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S.E.E. v. S.V.E.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 21, 2019

S.E.E., Petitioner-Appellee,
v.
S. V. E., Respondent-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DV-18-374550

         JUDGMENT: AFFIRMED

          Kronenberg Belovich Law, L.L.C., and Jacob A.H. Kronenberg, for appellee.

          Zashin & Rich Co., L.P.A., Deanna L. Dipetta, and Jonathan A. Rich, for appellant.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE

         {¶ 1} Respondent-appellant, S.V.E[1] ("Husband"), appeals a judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, granting a domestic violence civil protection order ("CPO") against him and in favor of petitioner-appellee, S.E.E. ("Wife"). He claims the following three errors:

1. The trial court's determination that there was sufficient credible evidence to prove that appellee was in danger of domestic violence and therefore in need of a protection order to prevent abuse is against the manifest weight of the evidence.
2. The trial court's determination that appellee proved by a preponderance of the evidence that she had been a victim of domestic violence under RC. 3113.31 is against the manifest weight of the evidence.
3.The trial court's determination that there was a "history of control" and "past acts of violence against appellee" which justified the issuance of a civil protection order was against the manifest weight of the evidence.

         {¶ 2} We find no merit to the appeal and affirm the trial court's judgment. The manifest weight of the evidence supports the trial court's finding that Husband committed prior acts of domestic violence against Wife and that Husband posed a threat of future violence that justified the need for a CPO.

         I. Facts and Procedural History

         {¶ 3} On November 27, 2018, Wife filed a petition seeking a CPO against Husband on behalf of herself and her two children due to alleged acts of domestic violence. A magistrate granted an ex parte temporary protection order and scheduled a full hearing on the matter in January 2019. Wife subsequently withdrew her request to include the children as protected parties under any order, whether the temporary order then in place or any future order that might be entered after the hearing.

         {¶ 4} Wife testified at the hearing that she and Husband were married in June 2012, and subsequently had two children, C.E., who was two years old, and Z.E., who was five months old. Wife described several incidents during the marriage that she believes constituted domestic abuse. She testified that during an argument that occurred before the children were born, Husband grabbed her by the throat, carried her a few steps, and threw her on the couch. (Tr. 17.) He then asked her to apologize for causing him to do those things. (Tr. 17.) When Wife was pregnant with C.E., Husband threw a box at her head and asked Wife to apologize for causing that incident as well. (Tr. 17-18.) After Z.E. was born in June 2018, Husband pinched Wife's arm hard enough to cause three bruises. (Tr. 18, 139.)

         {¶ 5} Wife finally decided to seek a protection order and a divorce in November 2018, following an incident at a Saturday night birthday party for Husband's brother ("M.E."). Husband's mother, M.B., and her boyfriend of 11 years, P.K., hosted the party at M.B.'s house on November 17, 2018. Husband and Wife attended the party with their children, and M.E. attended the party with his wife, N.E.

         {¶ 6} After dinner, but before serving birthday cake, everyone left the dinner table except for Husband and Wife. Wife put her head on Husband's shoulder, and he pushed it off. (Tr. 9.) Wife thought he was joking so she again placed her head on his shoulder, and he again pushed it off. Thereafter, Husband grabbed Wife, and she tried to pull away. Husband reached over and squeezed her neck for several seconds in the presence of P.K., who was still in the room. (Tr. 10.) Wife explained:

In order to get him to let go, I was able to whisper, basically, that he was hurting me; and a few seconds later he finally let go.
And then afterwards, he told me that I needed to apologize, because it was my fault that he did that to me, and I was ruining his night.

(Tr. 11.) Wife apologized because she "wanted the night to go smoothly." (Tr. 11.) Thereafter, family photographs were taken and cake was served. Wife testified that after the cake, she went to the bathroom because she "had a few tears" and wanted to shake it off so she could "put on a happy face and get through the night." (Tr. 136.) Wife pretended to be happy, explaining at the hearing "I knew that if I acted any other way, things would be far worse for me when I got home." (Tr. 138.) She further stated: "In the past when I confronted my husband about a situation that I didn't like, he only ever escalated it to make it worse until I backed off and said I was sorry." (Tr. 146.)

         {¶ 7} Later that night, when Husband and Wife were in bed falling asleep, Husband rolled over and pinched Wife's nostrils closed. (Tr. 13.) Wife opened her mouth so she could breathe, and Husband let go, rolled over, and went to sleep. (Tr. 13.) Thereafter, Wife went to the bathroom and cried for about an hour. Wife ultimately returned to the marital bed, but slept "on the four inches of the mattress closest to the edge" because she "was afraid." (Tr. 45.)

         {¶ 8} Husband was angry the next morning and repeatedly tried to draw Wife into an argument. He complained that the freezer was not organized, that Wife was not taking proper care of the children, and that Wife did not clean the house the way she said she would. (Tr. 14.) According to Wife, Husband was "regularly critical of [her]." (Tr. 14.) Wife nevertheless initiated sex with Husband that afternoon while the children were napping. (Tr. 51.)

         {¶ 9} The next morning, a Monday, Husband woke Wife up, yelled at her, and whipped a sock into her eye because she mismatched two gray socks. (Tr. 14-15.) He was also angry because there were not enough lids for all the baby bottles in the cupboard. He blamed Wife for the missing lids, saying this was never a problem until Wife started picking up the children from daycare. (Tr. 15.) Later, Husband expressed his displeasure after Wife opened a dog gate that allowed their dog to enter the family room where he ate their two-year-old daughter's cereal. (Tr. 15-16.)

         {¶ 10} When asked on cross-examination why Wife returned to the marital bed after Husband allegedly choked her at the party, Wife explained that she was afraid that sleeping in another room "would have made things worse." (Tr. 51.) When Husband's lawyer suggested that Wife must not have been afraid because she did not leave the house, Wife replied: "I was afraid, but I didn't know what my rights were so I wasn't willing to take a risk until after I knew." (Tr. 50.) Indeed, after consulting with an attorney and "the abuse hotline" on Monday morning, Wife decided not to return to the marital home. (Tr. 54-55.) Although Husband and Wife had planned to ...


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