J.M. v. S.M.

[Cite as J.M. v. S.M., 

.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


[J.M.],                                          :

                 Petitioner-Appellant,           :               No. 22AP-773
                                                              (C.P.C. No. 20DV-1599)
v.                                               :
                                                            (REGULAR CALENDAR)
[S.M.],                                          :

                 Respondent-Appellee.            :



                                          D E C I S I O N

                                   Rendered on December 28, 2023


                 On brief: Capital University Law School General Litigation
                 Clinic and Family Advocacy Clinic, and Lorie L. McCaughan,
                 for appellant. Argued: Lorie L. McCaughan.

                 On brief: Greco Law, Anthony W. Greco, Susan M. Suriano,
                 and Joseph S. Jeziorowski, for appellee.       Argued:
                 Anthony W. Greco.

                 On brief: Ohio Crime Victim Justice Center, and
                 Elizabeth A. Well; Ohio Survivor Legal Assistance Clinic,
                 Stephanie B. Scalise, and Caitlyn Benzo, for Amici Curiae.

                  APPEAL from the Franklin County Court of Common Pleas,
                              Division of Domestic Relations

JAMISON, J.
          {¶ 1} Petitioner-appellant, J.M., brings this appeal of a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, in which the court granted
a motion to terminate a domestic violence civil protection order (“CPO”) filed by
respondent-appellee, S.M. For the following reasons, we affirm.
No. 22AP-773                                                                              2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} The parties were married in September 2012, and were the parents of one
minor child, A.M.
       {¶ 3} On March 26, 2020, appellant filed a petition for a CPO against appellee, and
an ex parte CPO was issued the same day. Appellant was the only protected party. The
parties have been living separate and apart since March 2020. On April 14, 2020, appellant
filed a complaint for divorce.
       {¶ 4} The final hearing for the CPO was continued several times. The CPO was
dismissed by appellant on August 12, 2020.
       {¶ 5} On June 3, 2020, appellee was arrested and criminally charged with violation
of a protection order after he sent 100 red roses to appellant. The charges were dismissed
at the request of the prosecutor on June 22, 2021.
       {¶ 6} On September 5, 2020, appellee was again charged with violating a
protection order. The charges were dismissed on September 8, 2020.
       {¶ 7} On September 11, 2020, appellant filed a second petition for a CPO, and
received an ex parte order that day. Appellant was the only protected party. After several
continuances, the parties entered into an order of protection by consent on June 17, 2021.
The consent agreement was to be effective until June 17, 2024, unless modified or
dismissed by the trial court.
       {¶ 8} On August 3, 2022, appellee filed a motion to terminate the consent
agreement, and the court conducted an evidentiary hearing on November 4 and 7, 2022.
On November 22, 2022, the trial court issued a judgment entry which granted appellee’s
motion and terminated the consent agreement.
       {¶ 9} Appellant now brings this appeal.
II. ASSIGNMENTS OF ERROR
       {¶ 10} Appellant assigns the following four assignments of error for our review:
              [1.] The trial court erred as a matter of law and abused its
              discretion when it did not treat the [Domestic Violence]-CPO
              by Consent as a binding contract between the parties.

              [2.] The trial court erred and abused its discretion when it
              granted Appellee’s Motion to Terminate the [Domestic
No. 22AP-773                                                                               3


              Violence]-CPO by Consent after it failed to properly analyze
              and weigh the statutory factors provided in R.C.
              3113.31(E)(8)(c).

              [3.] The trial court erred and abused its discretion when it
              failed to consider Appellant’s constitutional rights under
              Marsy’s Law for Ohio as related to Appellee’s Motion to
              Terminate the [Domestic Violence]-CPO by Consent.

              [4.] The trial court erred and abused its discretion when it acted
              contrary to well-established public policy dictates of Ohio
              domestic violence law.

III. DISCUSSION
       {¶ 11} Trial courts have discretion in deciding whether to grant a motion to
terminate a CPO, and we review a trial court’s ruling on a motion to modify or terminate a
CPO for an abuse of discretion. J.M. v. L.J., 9th Dist. No. 19CA011549, 

.
Absent an abuse of discretion, a reviewing appellate court will not disturb a decision on a
motion to modify or terminate a CPO. Twitty v. Bowe, 10th Dist. No. 09AP-953, 2010-
Ohio-1391. An abuse of discretion involves more than an error of law or judgment and
implies that the trial court decision making is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 

 (1983).
       {¶ 12} A court “may modify or terminate * * * a protection order or consent
agreement that was issued after a full hearing.” R.C. 3113.31(E)(8)(a). Either the petitioner
or respondent may file a motion, and must show, “by a preponderance of the evidence,”
that termination of the consent agreement is “appropriate because either the protection
order or consent agreement is no longer needed or because the terms of the original
protection order or consent agreement are no longer appropriate.” R.C. 3113.31(E)(8)(b).
       {¶ 13} In her first assignment of error, appellant contends that the trial court erred
by not treating the consent agreement as a binding contract. At least one appellate district
has determined that a consent CPO “is a contract and is founded upon the agreement of the
parties.” Luna-Corona v. Esquivel-Parrales, 12th Dist. No. CA2008-07-175, 2009-Ohio-
2628, ¶ 36. “A consent decree, although in effect a final judgment, is a contract founded on
the agreement of the parties,” and contract principles are generally applicable. Save the
Lake Assn. v. Hillsboro, 

, 

 (4th Dist.).
No. 22AP-773                                                                                   4


       {¶ 14} We have not addressed this issue head-on but have recognized that when
parties sign a consent order, “ ‘a party is presumed to have read and understood an
agreement he has signed.’ ” J.J. v. Kilgore, 10th Dist. No. 20AP-401, 

,
quoting Benjamin v. Am. Druggists’ Ins. Co., 10th Dist. No. 04AP-490, 

.
       {¶ 15} As a general rule, the trial court’s objective in construing written agreements
is to arrive at the intent of the parties, which is presumed to be stated in the document itself.
Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 

 (1997). Where the terms of a contract are clear and unambiguous, the court
cannot find different intent from that expressed in the contract. E.S. Preston Assocs., Inc.
v. Preston, 

 (1986).
       {¶ 16} Appellant admits that “[e]ach party received the mutual legal benefit and
legal detriment for which each bargained.” (Appellant’s Brief at 15.) The trial court may
not rewrite a contract by adding language or terms that the parties omitted. J. Griffin
Ricker Assocs., L.L.C. v. Well, 10th Dist. No. 21AP-29, 

.
       {¶ 17} Appellant’s consent agreement reads “ALL OF THE TERMS OF THIS
ORDER REMAIN IN FULL FORCE AND EFFECT FOR A PERIOD OF FIVE YEARS FROM
ISSUANCE OR UNTIL 11:59 pm on 6/17/2024 unless earlier modified by or
dismissed by Order of this Court.”. (Emphasis added and sic.) (Jun. 17, 2021 Order
of Protection By Consent at 5.) This ability to modify or terminate is a part of the consent
agreement. Martin v. Martin, 10th Dist. No. 13AP-171, 

. The trial court is
required to conduct a “full hearing” on a petition before it may issue any type of civil
protection order other than a temporary ex parte order.” C.T. v. N.Y., 10th Dist. No. 22AP-
499, 

. “Full hearing” is not defined in the statute, but “it requires, at
a bare minimum, the opportunity for both parties to present evidence and make arguments
at a proceeding on a contested [Domestic Violence CPO] petition.” (Emphasis added.)

 “ ‘ “[W]here the issuance of a protection order is contested, the court must, at the very
least, allow for presentation of evidence, both direct and rebuttal, as well as arguments.” ’ ”
D.M.W. v. E.W., 10th Dist. No. 17AP-359, 

, quoting Tarini v. Tarini,
10th Dist. No. 12AP-336, 

, ¶ 14, quoting Deacon v. Landers, 

 (4th Dist.1990). A footnote in Deacon suggests that “even in a noncontested
No. 22AP-773                                                                                 5


case, evidence must be presented to sustain the issuance of a consent protection order,” but
there is no case law adopting that position. 

.
       {¶ 18} The trial court has broad discretion to control the proceedings before it.
Bradley v. Cox, 10th Dist. No. 04AP-118, 

. At the commencement of
the full hearing on the petition for a domestic violence CPO, the magistrate stated there
were two options: (1) to go forward with a final hearing after which the magistrate would
determine if a CPO, which could last for up to five years, should be issued; or (2) the parties
could agree to a consent agreement. R.H. v. J.H., 9th Dist. No. 18CA0115-M, 2020-Ohio-
3402, ¶ 9. Trial courts routinely have hearings scheduled where the parties reach
agreement, and the entry is accepted for approval and adoption by the court. Nothing in
the statute requires that a full hearing must be evidentiary and cannot be a non-oral hearing
to enter into a consent agreement. This agreement is just the type of order specifically
outlined by the statutory language of R.C. 3113.31.
       {¶ 19} Even if we considered appellant’s premise that the consent agreement is a
valid and binding contract, we do not expressly make that finding. However, the clear and
unambiguous language of the consent agreement allows early termination by the trial court,
and the statute provides guidelines to terminate.
       {¶ 20} Lastly, appellant filed a transcript from the November 4 and 7, 2022 hearing
dates on the motion to terminate, but did not file a transcript from the June 17, 2021 hearing
where the consent agreement was approved by the trial court. Appellant did not file an
App.R. 9(C) statement of facts. The proceedings from the June 17, 2021 hearing which were
recorded are relevant, and this court cannot conduct a review in the absence of the
transcript. “When portions of the transcript necessary for resolution of assigned errors are
omitted from the record, the reviewing court has nothing to pass upon and thus, as to those
assigned errors, the court has no choice but to presume the validity of the lower court’s
proceedings, and affirm.” Knapp v. Edwards Laboratories, 

 (1980).
In the absence of the transcript or alternative record under App.R. 9, regularity is presumed
at the trial court. Barksdale v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-297, 2017-
Ohio-395.
       {¶ 21} Appellant’s first assignment of error is overruled.
No. 22AP-773                                                                               6


       {¶ 22} Appellant’s second assignment of error challenges the trial court’s analysis of
the factors used to decide whether termination is appropriate.
       {¶ 23} A trial court must consider all relevant factors, including the following
outlined in R.C. 3113.31(E)(8)(c):
              (i) Whether the petitioner consents to modification or
              termination of the protection order or consent agreement;

              (ii) Whether the petitioner fears the respondent;

              (iii) The current nature of the relationship between the
              petitioner and the respondent;

              (iv) The circumstances of the petitioner and respondent,
              including the relative proximity of the petitioner’s and
              respondent’s workplaces and residences and whether the
              petitioner and respondent have minor children together;

              (v) Whether the respondent has complied with the terms and
              conditions of the original protection order or consent
              agreement;

              (vi) Whether the respondent has a continuing involvement
              with illegal drugs or alcohol;

              (vii) Whether the respondent has been convicted of, pleaded
              guilty to, or been adjudicated a delinquent child for an offense
              of violence since the issuance of the protection order or
              approval of the consent agreement;

              (viii) Whether any other protection orders, consent
              agreements, restraining orders, or no contact orders have been
              issued against the respondent pursuant to this section, section
              2919.26 of the Revised Code, any other provision of state law,
              or the law of any other state;

              (ix) Whether the respondent has participated in any domestic
              violence treatment, intervention program, or other counseling
              addressing domestic violence and whether the respondent has
              completed the treatment, program, or counseling;

              (x) The time that has elapsed since the protection order was
              issued or since the consent agreement was approved;

              (xi) The age and health of the respondent;
No. 22AP-773                                                                                7



               (xii) When the last incident of abuse, threat of harm, or
               commission of a sexually oriented offense occurred or other
               relevant information concerning the safety and protection of
               the petitioner or other protected parties.

       {¶ 24} Each factor should receive specific consideration and weight in determining
whether to terminate a CPO. No single factor controls. The trial court has exclusive
province to determine how much weight to accord each R.C. 3113.31(E)(8)(c) factor.
Krumm v. Upper Arlington City Council, 10th Dist. No. 05AP-802, 

.
       {¶ 25} Appellant first asserts the trial court failed to devote proper attention to
whether she consents to the termination.        Whether the petitioner consents to early
termination is a factor to be considered by the trial court. R.C. 3113.31(E)(8)(c)(i).
       {¶ 26} The trial court acknowledged that appellant did not consent to the
termination. Appellant cannot identify any error where the trial court did not consider the
issue of consent, although it is clear there is a level of dissatisfaction.         However,
dissatisfaction is not error.
       {¶ 27} Appellant also contends the trial court erred by not determining that her fear
of appellee should prevent the consent agreement from being judicially terminated. R.C.
3113.31(E)(8)(c)(ii). Threats of violence constitutes domestic violence under R.C. 3113.31
if those threats result in reasonable fear. Fleckner v. Fleckner, 

, 2008-
Ohio-4000 (10th Dist.).
       {¶ 28} Courts use both a subjective and objective test to determine whether a
petitioner’s fear is reasonable. The subjective test “inquires whether the respondent’s
threat of force actually caused the petitioner to fear imminent serious physical harm.” Id.
at ¶ 23. The objective test looks at “whether the petitioner’s fear is reasonable under the
circumstances (that is, whether the respondent’s threat would cause a reasonable person to
fear imminent [unconditional, non-contingent] serious physical harm).” Id.
       {¶ 29} Although appellant testified that she fears appellee, she also admitted that
appellee has not caused her any new fear since September 2020. Appellant stated that the
fear she has currently is different than the fear she had when the CPO petition was filed.
Appellant testified that she had compiled a list of things appellee has done to cause her fear
during the course of the consent agreement but was not able to produce the list.
No. 22AP-773                                                                                8


       {¶ 30} The parties are able to effectively communicate about parenting decisions,
and have jointly attended medical appointments and school events with their child without
incident. The parties live and work in separate communities and their paths do not cross.
       {¶ 31} There have been no new criminal charges, CPOs, or violations of the consent
agreement. Appellee has had no contact with law enforcement since September 2020 when
they were summoned to a school play that both parties were allowed to attend. Appellant
does not remember the last time appellee made a threat of harm against her.
       {¶ 32} The judgment entry reflects that the trial court gave full consideration to all
the factors listed in R.C. 3113.31(E)(8)(c) before terminating the consent agreement. The
trial court was in the best position to observe the credibility of the witnesses and had the
discretion to make a decision. C.K. v. D.K., 9th Dist. No. 21CA011733, 

.
       {¶ 33} While appellant states she is in fear of appellee, there is no evidence to
suggest that appellant is in danger of physical harm from appellee, and the trial court found
that appellant’s continuing fears were not reasonable. Where there is no evidence of
continued threats placing a petitioner in danger, it is not an abuse of discretion for a trial
court to terminate a CPO. Schneider v. Razek, 8th Dist. No. 100939, 

.
       {¶ 34} It is noteworthy that appellee is not required to “acquit” himself in a
termination proceeding; he is not required to prove that the underlying fear is no longer
reasonable. 

       {¶ 35} Appellant’s second assignment of error is overruled.
       {¶ 36} Appellant argues in her third assignment of error that the trial court erred
when it failed to consider her constitutional rights under Marsy’s Law as related to the
motion to terminate. We disagree.
       {¶ 37} On February 5, 2018, Article I, Section 10a of the Ohio Constitution was
amended through a provision known as Marsy’s Law with the purpose to expand the rights
afforded to crime victims.
       {¶ 38} Appellant asserts that, under Marsy’s Law, she had the right to be treated
with fairness and respect for her safety, dignity, and privacy; to be heard in a public
proceeding involving termination of a consent agreement; and reasonable protection from
the accused. Appellant argues that the trial court disregarded her rights, and that we should
No. 22AP-773                                                                                  9


now consider them. The record indicates that she participated in the hearing regarding the
motion to terminate and was treated with decency and respect.
       {¶ 39} We note that appellant did not raise any objections or issues relating to the
depravation of constitutional rights in the trial court, nor did the trial court discuss Marsy’s
Law in its decision. A litigant’s failure to object to a constitutional error in the trial court
waives any such claim on appeal. State v. Shelton, 10th Dist. No. 05AP-927, 2006-Ohio-
6895. “It is a general rule that an appellate court will not consider any error which counsel
* * * could have called but did not call to the trial court’s attention.” State v. Vanblarcome,
10th Dist. No. 02AP-417, 

, ¶ 17.
       {¶ 40} While due process rights have been afforded to appellant, it does not
necessarily mean that appellant’s wishes will prevail. In re L.A., 2d Dist. No. 2013 CA 33,

. “The right to due process does not equate to the right to be the prevailing
party.” Planey v. Mahoning Cty. Court of Common Pleas, 

, 2009-Ohio-
5684, ¶ 19. However, the constitutional rights are lost due to the failure to preserve the
matter for appellate review. State v. Childs, 

 (1968).
       {¶ 41} Appellant’s third assignment of error is overruled.
       {¶ 42} Appellant’s fourth assignment of error alleges that the trial court erred and
abused its discretion when it acted contrary to public policy regarding domestic violence.
We find the record reflects that the trial court acted in accord with public policy in this
matter.
       {¶ 43} The purpose of a consent agreement “is to provide a family or household
member with protection from domestic violence.” Mansaray v. Sankoh, 10th Dist. No.
04AP-872, 

. Even though the consent agreement does not specify a
particular instance of domestic violence, it is clear the trial court approved the consent
agreement to stop domestic violence, and said approval “implies domestic violence has
occurred.” J.J., 

.
       {¶ 44} There is no evidence that the trial court treated the consent agreement as
superfluous because of the divorce action. The trial court was aware and engaged in trying
to use a CPO as a tool to address domestic violence, both before and during the divorce.
The minimal reference to temporary orders in the divorce proceeding does not support
appellant’s position.
No. 22AP-773                                                                           10


      {¶ 45} The trial court tailored the consent agreement to fit the existing
circumstances, and retained jurisdiction to address any change in circumstances and
modify or terminate as necessary. We note that appellant has no issue with the process
leading to the approval of the consent agreement.
      {¶ 46} After a thorough analysis, the trial court determined that appellee met his
burden to prove the consent agreement was no longer needed or appropriate to protect
appellant from domestic violence, and granted the motion to terminate. The court was not
precluded by public policy from terminating the CPO. R.C. 3113.31(E)(8)(a).
      {¶ 47} Appellant’s fourth assignment of error is overruled.
IV. DISPOSITION
      {¶ 48} For the reasons stated in this opinion, appellant’s four assignments of error
are overruled. The judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations is affirmed.
                                                                     Judgment affirmed.

                              LELAND, J., concurs.
                    BEATTY BLUNT, P.J., concurs in judgment only.