[Cite as Martindale v. Martindale, 2017-Ohio-9266.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              ATHENS COUNTY

LISA A. MARTINDALE,             :
                                :   Case No. 17CA5
     Petitioner-Appellee,       :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
ERIC J. MARTINDALE,             :
                                :
    Respondent-Appellant.       :   Released: 12/14/17
_____________________________________________________________
                          APPEARANCES:

Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.

Sierra Meek, Nolan & Meek Co., LPA, Nelsonville, Ohio, and Micaela C.
Deming, Bluffton, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Eric Martindale commenced an appeal of the January 4, 2017

judgment of the Athens County Court of Common Pleas, subsequent to a

Domestic Violence Civil Protection Order Full Hearing. Appellant contends

the trial court erred in granting the full protection order and in naming the

children as protected parties. Upon review, we find the trial court’s decision

is supported by competent, credible evidence. Accordingly, we overrule

both assignments of error and affirm the judgment of the trial court.
Athens App. No. 17CA5                                                                                     2

                                                FACTS

         {¶2} Appellant and Appellee were married in 2011. They have four

children: A.M., age 6, M.M., age 5, and twins born in July 2014. When the

parties were married in 2011, Appellant was an active member of the United

States Military. The parties lived together in Ohio, North Carolina, and

Pennsylvania. According to the parties’ testimony, the relationship between

them was violent during most of the marriage. Appellee and the two older

children returned to Athens County in November of 2013.

         {¶3} On December 20, 2013, Appellee filed a petition for an ex parte

domestic violence civil protection order (CPO) in the Athens County Court

of Common Pleas.1 On the same date, Appellee was granted an order of

protection and the matter was set for a full hearing on January 6, 2014. The

matter was continued to February 20, 2014.

         {¶4} On February 20, 2014, prior to the full hearing, Appellant filed a

motion to dismiss the domestic violence petition, alleging that he had

suffered abuse at Appellee’s hands, due to her anger issues and illicit drug

usage. Appellant also alleged a lack of jurisdiction. The magistrate took


1
  On January 6, 2014, Appellee filed a complaint for a legal separation in the same court. Appellant filed a
complaint for divorce in a Pennsylvania court in January 2014. Appellee’s complaint for legal separation
was eventually dismissed, in a decision stating that the matter should be prosecuted in the State of
Pennsylvania. The matter then came before us on appeal in Martindale v. Martindale, 4th Dist. Athens No.
14CA30, 2016-Ohio-524, wherein we found merit to the argument that the magistrate failed to consider the
statutory factors for determination of whether Ohio is the proper forum.
Athens App. No. 17CA5                                                                                      3

testimony from both parties regarding the allegations of domestic violence

and the jurisdictional issue.

         {¶5} On February 26, 2014, the Magistrate’s Order found that

Appellant had sufficient minimum contacts with the State of Ohio to satisfy

the jurisdictional requirements. The full hearing on the civil protection order

was scheduled for April 28, 2014.2 However, the full hearing actually

resumed on May 30, 2014.

         {¶6} At that hearing, Appellee presented testimony from Nancy

Grigsby, a director employed by the Ohio Domestic Violence Network, and

Donna Pierce, Deputy Chief Probation Officer of the Dayton Municipal

Court. On July 17, 2014, the magistrate issued a decision that all child-

related matters should be addressed in the Pennsylvania proceedings. The

parties’ children were also ordered removed as “protected persons” from the

current proceedings.3

         {¶7} On August 7, 2014, the trial court requested the Common Pleas

Court for the County of Montgomery, Pennsylvania, Family Court Division,

to release the sealed transcript and/or recording of the in-camera interview of

testimony given by G.M., Appellant’s older daughter by a prior marriage.

2
  During these proceedings, both parties have filed numerous motions concerning issues such as changes in
the visitation schedule, supervised visitation, requests for records, protective orders, disqualification of
Appellant’s attorney, clarification and contempt. Due to death and withdrawal, the parties have also been
represented by various counsel.
3
  The parties’ younger children, the twins, were not made part of the proceedings.
Athens App. No. 17CA5                                                         4

Her testimony was given in April 2014 in the Pennsylvania proceedings.

The trial court requested G.M.’s testimony for consideration in the

upcoming full hearing on the CPO, scheduled for August 25, 2014.

      {¶8} At the full hearing, Appellee again testified and also presented

testimony from Ariah Ripley, Appellant’s prior spouse and mother of G.M.

Appellant also testified. On October 31, 2014, the Magistrate issued

Findings of Fact and Conclusions of Law: Magistrate’s Order Denying

Petition for Domestic Violence Civil Protection Order. The pertinent

findings are as follows:

      “4. Both parties presented evidence of physical injuries that
      he/she has sustained at the hands of the other party. Both
      parties testified that the last incident of physical violence
      between the parties occurred on July 6, 2013.
             ***
      6. Neither party presented testimony from any third-party who
      had witnessed any incidence of physical violence by either of
      the parties.
             ***
      10. During the pendency of this matter, Respondent has had
      limited, supervised visitation with A.M. and M.M. * * * No
      evidence was presented that Petitioner’s parents ever noticed
      any injuries to the children upon retrieving them from
      Respondent after visitation.”

      {¶9} The magistrate denied the Petition and ordered the Ex Parte CPO

terminated, finding Appellee had failed to show by a preponderance of the

evidence that she or children were in imminent danger of domestic violence.

The magistrate made the following conclusions of law:
Athens App. No. 17CA5                                                         5

      “Even without concerning the question of the remoteness of the
      events and whether they are even proximate enough in time to
      engender current rear, the Magistrate finds Petitioner’s
      testimony not credible.
          * **
      There’s no credible evidence that Respondent attempted to
      cause or recklessly caused bodily injury to either of the
      children. Further, there’s no credible evidence of any threats
      Respondent made that would place the children or Petitioner in
      fear of imminent serious physical harm to either of the
      children.”

      {¶10} Of significance, on February 15, 2015, Appellee filed Notice of

Preferred Charges against Appellant. On June 1, 2015, Appellee filed

supplemental objections to the magistrate’s order denying the CPO. On

June 19, 2015, counsel for Appellant filed his response to the objections. On

July 2, 2015, Appellee next filed a Notice of General Court Martial Hearing,

which stated that military prosecutors had contacted her to inform her that

after a months-long investigation, the military was proceeding with charges

against Appellant on four counts of assault.

      {¶11} On December 20, 2015, the trial court issued its Ruling on

Objections and Entry. The trial court adopted the magistrate’s decision

denying the full CPO and dismissing the Ex Parte CPO.

      {¶12} On January 21, 2016, Appellee filed a Motion for New Trial,

pursuant to Civil R. 59(A)(8), based on newly discovered evidence.

Appellee argued that on December 7, 2015, Appellant had appeared at a
Athens App. No. 17CA5                                                        6

court martial and had submitted written stipulations of fact in which he

admitted to domestic violence against Appellee while the children were in

the home. On March 17, 2016, Appellant filed a Memorandum Contra the

Motion for New Trial. On June 7, 2016, the trial court granted the motion

for new trial, in part, to hear any new evidence as to the underlying

proceedings. A hearing was set for November 2, 2016.

      {¶13} At the November 2, 2016 hearing, Appellee presented

testimony from Phillip Stackhouse, Major Spicer, and Appellant as on cross-

examination. The trial court subsequently granted a CPO which covered

Appellee and the parties’ two older children. The CPO expires in December

2018. The Court found as follows:

      “Respondent admitted to striking Petitioner, see Petitioner’s
      Exhibit A, causing her a black eye. * * * Respondent is
      permitted visitation with parties’ children as established by any
      other court order having jurisdiction.”

      {¶14} This timely appeal followed. Where pertinent, additional facts

are set forth below.

                        ASSIGNMENTS OF ERROR

      “I. THE TRIAL COURT ERRED IN GRANTING THE
      DOMESTIC VIOLENCE PROTECTION ORDER.

      II. THE TRIAL COURT ERRED BY NAMING THE
      CHILDREN AS PROTECTED PARTIES IN THE
      PROTECTION ORDER.”
Athens App. No. 17CA5                                                           7

                       A. STANDARD OF REVIEW

      {¶15} “Our standard of review upon a challenge to a CPO depends

upon the nature of the challenge to the CPO.” Wootten v. Culp, 2017-Ohio-

665, 85 N.E.3d 198, ¶ 18 (4th Dist.), quoting Walters v. Walters, 150 Ohio

App.3d 287, 2002-Ohio-6455, 780 N.E.2d 1032, ¶ 9 (4th Dist.), citing

Gooderham v. Patterson, 4th Dist. Gallia No. 99CA01, 1999 WL 1034472

(Nov. 9, 1999); see also Corrao v. Corrao, 8th Dist. Cuyahoga No. 103411,

2016-Ohio-4862, ¶ 16 (“Our standard of review depends on the nature of the

challenge”). When the issue is whether a CPO should have been issued at

all, we must determine whether the trial court's finding that the petitioner has

shown by the preponderance of the evidence that the petitioner or

petitioner's family or household members are in danger of the domestic

violence is against the manifest weight of the evidence. Wootten, supra, at

18. See, e.g., Lewis v. Gravely, 4th Dist. Adams No. 14CA990, 2016-Ohio-

1502, 2016 WL 1404159, ¶ 23.

      {¶16} When an appellate court reviews whether a trial court's decision

is against the manifest weight of the evidence, the court weighs the evidence

and all reasonable inferences, considers the credibility of the witnesses and

determines whether in resolving conflicts in the evidence, the finder of fact

clearly lost its way and created such a manifest miscarriage of justice that
Athens App. No. 17CA5                                                              8

the judgment must be reversed. Wootten, supra, at 19. See Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-20;

Lewis, supra, at ¶ 23 (applying this standard of review in a CPO case).

      {¶17} Moreover, when reviewing the evidence under this standard, we

are aware that the weight and credibility of the evidence are to be

determined by the trier of fact; we thus defer to the trier of fact on these

issues because it is in the best position to gauge the witnesses' demeanor,

gestures, and voice inflections, and to use these observations to weigh their

credibility. Wootten, supra, at 20. See State v. Kirkland, 140 Ohio St.3d 73,

2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State v. Reyes–Rosales, 4th Dist.

Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17. The trier of fact is free is

believe all, part, or none of any witness's testimony. Id. citing State v. West,

4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.

      {¶18} Ultimately, a reviewing court should find a trial court's decision

is against the manifest weight of the evidence only in the exceptional case in

which the evidence weighs heavily against the decision. State v. McKelton,

148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 330; Lewis, 2016-

Ohio-1502, at ¶ 23.

                           B. LEGAL ANALYSIS

1. Petitioner-Appellee as a protected party.
Athens App. No. 17CA5                                                           9

      {¶19} R.C. 3113.31(A) provides:

      “(1) 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 * * *.

      {¶20} R.C. 3113.31 (E) further provides:

      “(1) After an ex parte or full hearing, the court may grant any
      protection order, with or without bond, or approve any consent
      agreement to bring about a cessation of domestic violence
      against the family or household members.”

      {¶21} In his brief, Appellant discusses at length the December 30,

2015 magistrate’s decision which denied Appellee’s request for a civil

protection order. The December 30, 2015 decision placed emphasis on the

remoteness of the alleged events, the absence of Appellee’s fear, and the

idea that Appellee was using the CPO proceedings in order to obtain

leverage in the parties’ Pennsylvania court proceedings. Appellant also

emphasizes the trial court’s finding that there was no immediate and present

danger of domestic violence to Appellee and the children. Appellant argues

the evidence presented at the new trial did not directly affect the magistrate’s

findings. Upon review of the record, however, we disagree.

      {¶22} We first observe that Appellant's failure to request findings of

fact and conclusions of law limits our review in this case. Civ.R. 52 states:
Athens App. No. 17CA5                                                              10

      “When questions of fact are tried by a court without a jury,
      judgment may be general for the prevailing party unless one of
      the parties in writing requests otherwise * * * in which case, the
      court shall state in writing the conclusions of fact found
      separately from the conclusions of law.”

      {¶23} The purpose of Civ.R. 52 findings of fact and conclusions of

law is “ ‘to aid the appellate court in reviewing the record and determining

the validity of the basis of the trial court's judgment.’ ” See Harper v. Neal,

4th Dist. Hocking No. 2016-Ohio-7179, quoting In re Adoption of Gibson,

23 Ohio St.3d 170, 172, 492 N.E.2d 146 (1986), quoting Werden v.

Crawford, 70 Ohio St.2d 122, 124, 435 N.E.2d 424 (1982). Thus, a party

may file a Civ.R. 52 request in order “to ensure the fullest possible review.”

Cherry v. Cherry, 66 Ohio St.3d 348, 356, 421 N.E.2d 1293 (1981).

      {¶24} In the absence of findings of fact and conclusions of law, we

presume that the trial court applied the law correctly and will affirm its

judgment if evidence in the record supports it. Harper, supra, at ¶ 19; Bugg

v. Fancher, 4th Dist. Highland No. 06CA12, 2007–Ohio–2019, ¶ 10, citing

Allstate Fin. Corp. v. Westfield Serv. Mgt. Co., 62 Ohio App.3d 657, 577

N.E.2d 383 (12th Dist.1989); accord Leikin Oldsmobile, Inc. v. Spofford

Auto Sales, 11th Dist. Lake No. 2000–L–202, 2002–Ohio–2441, ¶ 17 (“It is

difficult, if not impossible, to determine the basis of the trial court's ruling

without findings of fact and conclusions of law * * *.”); Yocum v.. Means,
Athens App. No. 17CA5                                                         11

2nd Dist. Darke No. 1576, 2002–Ohio–3803, ¶ 7 (“The lack of findings

obviously circumscribes our review * * *.”). As the court explained in

Pettet v. Pettet, 55 Ohio App.3d 128, 130, 562 N.E.2d 929 (5th Dist.1988):

      {¶25} “[W]hen separate facts are not requested by counsel and/or

supplied by the court the challenger is not entitled to be elevated to a

position superior to that he would have enjoyed had he made his request.

Thus, if from an examination of the record as a whole in the trial court there

is some evidence from which the court could have reached the ultimate

conclusions of fact which are consistent with [its] judgment the appellate

court is bound to affirm on the weight and sufficiency of the evidence. The

message should be clear: If a party wishes to challenge the * * * judgment as

being against the manifest weight of the evidence he had best secure

separate findings of fact and conclusions of law. Otherwise his already

“uphill” burden of demonstrating error becomes an almost insurmountable

“mountain.” Harper, supra, at 19.

      {¶26} Here, Appellant's failure to request findings of fact and

conclusions of law means that we presume the court correctly applied the

law and will affirm the trial court's judgment so long as some evidence

supports it. After our review of the record in its entirety, we believe that the
Athens App. No. 17CA5                                                          12

record contains some competent, credible evidence, if believed, to support

the trial court's judgment.

      {¶27} The November 2, 2016 hearing was for the purpose of

introducing new evidence that Appellant had entered into a written

stipulation of fact to resolve a court martial proceeding and receive non-

judicial punishment. This evidence was relevant evidence not available to

Appellee at the time of the August 25, 2014 full hearing. Appellee asserted

that the written stipulation, entered into evidence as Joint Exhibit A, was

evidence that Appellant did in fact strike his wife in the July 6, 2013

incident. Regarding the July 6, 2013 incident, the pertinent language of

Joint Exhibit A stated:

      “* * * [T]he events escalated into a physical confrontation and I
      struck her one occasion. As a result of this altercation my wife
      developed a black eye. Our children were in the house at the
      time of the incident.”

      {¶28} Appellee presented evidence from 3 witnesses: Major Katherine

Spicer, a military prosecutor; Phillip Stackhouse, a retired expert on military

processes and proceedings; and Appellant, as on cross-examination. The

new trial focused on two issues: (1) whether or not Appellant misrepresented

the events of the July 6, 2013 incident of violence between the parties; and,

(2) whether or not Appellant misrepresented his prior martial arts training.
Athens App. No. 17CA5                                                        13

       {¶29} Major Spicer, a litigation associate working in the Marine

Corps Reserves, testified that she prosecuted the Martindale case. Major

Spicer testified Appellant was initially charged with two charges: assault and

conduct unbecoming an officer. In 2015, a hearing officer found probable

cause on the charges, but not enough objective evidence to support a

conviction. Therefore, it was recommended that the case not be referred to a

general court martial.

      {¶30} However, Major Spicer personally investigated the matter

further. Appellee turned over her entire phone to the Naval Criminal

Investigative Service (NCIS) to perform a forensic analysis on Appellee’s

phone. Pictures on the phone corroborated Appellee’s version of the events

that took place on July 6, 2013. Major Spicer also reviewed Appellant’s

NCIS interrogation. She testified Appellant did not deny hitting Appellee,

but indicated he claimed “self-defense.”

      {¶31} Importantly, Major Spicer also noted that during the NCIS

interrogation, Appellant informed that he took a week off work due to his

injuries and that his commanding officer saw his black eye. Based on this

information, Major Spicer also interviewed the commanding officer and

executive officer. During her investigation, she was unable to corroborate
Athens App. No. 17CA5                                                          14

that Appellant had missed any work related to the July 2013 incident or that

he ever suffered a black eye.

      {¶32} Major Spicer testified that Appellant also submitted

photographs to verify his own injuries. However, upon analysis, these

photographs were unable to corroborate his version of the facts of the July

2013 incident. Major Spicer also testified she was never under any pressure

to bring charges against Appellant.

      {¶33} Phillip Stackhouse, a retired military lawyer, testified as an

expert in the area of military legal procedure and non-judicial punishment.

He was not involved in Appellant’s court martial proceedings. However, he

testified he did review Joint Exhibit A. He testified he interpreted the word

“struck” as meaning “slap” or “punch.” He also testified the Marine Corps

Martial Arts program is “very serious.” He testified it is a violent program,

teaching striking, choking, and weapon usage.

      {¶34} On direct examination, Appellant reaffirmed his testimony that

he never hit, struck, or punched his wife, and that he just “shoved her face

away.” Appellant testified that Joint Exhibit A contained the word “strike”

in it because the Navy “wanted it included.” The Navy also required his

black belt experience to be contained in Joint Exhibit A. Appellant testified

composing the document was a “back and forth” process he participated in
Athens App. No. 17CA5                                                         15

remotely from his hotel room. He kept refusing to sign the stipulation with

“strike” in it. He explained the attorneys convinced him as follows:

      “[I]f I was shoving my wife’s face away from me when she had
      bit me could be constituted as a strike. I felt like it was
      something I could reconcile and sign. Uh, looking at this now I
      regret it. * * * This is what the Navy insisted on. They insisted
      on that wording as I understand it.”

      {¶35} Appellant also testified that he did not deliberately omit the

information that he had a black belt in martial arts during his August 2014

testimony. He explained the omission as wanting to “make sure he was

answering the questions directly,” and he wanted to give his most significant

experience. He could not recite the actual requirements.

      {¶36} Appellant also testified there may have been improper influence

from a Congressman who contacted Appellant’s command, which caused

the charges to be filed. He did not claim unlawful command influence

because he was not sure to whom he would make the claim, and he was

unsure of the success of such a claim.

      {¶37} On cross-examination, Appellant reiterated previous testimony

that he had never hit his wife. Then, Appellant was asked to read from Joint

Exhibit A, which stated as previously set forth above, that he “struck her on

one occasion, * * * as a result [she] developed a black eye.” Appellant also

identified his signature and his counsel’s signature on the document.
Athens App. No. 17CA5                                                          16

      {¶38} Appellant was then asked to review Exhibit 2 entitled

“Response to report of Non-judicial Punishment,” which set forth as follows:

“It was then that I struck my wife with an open hand as I tried to push her

away from me.” He confirmed either he or his counsel wrote the sentence.

Appellant confirmed he was found guilty of disorderly conduct for engaging

in an altercation with his spouse.

      {¶39} Appellant denied initiating a plea deal on the morning of the

court martial. He admitted he accepted responsibility for “his involvement”

in the incident on July 6, 2013. According to his testimony, the Navy

required him to take responsibility for his actions on July 6, 2013 “as they

understood them.”

      {¶40} On cross-examination, Appellant testified in the Marines he had

received hand to hand combat training. Appellant admitted he had a black

belt despite testifying three times in August 2014 that he had “a little bit” of

martial arts training. He had not practiced martial arts since 2012.

      {¶41} Based on the foregoing testimony, we find the evidence

adequately supports the trial court's decision to grant the full CPO. While

the full CPO issued January 4, 2017 contains only brief findings of the court,

we note that the December 15, 2015 entry denying the full CPO

demonstrates the trial court’s familiarity with the case. In the December
Athens App. No. 17CA5                                                         17

2015 entry, the trial court stated that it had made its own independent

analysis in its review of the record. The trial court analyzed the parties’

testimony at length as to various incidents and the court noted several times

that the evidence was conflicting and unable to be corroborated. The trial

court stated it had reviewed the exhibits and photographs of both parties of

injuries allegedly sustained. The court also commented that it found both

parties’ credibility to be “strained.”

      {¶42} Based on our limited review, we can only conclude that having

heard the new testimony regarding the July 6, 2013 incident, the trial court

found Appellant’s credibility to be more than “strained,” and possibly found

it to be deceptive and untruthful. Even from a cold record, Appellant’s

testimony appears to be vague and evasive at times. On January 5, 2017, the

trial court made only the specific finding that Appellant admitted to striking

Appellee and causing her a black eye.

      {¶43} Appellant points out nothing in the trial court’s January 4, 2017

order speaks to Appellee’s lack of fear. Appellant also points out that the

issuance of a civil protection order cannot be based solely on previous

incidents of alleged domestic violence. Appellant emphasizes there is no

evidence of a reasonable, ongoing imminent fear of domestic violence.
Athens App. No. 17CA5                                                         18

      {¶44} Appellant has directed us to M.J. v. L. P., 9th Dist. Medina No.

15CA0036-M, 2016-Ohio-7080, wherein the appellate court observed when

reviewing whether there is sufficient evidence that a petitioner is under fear

of imminent serious physical harm, “the critical inquiry is ‘whether a

reasonable person would be placed in fear of imminent (in the sense of

unconditional, non-contingent) serious physical harm.” Id. at 11, quoting

State v. McKinney, 9th Dist. Summit No. 24430, 2009-Ohio-2225, ¶ 11,

quoting State v. Tackett, 4th Dist. Jackson No. 04CA12, 2005-Ohio-1437,

¶ 14. Although “we refer to the petitioner's history with respondent” when

carrying out this inquiry, M.H. v. J.H., 9th Dist. Medina No. 15CA0031-M,

2015-Ohio-5178, ¶ 7, to support the extension of a civil protection order,

“[t]here must also be evidence the petitioner has a reasonable belief of

serious physical harm based on new threats of domestic violence.” Studer v.

Studer, 3rd Dist. Crawford No. 3–11–04, 2012-Ohio-2838, ¶ 23; see also

Woolum v. Woolum, 131 Ohio App.3d 818, 822 (12th Dist.1999) (affirming

extension of civil protection order “on the basis of past domestic abuse

coupled with present threat of future violence”) (Emphasis added.). This

requirement of continued threats beyond those that gave rise to the initial

civil protection order is necessary because “[t]he purpose of the civil
Athens App. No. 17CA5                                                            19

protection order is not to address past abuse.” Wetterman v. B.C., 9th Dist.

Medina No. 12CA0021–M, 2013-Ohio-57, ¶ 11.

      {¶45} While it is true that in the December 2015 entry the trial court

specifically found “no indication that Petitioner is fearful of serious

imminent physical harm,” given the limited review to which we are

constrained by the lack of findings of fact and conclusions of law, we

presume the trial court applied the law correctly and considered all the

evidence in the record. While the trial court did not make a specific finding

in the January 2017 CPO addressing the issues of reasonable imminent fear

or the remoteness in time of the events, we further point out the absence of a

request for findings of fact and conclusions of law ordinarily results in a

waiver of the right to challenge the trial court's lack of an explicit finding

concerning an issue. Cline v. Rogers Farms, 4th Dist. Pickaway No. 16CA7,

2017-Ohio-1379, 27. Fultz v. Fultz, 4th Dist. Pickaway No. 13CA9, 2014-

Ohio-3344, ¶ 51; Pawlus v. Bartrug, 109 Ohio App.3d 796, 801, 673 N.E.2d

188 (9th Dist.1996).

      {¶46} Again, we presume the trial court’s familiarity with the record

and review of the record. At the February 2014 hearing, Appellee testified

that she was fearful for her life. Throughout these proceedings, both parties

acknowledged their relationship was a violent one. And, the various rulings
Athens App. No. 17CA5                                                                                   20

have hinged on the parties’ credibility, with neither party’s testimony

establishing any strong indication of reliability. In the December 20, 2015

entry, the court noted as follows:

        “A review of the record reveals that [Appellant] does not
        dispute that the parties have had a violent past. He concedes
        that there has been violence in the past. Respondent asserts it
        had been mutual. * * * There is no corroborating information
        concerning incidents of [Appellant] choking, grabbing, pushing,
        or striking the [Appellee].”

        {¶47} Significantly, in January 2017, the trial court at last had

corroborating information before it and a strong indicator of Appellant’s

lack of credibility, due to his minimization of his actions in the July 6, 2013

incident which formed the basis of the court martial proceedings. Other

courts have observed that minimizing the nature of charges that formed the

basis of a court martial and military sentence reveals a tendency to discount

one’s own conduct and responsibility, ultimately affecting credibility

determinations.4 The trial court was free to believe all, part, or none of

Appellant’s testimony. West, supra, at 23. Mindful that the trial court is in

the best position to assess demeanor and truthfulness, as Appellant

4
  See Miller v. Ohio Department of Education, 2nd Dist. Montgomery No. 27359, 2017-Ohio-7197, ¶ 38
(Miller admitted at ODE hearing that he had pled guilty to the charges that formed the basis of the court-
martial and his military sentence, but maintained that he was not guilty of the crimes, thus minimizing the
seriousness of his convictions and sentence and militating against the idea of true rehabilitation.). In re
Application of Tynes, 146 Ohio St.3d 243, 2016-Ohio-3307, ¶ 19 (Court had significant concerns regarding
Tynes’ honesty and integrity during the admissions process, given his efforts to minimize his own
culpability for criminal convictions which occurred in 1998 by a court-martial for multiple felony
offenses.).
Athens App. No. 17CA5                                                                                  21

minimized his actions on July 6, 2013, we defer to the trial court’s apparent

assessment that his credibility was lacking. See Wootten, supra, at 20.

        {¶48} Given the parties’ violent history, Appellee’s testimony that she

was fearful, and the clear evidence that Appellant did strike his wife’s face

causing a black eye on July 6, 2013 and resulting in non-judicial punishment

via the United States Military, we do not believe that the trial court's

judgment creates a manifest miscarriage of justice.5 The trial court’s finding

that Appellee had shown by a preponderance of the evidence that she was in

danger of domestic violence was supported by evidence in the record and

justified issuance of the full CPO. As such, the first assignment of error has

no merit and is hereby overruled.

2. The children as protected parties.

        {¶49} In the second assignment of error, Appellant argues the scope

of the CPO is too broad. Appellant argues, notwithstanding the above, there

is no evidence whatsoever to justify the addition of the minor children as

protected parties. Appellant argues the only allegations relating to the

children were several unexplained bruises that Appellee either did not report

to children’s services or did report but no action was taken. Appellant
5
  We observe that during these proceedings, notwithstanding the very full case load on the trial court’s
docket, both parties filed numerous motions concerning issues such as changes in the visitation schedule,
supervised visitation, requests for records, protective orders, disqualification of Appellant’s attorney,
clarification, and contempt. Due to death and withdrawal, the parties have also been represented by various
counsel. These factors have also contributed to the fact that the July 2013 incident occurred over 4 years
ago at this point.
Athens App. No. 17CA5                                                            22

emphasizes the trial court’s December 2015 finding Appellee not to be

credible. Appellant points out prior to the third day of testimony at the

original civil protection order hearing, the magistrate removed the children

from the civil protection order. No evidence was presented as to the

children at the new trial.

      {¶50} In response, Appellee contends the inclusion of the children

was proper because they were both exposed to the domestic violence

perpetrated against Appellee. Appellee points out the inconsistency of

Appellant’s testimony about whether or not the children were present during

the July 2013 domestic violence incident. Appellee argues their presence in

an unsafe environment was a form of domestic violence.

      {¶51} “[W]hen the challenge to the CPO involves the scope of the

order, we review the order for an abuse of discretion.” Wootten, supra, at 30,

quoting Walters v. Walters, 150 Ohio App.3d 287, 2002-Ohio-6455, 780

N.E.2d 1032, at ¶ 10; Corrao v. Corrao, 2016-Ohio-4862, 2016 WL

3632494, at ¶ 16, quoting Allan v. Allan, 8th Dist. Cuyahoga No. 101212,

2014-Ohio-5039, ¶ 11, quoting Reynolds v. White, 8th Dist. Cuyahoga No.

74506, 1999 WL 754496 (Sept. 23, 1999) (“R.C. 3113.31 expressly

authorizes trial courts to ‘ “craft protection orders that are tailored to the

particular circumstances,’ ” and therefore, challenges to the scope of a
Athens App. No. 17CA5                                                         23

protection order are reviewed for an abuse of discretion”); Denney v.

Sanders, 1st Dist. Hamilton No. C–150556, 2016-Ohio-5113, ¶ 19 (“As the

trial court has discretion over the scope of the civil protection order, we

review challenges to the scope of a [protection order] under an abuse of

discretion standard”).

      {¶52} “ ‘A trial court abuses its discretion when it makes a decision

that is unreasonable, unconscionable, or arbitrary.’ ” Wootten, supra, at 31,

quoting State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d

870, ¶ 7, quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,

986 N.E.2d 971, ¶ 34. “An abuse of discretion includes a situation in which

a trial court did not engage in a ‘sound reasoning process’; this review is

deferential and does not permit an appellate court to simply substitute its

judgment for that of the trial court.” State v. Felts, 2016-Ohio-2755, 52

N.E.3d 1223, ¶ 29 (4th Dist.), quoting Darmond at ¶ 34.

      {¶53} However, “[a]lthough the abuse of discretion standard usually

affords maximum [deference] to the lower court, no court retains discretion

to adopt an incorrect legal rule or to apply an appropriate rule in an

inappropriate manner. Such a course of conduct would result in an abuse of

discretion.” 2–J Supply, Inc. v. Garrett & Parker, L.L.C., 4th Dist. Highland
Athens App. No. 17CA5                                                        24

No. 13CA29, 2015-Ohio-2757, at ¶ 9. See Safest Neighborhood Assn. v.

Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 694, ¶ 16.

      {¶54} While no evidence was presented at the new trial regarding

direct violence to the children, Appellee testified numerous times in previous

hearings that the children were present and observed the physical

altercations between the parties. While that evidence was conflicting and

uncorroborated, Joint Exhibit A demonstrates corroborating evidence that

the children were present during the July 6, 2013 incident. Appellee has

directed us to McBride v. McBride, 2012-Ohio-2146, 971 N.E.2d 1007 (12th

Dist.), where the appellate court found that one child’s presence during times

when the father was repeatedly beating the brother placed both children in

an unsafe environment. The McBride court held at ¶ 25:

      “The trial court did not err in issuing a CPO on behalf of E.M.
      in light of our previous holding that ‘placing children in an
      environment where there is a substantial risk to their health and
      safety constitutes one form of domestic violence.’ Ferris v.
      Ferris, 2006-Ohio-878, at ¶ 28.”

      {¶55} Likewise, we do not find the trial court abused its discretion in

adding A.M. and M.M. to the full CPO. Given that the testimony of both

parties throughout these proceedings acknowledged the home environment

was violent, along with Appellant’s admission that the children were present

during the July 6, 2013 incident, the children were placed in substantial risk
Athens App. No. 17CA5                                                        25

to their health and safety. For the foregoing reasons, we find no merit to

Appellant’s second assignment of error and it is hereby overruled.

Accordingly, the judgment of the trial court is affirmed.

                                                JUDGMENT AFFIRMED.
Athens App. No. 17CA5                                                          26

                           JUDGMENT ENTRY


      It is ordered that the JUDGMENT BE AFFIRMED. Costs are
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Court of Common Pleas to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                       For the Court,


                                 BY: ________________________
                                     Matthew W. McFarland, Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
