[Cite as Wolfe v. Wolfe, 2014-Ohio-2159.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



ROBERT WOLFE                                :       JUDGES:
                                            :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
COLLEEN WOLFE                               :       Case No. 2013CA00196
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Common Pleas
                                                    Court, Domestic Relations Division,
                                                    Case No. 2013DV00083



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   May 19, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTOPHER DIONISIO                                ANTHONY KOUKOUTAS
4883 Dressler Road, NW                              116 Cleveland Avenue, NW
Canton, OH 44718                                    Suite 808
                                                    Canton, OH 44702
Stark County, Case No. 2013CA00196                                                         2

Farmer, P.J.

       {¶1}    On February 21, 2012, appellant, Colleen Wolfe, and appellee, Robert

Wolfe, were divorced (Case No. 2011DR00672). Appellee was awarded custody of the

parties' two children, and appellant was granted supervised visitation. On January 30,

2013, the trial court issued an order suspending appellant's visitation, and issued a no

contact order, prohibiting appellant from being present within 500 feet of the children.

       {¶2}    On August 30, 2013, appellee filed a petition for a domestic violence civil

protection order for himself and the parties' two children as against appellant (Case No.

2013DV00083). A hearing was held on September 13, 2013. On same date, the trial

court issued the request civil protection order.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶4}    "THE GRANTING OF THE CIVIL PROTECTION ORDER WITH

RESPECT TO THE APPELLANT'S CHILDREN WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                              I

       {¶5}    Appellant claims the granting of the civil protection order to include the

children is against the manifest weight of the evidence as no evidence was presented of

any harm to the children. We disagree.

       {¶6}    On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and
Stark County, Case No. 2013CA00196                                                       3


determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175

(1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52; Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. In weighing the evidence, however, we

are always mindful of the presumption in favor of the trial court's factual findings.

Eastley at ¶ 21.

       {¶7}   A petition for a domestic violence civil protection order is governed by R.C.

3113.31. Subsection (A) states the following:



              (A) As used in this section:

              (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 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.
Stark County, Case No. 2013CA00196                                                          4


       {¶8}   A "family or household member" includes: "A parent or a child of a spouse,

person living as a spouse, or former spouse of the respondent, or another person

related by consanguinity or affinity to a spouse, person living as a spouse, or former

spouse of the respondent." R.C. 3113.31(A)(3)(a)(iii).

       {¶9}   In the civil protection order filed on September 13, 2013, the trial court

found the following:



              Colleen Wolfe is the ex-spouse of the Petitioner and the mother of

       [M.] and [R.]. She has engaged in a pattern of stalking and threatening

       the Petitioner and children.      Jurisdiction exists.   Colleen Wolfe has

       attacked her ex mother-in-law and she is currently in jail for stalking

       petitioner. Credible testimony presented. Colleen Wolfe has committed

       acts of domestic violence against the Petitioner.

              The Court further finds by a preponderance of the evidence: 1) that

       the Petitioner or Petitioner's family or household member(s) are in danger

       of or have been a victim of domestic violence or sexually oriented offenses

       as defined in R.C. 3113.31(A) committed by Respondent; and 2) the

       following orders are equitable, fair, and necessary to protect the persons

       named in this Order from domestic violence.



       {¶10} A hearing on the civil protection order was held on September 13, 2013.

Appellant did not appear at the hearing. Appellee testified to the following (T. at 5-6):
Stark County, Case No. 2013CA00196                                                   5


            Q. And since the time of the divorce action, uh...we're alleging that

     she's engaged in an on-going pattern uh... or erratic behavior causing

     fear, uh...and physical and mental distress to both you and the children. Is

     that correct?

            A. Yes.

            Q.   Um...accusations    that   we     have   asserted    uh...include

     uh...stalking, appearing uh...at the children's schooling. Uh...appearing at

     the children's counseling. Driving past the home. Following the minor

     children. And there have been a couple of instances at least where she's

     actually appeared at the home and engaged in physical violence both

     towards you, others in the residence for which she has been arrested and

     charged with felonies on two separate occasions. Is that correct?

            A. Yes.

            Q. Um...can you give the Court a uh...brief description uh...of some

     of the events, uh...and your concerns with respect to Colleen?

            A. Sure. Um...Colleen actually came to my house a while back ago

     and uh...broke in, uh...assaulted and choked my mother. Um...and just,

     just pushing and assaulting me. Um...in order, before she left the house,

     uh...she uh...assaulted and wouldn't allow my fiancé to get back in the

     house. Um...as you stated she's been at the school. She's been at the

     counseling. Uh...she's, drives past the house often. Um...and she just

     continually, you know, harasses the family.
Stark County, Case No. 2013CA00196                                                    6


             Q. And all, all of these or many of these actions have actually

      occurred, including the criminal violations in the presence of the minor

      children. Is that correct?

             A. Yes.

             Q. And uh...most recently, uh...actually in August, late August of

      this year, she was again charged with felony four, Menacing by Stalking

      and that case is currently pending before the Stark County Grand Jury. Is

      that accurate?

             A. Yes. Uh...she uh...came to the house and the kids were there.

             Q. Okay. And she has no uh...rights at this point to be around the

      children? Correct?

             A. The children or the house.



      {¶11} Back on January 30, 2013, the trial court in the domestic relations case

had issued an order suspending appellant's visitation with the children, as well as a no

contact order:



             Mother's visitation is suspended.    In addition she shall not be

      present within 500 feet of the children wherever those children may be

      found, or any place that she knows or should know that the children are

      likely to be, even with father's permission. If she accidentally comes in

      contact with a child in any public or private place she must depart
Stark County, Case No. 2013CA00196                                                     7


      immediately. This shall include encounters on public and private roads,

      highways and thoroughfares.



      {¶12} It is clear from the credible evidence presented that numerous acts of

violence and threatening behavior have occurred when the children were present,

causing a "fear of imminent serious physical harm." Seeing one's grandmother choked

or one's father pushed and assaulted is sufficient to establish that the children had a

fear of imminent serious physical harm.

      {¶13} Given the evidence presented, we find the trial court's determination that

the civil protection order should include the children due to appellant having engaged in

a pattern of stalking and threatening behavior toward appellee and the children is not

against the manifest weight of the evidence.

      {¶14} The sole assignment of error is denied.
Stark County, Case No. 2013CA00196                                        8


      {¶15} The judgment of the Court of Common Pleas of Stark County, Ohio,

Domestic Relations Division, is hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




SGF/sg 513
