[Cite as J.M. v. D.H., 2016-Ohio-8387.]


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

J.M.                                                     C.A. No.     15CA010891

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
D.H.                                                     COURT OF COMMON PLEAS
                                                         COUNTY OF LORAIN, OHIO
        Appellant                                        CASE No.   15 CV 187659

                                 DECISION AND JOURNAL ENTRY

Dated: December 27, 2016



        HENSAL, Judge.

        {¶1}      Respondent-Appellant, D.H., appeals from a judgment of the Lorain County

Court of Common Pleas, granting a civil stalking protection order in favor of Petitioner-

Appellee, J.M., and her three minor children. For the following reasons, we reverse.

                                                    I.

        {¶2}      This appeal involves a familial dispute that culminated in the issuance of a civil

stalking protection order. J.M. is D.H.’s former daughter-in-law and the mother of D.H.’s two

grandchildren.1 During J.M.’s divorce from D.H’s son, D.H. invited J.M. and her children to live

with her. Although they shared a close relationship for some time, their relationship eventually

grew strained and J.M. moved out of D.H.’s home.

        {¶3}      According to J.M., a number of events led to the filing of a civil stalking

protection order against D.H. First, in December 2014, D.H. sent an e-mail to several family



        1
            J.M. has a third child from a different relationship.
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members, including J.M., indicating that she did not approve of J.M.’s new boyfriend, and

alleging that J.M. neglected and abused her children. J.M. testified that the e-mail was not

threatening, but that she found it to be rude. D.H. admitted that she did not approve of J.M.’s

new boyfriend, but denied that she ever alleged that J.M. neglected or abused her children. The

e-mail was not presented as evidence at the CSPO hearing.

       {¶4}     Next, D.H. attended two school events (an open house and an awards ceremony)

for J.M.’s children, which D.H. was not invited to attend. With respect to the open house, J.M.

testified that D.H. overstepped her boundaries by attending an event for parents, and by

proceeding to introduce herself to her grandchildren’s teachers before J.M. and her children had

an opportunity to do so. Regarding the awards ceremony, J.M. testified that her son noticed D.H.

sitting in the back and asked if he could go say hello, which J.M. allowed. J.M.’s son returned

upset, indicating that his grandmother had told him that she was sitting alone because nobody

liked her. J.M. testified that she felt it was inappropriate for D.H. to discuss adult matters with

her children.

       {¶5}     Next, and the “last straw” according to J.M., D.H. told her son (J.M.’s ex-

husband) that she had thought about killing her own husband (whom she was in the midst of

divorcing), killing J.M., and then killing herself. During the same conversation, D.H. told her

son that she had talked herself out of it, and later told him that she would never do such a thing.

J.M. subsequently learned of D.H.’s comment and petitioned the court for a civil stalking

protection order. At the CSPO hearing, D.H. dismissed the comment as “flippant” and one that

she never intended for J.M. to find out about. J.M. testified that she was concerned with the ease

in which D.H. made the comment, but offered no testimony to indicate that she felt physically

threatened by D.H.
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       {¶6}    After hearing testimony from J.M., J.M’s ex-husband, and D.H., the magistrate

issued a civil stalking protection order in favor of J.M. and her three children set to expire on

November 9, 2017. D.H. has appealed, raising seven assignments of error for our review. For

ease of consideration, we will address D.H.’s first and second assignments of error together.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       GRANTING A CIVIL PROTECTION ORDER AGAINST THE RESPONDENT
       PROTECTING THE PETITIONER AS THERE WAS INSUFFICIENT
       EVIDENCE TO SUPPORT THE STALKING PROTECTION ORDER.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       GRANTING A CIVIL PROTECTION ORDER AGAINST THE RESPONDENT
       PROTECTING THE MINOR CHILDREN AS THERE WAS INSUFFICIENT
       EVIDENCE TO SUPPORT THE STALKING PROTECTION ORDER AND
       THE FINDING OF FACTS SPECIFIED BY THE COURT.

       {¶7}    In her first two assignments of error, D.H. argues that J.M. did not present

sufficient evidence to warrant the issuance of a civil stalking protection order in favor of J.M.

and her children. Consequently, we must determine whether, viewing the evidence in the light

most favorable to J.M., a reasonable trier of fact could find that J.M. demonstrated by a

preponderance of the evidence that a civil stalking protection order should issue. Bowman v.

Bowman, 9th Dist. Medina No. 13CA0064-M, 2014-Ohio-2851, ¶ 9.

       {¶8}     “In order for a civil stalking protection order to issue, the trial court must find

that the petitioner has shown by a preponderance of the evidence the respondent committed an

act against the petitioner that would constitute menacing by stalking.” A.S. v. P.F., 9th Dist.

Lorain No. 13CA010379, 2013-Ohio-4857, ¶ 6. Revised Code Section 2903.211(A)(1) governs

menacing by stalking and provides that “[n]o person by engaging in a pattern of conduct shall
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knowingly cause another person to believe that the offender will cause physical harm to the other

person or a family * * * member of the other person or cause mental distress to the other person

or a family * * * member of the other person.”

        {¶9}    At the CSPO hearing, J.M. presented no evidence to indicate that D.H. had caused

– or that she believed D.H. would cause – her physical harm or mental distress. At most, the

testimony indicated that J.M. was concerned that D.H. involved her children in “adult

conversations” (e.g., telling her grandson that no one liked her) and overstepped her boundaries

(e.g., attending school functions without being invited). While J.M. did testify that she was

concerned with the ease in which D.H. commented that she had thought about killing her soon-

to-be ex-husband, J.M., and then herself, J.M. did not indicate that she took D.H.’s comment as a

serious threat or that it caused her mental distress. Although D.H.’s comment is not to be

condoned, D.H. testified that she was simply venting to her son and that she never intended to act

on it, or for J.M. to find out about it.

        {¶10} Further, J.M. presented no evidence to indicate that D.H. had caused – or that she

believed D.H. would cause – her children physical harm or mental distress. Indeed, she testified

that her children and D.H. love each other and that she does not think it is healthy for her kids to

be away from their grandmother.            Additionally, J.M.’s ex-husband testified that D.H. (his

mother) never physically or mentally harmed his children. Notably, no evidence was presented

with respect to J.M.’s child from another relationship.

        {¶11} In light of the foregoing, we hold that the evidence, when viewed in the light most

favorable to J.M., is insufficient for a rational trier of fact to find that J.M. demonstrated by a

preponderance of the evidence that a civil protection order should issue. Bowman, 9th Dist.
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Medina No. 13CA0064-M, 2014-Ohio-2851, at ¶ 9. Accordingly, D.H.’s first and second

assignments of error are sustained.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       GRANTING A CIVIL PROTECTION ORDER AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE AS TO PETITIONER [J.M.].

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       GRANTING A CIVIL PROTECTION ORDER AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE WHEN IT INCLUDED AS PROTECTED
       PERSONS THE MINOR CHILDREN OF PETITIONER [J.M.].

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       GRANTING A CIVIL PROTECTION ORDER BASED ON FINDINGS OF
       FACT THAT ARE NOT IN EVIDENCE.

                                 ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       GRANTING A CIVIL PROTECTION ORDER THAT IS CONTRARY TO THE
       LAW.

                                ASSIGNMENT OF ERROR VII

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       DENYING THE RES[P]ONDENT’S MOTION FOR DISMISSAL BASED ON
       OHIO CIVIL RULE 41(B)(2).

       {¶12} In light of our disposition of D.H.’s first and second assignments of error, the

remaining assignments of error are rendered moot and are overruled on that basis. App.R.

12(A)(1)(c).
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                                                III.

       {¶13} D.H.’s first and second assignments of error are sustained. D.H.’s third, fourth,

fifth, sixth, and seventh assignments of error are overruled as moot. The judgment of the Lorain

County Court of Common Pleas 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 Lorain, 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.

       Costs taxed to Appellee.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.
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APPEARANCES:

JOAN JACOBS THOMAS, Attorney at Law, for Appellant.

J. M., pro se, Appellee.