[Cite as Reising v. Reising, 2017-Ohio-2859.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104864



                                      JOSEPH REISING
                                                      PETITIONER-APPELLEE

                                                vs.

                                      KELLY REISING
                                                      RESPONDENT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-803373

        BEFORE: Boyle, J., Kilbane, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: May 18, 2017
ATTORNEYS FOR APPELLANT

Paul W. Vincent
Adam James Vincent
18500 Lake Road, Suite 230
Rocky River, Ohio 44116


ATTORNEY FOR APPELLEE

Brian W. Sharkin
Law Office of Brian W. Sharkin
P.O. Box 770824
Lakewood, Ohio 44107
MARY J. BOYLE, J.:

       {¶1} Respondent-appellant, Kelly Reising, appeals from the trial court’s

judgment denying her motion to terminate a civil stalking protection order (“CSPO”).

For the reasons that follow, we reverse and remand with instructions.

I.     Procedural History

       {¶2} In March 2013, petitioner-appellee, Joseph Reising, filed a petition for a

civil stalking protection order pursuant to R.C. 2903.214 against Kelly. Joseph sought a

protection order on behalf of himself, his two daughters whom he fathered with Kelly, his

current wife, and his current wife’s two children.    The trial court granted an ex parte

temporary CSPO and set a full hearing accordingly.

       {¶3} On April 2, 2013, the trial court held a full hearing and granted the CSPO as

requested.   Although the trial court did not make findings of fact, it checked the

paragraph in the CSPO that stated as follows:

       The Court finds by a preponderance of the evidence that 1) the Respondent
       has knowingly engaged in a pattern of conduct that caused Petitioner to
       believe that the Respondent will cause physical harm or cause or has caused
       mental distress; and 2) the following orders are equitable, fair, and
       necessary to protect the persons named in this Order from stalking offenses.

The trial court ordered the CSPO to remain in effect until April 2, 2018.

       {¶4} On April 27, 2016, Kelly filed her motion to terminate the CSPO, arguing

that the original circumstances leading to the CSPO had materially changed and that the

CSPO was no longer equitable. Kelly asked the trial court to terminate the CSPO so that

she could have contact with her two daughters whom she had not had contact with for
three years.

        {¶5} The trial court held a hearing on Kelly’s motion to terminate at which

Kelly and Joseph testified.        The trial court did not announce her decision orally at the

hearing.

        {¶6} On August 4, 2016, the trial court issued a judgment that denied Kelly’s

motion to terminate and ruled, “Hearing held 08/03/2016 on respondent’s motion to

terminate C.S.P.O. Court reporter present. The court finds respondent failed to show

by clear and convincing evidence that the protection order should be terminated.

Respondent’s motion is denied.”

        {¶7} It is from this judgment that Kelly appeals.1

        {¶8} Kelly raises the following two assignments of error:

        1.      The lower court erred to the prejudice of the appellant when it
                applied the clear and convincing standard when Ohio law requires
                only a preponderance of the evidence.

        2.      The lower court abused its discretion to the prejudice of the appellant
                when it found appellant had not met the requirements necessary for a
                modification of the civil protection order and denied her motion to
                terminate the civil protection order.

II.     Standard of Review

        {¶9} Trial courts have discretion in deciding whether or not to grant a motion to

terminate a civil stalking protection order, and our review is limited to an abuse of


        1
         Joseph did not file a brief in this case. According to App.R. 18(C), we “may accept
[Kelly’s] statement of the facts and issues as correct and reverse the trial court’s judgment if [Kelly’s]
brief reasonably appears to sustain such action.”
discretion. Delaine v. Smith, 8th Dist. Cuyahoga No. 103860, 2016-Ohio-5250, ¶ 16,

citing Hayberg v. Tamburello, 5th Dist. Tuscarawas No. 2013 AP 02 0011,

2013-Ohio-3451.       “Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary, or unconscionable. In re C.K., 2d Dist. Montgomery No. 25728,

2013-Ohio-4513, ¶ 13, citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482

N.E.2d 1248 (1985). An abuse of discretion exists when a court applies the wrong legal

standard, misapplies the correct legal standard, or relies on clearly erroneous findings of

fact.   Thomas v. Cleveland, 8th Dist. Cuyahoga No. 89724, 2008-Ohio-1720, ¶ 15, citing

Berger v. Mayfield Hts., 265 F.3d 399, 402 (6th Cir.2001).

III.    Standard of Proof

        {¶10} In her first assignment of error, Kelly argues that the trial court erroneously

applied a clear and convincing standard of proof when it denied her motion to terminate

the CSPO. We agree.

        {¶11} It is well established that in order to obtain a civil stalking protection order

under R.C. 2903.214, a petitioner must show, by a preponderance of the evidence, that the

respondent engaged in conduct constituting “menacing by stalking” as defined in R.C.

2903.11.    Delaine, 8th Dist. Cuyahoga No. 103860, 2016-Ohio-5250, at ¶ 17, citing Wulf

v. Opp, 12th Dist. Clermont No. CA2014-10-1074, 2015-Ohio-3285; see also Strausser v.

White, 8th Dist. Cuyahoga No. 85174, 2009-Ohio-3597.

        {¶12} R.C. 2903.214 does not expressly provide for modification or termination of
a civil stalking protection order.2 Ohio courts, however, have held that a trial court may

modify or terminate a civil stalking protection order if the movant shows that the original

circumstances have materially changed and it is no longer equitable for the order to

continue.      Sheerer v. Billak, 8th Dist. Cuyahoga No. 104879, 2017-Ohio-1556, ¶ 11,

citing Cipriani v. Ehlert, 8th Dist. Cuyahoga No. 103767, 2016-Ohio-5840.

         {¶13} After reviewing R.C. 2903.214, we note that the statute is silent as to the

standard of proof needed to terminate a civil stalking protection order. The Supreme

Court of Ohio has held that when a statute is silent on the standard of proof, a

preponderance of the evidence is the proper standard.               Felton v. Felton, 79 Ohio St.3d

34, 42, 679 N.E.2d 672 (1997).

         {¶14} Moreover, we find that our decision in Delaine, 8th Dist. Cuyahoga No.

103860, 2016-Ohio-5250, provides guidance on the standard of proof. The trial court in

Delaine failed to hold a hearing on the respondent’s motion to terminate, but it denied the

motion by referring to the original judgment that granted the civil stalking protection

order.       The trial court’s original judgment “found, by the preponderance of the

evidence[,]” that the civil stalking protection order should be granted.                 Therefore, the

court in Delaine applied a preponderance of the evidence standard of proof when it ruled

on the motion to terminate the civil stalking protection order. See also Schneider v.


         2
            Although R.C. 2903.214 does not expressly provide for modification of a civil stalking
protection order, division (J) does provide in relevant part that no court “shall charge the petitioner”
any fee or cost in connection with the filing, issuance, or modification of a protection order, but that it
“may assess costs against the respondent” for the same.
Razek, 8th Dist. Cuyahoga Nos. 100939 and 101011, 2015-Ohio-410 (pursuant to R.C.

3113.31(E)(8), a domestic violence civil protection order statute similar to R.C. 2903.214,

the trial court applied a preponderance of the evidence standard of proof to determine

whether to modify or terminate a protection order); see also Striff v. Striff, 6th Dist. Wood

No. WD-02-031, 2003-Ohio-794, ¶ 12 (in determining whether to extend a civil stalking

protection order, the trial court applied a preponderance of the evidence standard of

proof).

          {¶15} Courts abuse their discretion when they apply the wrong standard of proof in

rendering their decisions.     In State ex rel. Dewine v. Valley View Ents., 11th Dist.

Trumbull No. 2014-T-0051, 2015-Ohio-1222, the trial court erroneously interpreted the

applicable water pollution control statute and held the state to a higher standard of proof

than required. Dewine at ¶ 28.       Thus, the Eleventh District reversed and remanded the

matter so that the trial court could apply the lower preponderance of the evidence

standard of proof to determine the relevant issues. Id.; see also In re Simers, 4th Dist.

Washington No. 06CA30, 2007-Ohio-3232 (trial court abused its discretion when it

applied an incorrect legal standard when evaluating a name-change application).

          {¶16} Here, the trial court did not apply the preponderance of the evidence

standard of proof when it ruled on Kelly’s motion to terminate the CSPO. Rather, the

trial court used the clear and convincing evidence standard.        “Clear and convincing

evidence” is a measure of proof that is more than a mere “preponderance of the

evidence.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).          Because
the trial court improperly applied a higher standard of proof than the law required in

deciding Kelly’s motion to terminate, we find that the trial court abused its discretion.

Moreover, a review of the judgment denying the motion to terminate suggests that the

trial court failed to consider whether Kelly showed that the original circumstances

materially changed and whether the CSPO was still equitable.

        {¶17} Accordingly, we sustain Kelly’s first assignment of error and vacate the trial

court’s judgment dated August 4, 2016, that denied Kelly’s motion to terminate the

CSPO.      We remand this matter to the trial court with instructions to apply a

preponderance of the evidence standard of proof in determining whether Kelly proved

that the original circumstances materially changed and whether it was no longer equitable

for the CSPO to continue.

IV.     Termination of the CSPO

        {¶18} In her second assignment of error, Kelly argues that the trial court abused its

discretion when it found Kelly had not met the requirements necessary to       terminate the

CSPO. Specifically, Kelly argues that the trial court had no evidence that she continued

to be a threat to Joseph, her two children, Joseph’s wife and her children but for the

chaotic time period in 2013. Kelly requests that this court terminate the CSPO.

        {¶19} Because we vacate the trial court’s August 4, 2016 judgment denying

Kelly’s motion to terminate the CSPO, however, we decline to address this issue as it is

moot.

        {¶20} Kelly’s second assignment of error is overruled.      Judgment reversed and
remanded with instructions.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
