[Cite as McGrady v. Muench, 2019-Ohio-2677.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

KELLY ANNE MCGRADY, 

 Appellee, 

 - vs - 

CHRISTOPHER M. MUENCH, 

 Appellant. 

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CASE NO. CA2018-12-145 

O P I N I O N 

7/1/2019 

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

DOMESTIC RELATIONS DIVISION 

Case No. 18DV8251 

The Bonecutter Firm, Brenda L. Bonecutter, 530 York Street, Newport, Kentucky 41071, for 

appellee 

Pinales, Stachler, Young, & Burrell Co., LPA, Eric G. Eckes, 455 Delta Avenue, Suite 105, 

Cincinnati, Ohio 45226, for appellant 

 S. POWELL, J.

{¶ 1} Appellant, Christopher M. Muench, appeals the decision of the Warren County 

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

protection order ("DVCPO") to appellee, Kelly Anne McGrady. For the reasons outlined 

below, we affirm. 
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Facts and Procedural History 

{¶ 2} Muench and McGrady are the parents of one child, D.M., born on April 27, 

2016. Muench and McGrady were never married. McGrady is D.M.'s sole legal custodian. 

Although ordered to pay child support, Muench has never requested custody nor has 

Muench ever requested any court ordered parenting time with D.M. However, although not 

provided with any court ordered parenting time, McGrady had nevertheless permitted 

Muench to visit D.M. on a fairly consistent basis. This was due in large part to McGrady 

and Muench's on-again-off-again romantic relationship in the year following D.M.'s birth. 

{¶ 3} On May 1, 2018, approximately two years after D.M. was born, McGrady 

petitioned the domestic relations court for a DVCPO against Muench. In support of her 

petition, McGrady alleged that she had permitted Muench to take D.M. to a local restaurant 

for a belated birthday celebration. However, rather than taking D.M. to a restaurant, 

Muench instead took D.M. to his parents' house. Not wanting D.M. to be at Muench's 

parents' house due to her claims they had previously given D.M. sips of alcohol, McGrady 

went to the Muench house to retrieve her son from Muench and his family. 

{¶ 4} Once at the Muench house, McGrady alleged Muench and his mother refused 

to return D.M. to her care. McGrady alleged Muench grabbed D.M. and "ran inside to lock 

[McGrady] away from [her] son." Undeterred by Muench's efforts to keep her away from 

her son, McGrady alleged a physical altercation took place between herself and Muench. 

During this scuffle, McGrady alleged Muench shoved her into the wall, placed her in a choke 

hold, lifted her off the ground, and forcibly removed her from the property. To this, McGrady 

alleged she "struck Muench in the face with her keys" and pleaded for him to release her 

from his choke hold. 

{¶ 5} Due to her pleadings for Muench to release her from his choke hold, McGrady 

alleged Muench eventually let one of her arms free from his grasp. Once her arm was 
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released, McGrady called 9-1-1 and watched as Muench's friend "removed [his] hold and 

brought him inside." After the police arrived at the scene, McGrady alleged the "group" 

claimed she "broke in," "jumped" Muench, and struck him in the face. Due to their conflicting 

statements to police, McGrady alleged the police arrested her and took her to jail, thereby 

allowing D.M. to remain in Muench's care. Due to Muench and Muench's mother's efforts 

to avoid returning D.M. to McGrady, the record indicates D.M. remained in Muench's care 

for 15 days after this altercation occurred. 

{¶ 6} Upon receiving McGrady's petition, the domestic relations court granted an ex 

parte DVCPO to McGrady. Several months later, on August 21, 2018, the matter proceeded 

to a full hearing held before a domestic relations court magistrate. During this hearing, the 

magistrate heard testimony from McGrady, Muench, Muench's mother, and two of 

Muench's friends/acquaintances. This included McGrady's testimony that Muench hit her 

with the door "over and over" while she was trying to retrieve D.M. from the Muench home. 

McGrady also testified Muench shoved her into the door frame several times and "picked 

[her] up in a choke hold and carried [her] down the stairs and down the sidewalk." This, 

according to McGrady's testimony, caused her to suffer injuries to her person and put her 

in fear of Muench. This fear was further exacerbated by the fact Muench had access to "a 

lot" of firearms stored in his parent's basement. Muench thereafter testified and 

acknowledged that he "owned" several semi-automatic rifles and "a handful of handguns." 

{¶ 7} On August 24, 2018, the magistrate issued a decision granting a full DVCPO 

to McGrady. The magistrate based its decision upon finding the testimony offered by 

Muench and his supporting witnesses was "inconsistent at best." The magistrate instead 

found McGrady's testimony credible that Muench had repeatedly "struck [her] with a door 

to try to keep her from entering a home to recover [D.M.]" The magistrate also found 

credible McGrady's testimony that Muench had "shoved [her], then grabbed her, lifting her 
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off the ground, and removed her from the home's porch." This, as the magistrate found, 

caused McGrady to suffer physical harm to her person and placed McGrady in fear of 

additional bodily harm from Muench. The magistrate's decision set the DVCPO's expiration 

date for May 1, 2020, during which time Muench was ordered to surrender his firearms to 

the local authorities. 

{¶ 8} On August 31, 2018, Muench filed objections to the magistrate's decision. In 

support, Muench argued the magistrate's decision was against the manifest weight of the 

evidence. Muench supported this claim by noting his testimony alleging McGrady was the 

"primary physical aggressor," whereas he was merely acting in self-defense. Muench also 

argued that it was improper for the magistrate to order him to surrender his firearms to the 

local authorities since there was "no sufficient nexus" between the domestic violence 

incident at issue and any firearms that he may own. Muench later supplemented his 

objections by arguing there was no evidence McGrady had a reasonable fear of imminent 

serious physical harm to her person that necessitated the domestic relations court issuing 

a full DVCPO. 

{¶ 9} On November 20, 2018, the domestic relations court issued a decision 

overruling Muench's objections. In so holding, the domestic relations court found 

McGrady's testimony credible that Muench injured her by shutting the door on her as she 

tried to enter the Muench home. The domestic relations court also found McGrady's 

testimony credible that Muench shoved her, grabbed her, and "then lifting her off the ground 

as he removed [her] from his front porch. With such action, he went beyond what was 

required to act in self-defense." The domestic relations court further found that McGrady 

was not required to "demonstrate additional acts of domestic violence [had occurred after 

the ex parte order was issued] in order to justify further implementation of the DVCPO." 

{¶ 10} In addition to these findings, the domestic relations court found no merit to 
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Muench's claim that he should not be ordered to surrender his firearms to the local 

authorities. The domestic relations court based its decision on the language found in 18 

U.S.C. § 922(g)(8). Pursuant to that statute, it is unlawful for any person who is subject to 

court order restraining that person from "harassing, stalking, or threatening an intimate 

partner" to possess a firearm. Specifically, in applying the provisions of 18 U.S.C. § 

922(g)(8), the domestic relations court held: 

Father next objects to the condition of the DVCPO that requires 

him to turn over his firearms. Father claims that he does not 

"possess" weapons because they are part of a "private trust" 

which is memorialized on a piece of paper, notarized, with the 

signatures of himself, his parents, and a family friend. He also 

cites several Ohio appellate cases addressing the issue. 

The Court disagrees with Father's objection. The Court finds 

that Father has an obvious intention to circumvent the law. He 

admitted in his testimony that he "owns" the firearms. Moreover, 

the name of the private trust is CMM, which are Father's initials. 

The Court finds nothing in this trust agreement that places the 

exclusive control of Father's firearms into an entity beyond his 

control, particularly since his mother testified she knew nothing 

of the private trust. 

The state appellate cases Father cites are trumped by federal 

law. 18 U.S.C. 922(g)(8) forbids Father from possessing 

weapons and ammunition once he is subject to a protection 

order. Putting one's weapons into a private trust is not sufficient 

to subvert federal law. Father must surrender the firearms. 

Appeal 

{¶ 11} Muench now appeals from the domestic relations court's decision, raising a 

single assignment of error for review. In his single assignment of error, Muench challenges 

the domestic relations court's decision finding it was necessary to grant a full DVCPO to 

McGrady. Muench also challenges the domestic relations court's decision ordering him to 

surrender his firearms to the local authorities. We find no merit to Muench's claims. 

Domestic Violence Civil Protection Order 

{¶ 12} A petition for a DVCPO is governed by R.C. 3113.31. Crawford v. Brandon, 
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12th Dist. Butler Nos. CA2013-08-150 and CA2013-08-151, 2014-Ohio-3659, ¶ 6, citing 

Wolfe v. Wolfe, 5th Dist. Stark No. 2013CA00196, 2014-Ohio-2159, ¶ 7. Pursuant to that 

statute, to obtain a DVCPO the petitioner must prove by a preponderance of the evidence 

that the respondent has engaged in an act of domestic violence against the petitioner or 

petitioner's family or household members. McBride v. McBride, 12th Dist. Butler No. 

CA2011-03-061, 2012-Ohio-2146, ¶ 12, citing Felton v. Felton, 79 Ohio St.3d 34 (1997), 

paragraph two of the syllabus. "Preponderance of the evidence" means the greater weight 

of the evidence, or evidence that leads the trier of fact to find that the existence of the 

contested fact is more probable than its nonexistence. Halcomb v. Greenwood, 12th Dist. 

Clermont Nos. CA2018-03-008, CA2018-03-010, CA2018-03-012, and CA2018-03-013, 

2019-Ohio-194, ¶ 3, citing Eckstein v. Colian, 7th Dist. Columbiana No. 11 CO 22, 2012-

Ohio-4038, ¶ 14. 

{¶ 13} As defined by R.C. 3113.31(A)(1)(a), and as relevant here, the phrase 

"domestic violence" means "[a]ttempting to cause or recklessly causing bodily injury" to a 

"family or household member." Pursuant to R.C. 3113.31(A)(3)(b), a "family or household 

member" includes "[t]he natural parent of any child of whom the respondent is the other 

natural parent or is the putative other natural parent." And, while R.C. 3113.31 does not 

define the term "bodily injury," for purposes of the offense of domestic violence under R.C. 

2901.01(A)(3), "'physical harm' to a person means 'any injury, regardless of its gravity or 

duration.'" J.R. v. E.H., 10th Dist. Franklin No. 16AP-431, 2017-Ohio-516, ¶ 13, quoting 

State v. Reynolds, 10th Dist. Franklin No. 03AP-701, 2004-Ohio-3692, ¶ 14. 

Standard of Review 

{¶ 14} "A trial court's decision to grant or deny a DVCPO will not be reversed where 

such decision is supported by the manifest weight of the evidence." Barrett v. Barrett, 12th 

Dist. Warren No. CA2016-04-033, 2017-Ohio-250, ¶ 19. The standard of review for a 
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manifest weight challenge in a civil case is the same as that applied to a criminal case. 

Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641, ¶ 8, citing Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. In considering a manifest weight 

challenge, a reviewing court weighs the evidence and all reasonable inferences, considers 

the credibility of witnesses and determines whether in resolving conflicts in the evidence, 

the finder of fact clearly lost its way and created a manifest miscarriage of justice warranting 

reversal and a new trial ordered. Hacker v. House, 12th Dist. Butler No. CA2014-11-230, 

2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20. A judgment will not be reversed as being 

against the manifest weight of the evidence where the judgment is supported by some 

competent, credible evidence going to all essential elements of the case. Sterling Constr., 

Inc. v. Alkire, 12th Dist. Madison No. CA2016-12-032, 2017-Ohio-7213, ¶ 8. 

Analysis 

{¶ 15} Muench initially argues the domestic relations court erred by issuing the 

DVCPO since there were conflicting accounts regarding the domestic violence incident at 

issue. Muench is essentially arguing that the domestic relations court acted improperly by 

crediting McGrady's testimony over his testimony and the testimony of his supporting 

witnesses. However, it is well-established that a trial court, particularly a domestic relations 

court, is in the best position to assess the credibility of witnesses and the weight to be given 

to their testimony. Greenwood, 2019-Ohio-194 at ¶ 40. Therefore, because the domestic 

relations court was best suited to assess the credibility and the weight to be given to the 

witnesses' testimony, this court should not, and will not, substitute our judgment for that of 

the domestic relations court. It is not the role of this court to substitute its own determination 

of credibility in place of the domestic relations court. Crawford v. Brandon, 12th Dist. Butler 

Nos. CA2013-08-150 and CA2013-08-151, 2014-Ohio-3659, ¶ 15. Muench's claim 

otherwise lacks merit. 
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{¶ 16} Muench next argues the domestic relations court erred by issuing the DVCPO 

since there was no evidence he and McGrady had been involved in any additional domestic 

violence incidents, nor any evidence that he had made any new threats towards McGrady, 

after the ex parte order was issued. However, while past acts alone are not enough to 

support the issuance of a DVCPO, see McVean v. McVean, 12th Dist. Butler No. CA2018-

03-054, 2018-Ohio-4062, ¶ 20, there is no requirement that the petitioner be a victim of 

further domestic violence incidents to justify the issuance of a full DVCPO. If that were the 

case the domestic relations court would be limited to issuing a DVCPO only in those cases 

where the respondent was found to have violated an earlier ex parte order. That was clearly 

not the General Assembly's intent when enacting the domestic violence statutes. See 

Felton, 79 Ohio St.3d at 37 ("[t]he General Assembly enacted the domestic violence 

statutes specifically to criminalize those activities commonly known as domestic violence 

and to authorize a court to issue protection orders designed to ensure the safety and 

protection of a complainant in a domestic violence case").

{¶ 17} Despite Muench's claims, a petitioner need not be a victim of a respondent's 

prolonged, continuous, or repeated acts of domestic violence after an ex parte order has 

been issued before a DVCPO can be ordered. The petitioner instead need only show "'by 

a preponderance of the evidence that petitioner or petitioner's family or household members 

are in danger of domestic violence.'" Kohus v. Daly, 12th Dist. Clermont No. CA2015-05-

042, 2016-Ohio-73, ¶ 42, quoting Felton at paragraph two of the syllabus. McGrady, as the 

petitioner in this case, satisfied that burden. This is confirmed by McGrady's testimony that 

Muench hit her with the door "over and over" while she was trying to retrieve D.M. from the 

Muench home, shoved her into the door frame several times, and "picked [her] up in a 

choke hold and carried [her] down the stairs and down the sidewalk." 

{¶ 18} Muench finally argues the domestic relations court erred by requiring him to 
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surrender his firearms to the local authorities. The domestic relations court denied 

Muench's argument upon finding 18 U.S.C. § 922(g)(8) forbid him – as an "intimate partner" 

to McGrady as that term is defined by 18 U.S.C. § 921(a)(32) – from possessing any 

firearms until the DVCPO issued to McGrady expired. As noted above, pursuant to 18 

U.S.C. § 922(g)(8), it is unlawful for any person who is subject to court order restraining that 

person from "harassing, stalking, or threatening an intimate partner" to possess a firearm. 

{¶ 19} While the General Assembly has not made it a requirement that any 

respondent who is subject to a DVCPO be restricted from possessing a firearm, Cee v. 

Stone, 3d Dist. Union No. 14-17-06, 2017-Ohio-8687, we find no error in the domestic 

relations court's decision to include such a restriction in the DVCPO at issue here. See 

Woolum v. Woolum, 131 Ohio App.3d 818, 824 (12th Dist.1999) ("trial court was within its 

discretion to incorporate the remedy provided by congress" in 18 U.S.C. § 922(g)(8) where 

appellant was subject to a DVCPO).1 

{¶ 20} "A trial court can include a prohibition about firearms in an order if it finds, 

after a full hearing, that the order is equitable, fair, and necessary to bring about a cessation 

or prevention of domestic violence." Snell v. Snell, 5th Dist. Richland No. 09-CA-134, 2010-

Ohio-2245, ¶ 35. The fact that Muench may have placed his firearms in a so-called "private 

trust" does not change this outcome. This is because, just as the domestic relations court 

found, "[p]utting one's weapons into a private trust is not sufficient to subvert federal law." 

This is particularly true here when considering Muench's testimony that it was he, and not 

a private trust, that "owned" the firearms subject to the DVCPO. 

Conclusion 

{¶ 21} The domestic relations court did not err by granting a DVCPO to McGrady 

 

1. For more information on the firearms prohibition found in 18 U.S.C. § 922(g)(8) see

https://www.supremecourt.ohio.gov/JCS/domesticViolence/resources/firearms.pdf. 
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where the evidence supported its decision finding Muench had engaged in an act of 

domestic violence against her. This is true despite the fact that Muench did not engage in 

any further domestic violence incidents against McGrady after the original ex parte DVCPO 

was issued. The domestic relations court also did not err by ordering Muench, as a 

statutorily defined "intimate partner" to McGrady, to surrender his firearms to the local 

authorities until the DVCPO expired. Therefore, finding no merit to any of the arguments 

raised herein, Muench's single assignment of error lacks merit and is overruled. 

{¶ 22} Judgment affirmed. 

 HENDRICKSON, P.J., and RINGLAND, J., concur.