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E.W. v. T.W.

Court of Appeals of Ohio, Tenth District

November 9, 2017

E.W., Petitioner-Appellee,
v.
T.W., Respondent-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16DV-0152, Division of Domestic Relations, Juvenile Branch

          On brief: Kerns & Sims, LLC, and Ralph A. Kerns, for appellant.

          Argued: Ralph A. Kerns.

          DECISION

          SADLER, J.

         {¶ 1} Respondent-appellant, T.W. ("respondent"), appeals from the judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, issuing a civil protection order ("CPO") to petitioner-appellee, E.W. ("petitioner"). For the following reasons, the trial court judgment is reversed and this cause is remanded with instructions.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Petitioner and respondent are unmarried parents of one minor child. On January 29, 2016, petitioner filed for a CPO against respondent. Petitioner included the following as respondent's acts of domestic violence in her petition for the CPO:

I terrified of my child's father [T.W.] because he pops up at my home to view any company I may have and to learn my schedule. Although it's just my baby and me, no pets I [illegible] have company. He is threatening to continue to pop up. In the beginning of this year my deadlock top lock was really loose to the point of comming off and the 1st person I thought of was [T.W.]. I'm not saying [T.W] did it but his constant [illegible] and threats has put fear for him in my heart. No, he hasn't hit me this year, last year and below he has smacked me, shoved me against property and verbally threatened to kill me twice. Also he has threatened to take our child out of the state. I began this CPO 2015, the only reason I did not pursue the completion is because I was fearful of loosing my job to the several court days that may interferr with my work schedule. Our lives is more precious. Also I spoke to both of my supervisors. Now I refuse to go to [T.W's] home without an officer present to exchange our child. He tells me to come to his home, I respond No [T.W.] let's meet at Burger King our safe designated place to do the exchange. [T.W.] says often he doesn't have gas to make it to Burger King. This is why I chose to move across town.

(Sic passim.) (Addendum to Petition for CPO at 1.)

         {¶ 3} The trial court granted an ex parte temporary CPO the same day, and a full hearing on the CPO was held on February 5, 2016. At the hearing, both petitioner and respondent proceeded pro se. According to petitioner, she was driven to pursue the CPO because she was afraid "since now [they're] going through a lot with the custody issue, " respondent had threatened to kill her twice in the past, and she was afraid that respondent was showing up at her condo complex and may have tampered with the master lock to her condo. (Tr. at 10.) Petitioner also testified that respondent was threatening to take her daughter out of state.

         {¶ 4} Regarding custody issues, petitioner testified that under the court order for parenting in place at that time, petitioner was the residential and legal custodian of their daughter, while respondent had their daughter every Wednesday evening and every other weekend. Both parties faced allegations of contempt of that order, and a March 8, 2016 court date was set to address parenting allocation.

         {¶ 5} Petitioner identified two specific prior incidents where respondent threatened to kill her: one in July 2015 and one in September 2015. In the July incident, petitioner testified that respondent sent her a voice/text message in which he threatened to kill her after becoming angry regarding their daughter breaking her finger at daycare. In the September incident, petitioner testified that she and respondent were exchanging their daughter in the parking lot of Burger King when petitioner expressed safety concerns over respondent playing with the child in the middle of the parking lot. According to petitioner, respondent told her that if she kept continuing to come between him and his child he would "break [petitioner's] face, " which made her "real scared." (Tr. at 6.)

         {¶ 6} Petitioner further testified that respondent showed up to her condo complex at some point in 2015 when they were supposed to meet at Burger King to exchange their child and told her he had a right to know where she was staying. According to petitioner, she walked to the car and told him "[d]o not come back over." (Tr. at 11.) Since that incident, petitioner saw what she believed to be respondent's car "about two times" a few spots down from her parking space, and about one month before the CPO hearing, she found her master lock to her condo loosened to the point of falling off. (Tr. at 12.)

         {¶ 7} According to respondent, he did not send petitioner a threatening message and did not threaten petitioner at Burger King. He likewise denied going to petitioner's condo complex. He contended instead that petitioner was "making these things up." (Tr. at 19.) At that point, the trial court asked petitioner if she had evidence of the message in which respondent threatened her life. Petitioner produced and played the message, which states: "Bitch, I hate you to the motherfucking, down to the last nail God made you with, you fucking stupid ass bitch. Get my daughter and (inaudible) this bullshit. I'll fucking kill you, you stupid ass bitch." (Tr. at 21.) Respondent testified that he did not recall the message and that all he recalled was his daughter's finger being broken after his continuous requests to have her removed from that daycare. The trial court responded "well, that's a threat. Threats of harm qualify as domestic violence." (Tr. at 21.)

         {¶ 8} Respondent asked if he could be allowed to explain and testified that "[i]t"-presumably the statement that he will "kill" petitioner-was "just a single word that might have blurted out in the heat of rage" and that the point of the conversation was the care of his child rather than killing petitioner. (Tr. at 23, 24.) The trial court replied that all the words were threatening and menacing.

         {¶ 9} Respondent suggested the message could have been made years ago and asked the trial court to get the date of the message. The trial court stated that petitioner had testified the incident happened six months prior to the hearing, in July 2015, in conjunction with their daughter's broken finger at daycare, that respondent had told her just seconds prior that petitioner made everything up, and that the trial court, in weighing credibility, believed petitioner more than respondent.

         {¶ 10} While the trial court began to explain her instructions in the CPO, respondent again attempted to challenge the validity of the threats. Respondent stated to petitioner "[j]ust tell the truth. I don't threaten you." (Tr. at 26.) The trial court stated "I need you to stop talking to her. * * * That's not what happens in a Court of Law. All comments are directed to the Judge. " (Tr. at 26.) Respondent again challenged the date of the message, suggesting they were "leaving evidence not inspected properly." (Tr. at 29.) The trial court reiterated that it found petitioner's testimony more credible than respondent's and noted that the message references the daughter's injury. Petitioner testified that she had the injury report. When respondent persisted several more times, the trial court stated "[w]e're done." (Tr. at 30.)

         {¶ 11} The trial court thereafter granted petitioner's request for a CPO for a period of five years with instructions to strictly comply with court orders for parenting time and exchanges. Respondent filed a timely appeal to this court.

         II. ASSIGNMENTS OF ERROR

         {¶ 12} Respondent presents two assignments of error:

[1.] THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT THE RESPONDENT HIS RIGHT TO BE HEARD AND PRESENT EVIDENCE ON THE ISSUES BEFORE THE COURT.
[2.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND DISCRETION IN DETERMINING THAT A THREAT RECEIVED MONTHS EARLIER ROSE TO THE LEVEL OF GRANTING THE PETITIONER A CIVIL PROTECTION ...

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