[Cite as Watts v. Watts, 2014-Ohio-1901.]


                                     COURT OF APPEALS
                                  FAIRFIELD COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


FREDA M. WATTS                               :   JUDGES:
                                             :
                                             :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                    :   Hon. John W. Wise, J.
                                             :   Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :   Case No. 13-CA-63
                                             :
LARRY D. WATTS                               :
                                             :
                                             :
       Defendant-Appellant                   :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Fairfield County
                                                 Court of Common Pleas, Domestic
                                                 Relations Division, Case No. 12 DR
                                                 244



JUDGMENT:                                        AFFIRMED




DATE OF JUDGMENT ENTRY:                          May 1, 2014




APPEARANCES:

For Plaintiff-Appellee:                          For Defendant-Appellant:

FREDA M. WATTS, PRO SE                           R.C. STOUGHTON, SR.
3795 Old Columbus, Suite #1                      121 North High Street
Caroll, OH 43112                                 Lancaster, OH 43130
Fairfield County, Case No. 13-CA-63                                                         2

Delaney, J.

          {¶1} Defendant-Appellant Larry D. Watts appeals the August 20, 2013

judgment entry of the Fairfield County Court of Common Pleas, Domestic Relations

Division.

                             FACTS AND PROCEDURAL HISTORY

          {¶2} After a long-term marriage, Plaintiff-Appellee Freda M. Watts filed a

complaint for divorce from her husband, Defendant-Appellant Larry D. Watts.1 Mrs.

Watts filed for divorce in Tuscarawas County, but moved to Fairfield County to reside

with her daughter during the pendency of the divorce proceedings.

          {¶3} On May 16, 2012, Mrs. Watts filed a Petition for Domestic Violence Civil

Protection Order (“DVCPO”) with the Fairfield County Court of Common Pleas,

Domestic Relations Division. Mrs. Watts requested the trial court grant her a DVCPO

against Mr. Watts. The trial court granted an Ex Parte Civil Protection Order on May 17,

2012.

          {¶4} A full hearing was held on June 28, 2012 and January 7, 2013. Mrs. Watts

testified the Tuscarawas County Court of Common Pleas, Domestic Relations Division

issued a restraining order against Mr. Watts as part of the divorce proceedings, but Mrs.

Watts felt a DVCPO would provide her with more protection from Mr. Watts. She was

afraid her husband would cause her physical harm. Mrs. Watts described her 40-year

marriage to Mr. Watts as an abusive relationship. She recounted abusive incidents

during their marriage. On May 16, 2007, Mrs. Watts testified her husband shoved her

during an altercation, which she reported to the Tuscarawas County Sheriff’s

Department. In 2007, Mrs. Watts removed the guns from their home to protect Mr.
1
    According to Mrs. Watts’s brief, the parties’ divorce was finalized on March 7, 2013.
Fairfield County, Case No. 13-CA-63                                                   3


Watts because he had threatened to shoot himself and Mrs. Watts felt her husband

might also shoot her. In 2008, Mrs. Watts testified her husband pushed her into a

bathroom vanity, slapped her, grabbed her by the throat, and spit in her face. Mrs.

Watts reported the incident to the sheriff’s department.

        {¶5} In 2011, Mrs. Watts required heart surgery. While at the Cleveland Clinic

recovering from her heart surgery, it was necessary for hospital security to escort Mr.

Watts from the premises and prevent him from visiting Mrs. Watts during her recovery.

Mrs. Watts testified that while she was at the hospital, her husband harassed her to the

point that her blood pressure rose and caused her stress.

        {¶6} Mrs. Watts testified to another incident in 2011 where Mr. Watts pushed

her while stepping on her foot, causing injury to her foot and bruises on her arm. Mrs.

Watts’s daughter confirmed she observed the bruises and the injury to her mother’s

foot.

        {¶7} The Watts’s two daughters testified that they witnessed their father abuse

their mother during their parents’ marriage.

        {¶8} Mr. Watts testified and denied committing any abuse upon his wife.

        {¶9} On January 15, 2013, the magistrate issued her Findings of Fact and

Conclusions of Law granting an Order of Protection. The Order of Protection was filed

on January 15, 2013.

        {¶10} Mr. Watts filed objections to the magistrate’s decision.

        {¶11} The trial court overruled the objections and adopted the magistrate’s

decision. It is from this decision Mr. Watts now appeals.
Fairfield County, Case No. 13-CA-63                                                   4


                           ASSIGNMENTS OF ERROR

      {¶12} Mr. Watts raises three Assignments of Error:

      {¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A

MATTER OF LAW BY FINDING THAT THERE WAS NO ERROR OF LAW IN THE

MAGISTRATE’S DECISION.

      {¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A

MATTER OF LAW BY FINDING THAT THERE WAS CREDIBLE EVIDENCE OF

RECORD SUFFICIENT TO SUPPORT THE GRANTING OF THE PROTECTION

ORDER.

      {¶15} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A

MATTER OF LAW BY FINDING THAT THERE WAS NO ABUSE OF THE

MAGISTRATE’S DISCRETION.”

                                    ANALYSIS

      {¶16} We consider Mr. Watts’s three Assignments of Error together because

they are interrelated. Mr. Watts argues the trial court erred in granting the Order of

Protection. We disagree.

      {¶17} The decision whether to grant a civil protection order lies within the sound

discretion of the trial court. Olenik v. Huff, 5th Dist. Ashland App. No. 02–COA–058,

2003–Ohio–4621, ¶ 21. The Supreme Court has repeatedly defined the term abuse of

discretion as the decision is unreasonable, arbitrary, or unconscionable. See, e.g.,

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

      {¶18} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Fairfield County, Case No. 13-CA-63                                                      5

Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978). A

reviewing court must not substitute its judgment for that of the trial court where there

exists some competent and credible evidence supporting the judgment rendered by the

trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993–Ohio–9, 614 N.E.2d 742. The

underlying rationale for giving deference to the findings of the trial court rests with the

knowledge that the trial judge is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony. Seasons Coal Co. v. City of Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶19} When granting a protection order, the trial court must find that the

petitioner has shown by a preponderance of the evidence that the petitioner or the

petitioner's family or household members are in danger of domestic violence. Felton v.

Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), paragraph two of the syllabus.

“Domestic violence” is defined, in relevant part, as “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

       [menacing by stalking] or 2911.211 [aggravated trespass] of the Revised

       Code; * * *

McKinney v. Brunney, 5th Dist. No. 13-CA-41, 2014-Ohio-39, ¶ 18-22, citing R.C.

3113.31(A)(1).
Fairfield County, Case No. 13-CA-63                                                  6


      {¶20} Mr. Watts contends the evidence in the record does not support a finding

of domestic violence under R.C. 3113.31(A)(1)(a) or 3113.31(A)(1)(b) based on the

dates of the alleged incidents that Mrs. Watts raised to support her petition for the

DVCPO. Mr. Watts argues that long ago acts cannot be used to show a current danger

of domestic violence.

      {¶21} The Tenth District Court of Appeals in Strassel v. Chapman, 10th Dist.

Franklin No. 09AP-793, 2010-Ohio-4376, reviewed the analysis necessary to determine

whether to grant a DVCPO:

             “[C]ivil protection orders are intended to prevent violence before it

      happens.” Young v. Young, 2d Dist. No.2005-CA-19, 2006-Ohio-978, ¶

      105. Where a trial court grants a CPO based on a petitioner's fear of

      imminent serious physical harm, “the critical inquiry under [R.C. 3113.31]

      ‘is whether a reasonable person would be placed in fear of imminent (in

      the sense of unconditional, non-contingent), serious physical harm.’ “

      Fleckner v. Fleckner, 10th Dist. No. 07AP-988, 2008-Ohio-4000, ¶ 20, 177

      Ohio App.3d 706, 895 N.E.2d 896, quoting Maccabee v. Maccabee (June

      29, 1999), 10th Dist. No. 98AP-1213, quoting Strong v. Bauman (May 21,

      1999), 2d Dist. No. 17256.

             “Threats of violence constitute domestic violence for the purposes

      of R.C. 3113.31 if the fear resulting from those threats is reasonable.”

      Fleckner at ¶ 21, quoting Lavery v. Lavery (Dec. 5, 2001), 9th Dist. No.

      20616, appeal not allowed (2002), 95 Ohio St.3d 1409 (internal quotation

      marks omitted). “The reasonableness of the fear should be determined
Fairfield County, Case No. 13-CA-63                                                      7


       with reference to the history between the petitioner and the respondent.”

       Id., quoting Gatt v. Gatt (Apr. 17, 2002), 9th Dist. No. 3217-M, citing

       Eichenberger v. Eichenberger (1992), 82 Ohio App.3d 809, 816, 613

       N.E.2d 678.

             Courts use both a subjective test and an objective test in

       determining the reasonableness of the petitioner's fear. The subjective

       test “inquires whether the respondent's threat of force actually caused the

       petitioner to fear imminent serious physical harm.” Fleckner at ¶ 23

       (collecting cases). By contrast, the objective test “inquires whether the

       petitioner's fear is reasonable under the circumstances.” Id.

Strassell v. Chapman, 10th Dist. Franklin No. 09AP-793, 2010-Ohio-4376, ¶7-9

       {¶22} The trial court determined there was credible evidence to show a history of

domestic violence between Mr. and Mrs. Watts. The evidence in the record shows the

most recent incident of domestic violence occurred in 2011. After that time, Mrs. Watts

removed herself from the situation by filing for divorce and moving to a different county.

Mrs. Watts testified that unless the trial court granted the DVCPO, Mrs. Watts was

fearful that Mr. Watts would continue to harass her or even seriously injure her. The trial

court could determine that Mrs. Watts’s fear of harm was reasonable based on her

history with Mr. Watts. Based on the record presented, we find there is credible

evidence in the record to show Mrs. Watts proved by a preponderance of the evidence

that she feared imminent serious physical harm by Mr. Watts and her fear was

reasonable under the circumstances.
Fairfield County, Case No. 13-CA-63                                                8


       {¶23} The three Assignments of Error of Defendant-Appellant Larry D. Watts are

overruled.

                                 CONCLUSION

       {¶24} The judgment of the Fairfield County Court of Common Pleas, Domestic

Relations Court is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, J., concur.
