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McGrady v. Muench

Court of Appeals of Ohio, Twelfth District, Warren

July 1, 2019



          The Bonecutter Firm, Brenda L. Bonecutter, for appellee

          Pinales, Stachler, Young, & Burrell Co., LPA, Eric G. Eckes, 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.

         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 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 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 ...

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