Eichenberger v. Eichenberger , 82 Ohio App. 3d 809 ( 1992 )

Being unable to concur in the majority opinion, I must respectfully dissent.

There is no question that the evidence in the record demonstrates that defendant engaged in improper and reprehensible conduct. However, the standard for the granting of a civil protection order does not depend upon improper and reprehensible conduct no matter how crude, offensive, or vulgar it may be. Nor does it even depend upon the fear of physical harm. Rather, domestic violence is defined in R.C. 3113.31, to include the following: "Attempting to cause or recklessly causing bodily injury," or "[p]lacing another person by the threat of force in fear of imminent serious physical harm." There is no contention here that actual bodily injury was either attempted or recklessly caused. Instead, the gravamen of the complaint is a threat of imminent serious physical harm by force.

Even assuming that the evidence presented could demonstrate a fear of physical harm, it does not permit a finding of a threat of imminent serious physical harm. As set forth in the majority opinion, R.C. 2901.01(E) defines serious physical harm. There is no contention here that mental illness is involved. Thus, the standards would be as set forth in R.C. 2901.01(E): physical harm carrying a substantial risk of death; permanent incapacity or temporary substantial incapacity; permanent disfigurement, or temporary, serious disfigurement; or acute pain as to result in substantial suffering or any degree of prolonged or intractable pain.

In other words, more than a demonstration of a fear of physical harm must be present. "Physical harm" is defined by R.C. 2901.01(C) to mean "any injury, illness or other physiological impairment, regardless of its gravity or duration."

The language set forth in the majority opinion does correctly demonstrate a threat; however, the witness did not testify that her arm was injured when it was grabbed, and the quoted answer was in response to a question whether actual bodily injury was caused. The witness did, however, state that she was in pain from rheumatoid arthritis. The witness indicated that her main concern with respect to not consulting further with a counselor was:

"And I conveyed to him that I did not believe that any progress had been made. That you were going back into your old patterns of behavior. The things were occurring that we were told not to allow to occur, which was your shouting and verbal abuse and your language in front of the children."

It is clear from the testimony of the plaintiff that her complaint concerns verbal abuse and vulgar and reprehensible conduct. She did state:

"I have been so overwhelmed at the fear. This time he might really act on his threats, because he threatened so many, many times. And I just know that every time it gets worse. That this time I had to get myself out of the position of maybe being a victim for real."

Even assuming that the evidence might be sufficient to permit a finding by a preponderance of the evidence, it does not permit the requisite finding by clear and convincing evidence. For these reasons, the second, third, and fourth assignments of error should be sustained.