[Cite as Friedlander v. Friedlander,
2014-Ohio-2180.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100245
LISA J. FRIEDLANDER
PLAINTIFF-APPELLEE
vs.
SAMUEL L. FRIEDLANDER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DV-12-342848
BEFORE: S. Gallagher, J., Celebrezze, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: May 22, 2014
ATTORNEYS FOR APPELLANT
Joyce E. Barrett
James P. Reddy, Jr.
Law Offices of Joyce E. Barrett
800 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Larry W. Zukerman
Paul B. Daiker
Zukerman, Daiker & Lear
3912 Prospect Ave., East
Cleveland, OH 44115
Also listed:
Guardian Ad Litem
Barbara A. Belovich
Kronenberg & Belovich Law L.L.C.
635 West Lakeside Avenue
Suite 605
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Samuel L. Friedlander appeals the judgment of the Cuyahoga
County Court of Common Pleas, Division of Domestic Relations, that granted a domestic
violence civil protection order. For the reasons stated herein, we affirm.
{¶2} On July 17, 2012, Lisa J. Friedlander filed a petition for a domestic violence
civil protection order (“DVCPO”) for herself and her two minor children against Samuel,
who was Lisa’s then spouse and is the father of the children. The trial court granted the
petition after holding an ex parte hearing. Lisa and the two minor children were named
as protected persons.
{¶3} A full hearing on the petition was held before a court magistrate in September
2012. In December 2012, the parties and the guardian ad litem entered an agreement
allowing Samuel supervised visitation with the children.
{¶4} The magistrate issued a decision on March 6, 2013, that granted the DVCPO.
The magistrate’s decision was adopted by the court the same day, but the DVCPO was
modified nunc pro tunc by the assigned judge on March 20, 2013, to reinstate Samuel’s
supervised visitation with the children. Samuel filed objections to the court’s adoption
of the magistrate’s decision, supported by a transcript of the full hearing. Lisa filed an
objection to the trial court’s nunc pro tunc judgment entry that modified the DVCPO to
include supervised visitation for Samuel. The trial court conducted a de novo,
independent review and considered the magistrate’s decision, the pleadings, the exhibits,
and the complete transcript.
{¶5} A review of the transcript reflects that Lisa testified to incidents occurring on
July 6, 2012. On that date, Samuel began grabbing Lisa’s arms while she was preparing
dinner and called her a “bad mommy.” Later that evening, Lisa had both children with
her in the bathroom and was bathing her then 16-month-old daughter. She had locked
the door because Samuel seemed angry. Samuel obtained a hanger to unlock the door
and was yelling at Lisa. He forcefully pulled their three-year-old son out of the
bathroom, with the child kicking and screaming for his “mommy,” causing minor bruising
to the child’s arms. He pulled Lisa’s hair painfully backward while she was holding their
daughter in the tub, nearly causing Lisa to lose her grip of the child, and while in the
presence of their son, who had returned to Lisa’s side. As Lisa dressed their daughter,
Samuel was still in Lisa’s face screaming at her.
{¶6} Lisa then headed downstairs to get the children milk. While she was at the
top of the stairs with both children in her arms, Samuel was screaming at her and said, “I
can push you down right now. It would look like an accident and no one would know.”
Lisa felt scared for herself and her children.
{¶7} Lisa went down to the kitchen. Samuel inquired about bruising on Lisa’s
arms, which she attributed to Samuel’s grabbing her. With their son present and while
Lisa was still holding their daughter, Samuel lunged at Lisa and placed a choke hold
around her neck. Lisa testified she told Samuel it hurt and asked him to stop because she
could not breathe, to which Samuel replied, “good.” During this incident, Lisa bumped
her knee on a counter, causing a bruise. Samuel repeatedly stated, “I will kill you.”
Their son yelled out the window, “Somebody help. We need help.”
{¶8} After Lisa was released, she tried to grab her keys. Samuel pulled Lisa’s
hair and ripped it backwards while she was still holding their daughter. Lisa feared for
her safety, and their daughter was crying.
{¶9} After Lisa went to the car in the garage and buckled in the children, Samuel
ran into the garage, got in the car, and grabbed the keys and Lisa’s cell phone. Lisa
managed to get the keys back and drove around the block with everyone in the car.
Samuel continued to yell at Lisa, “I will kill you.”
{¶10} Upon returning home, Lisa was able to call for help. The police arrived,
and appellant was arrested. Appellant was charged with domestic violence and found
guilty of negligent assault.
{¶11} Lisa also testified that prior to July 6, 2012, Samuel had touched her in a
physically threatening manner numerous times. He repeatedly strangled her with his
thumbs, pulled her hair, kicked her, and called her horrible names in front of the children.
One time she bled while using the bathroom after being kicked. There was an incident
when Samuel smashed his open hand down on Lisa’s nose while she was lying in bed,
causing pain and her nose to bleed intermittently throughout the next day. Samuel would
grab Lisa’s arms hard enough to cause bruising. She testified that an incident occurred
on July 4, 2012, while she was driving a car with the children in the back, when Samuel
punched her in the face with his fist, impeding her driving for a moment. The court
magistrate sustained an objection to testimony concerning any sexual contact.
{¶12} Samuel’s mother testified that she never observed bruising on Lisa’s arms
and Lisa never informed her of physical abuse or bruising. She also testified to
observing a positive relationship between Samuel and the children and to never seeing
inappropriate behavior with the children.
{¶13} The trial court found by a preponderance of the evidence that Samuel had
committed acts of domestic violence against Lisa and the children, that Lisa and the
children were in danger of domestic violence, and that the DVCPO should continue in
effect. The court recognized that “each instance of domestic violence against the minor
children was incidental to Samuel’s acts against Lisa, i.e., that she, and not the children,
was the target of his actions.” The court found that while the testimony of Samuel’s
mother contradicted Lisa on some points, Lisa’s testimony regarding the incidents of July
4 and 6, 2012, remained uncontroverted. The trial court overruled all objections and
adopted the magistrate’s decision as modified by the judgment entry nunc pro tunc on
March 20, 2013.
{¶14} Samuel timely filed this appeal. This court granted, in part, Samuel’s
motion for a limited remand for the trial court to enter a modification of the DVCPO to
reflect agreements reached between the parties. The trial court issued a judgment entry
on January 10, 2014, that modified the DVCPO accordingly.
{¶15} The matter is now before us for review. Samuel raises three assignments of
error, under which he claims the trial court erred (1) in overruling his objections to the
magistrate’s decision and finding that he committed acts of domestic violence against
Lisa and the minor children, (2) by permitting and considering testimony of alleged prior
acts of domestic violence, and (3) by granting a protection order that included the minor
children as protected persons.
{¶16} A trial court’s decision to adopt a magistrate’s decision will not be reversed
on appeal unless the decision amounts to an abuse of discretion. In re M.I.S., 8th Dist.
Cuyahoga No. 98138, 2012-Ohio-5178, ¶ 11. An abuse of discretion implies a decision
that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio
St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶17} “When granting a protection order, the trial court must find that petitioner
has shown by a preponderance of the evidence that petitioner or petitioner’s family or
household members are in danger of domestic violence. R.C. 3113.31(D).” Felton v.
Felton, 79 Ohio St.3d 34, 42,
679 N.E.2d 672 (1997). The decision to grant a civil
protection order lies within the sound discretion of the trial court. Hoyt v. Heindell,
191
Ohio App.3d 373,
2010-Ohio-6058,
946 N.E.2d 258, ¶ 39 (11th Dist.).
{¶18} In his case, the trial court determined, by a preponderance of the evidence,
that Lisa and the two minor children are in danger of domestic violence. The trial court
found Lisa provided uncontroverted testimony regarding the incidents that occurred on
July 6, 2012, in which Samuel pulled Lisa by the hair as she bathed their daughter, made
an implied threat to shove Lisa down a flight of stairs while she was holding their
daughter, and placed Lisa in a choke hold while she was holding their daughter and
repeatedly yelled, “I will kill you!” The court found Samuel created a substantial risk to
the daughter’s safety during these incidents. The court also found Samuel created a
substantial risk of harm to the safety of both children during the July 4, 2012 incident in
which he punched Lisa in the face while she was driving with the children in the
backseat.
{¶19} Although Samuel refers to selective findings by the magistrate, the case was
independently reviewed by the trial court. Any error by the magistrate in finding that a
substantial risk to the safety of both children was created in the garage is harmless.
Further, to the extent Samuel suggests that his actions in disciplining his son when
removing him from the bathroom were reasonable parental discipline, this affirmative
defense was not raised before the trial court and is not supported by the totality of
circumstances in the case.
{¶20} Samuel also argues that his mother’s testimony was determined to be
credible by the magistrate and rebutted Lisa’s testimony. The trial court was not required
to disregard Lisa’s testimony. The trial court considered the credibility of the witnesses
and aptly recognized that the testimony regarding the incidents that occurred remained
uncontroverted.
{¶21} Insofar as Samuel argues the trial court determined each instance of
domestic violence against the minor children was incidental to Samuel’s acts against Lisa,
the record supports the trial court’s conclusion that Samuel created a substantial risk to
the safety to the children. Indeed, the record reflects that the children’s health and safety
were repeatedly placed in danger through Samuel’s conduct. The trial court properly
determined from a preponderance of the evidence that Lisa and the children are in danger
of domestic violence. Upon a review of the record before us, we find that the trial court
did not abuse its discretion by granting a civil protection order that protected the parties’
children from a danger of future harm.
{¶22} Samuel next argues that the trial court erred in overruling his objections and
considering prior alleged incidents of domestic violence. It is well settled that a trial
court may consider past acts of domestic violence to determine whether the incident at
issue constitutes domestic violence. Pinkney v. Salett, 8th Dist. Cuyahoga No. 96130,
2011-Ohio-4121, ¶ 5. Also, to determine whether a petitioner or a petitioner’s family or
household member is in danger of future harm, “courts routinely look to the petitioner’s
and respondent’s history, including whether any past acts of violence had ever occurred.”
In re E.P., 8th Dist. Cuyahoga No. 96602,
2011-Ohio-5829, ¶ 33. However, the
issuance of a civil protection order may not be based solely on previous incidents of
alleged domestic violence because there must be a present danger of future harm. See
Pinkney at ¶ 5. In this case, the prior alleged acts of domestic violence were not the sole
evidence offered to support the issuance of the civil protection order. Rather, there was
competent, credible evidence of a present danger of future violence.
{¶23} At the oral argument in this case, Samuel’s counsel suggested the motivation
behind seeking this order was to gain leverage at the subsequent trial and to influence the
eventual outcome of child custody under R.C. 3109.04. Counsel cites to the fact that a
criminal protection order was already filed in an underlying criminal action that was
resolved by way of a plea. Regardless of the claimed motivation, we must review this
case on the facts as presented in the record.
{¶24} In this case, Lisa presented evidence from which the trial court could have
concluded, by a preponderance of the evidence, that she and the children are in danger of
domestic violence. Upon reviewing the entire record in this matter, we conclude the trial
court did not abuse its discretion by issuing the civil protection order. The assigned
errors are overruled.
{¶25} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MELODY J. STEWART, J., CONCUR
