[Cite as Williams v. Hupp, 2011-Ohio-3403.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

SUSAN J. WILLIAMS,                            )
                                              )   CASE NO. 10 MA 112
        PETITIONER-APPELLEE,                  )
                                              )
        - VS -                                )          OPINION
                                              )
WALTER C. HUPP,                               )
                                              )
        RESPONDENT-APPELLANT.                 )


CHARACTER OF PROCEEDINGS:                         Civil Appeal from Common Pleas
                                                  Court, Domestic Relations Division,
                                                  Case No. 09 DV 541.


JUDGMENT:                                         Affirmed.


APPEARANCES:
For Petitioner-Appellee:                          No Brief Filed.


For Respondent-Appellant:                         Attorney Gregg A. Rossi
                                                  Rossi & Rossi
                                                  26 Market Street, 8th Floor
                                                  Huntington Bank Building
                                                  P.O. Box 6045
                                                  Youngstown, OH 44501


JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio


                                                  Dated: June 24, 2011
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DeGenaro, J.
        {¶1}   Respondent-appellant, Walter Hupp, appeals the Mahoning County Court of
Common Pleas, Domestic Relations Division's judgment entry which adopted the
magistrate's decision, found Hupp committed an act of domestic violence against
petitioner-appellee, Susan Williams, and issued a civil protection order pursuant to R.C.
3113.31. Hupp argues that the trial court erred when it affirmed the civil protection order
because his behavior during an argument at the county fair did not constitute a threat that
placed Williams in fear of imminent physical harm.
        {¶2}   Upon review, Hupp's assignment of error is meritless.             Under R.C.
3113.31(A)(1)(b) a person can seek a civil protection order for domestic violence if a
family member has placed them in fear of imminent serious physical harm by threat of
force. In order for a threat to constitute domestic violence the petitioner must reasonably
fear imminent physical harm. Under this test the court looks at both subjective and
objective evidence, including past incidents between the parties, to determine whether the
fear was reasonable. Because Williams presented evidence at two separate hearings
indicating that she feared imminent physical harm when Hupp chased her and threatened
to kill her, the trial court properly found Hupp engaged in an act of domestic violence and
issued a R.C. 3113.31 civil protection order. Accordingly, the judgment of the trial court is
affirmed.
                                   Facts & Procedural History
        {¶3}   Williams filed a R.C. 3113.31 petition for a domestic violence civil protection
order arising out of events that occurred at the county fair. Williams sought a protection
order for herself, her mother, father, and former step-daughter, M.H., who is Hupp's
biological daughter. An ex-parte temporary order of protection for these persons was
issued the same day. The magistrate held a full hearing on the petition on November 12,
2009. Both Williams and Hupp testified about the events at the county fair that led
Williams to file her petition. Williams' friend, and mother of M.H., Dawn Howell, also
testified.
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       {¶4}   Williams testified that on September 6, 2009 she was at the fair with M.H.,
Howell, and other friends, when Hupp and his girlfriend approached her and M.H. at a
food stand. Williams stated that as she tried to leave the concession area Hupp kicked
her and tried to trip her and started screaming obscenities at her. Williams testified that
she and M.H. started running towards the police station located on the fair grounds and
that Hupp followed her shouting obscenities and threatening to kill her. Specifically,
Williams testified that Hupp screamed "I'm going to f-ing kill you." Williams stated that
she was fearful of Hupp and that he was in a rage.
       {¶5}   Williams also testified that two days after this incident, she came home to
find obscenities written in soap throughout her barn, and several days later she noticed
an "X" was spray painted under her bedroom window. Williams believed Hupp was the
person who defaced her property because he called her the same obscenities during their
argument at the fair. Williams presented no additional evidence indicating Hupp was
responsible for these acts.
       {¶6}   Howell testified that she heard Hupp screaming obscenities and threatening
to kill Williams and that Hupp told Williams "she needed to get the f- -ing house out of his
name or she would pay." Howell also testified that she saw Williams running away from
Hupp and noted that Williams appeared fearful during this incident.
       {¶7}   Hupp testified that he and Williams were angry throughout their marriage
and that they argued. Concerning the events on September 6, 2009, Hupp testified that
he did not threaten to kill Williams, but did admit to screaming at her. Hupp denied
screaming obscenities at Williams, but admitted to swearing while arguing with Howell.
Hupp testified that he told Williams she had two weeks to get paperwork done on their
former marital residence or he was going to go to court. Hupp also testified that he had
not been on Williams' property for two years, had not had contact with her during that time
period, and denied defacing her property.
       {¶8}   The magistrate issued the civil protection order for Williams only, finding
that: "Respondent placed Petitioner, by threat of force, in fear of imminent serious
physical harm. In particular, on September 6, 2009, Respondent threatened to kill
                                                                                     -4-


Petitioner. This statement was corroborated by a witness who heard Respondent say it,
and Petitioner has reason to believe that Respondent would harm her based upon past
conduct."
       {¶9}   Hupp filed objections, arguing that the magistrate's conclusions were not
supported by the evidence. The trial court sustained Hupp's objections, finding that there
was not sufficient evidence in the record to determine whether Williams reasonably
believed that Hupp would harm her. The trial court remanded the case to the magistrate
for a hearing on this issue.
       {¶10} The magistrate conducted a second hearing, at which Williams testified
about instances of Hupp's past violent behavior. Specifically, Williams testified that,
during their marriage, Hupp: 1) on several occasions chased her in his car to her parents
house after they had been fighting; 2) chased her with a shotgun from their marital home
to her parents home; 3) pushed her into a corner, took out a knife, and cut a mattress;
and 4) was arrested for domestic violence after kicking in a door in their house, damaging
a ceiling fan with a broom, and threatening to kill her. Regarding the domestic violence
arrest, Williams testified that police officers had to pin Hupp to the ground in order to
arrest him and that she only dropped the charges after he agreed to take anger
management classes, but that Hupp never completed them.
       {¶11} Williams also described two past incidents that occurred at her workplace,
where both she and Hupp were employed. First, that Hupp became so angry during an
argument that he punched a hole in the wall. Second, that on another occasion Hupp
became so angry that he pushed a locker through a wall.
       {¶12} Hupp also testified about these events at the second hearing. Hupp
admitted that he has a temper but disagreed with Williams' testimony and characterization
of the events. Hupp testified that he was not violent with Williams but there were
occasions where he had to restrain Williams to prevent her from scratching or biting him.
Hupp also testified that Williams physically hurt him, and that during their marriage she
had kicked him, breaking two of his ribs.
       {¶13} Regarding the shot gun incident, Hupp testified that he was outside target
                                                                                         -5-


shooting when he started arguing with Williams, and after Williams left he unloaded the
gun and placed it in his house. Hupp testified that during the argument with Williams that
led to his arrest for domestic violence, he was in the kitchen sweeping, became frustrated
with the situation and he threw his hands up and the broom hit the fluorescent light and
the ceiling fan. Hupp denied attempting to hit Williams during that incident.
          {¶14} The magistrate issued a civil protection order. Hupp filed objections which
the trial court overruled and issued a civil protection order. The court found that Williams
demonstrated by a preponderance of the evidence that Hupp verbally threatened to kill
her and that she feared for her safety. The trial court also explicitly noted that the
magistrate found Williams was a more credible witness than Hupp, and that it found no
error with this conclusion.
                                       Civil Protection Order
          {¶15} In his sole assignment of error, Hupp asserts:
          {¶16} "The trial court abused its discretion in granting Appellee's civil protection
order."
          {¶17} Hupp argues that Williams was not a victim of domestic violence for two
reasons. First, he did not threaten Williams, and second Williams did not fear imminent
bodily harm because her fears were unreasonable.
          {¶18} Several Ohio appellate courts have noted the districts inconsistently apply
the standard of review in civil protection order cases. See Abuhamda-Sliman v. Sliman,
161 Ohio App.3d 541, 2005-Ohio-2836, 831 N.E.2d 453; Young v. Young, 2d Dist. No.
2005-CA-19, 2006-Ohio-978. The Eighth District, discerned that "three standards have
been applied: (1) abuse of discretion; (2) 'whether the judgment was supported by
competent, credible evidence going to all essential elements;' and (3) some combination
of the first two tests." Young at ¶17, citing Abuhamda-Sliman at ¶8–9. This district has
fallen prey to this inconsistency. See Martin v. Hanood, 7th Dist. No. 08 JE 6, 2009-Ohio-
1501, at ¶12; Martauz v. Martauz, 7th Dist. No. 08 MA 135, 2009-Ohio-2642, at ¶17
(applying abuse of discretion standard when reviewing the trial court's decision to deny
and grant, respectively, a civil protection order). But, see, Rosine v. Rosine, 7th Dist. No.
                                                                                        -6-


09-MA-18, 2010-Ohio-613, at ¶11 (applying manifest weight of the evidence when
reviewing the trial court's granting of a civil protection order).
       {¶19} Other districts have found that the wording of R.C. 3113.31 dictates that the
standard of review in these cases "depend on the nature of the challenge to the
protection order." Abuhamda-Sliman at ¶9 (Eighth District). See also Young at ¶20
(Second District); Walters v. Walters 150 Ohio App.3d 287, 2002-Ohio-6455, 780 N.E.2d
1032, at ¶9-10 (Fourth District); Downs v. Strouse, 10th Dist. No. 05AP-312, 2006-Ohio-
505, at ¶10-11. The Eighth District noted that:
       {¶20} "[b]ecause R.C. 3113.31 expressly authorizes the courts to craft protection
orders that are tailored to the particular circumstances, it follows that the trial court has
discretion in establishing the scope of a protection order, and that judgment ought not be
disturbed absent an abuse of discretion. When the issue is whether a protection order
should have issued at all, however, the resolution of that question depends on whether
the petitioner has shown by a preponderance of the evidence that the petitioner or the
petitioner's family or household member was entitled to relief." Abuhamda-Sliman at ¶9.
       {¶21} Thus, when the challenge concerns the scope of the order, the appellate
court reviews for an abuse of discretion. But when the challenge concerns the existence
of the order itself, the appellate court reviews the record to determine whether competent,
credible evidence supports the trial court's finding. In accord with our sister districts, we
determine the better course is to apply a manifest weight standard of review when the
issue is whether a civil protection order should issue, and an abuse of discretion standard
of review when the issue is the scope of the civil protection order. Here, Hupp challenges
the existence of the civil protection order, not its scope. Thus, we will review this case to
determine whether competent, credible evidence supports the trial court's finding that a
civil protection order should issue, applying a manifest weight standard of review.
       {¶22} When determining whether a trial court's judgment is against the manifest
weight of the evidence, an appeals court is "necessarily constrained by the principle that
judgments supported by competent, credible evidence going to all elements of the case
must not be reversed." Gerijo v. City of Fairfield (1994), 70 Ohio St.3d 223, 226, 638
                                                                                       -7-


N.E.2d 533, citing C.E. Morris Co. v. Foley Constr. (1978), 54 Ohio St.2d 279; 8 O.O.3d
261, 376 N.E.2d 578, at syllabus. The court must indulge every reasonable presumption
in favor of the trial court's judgment and findings of fact. Gerijo, supra, citing Seasons
Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273. If the
evidence is susceptible to more than one interpretation, the court must construe it
consistently with the trial court's judgment. Gerijo, supra, citing Ross v. Ross (1980), 64
Ohio St.2d 203, 18 O.O.3d 414, 414 N.E.2d 426.
       {¶23} A petitioner seeking a civil protection order under R.C. 3113.31 must prove
domestic violence or the threat of domestic violence by a preponderance of the evidence.
Felton v. Felton (1997), 79 Ohio St. 3d 34, 679 N.E.2d 672, at paragraph two of the
syllabus. R.C. 3113.31(A)(1)(b) defines domestic violence to include "placing another
person by the threat of force in fear of imminent serious physical harm." Thus, for the
purposes of obtaining a civil protection order, a person commits domestic violence if he
places a family member in fear of imminent serious physical harm by threat of force. R.C.
3113.31(A)(1)(b).
                                              Threat
       {¶24} Hupp first argues that the trial court erred when it granted a civil protection
order as he never threatened Williams and therefore never committed an act of domestic
violence. Hupp alternatively argues that the only corroborated statement that could be
considered a threat was "she needed to get the f- -ing house out of his name or she
would pay." Hupp asserts that this ambiguous statement does not qualify as a threat
because it has several possible meanings and is a conditional statement. This argument
lacks merit for two reasons.
       {¶25} Addressing Hupp's alternative argument first, threats need not be
verbalized, the threat can be apparent from conduct. See Siouffi v. Siouffi (Dec. 18,
1998), 2d Dist. No 1711; Martauz, supra. In Siouffi, the respondent took a knife from the
couple's kitchen, went outside to the petitioner's parked car, slashed at least one of her
tires and then forced his way back into their home. The Second District held that this
behavior constituted a threat under R.C. 3113.31. In Martauz, this Court found that a
                                                                                            -8-


respondent's obsessive behavior including: repeated telephone calls, text messages, and
repeatedly knocking on the petitioner's doors and windows, when coupled with the
statement that a "civil protection order could not protect "* * *" [petitioner] if he 'snapped,'"
constituted a threat under R.C. 3113.31. Id. at ¶42.
       {¶26} Hupp kicked Williams, tried to trip her and then chased her through a county
fair while shouting obscenities at her and undisputedly yelling "she needed to get the f- -
ing house out of his name or she would pay." While this phrase is open to several
interpretations, the interpretation of the magistrate and trial court was that Hupp
threatened to kill Williams. Further, Hupp's behavior alone is sufficient to constitute a
threat under R.C. 3113.31.        He not only kicked Williams but tried to trip her and
proceeded to chase her through a county fair in an aggressive manner while shouting
obscenities. This behavior is sufficient to support the trial court's finding that Hupp
threatened Williams with serious physical harm.
       {¶27} Second, although Hupp denied that he ever threatened to kill Williams,
Williams testified that Hupp shouted "I'm going to f-ing kill you."            The magistrate
specifically found that Hupp threatened to kill Williams and the trial court noted that the
magistrate found Williams was the more credible witness. "The appellate court is not in
as good a position to assess the demeanor and credibility of witnesses, and thus must
usually defer to the trial court on such issues." Martin v. Hanood, 7th Dist. No. 08 JE 6,
2009-Ohio-1501, at ¶14. Thus, this court cannot say that Hupp did not threaten to kill
Williams. Stating that you want to kill someone is clearly and undeniably a threat of
serious physical harm. There is competent, credible evidence to support the trial court's
conclusion that Hupp threatened Williams.
                                          Reasonableness
       {¶28} Next, Hupp argues that Williams' fear of harm from him was unreasonable.
Threats of violence constitute domestic violence under R.C. 3113.31(A)(1)(b) if the fear
resulting from the threats is reasonable. Solomon v. Solomon, 157 Ohio App.3d 807,
2004-Ohio-2486, 813 N.E.2d 918, at ¶ 22; Eichenberger v. Eichenberger (1992), 82 Ohio
App.3d 809, 816, 613 N.E.2d 678. In order to determine if the fear is reasonable, the trial
                                                                                      -9-


court considers past acts of domestic violence. Eichenberger at 816. "But a court may
not issue a civil protection order based solely on past acts of domestic violence."
Solomon at ¶23. This "inquiry involves both subjective and objective elements." Martauz
at ¶40, citing Fleckner v. Fleckner, 177 Ohio App.3d 706, 2008-Ohio-4000, 895 N.E.2d
896, at ¶20.
       {¶29} Hupp first argues that Williams cannot meet the subjective requirement of
the reasonableness test because she did not affirmatively state that she feared imminent
physical harm. Williams testified that she feared for her safety and Howell testified that
she thought Williams was afraid. Based on this testimony there was competent, credible
evidence the magistrate and trial court relied on when it determined that Williams' fears
were reasonable.
       {¶30} Hupp secondly argues that Williams' fear was objectively unreasonable
given the parties' past experiences. After the first hearing in this matter the trial found
that the testimony concerning the parties past relationship was inadequate to determine
whether Williams' fears were objectively reasonable, and remanded the case for a
hearing to determine whether, based on past incidents, Williams reasonably feared
imminent physical harm.      Williams testified to five separate incidents where Hupp
behaved in a threatening and extreme manner, including chasing Williams with a
shotgun. Williams also testified that Hupp was arrested for domestic violence after one of
these incidents. Although Hupp denied or disagreed with Williams' characterization of
these events, the magistrate and trial court specifically found that Williams was the more
credible witness and that Williams' fears were reasonable. As stated previously, it is not
the function of this Court to reweigh the evidence or credibility of the witnesses. Thus,
there is competent, credible evidence that given these past acts of domestic violence,
Williams reasonably feared imminent physical violence.
       {¶31} Additionally, Hupp argues that Williams did not reasonably fear imminent
physical harm because the past incidents were too remote. Case law concerning civil
protection orders specifically states that courts are to consider the past conduct of the
parties when determining whether the petitioner's fears were reasonable.              See
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Eichenberger at 816, Martauz at ¶40, Solomon at ¶23, Fleckner at ¶20.
       {¶32} Furthermore, none of the case law or R.C. 3113.31 provides that there is a
date when past conduct is no longer relevant to a determination of reasonableness. The
Fourth District held, when determining whether there was a time limit for filing a R.C.
3113.31 petition: "whether an occurrence of domestic violence is recent enough to
warrant a civil protection order is a matter committed to the sound discretion of the trial
court." Murral v. Thomson, 4th Dist. No. 03CA8, 2004-Ohio-432, at ¶10. In Murral, the
Fourth District upheld a civil protection order that was based on an incident that occurred
a year and a half before the petitioner filed for a protection order. Id. Given that incidents
over a year old can be the impetus for filing a petition for a civil protection order, the
magistrate and trial court did not err when it found that multiple two year old events were
recent enough to determine that Williams' fears were objectively reasonable.
       {¶33} In sum, there is competent, credible evidence to conclude that Hupp
threatened Williams with imminent serious bodily harm on September 6, 2009. As the
civil protection order issued by the trial court is not against the manifest weight of the
evidence, the judgment of the trial court is affirmed.
Waite, P.J., concurs in judgment only.
Donofrio, J., concurs.
