COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68053 JESSICA EILEEN TISCHLER, ET AL. : : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : : OPINION KIMBERLY D. VAHCIC : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 16, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Division of Domestic Relations, Case No. D-235397. JUDGMENT: AFFIRMED IN PART AND REVERSED AND VACATED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Jacob A.H. Kronenberg, Esq. Janet L. Kronenberg, Esq. Kronenberg & Kronenberg 410 Midland Building 101 Prospect Avenue W. Cleveland, Ohio 44115-1092 For Defendant-appellant: Terri L. Stupica, Esq. 6389 Mayfield Road Mayfield Heights, Ohio 44124 - 2 - SWEENEY, JAMES D., P.J.: Defendant-respondent-appellant Kimberly Diane Vahcic ("mother") (d.o.b. October 7, 1964) appeals from the trial court granting plaintiffs-petitioners-appellees Scott Matthew Tischler ("father") (d.o.b. May 3, 1970) and Jessica Eileen Tischler's ("daughter" or "child") (d.o.b. March 4, 1993) Petition for Domestic Violence pursuant to R.C. 3113.31. For the reasons adduced below, we affirm in part and reverse and vacate in part. A review of the record on appeal indicates that the mother and father in this case have known one another since October of 1991, have never married, had cohabitated for a period of time, and had been sharing custody/visitation of the minor-daughter since her birth pursuant to an informal oral agreement. Shortly after the birth of the daughter, the parents' relationship deteriorated. The parents ceased living together in September of 1993, but continued the informal visitation agreement despite the acrimony between the parents. Due to the mother's often extended absences to sell imposter perfumes out-of-town, and the father's absence to attend night school while maintaining a full-time job, the parents relied on a babysitter of the mother's choosing to 1 provide day care for the infant daughter. This visitation schedule continued until June of 1994. 1 The father was not totally satisfied with the selection of the babysitter. He informed the mother that he had observed the babysitter discipline another child by holding the little boy up by one arm while simultaneously striking the child repeatedly. - 3 - On June 15, 1994, the mother returned from an out-of-town business trip and expected to take custody of the child from the father. The father telephoned the mother and told her that he would not turn over the child to the mother because of his concern for the physical condition of the child and that they had to discuss the matter further at a meeting agreed to take place on June 16, 1994. This failure to turn over the child infuriated the mother, causing her to file in Juvenile Court on June 16, 1994, an Application to Determine Custody of the Child pursuant to R.C. 2151.23(A)(2). See Cuyahoga County Juvenile Court Case No. 9409019, at Plaintiff's Exhibit 39. On the afternoon of the day of the Juvenile Court filing, the parents met as agreed. At this meeting, the parents argued heatedly over the visitation issue. After a period of time, the mother left to leave with the child, running to the mother's car. The father followed, yelling at them to stop. The father threw himself onto the hood of the mother's car in an effort to prevent their leaving, still pleading for the release of his daughter. At this point, the mother's boyfriend appeared and began assaulting the father. This ruckus caused a neighbor to summon the police. When the police arrived, the mother presented a copy of the Juvenile Court filing to the police. The police then permitted the mother to leave with the child. The father then - 4 - notified the County Department of Human Services complaining 2 about the care of the child provided by the mother. The parties next met at a Juvenile Court hearing on July 15, 1994, at which time custody of the child was given to the mother and the father was awarded visitation on alternating weekends. The child was permitted to stay with the father from the date of the hearing until July 22, 1994, due to the fact that the father had not seen the child for some time and the paternal grandmother was visiting from Michigan, after which time the child was returned to the mother. The next scheduled visitation with the father was the weekend of July 29, 1994. On July 29, 1994, the father picked up the child from the care of the mother. The father noticed a large bump on the child's forehead. The mother explained that the bump was caused when the child had fallen from her highchair while at the babysitter. Following that weekend, the child was returned to the care of the mother. On the next scheduled visitation on August 12, 1994, the father picked up the child at the mother's home. The father noticed that the child appeared cranky, out-of-sorts, dirty and neglected. The mother told the father that the child had again fallen from her highchair and that the child had been given 2 Documenting this care of the child were a series of thirty seven (37) color photographs depicting defendant's apartment in a state of utter disorder and squalor, and an assortment of physical injuries (bumps, bruises and abrasions) on the surface of the child's body. See Plaintiff's Exhibits 2 through 38. - 5 - children's strength Tylenol to help reduce the fever which had resulted from the child's teething. That weekend, the father and the father's mother (who was a nurse), noticed that the child was exhibiting behavior beyond that of normal teething, specifically observing a bruise and scuff marks on the child's arm. A telephone call to the child's pediatrician on Saturday morning revealed that the child had not been seen on a regular basis by the doctor, and the doctor advised that the child be brought to the hospital if her condition did not change. That afternoon, at approximately 4:00 p.m., the father took the child to Fairview General Hospital's emergency room, where the child was diagnosed with having a fractured forearm. The father then contacted the Mentor police, his attorney, and the Department of Human Services. The father did not contact the mother due to his fear of a confrontation. Instead, the Mentor police informed the mother of the child's diagnosis. The child stayed with the father following the diagnosis. On August 16, 1994, the plaintiffs-appellees filed the Petition for Domestic Violence with the Domestic Relations Court. On this date, the trial court also issued an ex parte Temporary Protection Order pursuant to R.C. 3113.31, which provided in pertinent part: * * * Based upon the evidence adduced at hearing, with plaintiff Scott Matthew Tischler and counsel present, the Court finds: that the parties have been residing - 6 - in Cuyahoga County; that there have been incidents of domestic violence perpetrated by defendant towards plaintiff and/or a family or household member as defined in O.R.C. 3113.31; and that it is necessary to protect the parties from domestic violence by issuing the following Temporary Protection Order. *** that the defendant is restrained and enjoined from annoying, harassing, threatening, or committing acts of domestic violence against the plaintiffs and/or household members. *** that defendant is enjoined and restrained from entering or approaching any of the plaintiffs' residence, either current or future, temporary or permanent, upon service of summons and the Temporary Protection Order. *** that the defendant be and she hereby is enjoined and restrained from approaching, entering or attempting to enter any of the plaintiffs' places of employment, either current or future, upon service of summons and the Temporary Protection Order. *** that plaintiff Scott Matthew Tischler be awarded temporary allocation of parental rights and responsibilities custody of the minor child of him and defendant, namely, Jessica Eileen Tischler. *** that defendant be and she hereby is enjoined and retrained from approaching, entering, or attempting to enter, the child's school and/or day care facilities. *** that the defendant undergo counselling. *** that the Lakewood and Cleveland Police Department and all other law enforcement agencies, including the Cuyahoga County Sheriff's Department, called upon for assistance shall enforce this Temporary Protection Order, pursuant to O.R.C. 3113.31(F)(3). - 7 - *** that the above order shall remain in full force and effect for a period of one year from the date of journalization hereof, or until further order of Court. *** that a copy of this Order be delivered to defendant this date. *** that if it is brought to the court's attention by any of the plaintiffs' affidavit that the defendant has not complied with the above order, a citation may issue for defendant to appear to show cause why she should not be found in contempt of Court. Penalties for contempt may include jail or fines. The possibility of criminal prosecution also exists under O.R.C. 2919.27. [Anthony J. Russo] JUDGE, Division of Domestic Relations, Cuyahoga County Court of Common Pleas [Hearing Ten (10) Days] APPROVED BY: [Janet L. Kronenberg] JANET L. KRONENBERG 0015579 Attorney for Plaintiff Scott Matthew Tischler See Journal Vol. 2433, pages 886-888, journalized August 16, 1994. Following a hearing on the Petition over a period of several days in late August of 1994, the trial court issued the following order: The Plaintiff having met his burden of proof by clear and convincing evidence finds that by reason thereof the petition for domestic violence is hereby granted and that the present order of court shall remain in force and effect subject to further order of the Juvenile Court, Division of the Court of - 8 - Common Pleas of the County of Cuyahoga. It is so ordered. [Judge John L. Maxwell] See Journal Vol. 2458, page 771, journalized September 21, 1994. This timely appeal followed presenting two assignments of error. As both assignments of error concern the manifest weight of the evidence, the assignments will be discussed jointly. I THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT PETITIONER HAD MET HIS BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE, AND, THEREBY GRANTING THE PETITION FOR DOMESTIC VIOLENCE. II THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR DOMESTIC VIOLENCE, AS THE JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The version of R.C. 3113.31 in effect at the time of the Petition filing and the final order above provided the following: (A) As used in this section: (1) "Domestic violence" means 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; (c) Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 [2151.03.1] of the Revised Code. - 9 - * * * (D) *** The court may, for good cause shown, at the ex parte hearing, enter any temporary orders, *** that the court finds necessary to protect the family or household member from domestic violence. Immediate and present danger of domestic violence to the family or household member constitutes good cause for purposes of this section. Immediate and present danger includes, but is not limited to, situations in which the respondent has threatened the family or household member with bodily harm or in which the respondent has previously engaged in domestic violence against the family or household member. * * * (E)(1) After an ex parte or full hearing, the court may grant any protection order, *** to bring about a cessation of domestic violence against the family or household members. ***. R.C. 2151.031 includes in the definition of an "abused child" any child who: (A) Is the victim of "sexual activity" as defined under Chapter 2907 of the Revised Code, where such activity would constitute an offense under that chapter, except that the court need not find that any person has been convicted of the offense in order to find that the child is an abused child; (B) Is endangered as defined in section 2919.22 of the Revised Code, except that the court need not find that any person has been convicted under that section in order to find that the child is an abused child; (C) Exhibits evidence of any physical or mental injury or death, inflicted other than by accidental means, or an injury or death which is at variance with the history given of it. Except as provided in division (D) of this section, a child exhibiting evidence of corporal punishment or other physical - 10 - disciplinary measure by a parent, guardian, custodian, person having custody or control, or person in loco parentis of a child is not an abused child under this division if the measure is not prohibited under section 2919.22 of the Revised Code. (D) Because of the acts of his parents, guardian, or custodian, suffers physical or mental injury that harms or threatens to harm the child's health or welfare. (E) Is subjected to out-of-home care child abuse. R.C. 2919.22 defines the offense of Endangering Children in pertinent part as follows: (A) No person, who is a parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age ***, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. ***. (B) No person shall do any of the following to a child under eighteen years of age ***: (1) Abuse the child; (2) Torture or cruelly abuse the child; (3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child; (4) Repeatedly administer unwarranted disciplinary measures to the child, when there is a substantial risk that such conduct, if continued, will seriously impair or retard the child's mental health or development; * * * - 11 - In addressing the assignments presented by the mother, we note the following language from Deacon v. Landers (1990), 68 Ohio App.3d 26, 31: The decision to grant a civil protection order is within the discretion of the court. See Thomas, supra, at 8, 540 N.E.2d at 746. An abuse of discretion connotes more than an error of law or judgment; it implies an unreasonable, arbitrary or unconscionable attitude. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 22, 552 N.E.2d 202, 205; Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855, at paragraph two of the syllabus. Arbitrary means without adequate determining principle, or not governed by any fixed rules or standard. Cedar Bay Constr., Inc., supra, 50 Ohio St.3d at 22, 552 N.E.2d at 205. See Thomas v. Thomas (1988), 44 Ohio App.3d 6, 540 N.E.2d 745. With regard to whether sufficient evidence was presented to sustain the granting of the Petition for Domestic Violence, we note: The weight given the evidence and the credibility of witnesses, generally, are issues to be resolved by the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, see also State v. Dehass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Jackson v. Jackson (December 16, 1993), Cuyahoga App. No. 64284 and 64873, unreported. Further, we are mindful that judgments supported by some competent and credible evidence going to all essential elements of the case will not be reversed as being against the manifest - 12 - weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. Also, *** [I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. *** If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment. Seasons Coal Co., supra, at 80, fn. 2. In the this case, there was an abundance of competent and credible evidence illustrating the absolutely filthy conditions present in the mother's apartment in which the child lived a great deal of the time. These conditions included, but were not limited to, the presence of the following: dirty clothes strewn about, decaying food, dead rodents, a large amount of dog excrement in the basement, rodent excrement on kitchen countertops and in the stove, dirty dishes throughout the apartment, rat poison pellets and a rat trap in the child's bedroom, soiled diapers laying on coffee tables. By any indication, including testimony of the mother's history of poor cleaning habits, these conditions were not isolated occurrences of short duration. Furthermore, there is evidence to indicate that the child bore the brunt of this exposure to filth and grime as the child was often picked up by the father during the start of a visitation period in a dirty condition, indicating that the - 13 - child was not being accorded proper care and hygiene. There was also evidence that the child sustained an inordinate amount of minor physical injuries while in the mother's and the mother's babysitter's care prior to the child receiving a fractured forearm while in the mother's, or her agent's, custody and control. Particularly troubling is the pattern of excuses advanced by the mother for injuries to the child, to-wit, repeated falls from a highchair. This conduct is sufficient to sustain a finding that the child was abused pursuant to: a. R.C. 3113.31(A)(1)(c), for commission of an act with respect to the child which would result in the child being an abused child as defined in R.C. 2151.031(B) and (C); b. R.C. 2151.031(B), because the child is endangered as defined by R.C. 2919.22(A) for the creation of a substantial risk to the health or safety of the child through the violation of a duty of care [in this case proper and adequate hygiene in the home which is considered abuse of the child under R.C. 2919.22(B)(1)]; c. R.C. 2151.031(C), because the child's fractured forearm injury is at variance with the history of it given by the mother. Assignments overruled. Although not raised as an issue in this case, R.C. 3113.31(E)(1)(d) indicates that the Domestic Relations Court was without jurisdiction to give custody of the child to the father due to the fact that the Cuyahoga County Juvenile Court had - 14 - previously made a custody determination pursuant to R.C. 2151.23(H)(2) on July 15, 1994. In addition, Because the visitation rights which this petition sought to modify resulted from the prior determination and orders of the Juvenile Division, the Domestic Relations Division could not grant the relief requested in the petition, which could constitute orders creating temporary rights, albeit diminished ones. The relief requested in this petition was readily available through the Juvenile Division, which is authorized in Juv.R. 13 to make temporary orders "as the child's interest and welfare may require" and to do so through ex parte proceedings when necessary. Stanton v. Guerrero (August 31, 1994), Montgomery App. No. 14407, unreported, (Grady, J., concurring), 1994 Ohio App. LEXIS 3794. The reasons supporting this interpretation and use of the statute is clear: To prevent judge and forum shopping between the Juvenile Division and Domestic Relations Division where the Juvenile Division has previously issued a custody order. Accordingly, absent jurisdiction, the temporary custody determination by the Domestic Relations Division in this case is necessarily vacated and reversed. The remainder of the Domestic Relations Division order is affirmed. Judgment affirmed in part and reversed and vacated in part. - 15 - It is ordered that appellee and appellant share equally the 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, Division of Domestic Relations, 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. Exceptions. DIANE KARPINSKI, J., CONCURS; AUGUST PRYATEL, J., DISSENTS, (*), WITH DISSENTING OPINION ATTACHED. (*) SITTING BY ASSIGNMENT: Pryatel, J., Retired Judge of the Eighth Appellate District. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68053 JESSICA EILEEN TISCHLER, et al : : Plaintiff-appellees : : vs. : DISSENTING OPINION : KIMBERLY D. VAHCIC : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 16, 1995 AUGUST PRYATEL, J., DISSENTING: With respect, I dissent. On June 16, 1994, Kimberly Diane Vahcic (mother of Jessica Eileen Tischler) sought and, on July 15, 1994, upon hearing in the juvenile court, obtained temporary custody of her child. (No cross-complaint was filed by the father.) On August 16, 1994, some thirty-one days after the ruling by the juvenile court and the time to appeal had expired, Scott Matthew Tischler, the father of the child, filed a Petition for - 2 - Domestic Violence (claiming abuse of the child) with the Domestic Relations Division. With knowledge of the pending action in juvenile court, in late August domestic relations court granted the petition of Scott Matthew Tischler and awarded him temporary allocation of parental rights and custody of the same child, Jessica Eileen Tischler. We are faced with incompatible findings between juvenile court, which initially awarded custody to the mother, and the domestic relations court, which subsequently rendered custody to the father. R.C. 3113.31(E)(1)(d) authorizes the domestic relations divi- sion, upon proof, to award temporary custody of minor children if no other court has determined or is determining custody rights. It is undisputed that the juvenile division (June 16, 1994) had or was determining custody rights to Kimberly Vahcic prior to the time (August 16, 1994) when the domestic relations division was consid- ering and awarding custody rights to Scott Tischler. In its amended opinion of October 10, 1995, the majority "vacates and reverses" the temporary custody determination by the domestic relations court but affirms the remainder of the domestic relations court order! Once the juvenile court had jurisdiction, there was no authority for the domestic relations court to hear and decide what the juvenile court earlier invoked jurisdiction (and was author- - 3 - ized) to consider and determine. Nor has the majority cited any law or decision to support its position. Indeed, the law was adopted to prevent judge and forum shop- ping between the juvenile division and domestic relations division where the juvenile division has previously issued a custody order. Accordingly, I cannot affirm a finding by a domestic rela- tions court that is specifically unauthorized to consider issues within the already-invoked jurisdiction of the juvenile court. Nor can I countenance a proceeding where the domestic rela- tions court, in essence, is used as a substitute for appeal from the finding of the juvenile court. Sua sponte, I would (1) vacate the finding of the domestic relations court, (2) dismiss the complaint there as unauthorized and (3) refer the case to juvenile court where, if necessary, that .