[Cite as Moore v. Guyton, 2013-Ohio-143.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PAULDING COUNTY




ELIZABETH A. MOORE,

        PLAINTIFF-APPELLEE,                              CASE NO. 11-12-01

        v.

JOHN L. GUYTON, JR.,                                     OPINION

        DEFENDANT-APPELLANT.




                Appeal from Paulding County Common Pleas Court
                            Trial Court No. CI 12 071

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                          Date of Decision:   January 22, 2013




APPEARANCES:

        John L. Guyton, Jr., Appellant

        Danny A. Hill for Appellee
Case No. 11-12-01



ROGERS, J.

       {¶1} Respondent-Appellant, John L. Guyton, Jr., appeals the judgment of

the Court of Common Pleas of Paulding County granting a domestic violence civil

protection order (“CPO”) to Petitioner-Appellee, Elizabeth Moore. On appeal,

Guyton argues that the trial court abused its discretion by issuing the CPO and

including Moore’s and Guyton’s children in the order. For the reasons that follow,

we affirm in part and reverse in part the trial court’s judgment.

       {¶2} Guyton and Moore are former spouses. Together, they have three

minor children from their relationship: T.G., A.G., and J.G. At the time of the

CPO proceedings, the ages of the children ranged from 10 to 16 years old. On

March 27, 2012, Moore filed a petition for a domestic violence CPO, alleging that

Guyton had threatened her life and the life of T.G. The CPO petition lists Moore,

T.G., A.G., J.G., and Moore’s fiancé, Joseph Schultz, as persons to be protected by

the order. On the same day, the trial court granted an ex parte CPO that was in

effect until it could conduct a full hearing on the matter. On April 3, 2012, the

trial court conducted a full hearing on Moore’s CPO request. The following

relevant evidence was adduced at the hearing.

       {¶3} Moore testified on her own behalf and stated that Guyton physically

and emotionally abused her during the course of their marriage. However, Moore

admitted that Guyton had not physically harmed her since their divorce in 2003.

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She also testified to Guyton’s arrest following his physical abuse of T.G. in 2011,

which resulted in Guyton pleading no contest to persistent disorderly conduct.

      {¶4} Further, Moore stated that she neither personally heard Guyton’s

alleged threats against her nor knew the individuals who allegedly did hear the

threats. Rather, Moore attested that she heard about the alleged threats from her

attorney. In regard to the alleged threat posed by Guyton, Moore testified as

follows:

      Q: Do you feel that unless restrained from doing something, Mr.
      Guyton will cause harm to you or your children?

      A:    Yes.

      Q:    How strongly do you feel that?

      A: A thousand percent. I’m scared for my own life, I’m scared for
      the lives of my kids.

      Q: And you believe that just because he’s alleged to have
      threatened one of your children, he would not harm the other
      children?

      A: No, I fully believe that if you can as a parent threaten one child
      and cause physical harm, even to their mother, that you would
      absolutely cause harm to the other ones. Tr., p. 27-28.

      {¶5} Moore then called Shonda Carpenter, who testified that she had

overheard Guyton threaten to kill Moore by shooting her with a rifle from a long

distance. The threat was purportedly made in Fall 2011. She also indicated that

she had seen him carrying a pistol. Carpenter admitted that she had never heard

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Guyton threaten T.G.’s life and that she was a close friend of Carolyn Yates,

another witness to Guyton’s purported threats against Moore. After Carpenter’s

testimony, Moore rested.

       {¶6} In his defense, Guyton called Yates to the stand. She testified that she

had overheard Guyton threaten Moore’s life two or three times. Specifically,

Yates indicated that she told the police that Guyton described a plan to kill Moore

with a high-powered rifle after following her. Yates admitted that she did not tell

anyone else about the purported threats until she learned that Guyton was a

confidential informant involved in a drug trafficking prosecution against her. She

also admitted that she had never heard Guyton threaten the life of T.G. Indeed,

Yates said that Guyton “didn’t really say a whole bunch or a whole lot when I was

there about [T.G.].” Tr., p. 100.

       {¶7} Finally, Guyton testified that he never threatened Moore’s or T.G.’s

life. Although he admitted that his relationship with T.G. was strained, Guyton

also indicated that he had apologized to her and was hopeful that he could repair

the relationship. He also stated that he purchased his pistol for the purpose of self-

protection.   On cross-examination, Guyton acknowledged to being held in

contempt during the divorce and child custody proceedings involving Moore,

which angered Guyton to the point that he made intemperate remarks regarding



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her. He also admitted that he had previously made intemperate remarks regarding

T.G. After his testimony, Guyton rested.

       {¶8} Upon the close of evidence, the trial court granted Moore’s petition

for the CPO and included Moore, T.G., A.G., J.G., and Schultz as protected

persons. The CPO is effective for five years, until April 3, 2017.

       {¶9} Guyton filed this timely appeal, presenting the following assignments

of error for our review. We preliminarily note that Moore did not file an appellate

brief. App.R. 18(C) gives us the discretion to “accept [Guyton’s] statement of

facts and issues as correct and reverse the judgment if [Guyton’s] brief reasonably

appears to sustain such action.”

                            Assignment of Error No. I

       THE TRIAL COURT ERRED IN JUDGMENT AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                           Assignment of Error No. II

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       ADDING [TG, AG, AND JG].

                             Assignment of Error No. I

       {¶10} In his first assignment of error, Guyton essentially argues that the

trial court erroneously issued a CPO that includes Moore as a protected person.

We disagree.



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           {¶11} Before turning to the merits of the first assignment of error, we must

resolve some deficiencies.1 First, we note that Guyton uses manifest weight of the

evidence terminology. However, we review the granting of CPOs under an abuse

of discretion standard of review. Studer v. Studer, 3d Dist. No. 3-11-04, 2012-

Ohio-2838, ¶ 18. Accordingly, we treat Guyton’s first assignment of error as an

argument that the trial court abused its discretion in issuing the CPO. Second, the

assignment of error indicates that it challenges the trial court’s issuance of the

CPO in its entirety. However, Guyton’s argument in support of the assignment

merely refers to the evidence regarding the alleged threat he poses to Moore. As a

result, we treat the first assignment of error as challenging the trial court’s

issuance of the CPO insofar as it relates to its inclusion of Moore as a protected

person.

                                           Standard of Review

           {¶12} A trial court’s decision to grant a CPO is not disturbed absent an

abuse of discretion. Id. A trial court will be found to have abused its discretion

when its decision is contrary to law, unreasonable, not supported by the evidence,

or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-

18, citing Black’s Law Dictionary 11 (8th Ed.2004). When applying the abuse of




1
    We note that Guyton is proceeding pro se in this matter.

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discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

                                   R.C. 3113.31

       {¶13} R.C. 3113.31 governs the issuance of CPOs. It states, in pertinent

part, the following:

       (C) A person may seek relief under this section on the person’s
       own behalf, or any parent or adult household member may seek
       relief under this section on behalf of any other family or household
       member, by filing a petition with the court. The petition shall
       contain or state:

       (1) An allegation that the respondent engaged in domestic violence
       against a family or household member of the respondent, including a
       description of the nature and extent of the domestic violence;

       (2) The relationship of the respondent to the petitioner, and to the
       victim if other than the petitioner;

       (3) A request for relief under this section.

R.C. 3113.31(c). The statute defines “domestic violence” as “[p]lacing another

person by the threat of force in fear of imminent serious physical harm * * *.”

R.C. 3113.31(A)(1)(b). Further, a “family or household member” includes “[a]

spouse, a person living as a spouse, [and] a former spouse of the respondent,” and

the children of the respondent. R.C. 3113.31(A)(3)(i)-(ii).

       {¶14} The petitioner under R.C. 3113.31 must show “by a preponderance

of the evidence that petitioner or petitioner’s family or household members are in


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danger of domestic violence.”     Felton v. Felton, 79 Ohio St.3d 34 (1997),

paragraph two of the syllabus. When reviewing a trial court’s issuance of a CPO,

we assess “‘whether a reasonable person would be placed in fear of imminent (in

the sense of unconditional, non-contingent) physical harm.’”         Fleckner v.

Fleckner, 177 Ohio App.3d 706, 2008-Ohio-4000, ¶ 20 (10th Dist.), quoting

Maccabee v. Maccabee, 10th Dist. No. 98AP-1213 (June 29, 1999).              This

assessment “involves both subjective and objective elements.”           Smith v.

Burroughs, 3d Dist. No. 16-09-03, 2010-Ohio-4806, ¶ 16. We accordingly review

the record to determine whether Moore presented some competent evidence to

show by a preponderance or greater weight of the evidence that she is in danger of

domestic violence at the hands of Guyton.

                     Evidence of the Threat Posed to Moore

      {¶15} Preliminarily, we note that Moore is Guyton’s “former spouse” and

consequently a household or family member under R.C. 3113.31(A)(3)(i).

Accordingly, Moore may obtain a CPO under R.C. 3113.31 provided that she

makes the required showing.

      {¶16} At the full hearing on the CPO, Moore presented two critical items of

evidence regarding the danger that Guyton presents to her. First, both Carpenter

and Yates testified that in the Fall of 2011 they overheard Guyton threatening to

take Moore’s life by using a rifle.    Although Guyton’s examination of these

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witnesses revealed that they have potential biases against Guyton, the trial court

found Carpenter’s and Yates’ accounts to be credible, and we decline to second-

guess that finding on appeal. See Wallace v. Willoughby, 3d Dist. No. 17-10-15,

2011-Ohio-3008, ¶ 35 (“Since the trial court is in the best possible position to

weigh the credibility of witnesses’ testimony, we will not disturb the trial court’s

judgment.”). Second, Moore testified that the threats made her fear for her life.

       {¶17} In light of Carpenter’s, Yates’, and Moore’s testimony, we find that

there is some competent evidence in the record to support the trial court’s finding

that Guyton has placed Moore in fear of imminent physical harm and consequently

that Guyton presents a risk of domestic violence to Moore. As such, it was not an

abuse of discretion for the trial court to issue a CPO that protected Moore. See

Clementz-McBeth v. Craft, 3d Dist. No. 2-11-16, 2012-Ohio-985, ¶ 18 (finding no

abuse of discretion where testimony indicated that respondent brandished weapon

and threatened the lives of the petitioner and her husband).

       {¶18} Accordingly, we overrule Guyton’s first assignment of error.

                            Assignment of Error No. II

       {¶19} In his second assignment of error, Guyton essentially argues that the

trial court erroneously issued a CPO that includes T.G., A.G., and J.G. as

protected persons. We agree.



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       {¶20} We initially note that T.G., A.G., and J.G. are Guyton’s children and

consequently covered under R.C. 3113.31(A)(3)(ii). Accordingly, the trial court

was empowered to grant a CPO that protected them provided that the appropriate

showing was made.

       {¶21} As with the first assignment of error, we review the record to

determine whether Moore presented some competent evidence to show by a

preponderance that T.G., A.G., and J.G. are in danger of domestic violence.

Moore presented no evidence that Guyton threatened the lives of T.G., A.G., or

J.G. While Guyton has a tenuous relationship with T.G. and there has been

physical abuse in the past, there is no indication that Guyton has made a threat of

imminent physical harm against her. Due to the lack of evidence in the record

regarding the threat presented to T.G., A.G., and J.G., the trial court abused its

discretion by including them as protected persons under the CPO. See Smith,

2010-Ohio-4806, at ¶ 24 (finding that trial court could not include children as

protected persons in CPO because the respondent threatened the life of the

children’s mother but did not threaten the lives of her children); see also Lillard v.

Allen, 8th Dist. No. 89623, 2008-Ohio-3664, ¶ 18 (same); Luikart v. Shumate, 3d

Dist. No. 9-02-69, 2003-Ohio-2130, ¶ 11 (finding that trial court could not include

spouse or children of petitioner because he did not present any evidence that

respondent threatened them).

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       {¶22} Accordingly, we sustain Guyton’s second assignment of error.

                                       Schultz

       {¶23} Finally, we note that the trial court also included Schultz as a

protected person under the CPO. Guyton has not specifically assigned error to

Schultz’s inclusion. Nevertheless, we have previously applied plain error review

to a trial court’s issuance of a CPO where it has erroneously included a household

member who was not shown to have been placed in imminent fear of physical

harm by the respondent. Smith at ¶ 24 . As in Smith, Moore did not present any

evidence that Guyton threatened Schultz’s life. Indeed, she did not present any

evidence that Schultz qualifies as a “person living as a spouse” so as to fall under

the terms of R.C. 3113.31(A)(3)(i). Based on this complete lack of evidence, we

follow Smith’s guidance and find that it was plain error for the trial court to

include Schultz in the CPO.

       {¶24} Having found no error prejudicial to Guyton, in the particulars

assigned and argued in his first assignment of error, but having found error

prejudicial to Guyton, in the particulars assigned and argued in his second

assignment of error as well as the trial court’s issuance of the CPO as it relates to




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Schultz, we affirm in part and reverse in part the trial court’s judgment and

remand for further proceedings consistent with this opinion.

                                                      Judgment Affirmed in Part,
                                                           Reversed in Part and
                                                               Cause Remanded

PRESTON, P.J., concurs.
SHAW, J., concurs in part and dissents in part.

/jlr




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