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9th District: Following a car at slow speed not domestic violence
TRACEY BLAIR
Legal News Reporter
Published: September 13, 2016
A domestic violence civil protection order in favor of a Medina County mother and her two children has been reversed after the 9th District Court of Appeals called the judgment an abuse of discretion.
According to case summary, J.M. (“Mother”) and M.M. (“Father”) were divorced in 2008 after 15 years of marriage. They have two minor teenage children, G.M. and A.M., and an older child.
In 2014, Father and his two teenage sons were involved in a physical altercation that resulted in the boys being charged with aggravated assault against their father.
After the children were found to be delinquent in juvenile court, the judge ordered that Father’s parenting time be held only in public places and forbid him from driving the boys anywhere. The children were ordered to cooperate with the visitation order or risk 86 days in juvenile detention.
On May 15, 2015, Mother met Father’s mother at a McDonald’s restaurant in Canton. Father’s mother told the children she would be driving them back to her home where they would visit with Father.
However, the children refused to go with her, citing the visitation order about public places.
Father then went to the McDonald’s and ordered them to leave with their grandmother or he would call the police.
Mother claimed Father sat down almost on top of A.M. in one of the booths and yelled in his ear. Father then began filming everybody on his cellphone and called the police.
An officer escorted Mother and her two sons to their car. Mother claimed that Father then chased her through the parking lot at about 20 mph. He drove away after officers approached his truck and was not arrested.
At the protection order hearing, J.M. testified that M.M.’s conduct made her feel intimidated and unsafe.
The magistrate issued a five-year domestic violence civil protection order after Mother testified he had a “lengthy history of abuse” against her and their children.
On appeal, Father argued that he did not commit an act of “domestic violence” under Ohio law.
In a 2-1 opinion, the appellate panel agreed there was no evidence that Father attempted to cause anyone bodily injury.
“… Mother points to the fact that Father followed and `tailed’ her car in the Walsh University parking lot at a speed of 20 miles an hour,” 9th District Judge Julie Schafer wrote. “Mother notes on appeal that a car can be used as a deadly weapon, and thus Father’s conduct of following her in a car constitutes an act of domestic violence.
“Moreover, Mother testified that this conduct by Father greatly frightened and intimidated her. However, … we cannot conclude that following another car at a relatively low rate of speed in a parking lot, standing alone, constitutes an act of domestic violence pursuant to R.C. 3113.31(A)(1)(a).”
The panel also found no evidence to support Mother’s claims that Father assaulted the sons in 2014 or had assaulted a police officer in the past.
“We conclude that Father’s conduct inside of the McDonald’s restaurant, while not to be condoned, did not rise to the level of domestic abuse,” Judge Schafer stated.
Ninth District Judge Carla Moore concurred.
Appellate Judge Jennifer Hensal dissented.
“… I would hold that J.M. presented sufficient evidence to establish a threat of force, which – while not explicit – can be implied by M.M.’s conduct,” she wrote in her dissenting opinion.
The case is cited J.M. v. M.M., 2016-Ohio-5368.