to the court. The court further 

errored by not showing the exhibits to defendant [D.W.] as 

each was discussed. 

[2.] The court errored in denying the requested deposition. 
No. 19AP-52 5 

[3.] The court errored in not permitting witnesses to be called 

by [D.W.], particularly his wife [C.W.] and their partner 

[B.S.]. 

[4.] The court abused it's discretion by preventing [D.W.] 

from owning or carrying a fire arm. 

[5.] The court errored in giving consideration to [C.W.'s] 

health and stress issues. 

[6.] The court errored in issuing this CPO for five years. 

[7.] The court abused it's discretion by granting the CPO when 

the standard requires the element of knowingly causing 

distress. 

[8.] The court abused it's discretion in issuing a CPO without 

sufficient evidence. 

[9.] The court errored by granting a CPO without sufficient 

evidence. 

[10.] The court errored in granting a CPO using the evidence 

presented. 

[11.] The court abused it's discretion by issuing a CPO for the 

purpose of preventing [D.W.] from purchasing the house next 

to my son's residence. 

(Sic passim.) 

III. STANDARD OF REVIEW 

{¶ 15} "Generally, the decision of whether or not to grant a CPO lies within the 

sound discretion of the trial court." C.L. v. T.B., 10th Dist. No. 17AP-813, 2018-Ohio-1074, 

¶ 5. Peterson v. Butikofer, 10th Dist. No. 18AP-364, 2019-Ohio-2456, ¶ 38. An abuse of 

discretion connotes a decision that was unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Where the trial court's decision to 

grant a CPO is supported by "sufficient, credible evidence * * * that the respondent had 

engaged in acts or threats of domestic violence," the trial court has not abused its discretion. 

(Citations omitted.) Peterson at ¶ 39; Olson v. Olson, 6th Dist. No. WD-15-002, 2016-Ohio149, ¶ 12. The scope and duration of a CPO is likewise within the sound discretion of the 

trial court and will not be reversed on appeal absent a showing that the decision was 
No. 19AP-52 6 

arbitrary, unconscionable, or unreasonable. Campbell v. Underwood, 10th Dist. No. 09AP1125, 2010-Ohio-2909, ¶ 11; T.S. v. B.S., 10th Dist. No. 18AP-302, 2018-Ohio-4987, ¶ 27. 

{¶ 16} Legal questions, including interpreting statutory authority, are reviewed de 

novo on appeal. Martin v. Martin, 10th Dist. No. 13AP-171, 2013-Ohio-5703, ¶ 6. 

IV. LEGAL ANALYSIS 

{¶ 17} For clarity of analysis, we will at times consider appellant's assignments of 

error out of order and have grouped certain assignments of error together where 

appropriate. We preliminarily note that we will address appellant's assignments of error 

only and disregard extraneous allegations which fall outside of the assignments of error and 

the record of this appeal. App.R. 12(A)(1)(b); Blevins v. Blevins, 10th Dist. No. 14AP-175, 

2014-Ohio-3933, ¶ 12. 

A. Appellant's First Assignment of Error 

{¶ 18} Appellant's first assignment of error contends the trial court erred 

procedurally and violated her due process rights by not requiring appellee to provide her a 

copy of the binder of exhibits. Appellant further contends the trial court erred by not 

showing the exhibits to appellant as each was discussed. Appellant cites to Loc.R. 3(E)(3) 

of the Franklin County Court of Common Pleas, Division of Domestic Relations, written 

instructions from the trial court magistrates, and an article on Ohio trial practice. 

{¶ 19} First, Loc.R. 3(E)(3) of the Franklin County Court of Common Pleas, Division 

of Domestic Relations, addresses case management in divorces. Therefore, it is 

inapplicable to the present case. Moreover, even if appellee was required to provide the 

exhibits to appellant in the manner argued, in this case appellant expressly agreed to the 

procedure proposed by the judge, did not raise the issue of not being provided with the 

exhibits prior to the hearing, did not object to not being presented each item as it was 

discussed with the trial court, and did not object to the exhibits being admitted into 

evidence at the close of the hearing. Furthermore, no record evidence demonstrates the 

binder was not presented to appellant. 

{¶ 20} "It is a well-established rule that an appellate court will not consider any error 

which counsel for a party complaining of the trial court's judgment could have called but 

did not call to the trial court's attention at a time when such error could have been avoided 

or corrected by the trial court." (Citations omitted.) State v. Quarterman, 140 Ohio St.3d 
No. 19AP-52 7 

464, 2014-Ohio-4034, ¶ 15. Furthermore, a party is not "permitted to take advantage of an 

error that he himself invited or induced the trial court to make." State ex rel. Mason v. 

Griffin, 90 Ohio St.3d 299, 303 (2000). We additionally note appellant, who received the 

exhibits prior to appeal, did not demonstrate how receipt of those exhibits at the full hearing 

would have affected the outcome of this case. Considering all the above, we find appellant 

has not demonstrated the trial court erred. 

{¶ 21} Accordingly, appellant's first assignment of error is overruled. 

B. Appellant's Second Assignment of Error 

{¶ 22} Appellant's second assignment of error contends the trial court erred and 

violated her due process rights by denying her motion and subsequent request to depose 

appellee. In support of her assignment of error, appellant cites to "Rule 26 A," which we 

presume to be Civ.R. 26(A), as providing "the right for trial preparation" and cites generally 

to Dater v. Charles H. Dater Found., 1st Dist. No. C-020675, 2003-Ohio-7148, for the 

proposition that a trial court abuses its discretion "based on an error made by the court 

related to denying discovery." (Appellant's Brief at 8.) Appellant asserts "[a]dditional 

assignment of errors [sic] will document errors of fact or lack thereof and other errors which 

would have been exposed in deposition." (Appellant's Brief at 8.) Appellant mentions 

"65.1," which we presume to refer to Civ.R. 65.1. (Appellant's Brief at 7.) 

{¶ 23} Civ.R. 26(A) provides that it is the policy of the civil procedure rules "(1) to 

preserve the right of attorneys to prepare cases for trial with that degree of privacy 

necessary to encourage them to prepare their cases thoroughly and to investigate not only 

the favorable but the unfavorable aspects of such cases and (2) to prevent an attorney from 

taking undue advantage of an adversary's industry or efforts." Civ.R. 26(A). The rule 

specifies deposition on oral examination as one of the methods to obtain discovery. Civ.R. 

26(B)(1) provides that "[u]nless otherwise ordered by the court in accordance with these 

rules, * * * [i]n general[, p]arties may obtain discovery regarding any matter, not privileged, 

which is relevant to the subject matter involved in the pending action." 

{¶ 24} Civ.R. 65.1 provides special procedures for CPOs in line with applicable 

statutory requirements that account for the protection of victims of domestic violence, 

stalking, and sexually oriented offenses. Civ.R. 65.1, Staff Note (July 1, 2012 Amendment). 

Under Civ.R. 65.1(D)(2), "[d]iscovery may be had only upon the entry of an order 
No. 19AP-52 8 

containing all of the following to the extent applicable: (a) The time and place of the 

discovery; (b) The identities of the persons permitted to be present, which shall include any 

victim advocate; and (c) Such terms and conditions deemed by the court to be necessary to 

assure the safety of the Petitioner, including if applicable, maintaining the confidentiality 

of the Petitioner's address." 

{¶ 25} Regarding the presentation of evidence in a CPO full hearing, in D.M.W. v. 

E.W., 10th Dist. No. 17AP-359, 2018-Ohio-821, ¶ 12, we noted that although the term "full 

hearing" is not statutorily defined, in general, a full hearing on a CPO petition "is one in 

which ample opportunity is afforded to all parties to make, by evidence and argument, a 

showing fairly adequate to establish the propriety or impropriety of the step asked to be 

taken." (Citations omitted.) Id. "[W]here the issuance of a protection order is contested, 

the court must, at the very least, allow for presentation of evidence, both direct and rebuttal, 

as well as arguments." (Citations omitted.) Id.

{¶ 26} In this case, during the full hearing on the CPO, the trial court denied 

appellant's request to depose appellee and told appellant she could question appellee 

during the hearing if her questions were related to the case and not about her divorce with 

appellee's father. As explained in more detail below, we find appellant has not 

demonstrated the trial court erred in denying her motion to depose appellee on this record. 

{¶ 27} First, appellant has not cited to which part of Dater she believes applies to 

this case. Regardless, Dater is an estate and charitable trust case in which the First District 

Court of Appeals found the trial court erred in granting, during a deposition, a defendant's 

motion for a protective order barring inquiry into certain topics and corresponding denial 

of the plaintiff-appellant's request to complete the deposition of a trustee. We find Dater

is not dispositive to this case, which, unlike Dater, involves a CPO full hearing and the 

proposed person to be deposed testifies at the hearing. 

{¶ 28} Second, while appellant is correct that the Ohio Civil Rules provide for 

discovery by deposition generally, appellant has not shown these rules required the trial 

court in this case to allow her to depose her son. Appellant's motion for deposition, filed 

20 days prior to the January full hearing, largely consists of matters irrelevant to whether 

a CPO is warranted in this case. Record evidence additionally shows appellant generally 

views deposing appellee as a tool to force him to speak to her since he refuses to otherwise. 
No. 19AP-52 9 

Furthermore, contrary to appellant's argument, we find no "errors of fact or lack thereof 

* * * which would have been exposed in deposition." (Appellant's Brief at 8.) Appellant 

had the chance to and did question appellee during the full hearing. She likewise had the 

opportunity to present evidence in opposition to appellee's assertions but she did not do so 

beyond her own testimony. 

{¶ 29} Considering all the above, we find appellant has not demonstrated the trial 

court erred or abused its discretion in denying her request to depose her son on the facts of 

this case. State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general 

rule that an appellant bears the burden of affirmatively demonstrating error on appeal). 

Therefore, we find appellant's assignment of error to lack merit. 

{¶ 30} Accordingly, appellant's second assignment of error is overruled. 

C. Appellant's Third Assignment of Error 

{¶ 31} Appellant's third assignment of error contends the trial court erred 

procedurally and violated her due process rights by not permitting her to call witnesses. 

We disagree. 

{¶ 32} As previously provided, a full hearing on a CPO petition "is one in which 

ample opportunity is afforded to all parties to make, by evidence and argument, a showing 

fairly adequate to establish the propriety or impropriety of the step asked to be taken." 

(Citations omitted.) D.M.W. at ¶ 12. "[W]here the issuance of a protection order is 

contested, the court must, at the very least, allow for presentation of evidence, both direct 

and rebuttal, as well as arguments." (Citations omitted.) Id. 

{¶ 33} Appellant cites H.C. v. R.C., 10th Dist. No. 15AP-936, 2016-Ohio-668, ¶ 13, 

Tarini v. Tarini, 10th Dist. No. 12AP-336, 2012-Ohio-6165, and Spigos v. Spigos, 10th Dist. 

No. 03AP-682, 2004-Ohio-757, ¶ 16, in support of her assignment of error. In H.C., we 

found the trial court committed plain error in failing to conduct a full hearing where there 

was no dispute the trial court did not allow the respondent to present any evidence because 

the trial court mistakenly believed it was compelled to grant a CPO based on an existing 

stay away order in a criminal case. In Tarini, we found a CPO petitioner had been deprived 

of a full hearing where the trial court denied the petitioner the opportunity to present 

additional evidence but then dismissed his request for the CPO because his evidence did 

not establish a prima facie case for such an order. Finally, in Spigos, we found the CPO 
No. 19AP-52 10 

petitioner was not afforded a meaningful opportunity to be heard where the record 

indicated that, without warning, the trial court interrupted the testimony of the petitioner, 

requested to speak with counsel off the record, and subsequently entered judgment against 

the petitioner on the basis that the petitioner had failed to prove an element of the CPO. 

{¶ 34} Each case is readily distinguishable from the case at hand, which, while 

lacking some formality and structure, did allow appellant the opportunity to present 

evidence and make her argument against the CPO in accordance with D.M.W. and Tarini. 

We note the witnesses mentioned by appellant at the hearing and cited to in her appellate 

brief—a witness to appellee's alleged kidnapping as a child and "multiple witnesses" to her 

not being physically violent with appellee—were not relevant to the CPO at hand. (Tr. at 

57.) Appellant does not cite to, nor do we find, anywhere in the transcript where appellant 

asked to call C.W. or B.S. at the full hearing or the trial court actually denying such a request. 

Therefore, considering all the above, we find appellant's assignment of error to be against 

the record and to lack merit. 

{¶ 35} Accordingly, appellant's third assignment of error is overruled. 

D. Appellant's Fifth Assignment of Error 

{¶ 36} In her fifth assignment of error, appellant contends the trial court erred by 

considering C.W.'s health and stress issues. She refers to hearing testimony of appellee as 

well as the discussions between appellee and the court regarding the affidavit of C.W., 

which attested to C.W.'s fear, stress, and anxiety caused by appellant and the resultant 

impact to their lives and C.W.'s health. 

{¶ 37} Specifically, appellant argues: the trial court was improperly trying to use the 

order to prevent C.W. from adverse health effects due to stress, and the evidence did not 

amount to "mental distress" but, rather, merely mental stress or annoyance; the evidence 

of C.W.'s stress is not "admissible"; no evidence or documentation of C.W.'s stress such as 

a "report of seeing a professional" was submitted to the trial court; her son (not appellant) 

is the cause of the stress since "[h]e is the one * * * plant[ing] these fears" and "perpetuating 

these allegations"; and, regardless, C.W.'s health issues are resolved. (Appellant's Brief at 

11-12.) For the following reasons, we disagree. 

{¶ 38} At the outset, we note that many of these arguments seem to involve issues—

such as sufficiency and/or weight of the evidence—that are unrelated sustaining the 
No. 19AP-52 11 

assignment of error. As previously noted, "this court rules on assignments of error only." 

Blevins, 2014-Ohio-3933, at ¶ 12; App.R. 12(A)(1)(b). The sufficiency of the evidence to 

support a protection order in this case is addressed later in this decision in regard to her 

seventh, eighth, and tenth assignments of error. Because appellant challenged only the trial 

court's "consideration" of C.W.'s health and stress issues, we will consider that question 

alone. (Appellant's Brief at 1o.) 

{¶ 39} Appellant does not challenge mental distress as a basis to support the CPO 

issued under R.C. 3113.31 in this case. As defined in R.C. 3113.31(A)(1)(a)(ii), the definition 

of domestic violence includes "committing a violation of [R.C.] 2903.211," the menacing by 

stalking statute. Menacing by stalking under R.C. 2903.211(A)(1) is supported where a 

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 a family or 

household member of the other person or cause mental distress to the other person or a 

family or household member of the other person." (Emphasis added.) Thus, "explicit or 

direct threats of physical harm are not necessary to establish a violation of R.C. 

2903.211(A)." Kramer ex rel. Kramer v. Kramer, 3d Dist. No. 13-02-03, 2002-Ohio-4383, 

¶ 15. 

{¶ 40} R.C. 2903.211(D)(2)(b) defines mental distress, in 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." 

(Emphasis added.) See also Dunkin v. Ireland, 10th Dist. No. 04AP-1175, 2005-Ohio-3371, 

¶ 16-17 (finding issuance of CPO under the menacing by stalking prong of R.C. 3113.31(A)(1) 

to be supported by a preponderance of the evidence where petitioner's mental distress, 

exhibited through her statements regarding being fearful of the respondent and having 

panic attacks, was reasonable given the respondent's repeated unwanted contact with the 

petitioner). 

{¶ 41} Here, contrary to appellant's contention, we find C.W.'s fear, anxiety, and 

health to be relevant to meeting the statutory definition of mental distress under R.C. 

2903.211. Furthermore, because the definition of mental distress specifies a person need 

not pursue professional treatment or services in order for that mental condition to serve as 
No. 19AP-52 12 

a basis for establishing menacing by stalking under R.C. 2903.211(A)(1), the lack of a 

medical or professional opinion did not render C.W.'s affidavit inadmissible. The cases 

cited by appellant2 are either irrelevant to the assignment of error or distinguishable and 

not dispositive to the case at hand. We further find appellant's contentions regarding 

appellee as the cause of C.W.'s distress to be against the record, and appellant's comment 

about C.W.'s current health state to be irrelevant and based on information outside of the 

record. 

{¶ 42} Considering all the above, we find the trial court did not err by considering 

C.W.'s health and stress issues and, therefore, appellant's assignment of error lacks merit. 

{¶ 43} Accordingly, appellant's fifth assignment of error is overruled. 

E. Appellant's Seventh, Eighth, and Tenth Assignments of Error 

{¶ 44} Appellant's seventh, eighth, and tenth assignments of error collectively 

challenge aspects of the sufficiency of the evidence to support the trial court's issuance of 

the CPO. We address them together. 

{¶ 45} "A person seeking a CPO must prove domestic violence or threat of domestic 

violence by a preponderance of the evidence." Dunkin at ¶ 14, citing Felton v. Felton, 79 

Ohio St.3d 34 (1997), paragraph two of the syllabus. R.C. 3113.31(A)(1)(a)(ii) defines 

"domestic violence," in relevant part, as "[t]he occurrence of one or more of the following 

acts against a family or household member: * * * 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.) 

{¶ 46} R.C. 2903.211(A)(1) addresses menacing by stalking and provides in part: 

"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 a family or 

household member of the other person or cause mental distress to the other person or a 

family or household member of the other person." (Emphasis added.) R.C. 

2903.211(A)(2)(a) specifies that prohibited conduct includes "use of any form of written 

communication or any electronic method of remotely transferring information * * * [to] 

 

2 Thomas v. Thomas, 44 Ohio App.3d 6, 7 (10th Dist.1988); Studer v. Studer, 3d Dist. No. 3-11-04, 2012-Ohio2838, ¶ 29; Kramer; Caban v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶ 31. 
No. 19AP-52 13 

post a message or use any intentionally written or verbal graphic gesture with purpose to 

* * * [v]iolate division (A)(1)." 

{¶ 47} R.C. 2903.211(D) sets forth definitions for "pattern of conduct" and "mental 

distress." Under R.C. 2903.211(D)(1), "[p]attern of conduct" means, in pertinent part, "two 

or more actions or incidents closely related in time, whether or not there has been a prior 

conviction based on any of those actions or incidents." "In determining what constitutes a 

pattern of conduct for purposes of R.C. 2903.211(D)(1), courts must take every action into 

consideration even if * * * some of the person's actions may not, in isolation, seem 

particularly threatening." (Citations omitted.) Olson, 2016-Ohio-149, at ¶ 14. 

{¶ 48} Under R.C. 2903.211(D)(2), "[m]ental distress" means any of the following: 

(a) Any mental illness or condition that involves some 

temporary substantial incapacity; 

(b) Any 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. 

" '[M]ental distress for purposes of menacing by stalking is not mere mental stress or 

annoyance.' " Ellet v. Falk, 6th Dist. No. L-09-1313, 2010-Ohio-6219, ¶ 38, quoting Caban

v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶ 29. However, it "need not be 

incapacitating or debilitating." Jenkins v. Jenkins, 10th Dist. No. 06AP-652, 2007-Ohio422, ¶ 19. "[E]xpert testimony is not required to find mental distress. Lay testimony may 

be sufficient." Id. See also Ellet at ¶ 38 ("[T]estimony that the offender's conduct or actions 

caused the victim considerable fear and anxiety can support a finding of mental distress."). 

"A trial court may rely on its knowledge and experience in determining whether mental 

distress has been caused." (Citation omitted.) Jenkins at ¶ 19. 

{¶ 49} The mental state of "knowingly" is set forth in R.C. 2901.22(B), which states: 

A person acts knowingly, regardless of purpose, when the 

person is aware that the person’s conduct will probably cause 

a certain result or will probably be of a certain nature. A 

person has knowledge of circumstances when the person is 

aware that such circumstances probably exist. When 

knowledge of the existence of a particular fact is an element of 

an offense, such knowledge is established if a person 

subjectively believes that there is a high probability of its 
No. 19AP-52 14 

existence and fails to make inquiry or acts with a conscious 

purpose to avoid learning the fact. 

See also Ellet at ¶ 28-30. 

{¶ 50} In this case, appellant first argues, in her seventh assignment of error, that 

the trial court erred by granting the CPO when the evidence did not show she "knowingly 

caus[ed] distress." (Appellant's Brief at 13.) According to appellant, she has been estranged 

from appellee for years and there was no way appellant could know about C.W.'s health 

problems or what appellee was saying to C.W. Further, appellant argues that "[p]ossibly 

annoying" appellee and C.W. does not meet the standard for the CPO. (Appellant's Brief at 

13.) In her eighth assignment of error, appellant contends the trial court abused its 

discretion by issuing a CPO without sufficient evidence since her behavior does not rise to 

the level of stalking, and it is inappropriate to use a CPO "merely to create a buffer-zone" 

around C.W. (Appellant's Brief at 14.) She argues that her buying the house next door may 

create a temporary uncomfortable situation but does not meet the CPO standard. In her 

tenth assignment of error, appellant contends the trial court erred in granting the CPO 

using the evidence presented. Under this assignment of error, appellant cites to J.T. v. R.T., 

9th Dist. No. 14CA0061-M, 2015-Ohio-4418, to assert that use of bribes, "carrots," and 

some threats of action when dealing with children is normal and not a basis to issue a CPO. 

(Appellant's Brief at 16.) As to the number of phone calls she makes to appellee, appellant 

states "the standard is a legitimate reason for making a call," and her legitimate reasons to 

call included dealing with his belongings that were still at her house, giving appellee 

reminders, such as to lock his doors or wear his helmet, and addressing "things that need 

to be put in order before [she] dies." (Appellant's Brief at 16, 17.) Appellant also cites to 

Gannon v. Gannon, 6th Dist. No. WD-07-078, 2008-Ohio-4484, in contending that two 

alleged previous occurrences were too old to be considered in support of the CPO. 

{¶ 51} Having reviewed the record of the full hearing, we disagree that the trial court 

erred in granting the protection order in this case. Record evidence shows an extensive 

history, which spans years prior and up to the petition for the CPO, of appellant repeatedly 

contacting appellee by phone, email, and appearing at his house. Appellant's repeated 

contacts persisted despite her acknowledgment of appellee's lack of response and desire to 

be left alone, and she openly discussed and demonstrated her willingness to use police 

wellness checks and lawsuits to force appellee to interact with her. In testifying at the full 
No. 19AP-52 15 

hearing, appellant continued to express her resolve to force appellee to interact with her 

despite his wishes. Furthermore, in her emails, text message, and testimony, appellant 

accuses appellee's wife, C.W., of unsubstantiated actions, such as showing up at appellant's 

places of employment, being involved with people who appellant believes are harassing her 

and threatening her, and states appellant would not tolerate C.W.'s harassment anymore. 

Appellee submitted as an exhibit an affidavit of C.W. attesting to the fear and anxiety caused 

by appellant's behavior and communications, the changes appellee and C.W make in their 

daily lives to attempt to avoid her, and the impact the stress and anxiety has had on C.W.'s 

health and recovery from a surgery. 

{¶ 52} Having carefully considered appellant's arguments, we find this record 

contains sufficient evidence to demonstrate appellant engaged in a pattern of conduct that, 

regardless of her purpose, she knew would probably cause mental distress for purposes of 

R.C. 2903.211. R.C. 2903.211(A)(1) and (2), (D); R.C. 2901.22(B); Dunkin, 2005-Ohio3371, at ¶ 16-18. Lias v. Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 14, quoting 

Jenkins at ¶ 16 (" 'Purpose or intent to cause physical harm or mental distress is not 

required. It is enough that the person acted knowingly.' "). Therefore, appellant's 

assignments of error challenging the sufficiency of the evidence to support the CPO lack 

merit. 

{¶ 53} Accordingly, appellant's seventh, eighth, and tenth assignments of error are 

overruled. 

F. Appellant's Ninth Assignment of Error 

{¶ 54} In her ninth assignment of error, appellant again contends the trial court 

erred issuing a CPO without sufficient evidence. Under this assignment of error, appellant 

argues that appellee's contention that she is a paranoid schizophrenic is untrue and should 

not have been considered by the trial court without the presentation of medical records. 

{¶ 55} In this case, the parties presented conflicting testimony regarding whether 

appellant has paranoid schizophrenia. Neither party presented medical records. However, 

there is no record evidence the trial court based its decision on appellant's alleged 

psychological condition. As demonstrated in the seventh, eighth, and tenth assignments of 

error above, the record of this case contains sufficient evidence to demonstrate appellant 

engaged in a pattern of conduct she knew would probably cause appellee and C.W. mental 
No. 19AP-52 16 

distress for purposes of R.C. 2903.211. It is, therefore, not clear how the argument 

appellant presents here would result in the assignment of error as written, pertaining to 

sufficiency of the evidence, being sustained. App.R. 12(A)(1)(b). Regardless, because 

appellant presented no legal authority to support this assignment of error, we find appellant 

has not demonstrated error on appeal. Sims, 2016-Ohio-4763, at ¶ 11; State v. Hubbard, 

10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34; App.R. 16(A)(7); State v. Smith, 9th Dist. 

No. 15AP0001n, 2017-Ohio-359, ¶ 22 (noting that it is not the duty of an appellate court to 

create an argument on an appellant's behalf). 

{¶ 56} Accordingly, appellant's ninth assignment of error is overruled. 

G. Appellant's Eleventh Assignment of Error 

{¶ 57} Appellant's eleventh assignment of error contends the trial court abused its 

discretion by issuing a CPO for the purpose of preventing appellant from purchasing the 

house next to appellee's residence. In support of her assignment of error, appellant cites to 

what we presume to be R.C. 3113.31(E)(5) for the proposition that a CPO cannot affect title 

to real property and three cases—Darden v. Fambrough, 8th Dist. No. 99730, 2013-Ohio5583, ¶ 2; Chandler v. Dunn Hardware, Inc., 168 Ohio App.3d 496, 2006-Ohio-4376, ¶ 23 

(8th Dist.); and In re Marriage of Muhammad, 153 Wash.2d 795, 805 (2005)—essentially 

for the proposition that CPOs should not be used as tactics during employment disputes. 

{¶ 58} R.C. 3113.31(E)(5) provides that "[n]o protection order issued or consent 

agreement approved under this section shall in any manner affect title to any real property." 

It is undisputed that at the time of the CPO hearing, appellant did not own the property 

next to appellee's residence, was not in contract to buy that property, or otherwise had any 

right to the property in question. Appellant provides no authority applying R.C. 

3113.31(E)(5) in these or similar circumstances to prevent the issuance of a CPO. As a 

result, appellant has not met her burden to demonstrate error on appeal in this regard. 

Sims at ¶ 11; App.R. 12(A)(2) and 16(A)(7); Smith at ¶ 22. 

{¶ 59} Furthermore, the record in this case clearly does not implicate that a CPO was 

improperly used within the context of an employment dispute. We find appellant's 

argument in this regard to be against the record and to lack merit. 

{¶ 60} Accordingly, appellant's eleventh assignment of error is overruled. 

 
No. 19AP-52 17 

H. Appellant's Fourth and Sixth Assignments of Error 

{¶ 61} Appellant's fourth and sixth assignments of error challenge certain 

conditions imposed in the CPO as unsupported by the evidence. As provided previously, 

the scope and duration of a CPO is within the sound discretion of the trial court and will 

not be reversed on appeal absent a showing that the decision was arbitrary, unconscionable, 

or unreasonable. Campbell, 2010-Ohio-2909, at ¶ 11; T.S., 2018-Ohio-4987, at ¶ 27. 

{¶ 62} In her fourth assignment of error, appellant contends the trial court abused 

its discretion by preventing her from owning or carrying a firearm. She contends she does 

not own a gun, and the evidence shows she never made any violent threats, let alone with a 

gun. 

{¶ 63} Appellant cites to Lerner v. Giolekas, 8th Dist. No. 102768, 2016-Ohio-696, 

and Boals v. Miller, 5th Dist. No. 10-COA-039, 2011-Ohio-1470, in support of her 

assignment of error. In Lerner, after vacating a protection order and ordering a new 

hearing, the Eighth District Court of Appeals held that should the trial court issue another 

protection order on remand, "there must be competent, credible evidence that prohibiting 

[the petitioner] from having firearms or weapons bears a sufficient nexus to the conduct 

that the trial court is attempting to prevent." (Citation omitted.) Lerner at ¶ 52. In Boals, 

the Fifth District Court of Appeals found the trial court abused its discretion when it 

prohibited the respondent from possessing firearms because the evidence in the record 

does not support the restriction where the protection order was based on the petitioner's 

demonstration of a reasonable fear of imminent physical harm, and no record evidence 

showed the respondent threatened the petitioner with physical harm with a deadly weapon. 

{¶ 64} We find Boals—a case based on the fear of imminent physical harm, rather 

than a case based on mental distress caused by stalking behavior—to be factually 

distinguishable from the case at hand. Moreover, appellant has not demonstrated the 

restriction is unrelated to this particular CPO on the record of this case. In appellee's 

affidavit in support of the ex parte CPO, in addition to discussing appellant's telephone 

harassment, stalking, and trespassing for years, her untreated mental condition, and veiled 

threats she makes to C.W., he states, "[i]n the past [appellant] has talked about getting a 

gun." (Addendum to Petition for Civil Protection Order at 1.) In C.W.'s affidavit provided 

as an exhibit at the hearing, C.W. avers: "I can remember she left voicemails a few years ago 
No. 19AP-52 18 

talking about how she was thinking of getting a gun. More recently she left my husband 

text messages stating that she had gotten a pellet rifle and was going to 'get a hunting 

license.' " (Aff. at 3.) In an email provided as an exhibit, appellant states she received a 

tactical rifle from Amazon and that Amazon did not know who it belonged to and to keep 

it. A text message from appellant to appellee that day urges appellant to call her because 

she received an "M4 by mistake" and asking him if it is real. (Mar. 17, 2017 Text Message 

at 1.) About one month later, appellant texts, "I learned how to kill raccoons with a pellet 

rifle. Amazon hasn't called back so I'm opening that M4 and getting a raccoon license." 

(June 25, 2017 Text Message at 1.) At trial, appellee testified appellant had a "122 Lancer 

Tactical," which he described as a 22-caliber pellet rifle capable of killing small game. (Tr. 

at 39.) The protection order ultimately proscribed: "RESPONDENT SHALL NOT 

POSSESS, USE, CARRY, OR OBTAIN ANY DEADLY WEAPON at any time while the Order 

remains in effect."3 (Emphasis sic.) (Order of Protection at 3.) 

{¶ 65} Having considered the evidence presented regarding appellant's expressed 

desire to obtain a gun within the context of the entire record and the protection order issued 

in this case, we cannot say the trial court's decision to impose a restriction on appellant 

against possessing, using, carrying, or obtaining any deadly weapon was arbitrary, 

unconscionable, or unreasonable. Therefore, the trial court has not abused its discretion, 

and we will not reverse its decision in this regard. Campbell at ¶ 11; T.S. at ¶ 27. 

{¶ 66} In her sixth assignment of error, appellant contends the trial court erred in 

issuing the CPO for five years. She contends her serious health condition is a mitigating 

circumstance that would warrant consideration of a duration of less than five years. 

{¶ 67} Taking into consideration appellant's long pattern of conduct toward 

appellee and testimony expressing her unwillingness to stop contacting appellee in the 

future, we cannot conclude the trial court's decision to issue a CPO for a period of five years 

was unreasonable, arbitrary, or unconscionable. Lias, 2007-Ohio-5737, at ¶ 36 (finding 

trial court did not abuse its discretion in setting a five-year duration of a protection order 

where the record showed an extensive pattern of unwanted conduct with the petitioner). 

 

3 Because no specific weapons were indicated for appellant to turn over to law enforcement, the trial court 

apparently did not view the pellet gun referenced in the record as a deadly weapon or appellant's possession 

of it as the basis for imposing the restriction. 
No. 19AP-52 19 

Therefore, on this record, the trial court's decision to issue a CPO for a period of five years 

was within its discretion and within the authority of the court. 

{¶ 68} Accordingly, appellant's fourth and sixth assignments of error are overruled. 

V. CONCLUSION 

{¶ 69} Having overruled appellant's eleven assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, 

Juvenile Branch. 

Judgment affirmed.

KLATT, P.J., and DORRIAN, J., concur. 

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