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Prater v. Mullins

Court of Appeals of Ohio, Third District

September 16, 2013

HEATHER D. PRATER, PETITIONER-APPELLEE,
v.
SHAWN E. MULLINS, RESPONDENT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Civil Division Trial Court No. 2012-CV-336

William E. Huber for Appellant

OPINION

PRESTON, P.J.

(¶1} Respondent-appellant, Shawn E. Mullins ("Mullins"), appeals the January 4, 2013 judgment of the Auglaize County Court of Common Pleas, granting the request of petitioner-appellee, Heather D. Prater ("Heather"), for a civil stalking protection order ("CSPO") protecting Heather, her husband, Brian Prater ("Brian"), and her two sons, D.P. and J.O. On appeal, Mullins argues that the trial court abused its discretion by issuing a 500-foot no-contact order and by giving the CSPO a four-year duration. Mullins also argues that there was insufficient evidence to support the CSPO. For the reasons that follow, we reverse.

(¶2} On December 20, 2012, Heather filed a petition for a CSPO against Mullins. In the petition, Heather alleged that Mullins "caused mental distress to [her] family by posting cruel and threatening directed [sic] to my family everyday on Facebook" and by following and yelling things at D.P. (Doc. No. 1). That same day, the trial court issued an ex parte CSPO, effective until January 20, 2013, and set the matter for a January 2, 2013 hearing on the merits. (Doc. No. 5).

(¶3} The trial court held the hearing as scheduled on January 2, 2013. (Jan. 2, 2013 Tr. at 3). Heather and Mullins and his counsel were present at the hearing. (Id.). Brian, D.P., and J.O. were not present and did not testify. (See id.). The trial court that day issued a mostly handwritten CSPO against Mullins, effective until January 2, 2017, protecting Heather, Brian, D.P., and J.O. (Doc. No. 11). The trial court found that Mullins "threatened and harassed members of [Heather's] family and is [sic] entitled to a CSPO, having caused mental distress as defined in the statute." (Id.). Two days later, on January 4, 2013, the trial court issued a CSPO nunc pro tunc, which was typewritten and added an order that Mullins "not post any item on any social network (facebook, twitter, etc.) or medium concerning [Heather] or protected persons." (Doc. No. 15).

(¶4} Mullins filed his notice of appeal on January 23, 2013. (Doc. No. 21). He raises three assignments of error for our review.[1] Because it is dispositive, we address Mullins' third assignment of error.

Assignment of Error No. III

The trial court erred in granting the stalking order as there is insufficient evidence to support the same.

(¶5} "When reviewing a trial court's decision to grant a civil protection order, we will not reverse the decision absent an abuse of discretion." Retterer v. Little, 3d Dist. Marion No. 9-11-23, 2012-Ohio-131, ¶ 23, citing Van Vorce v. Van Vorce, 3d Dist. Auglaize No. 2-04-11, 2004-Ohio-5646, ¶ 15. "An abuse of discretion suggests the trial court's decision is unreasonable, arbitrary, or unconscionable." Goldfuss v. Traxler, 3d Dist. Wyandot No. 16-08-12, 2008-Ohio-6186, ¶ 8, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "Further, if there is some competent, credible evidence to support the trial court's decision regarding a CSPO petition, there is no abuse of discretion." Retterer at ¶ 23, citing Warnecke v. Whitaker, 3d Dist. Putnam No. 12-11-03, 2011-Ohio-5442, ¶ 12.

(¶6} R.C. 2903.214 governs the issuance of a CSPO. Under that section, a person may seek civil relief for themselves, or on behalf of a family or household member, against an alleged stalker by filing a petition that alleges "that the respondent is eighteen years of age or older and engaged in a violation of section 2903.211 of the Revised Code against the person to be protected by the protection order." R.C. 2903.214(C)(1). R.C. 2903.211-Ohio's menacing-by-stalking statute-states that "[n]o 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 cause mental distress to the other person." R.C. 2903.211(A)(1).

(¶7} "To be entitled to a CSPO, the petitioner must show by a preponderance of the evidence that the respondent engaged in a violation of R.C. 2903.211 * * * against him or her." Retterer at ¶ 25, citing Warnecke at ¶ 13. In other words, the petitioner must establish by a preponderance of the evidence that the respondent (1) engaged in a pattern of conduct (2) that the respondent knew (3) would cause the person to be protected under the CSPO to believe that the respondent would cause the person physical harm or mental distress. (Emphasis sic.) Retterer at ¶ 26, citing R.C. 2903.211.

(¶8} "[W]here the petitioner seeks protection of a 'family or household member' under a CSPO, the petitioner must show by a preponderance of the evidence that the respondent engaged in a violation of R.C. 2903.211 against the 'family or household member' to be protected." Retterer, 2012-Ohio-131, at ¶ 25, citing Luikart v. Shumate, 3d Dist. Marion No. 9-02-69, 2003-Ohio-2130, ¶ 11 (holding that there was sufficient evidence that respondent engaged in a pattern of conduct against petitioner, but insufficient evidence as to petitioner's wife and children, who petitioner listed as persons to be protected under the CSPO). See also Woodward v. Head, 1st Dist. Hamilton No. C-120341, 2013-Ohio-1127, ¶ 8-9 (holding that petitioner presented sufficient evidence to support the issuance of the CSPO covering petitioner's daughter, but insufficient evidence as to petitioner, who had "minimal" contact with the respondent, and as to petitioner's husband); Holloway v. Parker, 3d Dist. Marion No. 9-12-50, 2013-Ohio-1940, ¶ 35 (holding that petitioner presented insufficient evidence to support the issuance of the CSPO covering petitioner, petitioner's wife, and their three minor children).

(¶9} In other words, a petitioner may not obtain a CSPO covering the petitioner and the petitioner's family or household members simply by presenting evidence as to one of the persons to be covered. See Retterer at ¶ 25. Rather, the petitioner must present evidence that the respondent engaged in a pattern of conduct that the respondent knew would cause each person to be protected under the CSPO to believe that the respondent would cause the person physical harm or mental distress. Id. See also R.C. 2903.214(C)(1) (requiring that a petition for a CSPO contain an allegation that the respondent "engaged in a violation of section 2903.211 of the Revised Code against the person to be protected by the protection order" (emphasis added)). Of course, the same evidence may establish the ...


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