[Cite as Barton v. Barton, 2015-Ohio-3869.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

KEESHA A. BARTON

        Petitioner-Appellee

v.

DOUGLAS C. BARTON

        Respondent-Appellant

:

Appellate Case No. 2014-CA-21

Trial Court Case No. 2013-DV-193

(Domestic Relations Appeal from
                         (Common Pleas Court). . . . . . . . . . .
                                        AMENDED O P I N I O N

                           Rendered on the 23rd day of September, 2015.

                                               ...........

DOUGLAS C. BARTON, 437 Warwick Place, Fairborn, Ohio 45324
    Respondent-Appellant-Pro Se

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 111 West First Street, Suite 518
Dayton, Ohio 45402
      Attorney for Petitioner-Appellee

                                              .............

FAIN, J.

        {¶ 1} Respondent-appellant Douglas Barton appeals from a Civil Protection Order
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entered against him by the Greene County Common Pleas Court, Domestic Relations

Division. He raises thirteen assignments of error. Because we conclude that there is

insufficient evidence in the record that petitioner-appellee Keesha Barton was placed, by

force or threat of force, in fear of imminent serious physical harm, the civil protection order

from which Mr. Barton appeals is Reversed.



                              I. The Course of Proceedings

       {¶ 2} Keesha Barton and Douglas Barton were married in July 2012. Ms. Barton

filed a petition for domestic violence civil protection order on November 27, 2013. An ex

parte order of temporary protection was entered that same day, and a hearing was

scheduled for December 4, 2013. On the date of the hearing, counsel for Ms. Barton filed a

motion for continuance citing the fact that Mr. Barton had filed a petition for protection and

the ex parte order of temporary protection had just been received, along with a notice of a

hearing date set for December 13. Counsel requested that both hearings be combined and

reset for another date.

       {¶ 3} The motion to continue was granted, and a new hearing date of February 7,

2014, was set for both cases. The record does not contain any objection by Mr. Barton.

The hearing date was converted to a pre-trial conference, attended by counsel for both

parties.   A new hearing date was set for April 14, 2014 at which both parties were

represented by counsel. Following the hearing, the trial court entered a protection order on

behalf of Ms. Barton. The trial court stated that it found credible Ms. Barton’s testimony that

Mr. Barton had “engaged in a pattern of conduct that has caused [Ms. Barton] fear of

immminant [sic] harm or danger and has led to mental distress.”
                                                                                            -3-
         {¶ 4} Mr. Barton, acting pro se, appeals.



    II. There Is Insufficient Evidence in the Record that Ms. Barton Was Placed,

         by Force or Threat of Force, in Fear of Imminent Serious Physical Harm

         {¶ 5} Barton’s First Assignment of Error states:

         APPELLANT’S       JUDGMENT        AGAINST          HIM   FOR    TEMPORARY/

         PERMANENT        CIVIL   PROTECTION         ORDER        WAS   AGAINST    THE

         MANI-FEST WEIGHT OF THE EVIDENCE AS DEFINED BY ORC 3113.31,

         THE    TRIAL     COURT      ERRED      WHEN         GRANTING     APPELLEE’S

         PROTECTION ORDER.

         {¶ 6} Mr. Barton contends that the evidence does not support the entry of a protection

order against him.      Mr. Barton’s argument in this assignment of error, while styled as a

weight of the evidence issue, is actually centered on his claim that Ms. Barton did not submit

evidence sufficient to establish the elements necessary for the issuance of the protection

order.

         {¶ 7} Under R.C. 3113.31(E)(1), a court may grant a protection order to “bring about a

cessation of domestic violence.” When a trial court grants a protection order, it must find

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

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), at paragraph two of the syllabus.

Domestic violence is defined in pertinent part by R.C. 3113.31(A)(1) as “[p]lacing 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”.
                                                                                          -4-
       {¶ 8} Although “force” is not defined in R.C. 3113.31, it is defined elsewhere for

purposes of the Ohio Revised Code as “any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). With regard

to imminence, this court has previously held that because civil protection orders are

intended to prevent violence before it happens, imminence does not require an offender to

carry out a threat immediately or to be in the process of carrying it out. Young v. Young, 2d

Dist. Greene No. 2005-CA-19, 2006-Ohio-978, ¶ 105. Instead, “the critical inquiry under

the statute is whether a reasonable person would be placed in fear of imminent (in the sense

of unconditional, non-contingent), serious physical harm. This inquiry necessarily involves

both subjective and objective elements. * * * Therefore, we must determine whether [the

petitioner] * * * had a reasonable belief that * * * [the offender] would cause her imminent,

serious physical harm.” Id.

       {¶ 9} Additionally, R.C. 2901.01(A)(5) defines “serious physical harm to persons” as

any of the following:

       (a) Any mental illness or condition of such gravity as would normally require

       hospitalization or prolonged psychiatric treatment;

       (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity, whether

       partial or total, or that involves some temporary, substantial incapacity;

       (d) Any physical harm that involves some permanent disfigurement or that

       involves some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result in

       substantial suffering or that involves any degree of prolonged or intractable
                                                                                             -5-
       pain.”

R.C. 2901.01(A)(5).

       {¶ 10} Our review is limited to determining whether the issuance of the protection

order is supported by sufficient competent and credible evidence. Young v. Young, 2d Dist.

Greene No. 2005-CA-19, 2006-Ohio-978, ¶ 22.

       {¶ 11} The facts relevant hereto are taken from the transcript of the hearing. Ms.

Barton testified that in August 2012, she had received information that caused her concern

for Mr. Barton’s safety.    Therefore, she went to another home owned by Mr. Barton,

removed his collection of guns, and took them to her house. She testified that she then

received a text from Mr. Barton telling her that she had “better be ready for a s–t storm.” Tr.,

p. 23. Later, Mr. Barton came to the marital residence. Ms. Barton had locked him out.

She testified that she told him not to come inside, but he forced a door open with a crowbar.

Ms. Barton testified that Mr. Barton screamed obscenities at her, and told her she better not

go to sleep. A recording of this fight was introduced at trial.   Ms. Barton testified that this

event caused her “imminent fear.” Tr., p. 34. When asked why she did not call the police

on that date, and did not file her petition for three months thereafter, Ms. Barton stated that

Mr. Barton came back home after “things cooled down.” Id.

       {¶ 12} Ms. Barton testified that in October 2012, Mr. Barton “threw [her] around the

living room.” Tr. p. 8. Further, she testified that on Thanksgiving Day 2012, Mr. Barton

grabbed her, pushed her, and spit in her face. Ms. Barton sought her first civil protection

order on November 27, 2012. She voluntarily dismissed that petition in December 2012.

She testified that she dismissed the petition in exchange for Mr. Barton’s agreement to get

counseling.
                                                                                             -6-
       {¶ 13} There is no clear evidence of any further violent interaction between the

parties until June of 2013. Ms. Barton submitted an exhibit showing text messages between

her and Mr. Barton on June 24, 25, and 26, 2013. On June 24, the parties discussed deck

stain. On June 25, 2013, the parties went to lunch together at Ms. Barton’s request, which

she made via text message. According to Ms. Barton, Mr. Barton picked her up for lunch

and drove her to a restaurant parking lot where he yelled at her. After lunch she texted, “I

love you,” to Mr. Barton.

       {¶ 14} The remainder of the text messages in the exhibit occur on June 26. The

exhibit demonstrates that between 8:28 a.m. and noon, Ms. Barton texted Mr. Barton 46

times. The parties appear to have been at work during this time. Their offices were in

close proximity. In the texts, both parties use profanity. Ms. Barton texts that she will not

“stop” until Mr. Barton “fixes” something he did, which is never identified in the texts. The

texts also indicate that she attempted to contact him by telephone. Mr. Barton responded

to most of the texts. None of his texts contain threats; however, in one of his reply texts, Mr.

Barton indicates that if Ms. Barton does not stop harassing him, he will report her to her

supervisor. Immediately thereafter, she texted that he was threatening her. She texted Mr.

Barton another 15 times between 12:20 p.m. and 2:29 p.m.           During the lunch hour, she

texted him that he was staying in his office to avoid her. Mr. Barton did not respond to any

of the last 15 text messages. In her final texts during that time period, Ms. Barton indicated

that she was at Mr. Barton’s home. That same afternoon, Ms. Barton was arrested and

charged with domestic violence. A temporary protection order was entered against her.

       {¶ 15} Ms. Barton testified that in August 2013, she learned that Mr. Barton made a

posting on his Facebook page in which he stated, “silence is golden, duct tape is silver.” A
                                                                                              -7-
review of the exhibit submitted by Ms. Barton shows a screen-shot of Mr. Barton’s Facebook

profile picture, which depicts a woman, not alleged to be Ms. Barton, bound and gagged with

duct tape. Mr. Barton testified that the picture was taken from a movie and represented the

fact that he “was getting some peace and quiet. That I wasn’t having arguments any more.”

Tr., p. 44.    Also during August, Mr. Barton filed for divorce.

       {¶ 16} Ms. Barton finally testified that for the “last several months” before the hearing,

Mr. Barton had been telling her to “keep [her] mouth shut,” and that he had filed a civil suit

against her.

       {¶ 17} In November 2013, Ms. Barton filed her second petition for a protection order,

based upon the same allegations contained in the original petition, as well as the

subsequent events set forth above.

       {¶ 18} We conclude from the evidence in the record that the Bartons have a

dysfunctional and volatile relationship. Both parties have exhibited poor behavior. But the

issue is whether Ms. Barton was in fear of imminent serious physical harm caused by threat

of force.

       {¶ 19} Ms. Barton’s testimony at the hearing regarding her fear consists of her

generalized statement that she is afraid that her safety is in imminent and continued risk.

We conclude that the evidence in the record does not support this claim. Following the

August 2012 incident, the parties reconciled and resided together again, once things “cooled

down.” While two of the 2012 incidents did involve physical contact, Ms. Barton indicated

that Mr. Barton did not cause her physical harm. Furthermore, it appears that the parties

again reconciled and continued their relationship until June 2013, without any incidents.

The record regarding the June incidents do not demonstrate imminent fear. Ms. Barton
                                                                                           -8-
initiated the text conversations, discussed such mundane items as deck stain, and told Mr.

Barton to take her out to lunch.

       {¶ 20} There is no evidence of any physical act of force or threat of force since

November 2012.      It is clear from the text messages that Ms. Barton was the person

precipitating the altercation that caused her arrest in June 2013. There is no evidence of

physical contact between the parties following Mr. Barton’s filing for divorce in August

2013. Ms. Barton made a generalized claim that Mr. Barton continuously told her to keep her

mouth shut for a period of several months, but there is no evidence that these statements

were made during face-to-face encounters or via telephone, text or e-mail. While the

Facebook posting is distasteful, it was not transmitted to Ms. Barton, and does not set forth

any explicit threat of force. In short, the evidence regarding the contact between the parties

in 2013 does not constitute sufficient, credible evidence to support a finding that Ms. Barton

was placed, by force or threat of force, in fear of imminent serious physical harm.

Accordingly, the First Assignment of Error is sustained.



             III. Mr. Barton’s Remaining Assignments of Error Are Moot

       {¶ 21} Barton’s remaining assignments of error are as follows:

       APPELLANT’S FAILURE TO RECEIVE A TIMELY FULL HEARING WITHIN 10

DAYS, IN VIOLATION OF ORC 3113.31 AND U.S. CONSTITUTION 5TH, 6TH AND 14TH

AMENDMENTS, THE TRIAL COURT ERRED WHEN NOT FOLLOWING OHIO REVISED

CODE.

              APPELLANT’S JUDGMENT AGAINST HIM FOR TEMPORARY/

       PERMANENT CIVIL PROTECTION ORDER WAS AGAINST THE RIGHTS
                                                                  -9-
OF VICTIMS OF CRIMES, IN VIOLATION OF ARTICLE 1, SECTION 10a OF

THE OHIO CONSTITUTION, THE TRIAL COURT ERRED WHEN THEY

GRANTED THE CIVIL PROTECTION ORDER BY FAILING TO PROVIDE

THE APPELLANT A VICTIM OF A CRIME (COMMITTED BY THE

APPELLEE) FAIRNESS, DIGNITY AND RESPECT.

     THE APPELLEE’S ATTORNEY (BRIAN PENICK) FAILED TO FILE

NOTICE   OF   APPEARANCE   BEFORE    OR   AFTER   MOTION   FOR

CONTINUANCE; THE APPELLEE’S EX PARTE HEARING WAS PRO SE.

THE TRIAL COURT ERRED WHEN GRANTING THE CONTINUANCE, NO

GOOD CAUSE WAS SHOWN.

     THE TRIAL COURT ERRED BY LISTING APPELLEE’S ATTORNEY

PENICK AS APPELLANT’S ATTORNEY

     APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/

TEMPORARY CIVIL PROTECTION ORDER WAS AGAINST THE U.S.

CONSTITUTION 2ND AMENDMENT. THE TRIAL COURT ERRED WHEN

GRANTING APPELLEE’S PROTECTION ORDER, THERE WAS NO

SPECIFIC HEARING ON TAKING AWAY 2ND AMENDMENT RIGHTS.

     APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/

TEMPORARY CIVIL ORDER WAS AGAINST THE U.S. CONSTITUTION

8TH AMENDMENT. THE TRIAL COURT ERRED WHEN THEY GRANTED

THE CIVIL PROTECTION ORDER, THE JUDGMENT IS CRUEL AND

UNUSUAL GIVEN THAT THE APPELLANT WAS THE VICTIM OF A CRIME

AS COMMITTED BY THE APPELLEE.
                                                                                 -10-



              APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/

       TEMPORARY         CIVIL    ORDER   [SIC]   WAS   AGAINST   THE    U.S.

       CONSTITUTION 4TH AMENDMENT.

              APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/

       TEMPORARY CIVIL PROTECTION ORDER WAS AGAINST THE U.S.C. 42

       § 1983.

              APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/

       TEMPORARY CIVIL PROTECTION ORDER WAS AGAINST THE U.S.C. 42

       § 1985.

              APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/

       TEMPORARY CIVIL PROTECTION ORDER WAS AGAINST THE U.S.C. 42

       § 1986.

       APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/ TEMPORARY

CIVIL PROTECTION ORDER WAS AGAINST THE OHIO RULES OF PROFESSIONAL

CONDUCT (FOR LAWYER’S) [SIC] RULE 1.2[9], [10]; RULE 3.4(a), (b), (d), (e); RULE 3.5

(a)(1), (3); RULE 4.1 (a), (b).

              APPELLANT’S JUDGMENT AGAINST HIM FOR PERMANENT/

       TEMPORARY CIVIL PROTECTION ORDER WAS AGAINST THE OHIO

       CODE OF JUDICIAL CONDUCT - CANNON 1 LACK OF INTEGRITY,

       IMPARTIALITY AND APPEARANCE OF IMPROPRIETY. RULE 1.1 THE

       TRIAL COURT DID NOT COMPLY WITH THE LAW.               RULE 1.2[5];

       CANNON 2 RULE 2.2, RULE 2.3(A),(C); RULE 2.5(A), (B); RULE 2.6(A);
                                                                                     -11-
      RULE 2.12(A), (B).

      {¶ 22} In view of our disposition of Mr. Barton’s First Assignment of Error, his

remaining assignments of error are overruled as moot.



                                    IV. Conclusion

      {¶ 23} Mr. Barton’s First Assignment of Error having been sustained, and his

remaining assignments of error having been overruled as moot, the civil protection order

entered against him, from which this appeal is taken, is Reversed.

                            .............



HALL and WELBAUM, JJ., concur.




Copies mailed to:

Douglas C. Barton
Keesha A. Barton
Charles W. Slicer, III
Hon. J. Timothy Campbell (sitting by assignment)
