[Cite as J.M. v. D.H., 2016-Ohio-8387.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

J.M. 

 Appellee 

 v. 

D.H. 

 Appellant 

C.A. No. 15CA010891 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 15 CV 187659 

DECISION AND JOURNAL ENTRY 

Dated: December 27, 2016 

 

HENSAL, Judge. 

{¶1} Respondent-Appellant, D.H., appeals from a judgment of the Lorain County 

Court of Common Pleas, granting a civil stalking protection order in favor of PetitionerAppellee, J.M., and her three minor children. For the following reasons, we reverse. 

I. 

{¶2} This appeal involves a familial dispute that culminated in the issuance of a civil 

stalking protection order. J.M. is D.H.’s former daughter-in-law and the mother of D.H.’s two 

grandchildren.1

 During J.M.’s divorce from D.H’s son, D.H. invited J.M. and her children to live 

with her. Although they shared a close relationship for some time, their relationship eventually 

grew strained and J.M. moved out of D.H.’s home. 

{¶3} According to J.M., a number of events led to the filing of a civil stalking 

protection order against D.H. First, in December 2014, D.H. sent an e-mail to several family 

 1

 J.M. has a third child from a different relationship. 
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members, including J.M., indicating that she did not approve of J.M.’s new boyfriend, and 

alleging that J.M. neglected and abused her children. J.M. testified that the e-mail was not 

threatening, but that she found it to be rude. D.H. admitted that she did not approve of J.M.’s 

new boyfriend, but denied that she ever alleged that J.M. neglected or abused her children. The 

e-mail was not presented as evidence at the CSPO hearing. 

{¶4} Next, D.H. attended two school events (an open house and an awards ceremony) 

for J.M.’s children, which D.H. was not invited to attend. With respect to the open house, J.M. 

testified that D.H. overstepped her boundaries by attending an event for parents, and by 

proceeding to introduce herself to her grandchildren’s teachers before J.M. and her children had 

an opportunity to do so. Regarding the awards ceremony, J.M. testified that her son noticed D.H. 

sitting in the back and asked if he could go say hello, which J.M. allowed. J.M.’s son returned 

upset, indicating that his grandmother had told him that she was sitting alone because nobody 

liked her. J.M. testified that she felt it was inappropriate for D.H. to discuss adult matters with 

her children. 

{¶5} Next, and the “last straw” according to J.M., D.H. told her son (J.M.’s exhusband) that she had thought about killing her own husband (whom she was in the midst of 

divorcing), killing J.M., and then killing herself. During the same conversation, D.H. told her 

son that she had talked herself out of it, and later told him that she would never do such a thing. 

J.M. subsequently learned of D.H.’s comment and petitioned the court for a civil stalking 

protection order. At the CSPO hearing, D.H. dismissed the comment as “flippant” and one that 

she never intended for J.M. to find out about. J.M. testified that she was concerned with the ease 

in which D.H. made the comment, but offered no testimony to indicate that she felt physically 

threatened by D.H. 
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{¶6} After hearing testimony from J.M., J.M’s ex-husband, and D.H., the magistrate 

issued a civil stalking protection order in favor of J.M. and her three children set to expire on 

November 9, 2017. D.H. has appealed, raising seven assignments of error for our review. For 

ease of consideration, we will address D.H.’s first and second assignments of error together. 

II. 

ASSIGNMENT OF ERROR I 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

GRANTING A CIVIL PROTECTION ORDER AGAINST THE RESPONDENT 

PROTECTING THE PETITIONER AS THERE WAS INSUFFICIENT 

EVIDENCE TO SUPPORT THE STALKING PROTECTION ORDER. 

ASSIGNMENT OF ERROR II 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

GRANTING A CIVIL PROTECTION ORDER AGAINST THE RESPONDENT 

PROTECTING THE MINOR CHILDREN AS THERE WAS INSUFFICIENT 

EVIDENCE TO SUPPORT THE STALKING PROTECTION ORDER AND 

THE FINDING OF FACTS SPECIFIED BY THE COURT. 

{¶7} In her first two assignments of error, D.H. argues that J.M. did not present 

sufficient evidence to warrant the issuance of a civil stalking protection order in favor of J.M. 

and her children. Consequently, we must determine whether, viewing the evidence in the light 

most favorable to J.M., a reasonable trier of fact could find that J.M. demonstrated by a 

preponderance of the evidence that a civil stalking protection order should issue. Bowman v. 

Bowman, 9th Dist. Medina No. 13CA0064-M, 2014-Ohio-2851, ¶ 9. 

{¶8} “In order for a civil stalking protection order to issue, the trial court must find 

that the petitioner has shown by a preponderance of the evidence the respondent committed an 

act against the petitioner that would constitute menacing by stalking.” A.S. v. P.F., 9th Dist. 

Lorain No. 13CA010379, 2013-Ohio-4857, ¶ 6. Revised Code Section 2903.211(A)(1) governs 

menacing by stalking and provides that “[n]o person by engaging in a pattern of conduct shall 
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knowingly cause another person to believe that the offender will cause physical harm to the other 

person or a family * * * member of the other person or cause mental distress to the other person 

or a family * * * member of the other person.” 

{¶9} At the CSPO hearing, J.M. presented no evidence to indicate that D.H. had caused 

– or that she believed D.H. would cause – her physical harm or mental distress. At most, the 

testimony indicated that J.M. was concerned that D.H. involved her children in “adult 

conversations” (e.g., telling her grandson that no one liked her) and overstepped her boundaries 

(e.g., attending school functions without being invited). While J.M. did testify that she was 

concerned with the ease in which D.H. commented that she had thought about killing her soonto-be ex-husband, J.M., and then herself, J.M. did not indicate that she took D.H.’s comment as a 

serious threat or that it caused her mental distress. Although D.H.’s comment is not to be 

condoned, D.H. testified that she was simply venting to her son and that she never intended to act 

on it, or for J.M. to find out about it. 

{¶10} Further, J.M. presented no evidence to indicate that D.H. had caused – or that she 

believed D.H. would cause – her children physical harm or mental distress. Indeed, she testified 

that her children and D.H. love each other and that she does not think it is healthy for her kids to 

be away from their grandmother. Additionally, J.M.’s ex-husband testified that D.H. (his 

mother) never physically or mentally harmed his children. Notably, no evidence was presented 

with respect to J.M.’s child from another relationship. 

{¶11} In light of the foregoing, we hold that the evidence, when viewed in the light most 

favorable to J.M., is insufficient for a rational trier of fact to find that J.M. demonstrated by a 

preponderance of the evidence that a civil protection order should issue. Bowman, 9th Dist. 
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Medina No. 13CA0064-M, 2014-Ohio-2851, at ¶ 9. Accordingly, D.H.’s first and second 

assignments of error are sustained. 

ASSIGNMENT OF ERROR III 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

GRANTING A CIVIL PROTECTION ORDER AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE AS TO PETITIONER [J.M.]. 

ASSIGNMENT OF ERROR IV 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

GRANTING A CIVIL PROTECTION ORDER AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE WHEN IT INCLUDED AS PROTECTED 

PERSONS THE MINOR CHILDREN OF PETITIONER [J.M.]. 

ASSIGNMENT OF ERROR V 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

GRANTING A CIVIL PROTECTION ORDER BASED ON FINDINGS OF 

FACT THAT ARE NOT IN EVIDENCE. 

ASSIGNMENT OF ERROR VI 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

GRANTING A CIVIL PROTECTION ORDER THAT IS CONTRARY TO THE 

LAW. 

ASSIGNMENT OF ERROR VII 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

DENYING THE RES[P]ONDENT’S MOTION FOR DISMISSAL BASED ON 

OHIO CIVIL RULE 41(B)(2). 

 

{¶12} In light of our disposition of D.H.’s first and second assignments of error, the 

remaining assignments of error are rendered moot and are overruled on that basis. App.R. 

12(A)(1)(c). 
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III. 

{¶13} D.H.’s first and second assignments of error are sustained. D.H.’s third, fourth, 

fifth, sixth, and seventh assignments of error are overruled as moot. The judgment of the Lorain 

County Court of Common Pleas is reversed. 

Judgment reversed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Lorain, 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 constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court 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 make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellee. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

CARR, P. J. 

MOORE, J. 

CONCUR. 
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APPEARANCES: 

JOAN JACOBS THOMAS, Attorney at Law, for Appellant. 

J. M., pro se, Appellee.