[Cite as Donovan v. Donovan, 2012-Ohio-3521.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

HEATHER DONOVAN 

 Appellee 

 v. 

MICHAEL DONOVAN 

 Appellant 

C.A. No. 11CA010072 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 11DV073621 

DECISION AND JOURNAL ENTRY

Dated: August 6, 2012 

 

WHITMORE, Presiding Judge. 

{¶1} Appellant, Michael Donovan (“Husband”), appeals from the judgment of the 

Lorain County Court of Common Pleas, Domestic Relations Division. This Court affirms. 

I 

{¶2} Husband and Heather Donovan (“Wife”) were married in 1997 and had two 

children together: E.D., born in 1996, and M.D., born in 2003. The relationship ultimately broke 

down, and Husband’s behavior caused Wife to fear for her safety as well as her children’s safety. 

On April 13, 2011, Wife filed a petition for a domestic violence civil protection order. An ex 

parte protection order was issued the same day after a hearing at which Wife testified. The 

matter was then set for a full hearing before a magistrate. After the full hearing, the magistrate 

issued a domestic violence civil protection order that was approved and adopted by the trial 

court. Husband filed objections to the magistrate’s decision, and the court held another hearing 
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to permit argument on the objections. On August 23, 2011, the trial court overruled Husband’s 

objections and held that the protection order remained in full force and effect. 

{¶3} Husband now appeals from the trial court’s decision and raises one assignment of 

error for our review. 

II 

Assignment of Error

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT UPHELD 

APPELLEE’S PETITION FOR A DOMESTIC VIOLENCE CIVIL 

PROTECTION ORDER PURSUANT TO R.C. 3113.31[.] 

{¶4} In his sole assignment of error, Husband argues that the trial court erred by 

overruling his objections and upholding the protection order against him. Specifically, he argues 

that Wife failed to demonstrate by a preponderance of the evidence that she was ever in danger 

of domestic violence. 

{¶5} Generally, absent an error of law, “the decision to adopt, reject, or modify a 

magistrate’s decision lies within the discretion of the trial court and should not be reversed on 

appeal absent an abuse of discretion.” Barlow v. Barlow, 9th Dist. No. 08CA0055, 2009-Ohio3788, ¶ 5. “In so doing, we consider the trial court’s action with reference to the nature of the 

underlying matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, ¶ 18. 

“The Ohio Supreme Court has explained that ‘[w]hen granting a protection order, 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.’” Schultz v. 

Schultz, 9th Dist. No. 09CA0048-M, 2010-Ohio-3665, ¶ 5, quoting Felton v. Felton, 79 Ohio 

St.3d 34 (1997), paragraph two of the syllabus. This Court applies a civil manifest weight 

standard when reviewing a trial court’s decision to grant a protection order. Wohleber v. 
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Wohleber, 9th Dist. No. 10CA009924, 2011-Ohio-6696, ¶ 7. The standard encompasses both a 

legal sufficiency and manifest weight determination. Eastley v. Volkman, Slip Opinion No. 

2012-Ohio-2179, ¶ 11-12, quoting State v. Thompkins, 78 Ohio St.3d 380, 386-387 (1997). See 

also Smith v. Stanley, 9th Dist. No. 11CA009997, 2012-Ohio-2828, ¶ 5-7 (Eastley applied to 

appeal from the violation of a mutual protection order). “With respect to sufficiency of the 

evidence, ‘‘sufficiency’ is a term of art meaning that legal standard which is applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient to support the 

jury verdict as a matter of law.’” Thompkins at 386, quoting Black’s Law Dictionary 1433 

(6th.1990). Weight, on the other hand, tests the believability of the evidence offered and 

“concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to 

support one side of the issue rather than the other.’” (Emphasis sic.) Thompkins at 387, quoting 

Black’s at 1594. 

{¶6} R.C. 3113.31 governs the issuance of domestic violence civil protection orders. 

The statute defines “domestic violence” as the commission of one or more of the following acts 

against a family or household member: 

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

(b) 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; 

(c) Committing any act with respect to a child that would result in the child being 

an abused child, as defined in section 2151.031 of the Revised Code; 

(d) Committing a sexually oriented offense. 

R.C. 3113.31(A)(1)(a)-(d). “Threats of violence will constitute ‘domestic violence’ if the fear 

resulting from those threats is reasonable.” Rhodes v. Gunter, 9th Dist. Nos. 02CA008156 & 

02CA008157, 2003-Ohio-2342, ¶ 4. “Reasonableness is determined by referencing the 
4 

 

petitioner’s history with the respondent.” Id. “[B]oth the totality of the circumstances, as well as 

the victim’s state of mind, are relevant to the determination that the threat of harm was 

imminent.” Chafin v. Chafin, 9th Dist. No. 09CA009721, 2010-Ohio-3939, ¶ 22. 

{¶7} Wife testified that she filed for a domestic violence civil protection order because 

she was afraid of Husband. As Wife expressed her discontent with the parties’ marriage, 

Husband began to act oddly. Specifically, Husband would follow Wife throughout their house 

and try to look at the content on her phone. Wife also would awake in bed to find Husband, who 

regularly arrived home from work at 4:30 a.m., sitting on the foot of the bed staring at her or 

trying to talk to her while she slept. Wife confirmed that Husband had a tendency to explode for 

no apparent reason and had been diagnosed as bipolar. Wife testified that Husband constantly 

yelled at her and that the stress she felt as a result of Husband’s behavior had exacerbated her 

multiple sclerosis. 

{¶8} Wife described one particular incident that took place in late March, shortly 

before she filed for the protection order. Wife testified that she went out with a few of her 

friends to wish one of them well on an upcoming, overseas deployment. Wife’s night out greatly 

upset Husband to the point that he told Wife he “would show [her]” because he was going out 

drinking the next night. The following night, Husband went out drinking, came home late, and 

approached Wife in bed. Wife stated that Husband tried to lie on top of her, but that she left and 

went into her son’s room. Husband soon came into her son’s room, however, so Wife returned 

to her bedroom. Once again, Husband came into the room and tried to lie on top of Wife. Wife 

managed to extricate herself, returned to her son’s room, and locked the door. Husband followed 

Wife and repeatedly banged on the door. He then broke the door open, damaging its hinges and 

jamb. Wife later took pictures of the damage to the door and the jamb, which she introduced at 
5 

 

the hearing. E.D., the parties’ daughter, also testified that she saw the broken door when she 

came home the following day. E.D. testified that the handle of the door was broken and there 

were wood chips everywhere. 

{¶9} E.D. testified that Husband frequently lost control and told her that he would not 

sign any papers to divorce Wife “unless the judge put a gun to his head.” E.D. often witnessed 

Husband hit her younger brother, either spanking him “really hard” or grabbing him by the neck 

or arm. E.D. testified that Husband had hit her as well and had grabbed her by the back of the 

neck. Husband also yelled at her and Wife frequently. E.D. testified that she is afraid of 

Husband and that Husband’s behavior makes E.D. fear for Wife and her little brother. 

{¶10} Barbara Harrell, Wife’s mother, testified that she never witnessed any physical 

violence take place between Husband and Wife. She had observed, however, what she 

considered to be excessive yelling, screaming, and name calling on the part of Husband when he 

dealt with his children. She also saw Husband grab his son by the neck and shove him on at least 

one occasion. Harrell testified that Husband frequently screamed at his children and used 

profanity both toward them and around them. 

{¶11} Sandra Harrell, Wife’s stepmother, testified that Wife was finished with her 

marriage before she filed for the protection order and “felt stalked, harassed, [and] fearful” for 

herself and her children. After Wife filed for the protection order, Sandra saw Husband while 

she was driving to Target. Husband followed Sandra into Target’s parking lot and tried to speak 

to her. According to Sandra, Husband expressed his desire for Wife to go to marriage counseling 

with him. He also wanted to clarify that he had heard a rumor about his having had an affair and 

that the rumor was not true. Sandra felt that Husband suggested he might retaliate against 

whoever started the rumor. 
6 

 

{¶12} Husband also attempted to contact Wife’s friend, Shelly Carrico. Carrico testified 

that Husband left a voicemail message on her phone, asking her to speak with Wife and try to get 

Wife to postpone their divorce proceedings so that the two could try marriage counseling. 

Carrico came to the parties’ house for Thanksgiving the previous year and witnessed Husband 

become incensed over a problem with the turkey fryer. Carrico testified that Husband was 

walking around screaming during the incident. She also testified that the parties’ relationship 

had negatively affected Wife. Carrico described Wife as being “stressed out completely” and as 

having lost a lot of weight. Carrico stated that Wife had installed a security system in her home 

because she was afraid to be there and afraid for her children. Wife confirmed that she had 

installed a security system because she was afraid that Husband might try to come into the house. 

Wife specified that she saw Husband drive by the home the day before the full hearing. Further, 

she testified that when she told Husband she wanted a divorce he told her “a judge would have to 

shoot his head before * * * [she] would be granted a divorce.” Wife interpreted Husband’s 

response to mean that she would never be able to get away from him. 

{¶13} Husband testified to a completely different version of events than did the other 

witnesses at the full hearing. Husband admitted that he was currently taking Depakote for his 

mood, but rejected the contention that he ever had been formally diagnosed as bipolar. Husband 

denied that he had a tendency to lose his temper or that he was ever confrontational with his 

children. He denied ever having driven by the house after the issuance of the ex parte protection 

order. Moreover, Husband denied taking part in the March 2011 incident Wife described, 

wherein she testified that Husband came home after drinking, tried to lie on top of her, and broke 

down their son’s bedroom door. Husband testified his son’s bedroom door was damaged when 

the parties moved into the home because they had purchased it after it was repossessed from the 
7 

 

prior owner. According to Husband, he did not go out drinking on the night Wife described. 

Instead, Husband went to work, went to his sister’s house to help clean up after a party, and then 

went home. Husband acknowledged that Wife left their bed when he came home, but denied that 

there was anything more to the incident. He also denied ever having acted inappropriately at his 

daughter, E.D.’s, school despite the fact that the assistant principal banned him from coming 

onto school grounds after he had some type of exchange with E.D.’s classmate. 

{¶14} Husband primarily relies upon Fleckner v. Fleckner, 177 Ohio App.3d 706, 2008-

Ohio-4000 (10th Dist.), in support of his argument that no basis exists for the protection order 

the trial court ordered. The only acts of domestic violence alleged in Fleckner were the wife’s 

assertions that her estranged husband had continually contacted her, her family, and her friends 

and had threatened to channel his frustration into the parties’ upcoming court proceedings. 

Fleckner at ¶ 2. The wife testified that all of the husband’s attempts to contact her scared her, 

but did not identify any specific, recent threatening action or statement on the part of the husband 

that caused her belief. Id. at ¶ 4. The Tenth District determined that the wife failed to prove that 

she was in danger of domestic violence because threats of legal action do not constitute domestic 

violence and there was no evidence that the husband “made any threat of force, that [the wife] 

feared serious physical harm as a result of any of [the husband’s] actions or statements, or that 

she feared that [husband] would undertake to harm her imminently.” Id. at ¶ 30. 

{¶15} Here, Wife’s protection order petition listed the following reasons as support for 

the filing of the petition: 

Threatening to take his life to friends, myself + children, Broke down son’s door 

in where I + Son was sleeping, threats of suicide, The only way I was gettin 

divorced is if a judge shot him. Constant texting + calling myself + daughter, 

trying to get her to tell mom not to leave, Diagnosed with Being Bipolar[.] 
8 

 

(Sic.) The incident wherein Husband allegedly broke down his son’s bedroom door to reach 

Wife took place shortly before Wife filed the protection order. Unlike the petitioner in Fleckner, 

therefore, Wife identified a recent threatening action of Husband’s in filing her petition and in 

her testimony before the court. Husband’s actions, if believed, also distinguish this case from the 

other supporting authority upon which Husband relies: Rangel v. Woodbury, 6th Dist. No. L-09-

1084, 2009-Ohio-4407 (petition dismissed when sole allegation was that husband had previously 

threatened wife and followed her for approximately eight blocks while she drove in her car). 

{¶16} Wife set forth evidence that Husband had a history of losing his temper with their 

children. Several witnesses testified that Husband would succumb to screaming fits and grabbed 

and shoved his children when he was angry with them. Although he admitted that he was 

prescribed a mood stabilizer, Husband blatantly denied having a problem with anger or ever 

acting in a confrontational manner toward his family. He also denied breaking down his son’s 

bedroom door, despite Wife’s testimony, E.D.’s testimony, and the pictures Wife introduced of 

the broken door hinge and jamb. Wife testified that Husband’s behavior, particularly his 

breaking down their son’s door, following her around the house, and stating that they would not 

be divorced unless a judge shot him, caused her to fear for her own safety as well as her 

children’s safety. Wife was not required to wait until a distinct act of domestic violence 

occurred. “[C]ivil protection orders are intended to prevent violence before it happens.” 

Strassell v. Chapman, 10th Dist. No. 09AP-793, 2010-Ohio-4376, ¶ 7, quoting Young v. Young, 

2d Dist. No. 2005-CA-19, 2006-Ohio-978, ¶ 105. To obtain a protection order, Wife only was 

required to prove that she or her children were in danger of domestic violence. Schultz, 2010-

Ohio-3665, at ¶ 5, quoting Felton, 79 Ohio St.3d at paragraph two of the syllabus. Both Wife 

and her daughter offered testimony from which the trial court reasonably could have found the 
9 

 

situation between Husband, Wife, and the children was escalating over a period of time. 

Numerous witnesses described Husband’s temper, and both Wife and daughter expressed their 

concerns over the explosive nature of Husband’s outbursts, culminating in Husband’s violent 

behavior of breaking down a bedroom door. Wife described herself as feeling that she “was 

being backed into corners,” not knowing when Husband finally might cause her or her children 

bodily injury. She described Husband as suffering from mood swings, “laughing one minute and 

screaming and running after one of the kids the next,” such that the entire family “was walking 

on eggshells.” Based upon our review of the record, we cannot conclude that the trial court erred 

when it determined that Wife set forth sufficient evidence that she and/or her children were in 

danger of domestic violence. 

{¶17} Moreover, the record does not support Husband’s argument that the judgment 

here is against the manifest weight of the evidence. Assuming to be true that Husband broke 

down son’s bedroom door, Husband argues that the incident did not cause Wife to be in fear of 

imminent, serious physical harm. Husband points to Wife’s admission that, several days after 

the incident, she left the house for a few days to go to Florida and did not take the children with 

her. If Wife truly feared him, Husband argues, Wife would not have left the children under his 

care while she left the state. Wife testified, however, that she visited her cousin in Florida after 

the bedroom door incident because she was suffering from extreme stress and previously stress 

had caused her to suffer a multiple sclerosis attack. Wife testified that Husband worked while 

she was gone, so he only would have had about two hours of interaction a day with the children. 

Even so, Wife testified that her daughter stayed with a friend while she was gone and Wife’s 

niece came to the house to help with her son. She testified that she had to leave for a few days 

because after the bedroom door incident Husband “kept coming after [her] * * * to stress [her] 
10 

 

out, [and] to wear [her] down.” She further stated multiple times that she feared for her safety as 

well as the safety of her children. 

{¶18} “[T]he weight to be given the evidence and the credibility of the witnesses are 

primarily for the trier of the facts.” State v. Violett, 9th Dist. No. 11CA0106-M, 2012-Ohio2685, ¶ 11, quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. 

Based on all the evidence in the record, we cannot conclude that the trier of fact lost its way in 

choosing to believe Wife’s version of the events and by concluding that Wife and/or one or more 

of her children were in danger of domestic violence. See Schultz at ¶ 5, quoting Felton at 

paragraph two of the syllabus. Consequently, the trial court did not abuse its discretion by 

adopting the magistrate’s decision and issuing a domestic violence civil protection order against 

Husband. Husband’s assignment of error is overruled. 

III 

{¶19} Husband’s assignment of error is overruled. The judgment of the Lorain County 

Court of Common Pleas, Domestic Relations Division, is affirmed. 

Judgment affirmed. 

 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 
11 

 

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 Appellant. 

 

 BETH WHITMORE 

 FOR THE COURT 

DICKINSON, J. 

BELFANCE, J. 

CONCUR.

APPEARANCES:

WAYNE R. NICOL, Attorney at Law, for Appellant. 

ALLEN SPIKE, Attorney at Law, for Appellee.