Is This Domestic Violence? Who Won?

Is This Domestic Violence? Who Won?
Ex-wife claims Ex-husband has engaged in the following act(s) of domestic violence: He continually emails me, stops at my work, calls my parents + friends. He sent me an email that states that he's going to take out his anger + frustration on me in court. He harasses me in any way possible.

The court held a hearing on a protection order. Wife testified that the repeated attempts at contact scare her. She did not specify any particular statements or threats in any of these communications that scared her; she simply stated that, "every time I see something from him or hear something from him I'm scared." Wife testified that "every time I see something or even if I check my mailbox, I'm sick worried that he's going to send me something. Every time I open my e-mail at work, I'm worried I'm going to get one of his e-mails like that. If I go to work, I'm afraid that they're going to tell me that he's already been there. It just makes me sick. Every time I do a normal thing on a normal day, I wonder if he's going to have been a part of it or going to be a part of it." Common Pleas Division of Domestic Relations ordered a Civil Protection Order be placed against the Ex-husband. The Ex-husband appealed.

Who Won?

The Ex-husband.

An Appellate Court reviewing whether a trial court properly granted a Civil Protection Order must determine whether sufficient, credible evidence supports ex-husband engaged in acts or threats of domestic violence. Appellate Court will not reverse trial court's decision as long as there is some competent, credible evidence going to the essential elements of the case. If the evidence is susceptible to more than one interpretation, the reviewing court must construe the evidence consistently with the trial court's judgment.

For purposes of O.R.C. Chapter 3113.31, "`domestic violence' means the occurrence 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." O.R.C. 3113.31(A)(1).

This case does not involve any bodily injury or attempt to cause bodily injury, and it does not involve any offense against a child or a sexually oriented offense. In order to grant the DVCPO, ex-wife was required to prove, by a preponderance of the evidence (greater weight of the evidence), that appellant placed her, by threat of force, in fear of imminent serious physical harm. The evidence must be clear and unequivocal that the ex-wife was placed in fear of imminent physical harm. The evidence must reveal a nexus between the communication directed to a ex-wife with subsequent actual fear of imminent, serious physical harm. While an objective standard is to be applied to the impact upon a victim's state of mind as it relates to threatening communications, the evidence must be unequivocal."

Applying an objective test to the evidence, a reasonable person, situated similarly to ex-wife, would not fear imminent serious physical harm from a threat to take out one's anger in court, or from the act of dropping off mail on two occasions with no face-to-face contact, or the acts of sending three or four other e-mails over a three and one-half month period.

The record fails to establish that ex-husband made any threat of force, that ex-wife feared serious physical harm as a result of any of appellant's actions or statements, or that she feared ex-husband was going to undertake to harm her imminently. Finally, even if she had expressed such a fear, it would fail the objective test of reasonableness. For all of these reasons, we conclude that the trial court's judgment was against the manifest weight of the evidence, and the court erred in issuing a DVCPO against ex-husband. The protection order is hereby vacated.

2008-Ohio-4000 Court of Appeals of Ohio, Tenth District, Franklin County