[Cite as J.D. v. G.D., 2019-Ohio-4391.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

J.D.                                                  C.A. No.       18CA0050-M

         Appellee

         v.                                           APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
G.D.                                                  COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
         Appellant                                    CASE No.   17DV0160

                                 DECISION AND JOURNAL ENTRY

Dated: October 28, 2019



         TEODOSIO, Presiding Judge.

         {¶1}    G.D. appeals the judgment of the Medina County Court of Common Pleas,

Domestic Relations Division, overruling objections to the magistrate’s decision entering a civil

protection order. We reverse.

                                                 I.

         {¶2}    On July 27, 2017, J.D. filed a petition for a domestic violence civil protection

order against his brother, G.D., with the trial court entering an ex parte civil protection order on

the same day, and with a full hearing to be held on August 10, 2017. G.D. filed a motion for

continuance on August 7, 2017, which was denied by the trial court. A full hearing civil

protection order was entered on August 14, 2017, and on May 22, 2018, the trial court overruled

G.D.’s objections to the magistrate’s decision. G.D. now appeals, raising two assignments of

error.
                                                2


                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL CO[U]RT ERRED AND ABUSED ITS DISCRETION BY
       DENYING    RESPONDENT-APPELLANT’S TIMELY     PRE-HEARING
       MOTION FOR A CONTINUANCE TO OBTAIN LEGAL COUNSEL, FILED
       ON A MONDAY THREE DAYS PRIOR TO THE SCHEDULED FULL
       DOMESTIC VIOLENCE CPO HEARING ON PETITIONER-APPELLEE’S
       PETITION, IN ACCORDANCE WITH R.C. 3113.31(D)(2), WITHOUT
       PROVIDING ANY REASON WHATSOEVER FOR THE DENIAL OF THAT
       CONTINUANCE MOTION.

       {¶3}    In his first assignment of error, G.D. argues the trial court erred in denying his

motion for a continuance. We disagree.

       {¶4}    “Generally, the decision to adopt, reject, or modify a magistrate’s decision lies

within the discretion of the trial court and should not be reversed on appeal absent an abuse of

discretion.”   Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5.

However, “[i]n so doing, we consider the trial court’s action with reference to the nature of the

underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-

3139, ¶ 18.

       {¶5}    “The decision to grant or deny a continuance is within the discretion of the trial

court, which must consider all of the circumstances surrounding the request.” State v. Starks, 9th

Dist. Summit No. 23622, 2008–Ohio–408, ¶ 9. “An appellate court must not reverse the denial

of a continuance unless there has been an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65,

67 (1981). An abuse of discretion implies that a trial court was unreasonable, arbitrary or

unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). As a

reviewing court applying the abuse of discretion standard, we may not substitute our judgment

for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
                                                3


       In evaluating a motion for a continuance, a court should note, inter alia: the length
       of the delay requested; whether other continuances have been requested and
       received; the inconvenience to litigants, witnesses, opposing counsel and the
       court; whether the requested delay is for legitimate reasons or whether it is
       dilatory, purposeful, or contrived; whether the [moving party] contributed to the
       circumstance which gives rise to the request for a continuance; and other relevant
       factors, depending on the unique facts of each case.

Unger at 67-68.

       {¶6}    After an ex parte civil protection order was issued on July 27, 2017, the matter

was set for a full hearing to go forward on August 10, 2017. G.D. states that he did not become

aware of the protection order and the scheduled full hearing until Saturday, August 5, 2017. On

Monday, August 7, 2017, he filed a motion for a continuance of the full hearing in order to

obtain counsel. The magistrate denied the motion on August 8, 2017, without further statement,

and the hearing proceeded as scheduled, with no counsel present for either party.

       {¶7}    In overruling G.D.’s objection regarding the denial of his motion for a

continuance, the trial court stated that G.D. had “”failed to indicate how long of a continuance he

needed, and what attempts, if any, were made to secure counsel.” The trial court noted that G.D.

had failed to include a certificate of service with his motion, and had therefore failed to comply

with Civ.R. 5(B) and Loc.R. 3.01 of the Medina County Court of Common Pleas, Domestic

Relations Division. The trial court further noted that G.D. did not renew his request for a

continuance at the hearing, and that when asked if he was prepared to go forward, he answered in

the affirmative.

       {¶8}    Pursuant to Civ.R. 5(B)(4), “[d]ocuments filed with the court shall not be

considered until proof of service is endorsed thereon or separately filed.” In considering all the

circumstances surrounding the request for a continuance, including the fact that no proof of
                                                 4


service was established, we cannot say the trial court was unreasonable, arbitrary or

unconscionable in its judgment.

       {¶9}    G.D.’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE EVIDENCE PRESENTED AT HEARING WAS INSUFFICIENT TO
       SUPPORT THE DOMESTIC RELATIONS COURT’S ISSUANCE OF A FULL
       DV-CPO ORDER [sic] AGAINST RESPONDENT-APPELLANT, WHERE
       THE ONLY EVIDENCE PRESENTED IN SUPPORT THEREOF WAS
       HEARSAY TESTIMONY BY THE PETITIONER-APPELLEE ABOUT AN
       ALLEGED THREAT MADE OUTSIDE HIS OWN PRESENCE TO A THIRD-
       PARTY WHO DID NOT TESTIFY, AND AN UNAUTHENTICATED COPY
       OF A POLICE REPORT MADE BY THAT THIRD-PARTY.

       {¶10} In his second assignment of error, G.D. argues the trial court erred in issuing a

domestic violence civil protection order because the evidence presented at hearing was

insufficient. Specifically, G.D. argues that the only testimony regarding any threats was the

hearsay testimony of J.D., who was not present when alleged threats were made to J.D.’s adult

son at his place of work. G.D. further argues the only other evidence was an unauthenticated

copy of an out-of-county police report made by J.D.’s adult son, who did not appear or testify at

the hearing.

       {¶11} In reviewing the sufficiency of the evidence, “we must determine whether,

viewing the evidence in the light most favorable to [the petitioner], a reasonable trier of fact

could find that the petitioner demonstrated by a preponderance of the evidence that a civil

protection order should issue.” R.C. v. J.G., 9th Dist. Medina No. 12CA0081–M, 2013–Ohio–

4265, ¶ 7. A sufficiency challenge tests the adequacy of the evidence. Eastley v. Volkman, 132

Ohio St.3d 328, 2012–Ohio–2179, ¶ 11. In applying the sufficiency standard, “‘we neither

resolve evidence conflicts nor assess the credibility of witnesses, as both are functions reserved

for the trier of fact.’” State v. Tucker, 9th Dist. Medina No. 14CA0047–M, 2015–Ohio–3810, ¶
                                                5


7, quoting State v. Jones, 1st Dist. Hamilton Nos. C–120570 and C–120571, 2013–Ohio–4775, ¶

33.

       {¶12} The sole argument raised by G.D. with regard to the sufficiency of the evidence is

that the trial court relied upon the hearsay testimony of J.D. At the hearing, however, G.D. failed

to raise any objections to the alleged hearsay testimony. “[O]n appellate review we must

consider all of the evidence admitted at trial, including improperly admitted evidence * * *.” In

re T.A.F., 9th Dist. Medina No. 09CA0046-M, 2010-Ohio-3000, ¶ 24. Therefore, even though

much of J.D.’s testimony related to statements told to him by his son, and qualified as hearsay,

we must consider the testimony for the purposes of our analysis.

       {¶13} “In order to grant a DVCPO, the court must conclude that the petitioner has

demonstrated by a preponderance of the evidence that the petitioner and/or the petitioner’s

family or household members are in danger of domestic violence.” B.C. v. A.S., 9th Dist.

Medina No. 13CA0020–M, 2014–Ohio–1326, ¶ 7. As defined in R.C. 3113.31(A)(1), the phrase

“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.

R.C. 2903.211 is concerned with the offense of menacing by stalking, and provides:

       (A)(1) No person by engaging in a pattern of conduct shall knowingly cause
       another person to believe that the offender will cause physical harm to the other
       person or a family or household member of the other person or cause mental
                                                 6


       distress to the other person or a family or household member of the other person.
       In addition to any other basis for the other person’s belief that the offender will
       cause physical harm to the other person or the other person’s family or household
       member or mental distress to the other person or the other person's family or
       household member, the other person’s belief or mental distress may be based on
       words or conduct of the offender that are directed at or identify a corporation,
       association, or other organization that employs the other person or to which the
       other person belongs.

       {¶14} In order for a threat of violence to constitute domestic violence, the fear resulting

from the threat must be reasonable. Wohleber v. Wohleber, 9th Dist. Lorain No. 10CA009924,

2011–Ohio–6696, ¶ 13. “Reasonableness is determined by referencing the petitioner’s history

with the respondent.” Id. Past incidents of domestic violence, standing alone, cannot form the

basis of a petitioner’s fear of imminent serious physical harm. J.K. v. M.K., 9th Dist. Medina

No. 13CA0085-M, 2015-Ohio-434, ¶ 11. “This Court has recognized that both the totality of the

circumstances, as well as the victim’s state of mind, are relevant to the determination that the

threat of harm was imminent.” Chafin v. Chafin, 9th Dist. Lorain No. 09CA009721, 2010–

Ohio–3939, ¶ 22.

       {¶15} The testimony given by J.D. stated as follows: G.D. went to the bank where

J.D.’s son worked to open an account, but was told to come back the following Monday because

his driver’s license had expired. As G.D. was leaving the bank, he told J.D.’s son: “I’m going to

destroy your father and you guys and your family and the family.” When G.D. returned on

Monday, he was asked to leave because of the prior incident. He then told the branch manager

that J.D.’s son was on drugs and should be fired. J.D. testified that his son was “shaken and

angry,” was afraid of what was going to happen, afraid for his fiancée, and afraid for his parents.

       {¶16} J.D. also testified that the threat made to his son affected him and his wife: they

made sure their doors were locked, that the car was in the garage, and looked around in the

morning to make sure nothing had happened. He testified that it had been a “nightmare” for his
                                                7


family, that he looked over his shoulder “all the time,” and was kept up at night thinking about

what was going to happen next. He also testified as to G.D.’s history of violence, including

assaulting his sister and father and threatening numerous people over the years, indicating that

was “why we’ve taken this threat very highly.” Likewise, J.D. testified: “He said he will destroy

me and my family and my children. In lieu of his past history, I took this literally, this threat

literally.”

        {¶17} We are cognizant of the fact that there was limited evidence to support that the

petitioner and/or the petitioner’s family or household members were in danger of domestic

violence, i.e., of placing them by the threat of force in fear of imminent serious physical harm.

However, for the purposes of reviewing this matter as to the sufficiency of the evidence, and

viewing the evidence in the light most favorable to the petitioner, we must conclude that a

reasonable trier of fact could find that J.D. demonstrated by a preponderance of the evidence that

a civil protection order should issue.

        {¶18} Within his second assignment of error, G.D. also states that the issuance of the

protection order was against the manifest weight of the evidence. When reviewing a challenge to

the manifest weight of the evidence, this Court must “sit as a ‘thirteenth juror’ and review the

record, weigh the evidence and all reasonable inferences, [and] consider the credibility of

witnesses[.]” J.K. at ¶ 19. This Court must determine whether “‘the trier of fact clearly lost its

way and created a manifest miscarriage of justice * * *.’” Id., quoting Eastley, 132 Ohio St.3d

328, 2012–Ohio–2179, at ¶ 20; State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State

v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In reviewing a manifest weight challenge,

reversal is only appropriate “‘in the exceptional case, where the evidence presented weighs

heavily in favor of the party seeking reversal * * *.’” Collins v. Collins, 9th Dist. Summit No.
                                                  8


27311, 2015–Ohio–2618, ¶ 23, quoting Boreman v. Boreman, 9th Dist. Wayne No. 01CA0034,

2002–Ohio–2320, ¶ 10.

       {¶19} As noted above, J.D. provided testimony that when G.D. encountered J.D.’s son

at the bank, he made a threat to “destroy” the family, resulting in fear and apprehension for both

J.D. and his son. Conversely, G.D. testified that he had never threatened J.D.’s son; rather, he

testified that “[w]e had words and I says, ‘I hate my brother,’ and I left.” We are concerned not

only by the trial court’s reliance on hearsay testimony, but also by the contradictory nature of the

statement given by J.D.’s son to the Berea Police Department.

       {¶20} J.D. provided hearsay testimony of what G.D. allegedly told his son, however

whatever weight such testimony had is called into question by the statement given to the police

by J.D.’s son. The statement was produced as an exhibit at the hearing, wherein the son stated:

“[G.D.] then told me to tell my dad that ‘this isn’t over,’ (referring to a will dispute) and that ‘he

was going to destroy his family.’” Taken at face value, the quoted language is directly attributed

to G.D. and indicates that the “he” that G.D. is referring to is J.D. In other words, G.D. is

warning his brother that it is his brother’s own actions that are destroying his brother’s family.

Although it is certainly possible that this is not what J.D.’s son meant to communicate in his

statement to the police, it is nevertheless what he did write, and in the absence of his own

testimony to support an alternative reading, we are left with a statement that contradicts the

hearsay testimony offered by J.D.

       {¶21} We are thus left with hearsay testimony of the alleged threat made to J.D.’s son,

the statement of J.D.’s son that contradicts the hearsay testimony of the threat, and G.D.’s denial

of the threat. Under a manifest weight of the evidence challenge, this Court both weighs the

evidence and considers the credibility of the witnesses. The evidence offered by the petitioner in
                                                 9


this case consisted of hearsay testimony that was itself contradicted by a statement provided by

the alleged source of that testimony. The weight, if any, that can be given this tenuous evidence

is extraordinarily slight, and is necessarily outweighed by the testimony, albeit limited in its own

right, provided by G.D. Under the facts of this case, and specifically limited to the facts of this

case, we must therefore conclude the trier of fact clearly lost its way and created a manifest

miscarriage of justice.

       {¶22} G.D.’s second assignment of error is sustained.

                                                III.

       {¶23} G.D.’s first assignment of error is overruled. G.D.’s second assignment of error is

sustained. The judgment of the Medina County Court of Common Pleas, Domestic Relations

Division, is reversed.

                                                                                Judgment reversed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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       Costs taxed to Appellee.




                                              THOMAS A. TEODOSIO
                                              FOR THE COURT




CALLAHAN, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

RONALD SCOTT SPEARS, Attorney at Law, for Appellant.

J. D., pro se, Appellee.
