Felton v. Felton

[This opinion has been published in Ohio Official Reports at 

79 Ohio St.3d 34

.]




                    FELTON, APPELLANT, v. FELTON, APPELLEE.
                      [Cite as Felton v. Felton, 

1997-Ohio-302

.]
Domestic relations—Court not precluded by statute or public policy reasons from
        issuing a protection order pursuant to Ohio’s civil domestic violence statute
        where the parties’ dissolution or divorce decree already prohibits the
        parties from harassing each other—When granting protection order, trial
        court must find that petitioner has shown by a preponderance of the
        evidence that petitioner or petitioner’s family are in danger of domestic
        violence—A pleading is not admissible into evidence at a hearing to prove
        a party’s allegations and must not be considered as evidence by the court.
1.      A court is not precluded by statute or public policy reasons from issuing a
        protection order pursuant to Ohio’s civil domestic violence statute, R.C.
        3113.31, where the parties’ dissolution or divorce decree already prohibits
        the parties from harassing each other.
2.      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).
3.      A pleading is not admissible into evidence at a hearing to prove a party’s
        allegations and must not be considered as evidence by the court. (State ex
        rel. Copeland v. State Med. Bd. [1923], 

107 Ohio St. 20

, 

1 Ohio Law Abs. 165

, 

140 N.E. 660

, paragraph two of the syllabus; Hocking Valley Ry. Co.
        v. Helber [1915], 

91 Ohio St. 231

, 

110 N.E. 481

, paragraph three of the
        syllabus, applied and followed.)
        (No. 96-198—Submitted March 19, 1997—Decided June 18, 1997.)
       APPEAL from the Court of Appeals for Carroll County, No. 94CA646.
                              SUPREME COURT OF OHIO




                                __________________
        {¶ 1} On April 16, 1993, appellant Candie Felton and appellee Roger
Felton, by decree of dissolution, ended their five-year marriage. On September 8,
1994, appellant filed a petition for a protection order pursuant to Ohio’s civil
domestic violence statute, R.C. 3113.31. Appellant requested that the court grant a
protection order restraining appellee from assaulting, harassing, threatening, or
otherwise intimidating her or her children.
        {¶ 2} On September 9, 1994, the trial court issued a temporary protection
order which enjoined appellee from approaching appellant, granted appellant
exclusive temporary custody of the children, and set the matter for hearing on
September 15, 1994. At the September 15, 1994 hearing, appellee requested a
continuance until a verdict had been reached in the pending criminal charge of
domestic violence against him. The trial court continued the prior visitation
schedule and the temporary protection order and set the matter for a full hearing.
        {¶ 3} On December 20, 1994, the court held a full hearing on the petition
for a protection order, during which appellant testified that appellee’s assaults upon
her had increased during their marriage and continued after the dissolution. She
told of a violent episode, occurring on July 26, 1994, in which appellee allegedly
“hauled off and hit me in the back of my back, threw me down on the floor and
started kicking and hitting me again, and then when I finally got up off the floor he
took his hand and tried to strangle me up against the refrigerator and then our son
intervened and that’s when he stopped.” She stated that appellee would repeatedly
call at night and keep her on the phone. If appellant terminated the phone call,
appellee would immediately rush over to appellant’s house and threaten her. She
testified that she was afraid that if she did anything to anger appellee, he would
actually try to kill her. Appellant testified that appellee stopped calling her at night
after August 2, 1994 when she filed the criminal charges of domestic violence
against him and the county court issued a temporary protection order.




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                                January Term, 1997




        {¶ 4} At the December 20, 1994 hearing, appellant also presented as
witnesses Paul Long, Mayor of Dellroy and an employee of Lumber Service, and
Stephanie Dover-Furgiuele, a family counselor with the firm of Personal and
Family Counseling Services of Dover. Long testified that approximately one to
one and a half years prior to the hearing, at around the time of the Feltons’
dissolution, appellant told him that appellee had hit her two or three times and that
Long had seen a bruised mark on appellant’s shoulder. Dover-Furgiuele testified
that she had met with appellant, appellee, their children, and appellee’s mother at
various times since August 1994. Dover-Furgiuele testified as to the relationship
between appellant and the children.
        {¶ 5} After appellant closed her presentation of evidence, appellee moved
for a directed verdict. The court considered counsel’s arguments regarding the
standard of proof and subsequently determined that the correct standard was
preponderance of the evidence. The court decided that appellant had presented a
prima facie case that she had “been the victim of some domestic violence” and
overruled the motion for a directed verdict. Appellee then rested his case without
presenting any evidence. The court found that appellant had not met her burden of
proving the domestic violence by a preponderance of the evidence and accordingly
dismissed the action “for lack of evidence.”
        {¶ 6} Upon appeal, the court of appeals held that because the parties’ decree
of dissolution included a provision which prohibited each party from harassing or
interfering with the other party, a protection order issued pursuant to R.C. 3113.31
was unnecessary. Accordingly, the court of appeals affirmed the decision of the
trial court.
        {¶ 7} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                               __________________
        Southeastern Ohio Legal Services and Gregory Allen Tasker, for appellant.




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                              SUPREME COURT OF OHIO




       Tate & Renner and Richard R. Renner, urging reversal for amici curiae,
Ohio National Organization for Women, Ohio NOW Education and Legal Fund,
Action Ohio, Ohio Domestic Violence Network, and National Center on Women
and Family Law.
                               __________________
       ALICE ROBIE RESNICK, J.
       {¶ 8} This case presents two issues. The first is whether a court may issue
a domestic protection order pursuant to R.C. 3113.31 when, as part of the
dissolution decree, the parties have agreed to a provision prohibiting harassment of
each other. The second issue is what is the correct burden of proof that a court must
use when issuing a protection order pursuant to R.C. 3113.31.
                                            I
       {¶ 9} The court of appeals held that because the parties’ dissolution decree
contained a no-harassment provision, a domestic violence protection order would
be unnecessary and superfluous. We disagree.
       {¶ 10} Initially we note that R.C. 3113.31(G) states, “The remedies and
procedures provided in this section are in addition to, and not in lieu of, any other
available civil or criminal remedies.” (Emphasis added.) Thus, nothing in the
statutes precludes the court from issuing a protection order even though the no-
harassment provision of the dissolution decree continues to govern the parties’
actions towards each other.
       {¶ 11} The court of appeals further held that the “provision in the final
judgment entry [of the dissolution decree] is of much more force and effect than
one which [the court] might issue in the domestic violence action for only a period
of one year.” This is patently incorrect.
       {¶ 12} The General Assembly enacted the domestic violence statutes
specifically to criminalize those activities commonly known as domestic violence
and to authorize a court to issue protection orders designed to ensure the safety and




                                            4
                                     January Term, 1997




protection of a complainant in a domestic violence case. Ohio Legislative Service
Commission, Summary of 1978 Enactments, June-December (1979), at 9-14;
Legislative Service Commission Analysis of Sub. H.B. No. 835 as reported by
Senate Judiciary Committee (1978), at 2 and 7 (Comment A); Legislative Service
Commission Analysis of Am. Sub. H.B. No. 835 as enacted (1978), at 1 and 2.1
Accordingly, R.C. 3113.31 authorizes a court in an ex parte hearing to issue a
temporary protection order when the court finds there to be an “[i]mmediate and
present danger of domestic violence to the family or household member.” R.C.
3113.31(D). Subsequent to this, the court proceeds as in a normal civil action and
grants a full hearing. R.C. 3113.31(D). After such hearing, the court may issue a
protection order that may direct the respondent to refrain from abusing the family
or household members, grant possession of the household to the petitioner to the
exclusion of the respondent, temporarily allocate parental rights and responsibilities
and visitation rights, require the respondent to maintain support, require all parties
to seek counseling, require the respondent to refrain from entering the residence,
school, business, or place of employment of the petitioner, and grant any other relief
that the court considers equitable and fair. R.C. 3113.31(E)(1).
         {¶ 13} The no-harassment provision, by contrast, contains only a general
prohibition. As read by the trial court judge, the dissolution agreement states:
“‘Each party shall hereafter continue to live separate and apart from the other and
each shall go his or her own way without direction, control, or molestation from the
other the same as though unmarried[.]’ * * * ‘Further, each shall not annoy, harass,
or interfere with the other in any manner whatsoever.’ ”

1. A pending bill proposing amendments to the various statutory provisions that are concerned with
domestic violence, 1997 Sub.S.B. No. 1, would continue to emphasize the prevention of domestic
violence. In its analysis of S.B. No. 1, the Legislative Service Commission notes that a “court may
grant any civil protection order or approve any consent agreement * * * to bring about a cessation
of domestic violence against the family or household members.” Bill Analysis, Sub.S.B. No. 1 (as
passed by the Senate, 1997),




                                                5
                                  SUPREME COURT OF OHIO




         {¶ 14} The statute gives the trial court extensive authority to tailor the
domestic violence protection order to the exact situation before it at the time, while
the no-harassment provision in the dissolution decree is general in nature and
application and does not take into account any changes in custody, housing,
transportation, and any other household needs that may have arisen since the
dissolution.
         {¶ 15} Additionally, with a protection order come several features not
available with a dissolution or divorce decree. First, the results of violating the
R.C. 3113.31 protection order are much more immediate and consequential than
the results of violating a provision of a divorce or dissolution decree. A person who
violates a protection order is subject to criminal prosecution for a violation of R.C.
2919.27, and punishment for contempt of court. R.C. 3113.31(L)(1). Punishment
for contempt of court does not preclude subsequent criminal prosecution under R.C.
2919.27. R.C. 3113.31(L)(2). Anyone who recklessly violates any terms of a
protection order issued pursuant to R.C. 2919.26 or 3113.31 is guilty of violating a
protection order, which is a misdemeanor of the first degree.                                 R.C.
2919.27(B)(1)(a).2        The penalty for a misdemeanor of the first degree is
imprisonment for not more than six months and/or a fine of not more than one
thousand dollars. R.C. 2929.21. If the violator has previously been convicted or
pleaded guilty to two or more violations of R.C. 2919.27, 2903.211 (menacing by
stalking), or 2911.211 (aggravated trespass), the violation is a felony of the fifth
degree. R.C. 2919.27(B)(1)(b). The penalty for a felony of the fifth degree is
imprisonment for six to twelve months or a community control sanction (which
may be made up of a combination of residential [e.g., jail and halfway house] and

2. The General Assembly has amended R.C. 2919.27 since appellant filed her petition pursuant to
R.C. 3113.31. However, the current version of the statute would apply to any violation that occurred
now.




                                                 6
                                 January Term, 1997




nonresidential [day reporting, house arrest, community service, inter alia]
sanctions) and/or a fine of not more than $2,500. R.C. 2929.13 through 2929.18.
        {¶ 16} In contrast, a violation of a dissolution or divorce decree is subject
to contempt of court for violating a court’s final judgment entry. R.C. 2705.02(A).
Anyone who is found guilty of contempt of court may be subject to a fine of not
more than $250 and/or imprisonment of not more than thirty days in jail (first
offense), a fine of not more than $500 and/or imprisonment of not more than sixty
days in jail (second offense), or a fine of not more than $1,000 and/or imprisonment
of not more than ninety days in jail (third or greater offense). R.C. 2705.05(A). It
is quite apparent that the penalties for violating a protection order are considerably
more substantial and punitive and thus more deterring than those for violating a
court’s judgment entry.
        {¶ 17} Second, the statutes provide for the preferred arrest of a violator of
a protection order. No such policy applies to violators of a court order or judgment
entry. The preferred-arrest policy states that if a peace officer has reasonable
grounds to believe that a violation of a protection order has been committed and
reasonable cause to believe that a particular person is guilty of committing the
offense, “it is the preferred course of action in this state that the officer arrest and
detain that person * * * until a warrant can be obtained.” R.C. 2935.03(B)(3)(b).
If the officer does not make an arrest when it is the preferred course of action in
this state, “the officer shall articulate in the written report of the incident * * * a
clear statement of the officer’s reasons for not arresting and detaining that person
until a warrant can be obtained.” R.C. 2935.03(B)(3)(c). A finding of contempt of
court does not carry with it any of the foregoing rights and powers. Nor are those
proceedings generally on a fast track.
        {¶ 18} Third, R.C. 3113.31(F)(1) requires that a copy of the protection
order be issued to all law enforcement agencies that have jurisdiction to enforce the
order or agreement, R.C. 3113.31(F)(1), and that all law enforcement agencies




                                           7
                             SUPREME COURT OF OHIO




establish and maintain an index of the protection orders sent to them. R.C.
3113.31(F)(2). In addition, any law enforcement officer shall enforce a protection
order issued by any court in this state regardless of whether the petitioner has
registered the order in the county of the law enforcement officer’s jurisdiction. R.C.
3113.31(F)(3). With this statewide enforcement, communication, indexing, and
authority, enforcement of the protection order is much more apt to occur than a
contempt order.
       {¶ 19} And, fourth, a protection order is easier for a petitioner to enforce
than a “no-harassment” provision in a dissolution or divorce decree. As described
above, R.C. 3113.31(B) provides for enforcement of a protection order by the
police. Upon threat of a violation of a civil protection order, a petitioner need only
call the police, who are available at all times of the day or night. By contrast, in
order to enforce a provision in a dissolution or divorce decree, the petitioner must
move the court to find the violator in contempt. The court is available only during
normal business hours and often a motion for contempt is so complicated as to
require the services of an attorney. Moreover, because of the congested dockets of
most domestic relations courts, the process can take an extremely lengthy time to
get a hearing scheduled. The police, by enforcing a protection order, are thus in a
much better position than is the court, through a contempt action, to prevent further
domestic violence.
       {¶ 20} Finally, the court of appeals appears to have been swayed by the
temporary nature of a protection order. Pursuant to R.C. 3113.31(E)(3)(a), any
protection order issued pursuant to that statute is valid for a maximum period of
two years. The court of appeals stated that, because the dissolution decree has no
termination date, it is more powerful. However, a protection order issued pursuant
to R.C. 3113.31 is fully renewable in the same manner as the original order was
issued. R.C. 3113.31(E)(3)(c). Thus, the overwhelming benefits to the victim of
domestic violence that the protection order offers far outweigh any concerns about




                                          8
                                      January Term, 1997




the temporary nature of the protection order, which can be renewed at the end of
the effective period.
         {¶ 21} Last, we note that there are strong policy reasons for allowing a court
to issue a protection order after a divorce or dissolution has become final. Violence
against a former spouse does not stop with the separation:
         “Women who are divorced or separated are at higher risk of assault than
married women.3 The risk of assault is greatest when a woman leaves or threatens
to leave an abusive relationship.4 Nonfatal violence often escalates once a battered
woman attempts to end the relationship.5 Furthermore, studies in Philadelphia and
Chicago revealed that twenty-five percent of women murdered by their male
partners were separated or divorced from their assailants.6 Another twenty-nine
percent of women were murdered during the separation or divorce process.7 State
statutes need to protect women and children during and after the break-up of

3. “Stark & Flitcraft [Violence Among Intimates: An Epidemiological View, in Handbook of
Family Violence (Van Hassett et al. Ed.1987) 293, 301], at 307-08.”

4. “See Ganley [Domestic Violence: The What, Why and Who, as Relevant to Civil Court Cases,
in Domestic Violence in Civil Court Cases: A National Model for Judicial Education (Jacqueline
A. Agtuca et al. Ed.1992)], at 24. Separated or divorced women are six times more likely to be
victims of violent crime than widows and four and one half times more likely than married women.
Harlow [U.S. Dept. of Justice, Female Victims of Violent Crime (1991)], at 5; see also Elis
Desmond, Post-Separation Woman Abuse: The Contribution of Lawyers as ‘Barracudas,’
‘Advocates,’ and ‘Counselors,’ 10 Int’l J.L. & Psych. 403, 408 (1987).”

5. “David Adams, Identifying the Assaultive Husband in Court: You Be the Judge, 13 Response to
the Victimization of Women & Children 13 (1990). Perpetrators of domestic violence view the
abused party’s attempts to leave the relationship as the ultimate act of resistance and consequently
increase their violence in response to attempts by the victim to leave.”

6. “Ganley, supra note [4], at 24.”

7. “Noel A. Casanave & Margaret A. Zahn, Women, Murder, and Male Domination: Police Reports
of Domestic Homicide in Chicago and Philadelphia, Paper Presented at the American Society of
Criminology Annual Meeting (Oct. 1986). This paper additionally found that husbands were
commonly motivated to kill their wives because they felt abandoned or feared they were losing
control over them. In one study of spousal homicide, over one-half of the male defendants were
separated from their victims. Franklin E. Zimring et al., Intimate Violence: A Study of Intersexual
Homicide, 

50 U. Chi. L. Rev. 910

, 916 (1983).”




                                                 9
                              SUPREME COURT OF OHIO




relationships because of their continuing, and often heightened, vulnerability to
violence.” (Footnotes renumbered.) Klein and Orloff, Providing Legal Protection
for Battered Women: An Analysis of State Statutes and Case Law (1993), 21
Hofstra L.Rev. 801, 816.
         {¶ 22} In Ohio, the domestic violence statutes grant police and courts great
authority to enforce protection orders, and violations of those protection orders
incur harsh penalties. Therefore, protection orders issued pursuant to R.C. 3113.31
are the more appropriate and efficacious method to prevent future domestic
violence and thus accomplish the goals of the legislation. Accordingly, a court is
not precluded by statute or public policy reasons from issuing a protection order
pursuant to Ohio’s civil domestic violence statute, R.C. 3113.31, where the parties’
dissolution or divorce decree already prohibits the parties from harassing each
other.
                                          II
         {¶ 23} We will now address the issue of the burden of proof to be used when
issuing a protection order. The trial court requested arguments from the parties as
to which standard of proof to apply and then decided upon the preponderance of
the evidence.
         {¶ 24} R.C. 3113.31 is silent as to the appropriate burden of proof required
to issue a protection order. The Ohio courts of appeals are divided over whether to
apply the clear-and-convincing standard or the lesser standard of preponderance of
the evidence. The courts applying the clear-and-convincing standard reason that a
protective order issued pursuant to R.C. 3113.31 is analogous to an injunction and,
as an action for equitable relief, as opposed to monetary damages, the issuance of
a protection order is subject to the clear-and-convincing standard. O’Hara v. Dials
(Feb. 2, 1996), Erie App. No. E-95-044, unreported, at 4-7, 

1996 WL 38810

. See,
also, Moman v. Smith (Oct. 14, 1996), Clermont App. No. CA96-05-047,
unreported, 

1996 WL 586771

; Tischler v. Vahcic (Nov. 16, 1995), Cuyahoga App.




                                          10
                               January Term, 1997




No. 68053, unreported, 

1995 WL 680928

; Coughlin v. Lancione (Feb. 25, 1992),
Franklin App. No. 91AP-950, unreported, 

1992 WL 40557

 (requiring clear and
unequivocal evidence).
       {¶ 25} Courts applying a lesser standard of proof appear to base that
standard upon the statutory language. Thomas v. Thomas (1988), 

44 Ohio App.3d 6, 8

, 

540 N.E.2d 745, 746

 (“The statutory criterion * * * is the existence or
threatened existence of domestic violence.”). See, also, Deacon v. Landers (1990),

68 Ohio App.3d 26

, 

587 N.E.2d 395

; Snyder v. Snyder (Aug. 15, 1995), Ross App.
No. 94 CA 2068, unreported, at 10, 

1995 WL 493998

 (The court reviewed trial
court record for “sufficient competent, credible evidence to support a finding that
appellant committed domestic violence against appellee.”).
       {¶ 26} R.C. 3113.31 directs only that the court “proceed as in a normal civil
action.” R.C. 3113.31(D). In Walden v. State (1989), 

47 Ohio St.3d 47, 53

, 

547 N.E.2d 962, 967

, this court observed:
       “The General Assembly, had it wanted to do so, knew how to specify a
‘clear and convincing’ standard. A review of the Revised Code reveals at least
nineteen sections in which the General Assembly has specified a ‘clear and
convincing’ standard by using the words ‘clear and convincing.’ See, e.g., R.C.
709.07(D) (petition to enjoin annexation); 1533.92 (appeal from denial of fishing
tournament permit); 1701.59 (breach of fiduciary duty by corporate directors);
2307.80 (punitive damages in products liability actions); 3111.03 (rebuttal of
presumption of paternity); 4731.22 (summary suspension of license to practice
medicine); 5122.15 (civil commitment of mentally ill person). Accordingly, it is
clear that the General Assembly intended to apply the usual preponderance of the
evidence standard to civil proceedings under R.C. 2305.02.”
       {¶ 27} The same reasoning applies to R.C. 3113.31. Had the General
Assembly intended that the clear-and-convincing standard apply, it certainly knew
how to specify that standard. Thus, we hold that when granting a protection order,




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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).
         {¶ 28} In the case sub judice, the trial court determined that after presenting
her evidence, appellant had shown a prima facie case supporting a protection order.
Subsequently, however, the court held in its final judgment that appellee’s answer
to appellant’s petition for a protection order was evidence enough to controvert
appellant’s evidence, and the court dismissed the petition.8
         {¶ 29} A pleading is not admissible into evidence at a hearing to prove a
party’s allegations and must not be considered as evidence by the court. State ex
rel. Copeland v. State Med. Bd. (1923), 

107 Ohio St. 20

, 

1 Ohio Law Abs. 165

, 

140 N.E. 660

, paragraph two of the syllabus; Hocking Valley Ry. Co. v. Helber (1915),

91 Ohio St. 231

, 

110 N.E. 481

, paragraph three of the syllabus. See, also, Farmers
Prod. Credit Assn. of Ashland v. Stoll (1987), 

37 Ohio App.3d 76

, 

523 N.E.2d 899

.
The trial court erred in considering appellee’s answer as evidence in its decision of
whether to grant the petition for a protection order. The only admissible evidence
presented by the parties at the hearing that the court could consider in its decision
was the testimony of appellant, Paul Long, and Stephanie Dover-Furgiuele. After
full arguments from the parties’ attorneys about what standard of proof to use and
after deciding that the proper standard is “preponderance of the evidence,” the trial
court clearly found appellant’s testimony credible. When appellee’s attorney

8. The court’s final judgment entry states in full:
         “This matter came on for a merits hearing this date upon the petitioner’s complaint in civil
domestic violence, filed September 8, 1994, pursuant to R.C. 3113.31. Present were both parties
and their respective counsel. In his September 20, 1994 answer, the respondent had entered a
general denial to the petitioner’s substantive allegations.
         “At the conclusion of the evidence and upon consideration, the court finds that petitioner
has failed to prove her case by a preponderance of the evidence (see record).
         “Accordingly, it is hereby ordered that this action is dismissed for lack of evidence, without
prejudice.
         “Court costs are taxed to the parties equally.”




                                                  12
                                January Term, 1997




moved for a directed verdict after appellant rested her case and before appellee
presented any evidence, the court stated:
       “Well, we’ll assume for the sake of argument [the standard of proof] is
[preponderance of evidence] and at this point in time there is at least prima facie
evidence that the petitioner since the dissolution action was final has sustained
some domestic violence, or has been the victim of some domestic violence
sufficient to overcome a directed verdict at this time.”
       {¶ 30} Thus, the court found appellant’s evidence to be credible and to be
sufficient to meet the requirements of R.C. 3113.31 for purposes of withstanding
the so-called motion for a directed verdict. (Since there was no jury, the motion
should have been for a dismissal under Civ.R. 41[B][2].) Given the opportunity by
the court, appellee declined to present any evidence, appellant’s evidence was
uncontroverted and thus met the preponderance-of-the-evidence standard of proof.
       {¶ 31} Specifically, our review of the record shows sufficient, credible
evidence to support a finding that appellant was in danger of domestic violence.
R.C. 3113.31(D). Domestic violence is defined in part as:
       “* * * the occurrence of one or more of the following acts against a family
or household member:
       “(a) Attempting to cause or recklessly causing bodily injury;
       “(b) Placing another person by the threat of force in fear of imminent
serious physical harm * * *.” R.C. 3113.31(A)(1).
       {¶ 32} Appellant testified that appellee’s assaults upon her increased during
her marriage, and continued after the divorce, culminating in a violent episode
occurring on July 26, 1994 in which appellee attempted to strangle her. Moreover,
she stated that appellee would harass her on the phone. She also testified that she
was afraid that if she did anything to anger appellee, he would actually try to kill
her. Paul Long testified that approximately one to one and a half years prior to the
hearing, at around the time of the Feltons’ dissolution, appellant told him that




                                         13
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appellee had hit her two or three times and that Long had seen a bruised mark on
appellant’s shoulder. Without controverting evidence, this testimony presents
sufficient, credible evidence to prove by a preponderance of the evidence that
appellee had engaged in acts of domestic violence. R.C. 3113.31(A)(1). The trial
judge in effect held that this evidence did not meet the preponderance-of-the-
evidence standard. Rather, the trial judge would require corroborating eyewitness
testimony or medical evidence to establish domestic violence by a preponderance
of the evidence. It appears from the comments of the trial judge that a victim’s
testimony, standing alone, would never be sufficient to establish proof by a
preponderance of the evidence. Domestic violence is seldom committed in the
presence of eyewitnesses. Moreover, in many cases medical evidence is absent.
Often the only evidence of domestic violence is the testimony of the victim.
Generally, the victim will not photograph bruises or share these episodes of abuse
with others. In the case sub judice, after thoroughly considering the record, we find
that the evidence presented by the appellant was sufficient to meet the
preponderance-of-the-evidence standard. The trial court thus erred by not granting
appellant’s petition for a protection order.9

9. In order to grant appellant’s petition for a protection order, the trial court erroneously required
appellant to present some evidence which would corroborate her testimony. Upon reaching the final
decision to dismiss the petition, the court stated:
          “[Respondent and his attorney] have the burden of proving nothing. [Petitioner] carries the
burden of proving that these incidents took place by a preponderance of the evidence. We have no
police reports. We have no physician or hospital reports. We have no eyewitnesses. We have no
admission by the, other than her [sic]. We have no admission from the defendant and I thought
surely you would have called the son to testify because he is the one that uh, according to your
client’s testimony, was the one who pulled the father off and stopped the strangulation, at least for
the purpose of corroborating that the incident took place.
          “* * *
          “Well, how as a matter of law does this rise to a preponderance of the evidence? I’m not
disputing that what your client said isn’t true, but I’m saying from a purely legal standpoint when
he has entered a denial by virtue of his answer and has to prove nothing how, how on earth can I
find that by a preponderance of the evidence your client has established a case. She says it happened.
He says it didn’t. Does [that] not make the evidence equally balanced?”




                                                 14
                                      January Term, 1997




         {¶ 33} In conclusion, we note that because the domestic violence statutes
give the courts decision-making authority, the courts have an obligation to carry
out the legislative goals to protect the victims of domestic violence. In his article
entitled “The Domestic Violence Civil Protection Order and the Role of the Court,”
Judge Michael J. Voris of the Clermont County Domestic Relations Court, cogently
expressed this obligation:
         “Advanced societies take intra-family violence seriously. Only in the last
twelve years has this problem become a focus of attention and national concern.
The Ohio Legislature has passed one of the most comprehensive * * * statutes
authorizing Civil Protection Orders to combat domestic violence. Because the
language of the statutes is broad, the response of the Court has a profound impact
in protecting victims of domestic violence. Judges have the power and authority to
implement the legislation. It is critical that Judges and Referees be aware of the
severity of the domestic violence problem and make efforts to remain informed
about the recent domestic violence legislation. Continuing education as to the
realities of all forms of domestic violence will help to remove the shroud of secrecy
and break the cycle of violence. Judges and Referees can play a leadership role in
enlightening and educating attorneys, parties and the community in general about
the severity of the domestic violence issues and the civil legal remedies that exist
for victims of domestic violence. The Attorney General’s Task Force on Family
Violence urges Judges not to underestimate their ability to influence the
respondent’s behavior. Judges can communicate a powerful message about the
justice system’s view of domestic violence within their own courtrooms.

          However, R.C. 3113.31 does not set forth the type of evidence to be considered by the
court, other than to state that the proceeding should be handled as any other civil action, nor does it
require any corroboration of the petitioner’s own testimony. R.C. 3113.31(D).




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       “The Ohio Legislature has made a laudatory beginning in responding to the
problems of domestic violence. The legislation that provides for Civil Protection
Orders is responsive to the immediate needs of the victims and provides a necessary
alternative and supplement to criminal legal remedies. However, the legislation
cannot achieve its full potential without the careful and responsible utilization by
Judges and Referees.” (Footnotes omitted.) Voris, The Domestic Violence Civil
Protection Order and the Role of the Court (1990), 24 Akron L.Rev. 423, 432. See,
also, Recommendations to the Supreme Court of Ohio, Goal 4, Report of the
Supreme Court of Ohio Domestic Violence Task Force (1996), at 18.
       {¶ 34} The consequences of domestic violence are serious and severe.
Protection orders can be an effective tool when used in conjunction with provisions
in divorce and dissolution decrees and other separation agreements. Ohio’s courts
must make themselves aware of the authority they have been granted by the
legislation to implement all of these protection orders.
       {¶ 35} Accordingly, we reverse the judgment of the court of appeals and
remand the cause to the trial court for an order granting appellant’s petition for a
protection order and for the trial court to fashion that protection order pursuant to
its authority as granted in R.C. 3113.31.
                                                                 Judgment reversed
                                                               and cause remanded.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                               __________________




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