Opinion
2022-T-0097
07-24-2023
ASHLEY E. RUPEKA, Petitioner-Appellee, v. PATRICK R. MOKROS, Respondent-Appellant.
Christopher A. Maruca, The Maruca Law Firm, LLC, (For Petitioner-Appellee). William R. Biviano, Biviano Law Firm, 108 Main Avenue, S.W., (For Respondent-Appellant).
Civil Appeal from the Court of Common Pleas, Domestic Relations Division Trial Court No. 2022 DV 00115
Christopher A. Maruca, The Maruca Law Firm, LLC, (For Petitioner-Appellee).
William R. Biviano, Biviano Law Firm, 108 Main Avenue, S.W., (For Respondent-Appellant).
OPINION
EUGENE A. LUCCI, J.
{¶1} Appellant, Patrick R. Mokros, appeals the Domestic Violence Civil Protection Order ("DVCPO") entered against him in favor of his ex-wife, appellee, Ashley E. Rupeka. We affirm.
{¶2} The parties, who share two children, filed for, and were granted, a dissolution of their marriage in 2019. On August 5, 2022, Rupeka filed a petition for a DVCPO against Mokros, alleging that she and the parties' children needed protection from Mokros. Rupeka alleged that Mokros pushed and hit her following a fireworks display at the Trumbull Country Club on July 4, 2022. Rupeka further alleged that in December 2021, Mokros harassed her at a Christmas party at the country club. Rupeka maintained that Mokros threatened her and her family through text messages and that Mokros was drinking heavily and using cocaine, and his behavior had become erratic.
{¶3} The trial court issued an ex parte DVCPO, listing Rupeka and the parties' minor children as protected persons, and set the matter for full hearing. After the full hearing, Rupeka, a friend of Rupeka, Mokros' father, Mokros' ex-girlfriend, and Mokros testified. Therafter, the trial court found that Mokros had engaged in acts of domestic violence, specifically finding that on July 4, 2022, Mokros approached Rupeka in a menacing manner, pushed her in the stomach, punched her in the back, and threatened and berated her to the point where Mokros' father had to separate Mokros from Rupeka. The court further found that Mokros had a history of making threats and being physically violent throughout the parties' relationship, behavior that was brought on by Mokros' alcohol consumption. However, the court concluded that these incidents had not been directed at the parties' children. The trial court issued a full hearing DVCPO effective for five years protecting Rupeka and excluding the children as protected persons.
{¶4} In his first assigned error, Mokros argues:
{¶5} "The trial court abused its discretion by granting a final Civil Protection Order when there was insufficient evidence to establish that Patrick Mokros committed domestic violence."
{¶6} "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." Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), paragraph two of the syllabus, citing R.C. 3113.31(D).
{¶7} R.C. 3113.31 provides, in relevant part:
(A) As used in this section:
(1) "Domestic violence" means any of the following:
(a) The occurrence of one or more of the following acts against a family or household member:
(i) Attempting to cause or recklessly causing bodily injury;
(ii) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 or 2911.211 of the Revised Code[.]See also R.C. 3113.31(A)(3) ("Family or household member" includes a former spouse of the respondent.). "'Threats of violence will constitute "domestic violence" if the fear resulting from those threats is reasonable.'" Kuhn v. Kuhn, 11th Dist. Lake No. 2012-L-099, 2013-Ohio-5807, ¶ 31, quoting Rhodes v. Gunter, 9th Dist. Lorain Nos. 02CA008156 and 02CA008157, 2003-Ohio-2342, ¶ 4. "'Reasonableness is determined by referencing the petitioner's history with the respondent.'" Kuhn at ¶ 31, quoting Rhodes at ¶ 4; accord Slepsky v. Slepsky, 11th Dist. Lake No. 2016-L-032, 2016-Ohio-8429, ¶ 26-27.
{¶8} Mokros' first assigned error specifically alleges that there was insufficient evidence of domestic violence. His argument in support of this assignment quotes our discussion in Tredenary v. Fritz, 11th Dist. Lake No. 2017-L-045, 2017-Ohio-8632, pertaining to the abuse-of-discretion and manifest-weight-of-the-evidence standards of review of a DVCPO.
{¶9} For purposes of clarification, we note that, if a trial court's finding of a fact necessary to the issuance of a DVCPO is not supported by the evidence, then it would be unreasonable or unlawful for the trial court to issue a DVCPO. In such a case, the granting of the DVCPO would amount to an abuse of discretion. See Tredenary at ¶ 31 (concluding that, where the trial court denied a DVCPO because of implicitly finding respondent's account of the incident more credible, such a finding was not against the manifest weight of the evidence, and the court's judgment was not an abuse of discretion); see also McKinney v. LaMalfa Party Ctr., 2022-Ohio-4333, 203 N.E.3d 57, ¶ 7 (11th Dist.), appeal not allowed, 169 Ohio St.3d 1490, 2023-Ohio-1149, 206 N.E.3d 745, ¶ 7 (trial court abuses its discretion when it fails to exercise sound, reasonable, and legal decisionmaking). In challenging findings of fact, an appellant may request review of the evidence under the distinct legal concepts of sufficiency of the evidence and/or the manifest weight of the evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23 ("[I]n civil cases, as in criminal cases, the sufficiency of the evidence is quantitatively and qualitatively different from the weight of the evidence."). However, a determination that a finding is supported by the weight of the evidence necessarily includes a determination that the finding was supported by sufficient evidence. See State v. Lautanen, 11th Dist. Ashtabula No. 2022-A-0028, 2023-Ohio-1945, ¶ 44. Accordingly, we proceed to review the weight of the evidence of domestic violence, as it is dispositive of both the sufficiency challenge stated in the assigned error and the manifest weight argument implicated by appellant's quotations from Tredenary.
{¶10} "A challenge to the manifest weight of the evidence requires an appellate court to review the evidence presented 'including the reasonable inferences and the credibility of the witnesses, to determine whether the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the decision must be reversed.'" Straight v. Straight, 11th Dist. Ashtabula No. 2020-A-0014, 2020-Ohio-4692, ¶ 24, quoting Chandler v. Chandler, 11th Dist. Trumbull No. 2016-T-0046, 2017-Ohio-710, ¶ 13, citing Eastley at ¶ 20. See also Morrison v. Morrison, 11th Dist. Geauga No. 2019-G-0233, 2020-Ohio-4358, ¶ 6-14 (reviewing weight of evidence supporting court's finding that appellant engaged in domestic violence under R.C. 3113.31(A)(2)(a)(ii)).
{¶11} "The weight to be given evidence and witness credibility are primarily for the trier of fact." (Citation omitted.) Straight at ¶ 25. "The trier of fact is free to believe all, part, or none of a witness'[] testimony." Id.
{¶12} Here, at the full hearing, Rupeka testified, over objection of Mokros' counsel, that Mokros had a habit of drinking excessively during the marriage, and his drinking problem continued after the divorce. Rupeka maintained that Mokros physically abused her on multiple occasions while he had been intoxicated, including instances where Mokros had dragged her by her feet out of bed, dragged her down the stairs, and choked her to the point where she could not breathe. Just prior to leaving the marriage, Rupeka maintained the Mokros threatened to rape and kill her.
{¶13} Rupeka further testified that, after the divorce, Mokros had instigated three physical altercations with her as follows. The first instance occurred when Rupeka was dropping the parties' son off to Mokros at his home. Mokros was visibly intoxicated. Rupeka entered Mokros' garage to dispose of a piece of trash that she was holding in the garbage. Mokros lunged from the breezeway of the home, grabbed Rupeka by the neck, and pulled her out of the garage in front of the parties' son. The second instance occurred at a birthday party for their son, at which Mokros continuously followed Rupeka, pointed and shot Nerf guns at her, and harassed and threatened her. The third instance occurred on July 4, 2022, at the Trumbull Country Club. That evening, Mokros approached Rupeka from behind in the parking lot and began calling her names and berating her. He hit her in the stomach, and she told him she was taking the children and leaving. Rupeka explained that she turned to leave, at which point Mokros "took his fist and pushed me and like turned it into my spine in like a twisting motion, and I felt very threatened." Since that incident, Rupeka testified that Mokros' behavior had become more erratic and that he had begun drinking more. Rupeka explained other behavior in which Mokros had engaged toward her:
Q. Have you had any other incidents where he has, of any of his behavior towards you? I can't be any[ ]more specific.
A. Just regular harassment through text messaging that's become more crazy. Like he sent me music videos saying going in for the kill. And it's very scary. He's just --
Q. Music videos, going in for the kill, what do you mean?
A. I don't know, I can't recall the exact title. He sends, he sent me music videos and the title has something about killing in it. And that's very scary to me because he has hired private investigators before to follow me. He's very scary.
{¶14} Rupeka described Mokros' demeanor when he is intoxicated as follows:
It's very scary. His eyes turn to be black. He's not there physically. It's mentally -- I mean, physically he's there, mentally he's not Patrick Mokros, and it's very scary and you think he's going to seriously hurt you to the point where it's like, I just don't know how else to -- he's a monster.
{¶15} On cross-examination, Rupeka affirmed that the day prior to her filing of the petition for a DVCPO, Mokros had served her with two post-decree motions in the parties' dissolution case. Rupeka denied that she filed the petition for a DVCPO in retaliation for Mokros filing the post-decree motions.
{¶16} On redirect examination, Rupeka further explained how the music videos that Mokros sent her affected her:
Q. Can you tell when you received these, tell his Honor how you felt?
A. I was scared because it's saying in for the kill. And those are things that I fear he will do to me.
Q. And what do you fear that he will do to you?
A. Kill me.
{¶17} Redirect examination continued as follows:
Q. And you've testified previously that this pattern of behavior has taken place over a period of time?
A. Yes. And it's become worse, I would say, after we've been divorced. He physically, has been physically assaulted me (sic.) in the past throughout our marriage and twice after we've been divorced, and I fear it's just never going to stop until I'm dead.
{¶18} After Rupeka's testimony, Rupeka's friend testified that she attended a Christmas party at the country club in 2021, and both Rupeka and Mokros were present. Upon speaking to Rupeka, she appeared genuinely fearful of Mokros.
{¶19} Following rulings on certain exhibits presented in Rupeka's case, Mokros' father testified on Mokros' behalf. The father indicated that he was present at the country club for the Fourth of July festivities. During the fireworks, he was watching over the parties' daughter. He then walked the daughter back to Rupeka. Mokros then confronted Rupeka, speaking harshly toward her; although Mokros' father could not recall the words Mokros used. Mokros' father did not see Mokros hit Rupeka. Due to the heated nature of exchange and to avoid any escalation, Mokros' father grabbed Mokros by the arm and led him away, telling him it was time to leave.
{¶20} Mokros' former girlfriend also testified to events on the Fourth of July. She maintained that she and Mokros were at a party at a house that abutted the country club's golf course, which was on the same street as Mokros' home, where she was also residing. The parties' son arrived at the house party with a teenager, and Mokros' girlfriend then walked the parties' son to Mokros' home to get a change of clothes. The son then asked Mokros' girlfriend if he could stay at the house party with his friends. Mokros' girlfriend instructed the parties' son that he needed to ask Rupeka, and the girlfriend then escorted the son to the country club, where she waited outside the pool fence while the son went inside to ask Rupeka's permission. After receiving Rupeka's permission, the son and Mokros' girlfriend walked together back to the house party. Thereafter, the son, Mokros, the son's friends, and their father, played baseball. After the country club presented its fireworks display, Rupeka sent a text message to the girlfriend informing her where she was located on the gulf course to return the son. However, Mokros had already left with the son to walk him back to Rupeka. The girlfriend stated that Mokros did not appear upset when he left with the son to return him to Rupeka; however, when he came back to the house party, he appeared agitated.
{¶21} On cross-examination, the girlfriend acknowledged several text messages that she had sent Rupeka expressing concern over Mokros' behavior when he became intoxicated. However, she denied that Mokros became violent when he was intoxicated.
{¶22} Mokros then testified, affirming that he had filed two post-decree motions in the parties' dissolution case shortly before Rupeka filed the petition for a DVCPO. With respect to the violence that Rupeka maintained occurred during the marriage, Mokros testified that those actions were part of the parties' consensual sexual relationship. Mokros then denied many allegations contained in Rupeka's petition for the DVCPO. Mokros maintained that he sent Rupeka the music video about going in for the kill because of the post-decree motions that he was filing in the dissolution case.
{¶23} With specific respect to the Fourth of July incident, Mokros explained that he went to the country club, where he saw Rupeka at the pool. Mokros left the club at some point to go home to clean up for the house party down the street. Thereafter, Mokros returned to the country club for a short time, and then walked to the party. Mokros confirmed that he had drank alcohol that day but maintained that he was not intoxicated. While at the party, the son entered the backyard with a whiffle ball bat. Mokros was not expecting his son at the house party, as the children were in Rupeka's care that week. He and his son and their friends then played baseball for some time until the fireworks were about to be set off. Mokros explained that individuals park along his street from outside of the neighborhood to watch the fireworks display, and he did not think that Rupeka knew where their son was located. He was aware that Rupeka had been drinking at the country club earlier that day when he saw her, and he was concerned that, if Rupeka did not know where their son was, then she may not know where their daughter was located. As the fireworks were going off, Mokros instructed the son to go with him toward the country club to ensure that the daughter was with Rupeka, but he found his daughter with Mokros' father. After the fireworks, Mokros headed toward his father and daughter, and then he saw Rupeka. Mokros was angry because he was under the impression that Rupeka was unaware of where their son was, and it was dark, and numerous cars were parked on the street. He acknowledged that he spoke harshly to her, but he maintained that it was only for about one minute, and then his father guided him away. Mokros testified that he had no physical contact with Rupeka during this exchange.
{¶24} Based on the foregoing, we first note that it was within the province of the trial court, as finder of fact, to determine the credibility of the witnesses. The trial court apparently found Rupeka's testimony credible. Further, Rupeka was not required to specifically use the statutory language that she was "in imminent fear of serious physical harm" to demonstrate domestic violence. The trial court heard testimony that: Mokros pushed Rupeka and hit her at the Fourth of July festivities and spoke aggressively toward her, calling her names and berating her, which made Rupeka feel "very threatened;" Mokros sent text messages to Rupeka regarding going in for the "kill," which made Rupeka feel as though he would kill her; and Rupeka was afraid that Mokros' physical behavior toward her would not stop until she was dead. Rupeka also testified that Mokros' aggressive behavior occurred when he was intoxicated causing him to become "very scary and you think he's going to seriously hurt you to the point where it's like, I just don't know how else to -- he's a monster." The trial court could reasonably infer that Rupeka was in imminent fear of serious physical harm from the evidence presented.
{¶25} Mokros has not demonstrated that the court's finding of domestic violence was against the weight of the evidence or that the DVCPO in any way constituted an abuse of discretion. Accordingly, Mokros' first assigned error lacks merit.
{¶26} In his second assigned error, Mokros contends:
{¶27} "The trial court erred in allowing testimony regarding prior bad acts of Patrick Mokros in an attempt to prove that he placed Ashley Rupeka by the threat of force in fear of imminent serious physical harm."
{¶28} At the full hearing, the following exchange occurred early in the direct examination of Rupeka:
Q. And can you tell the Court what led you to come here on that day and file the petition? Were there incidents or acts that took place?
A. Yes.
Q. Could you please enumerate on what those were?
A. Yes. During our marriage, Patrick had, has had a habit of drinking excessively and when he -
[COUNSEL FOR MOKROS]: I'm going to object on relevance, Your Honor. The marriage is over. This is something that should be brought up in the dissolution.
THE COURT: Au contraire. I would've agreed with you two years ago, but the ways these rules have changed on these things, you actually can and it is relevant. And like I said, I would've agreed with you two years ago, but I was told otherwise by people smarter than me at the Supreme Court.
[COUNSEL FOR RUPEKA]: Thank you, Your Honor.
{¶29} As set forth in our discussion of the first assigned error, "'threats of violence will constitute 'domestic violence' if the fear resulting from those threats is reasonable.'" Kuhn, 2013-Ohio-5807, at ¶ 31, quoting Rhodes, 2003-Ohio-2342, at ¶ 4. "'Reasonableness is determined by referencing the petitioner's history with the respondent.'" Kuhn at ¶ 31, quoting Rhodes at ¶ 4; accord Slepsky, 2016-Ohio-8429, ¶ 26-27.
{¶30} Here, Mokros appears to acknowledge that prior acts of a respondent may be relevant in DVCPO cases, but he contends such acts were not relevant here because he maintains that "Rupeka was not in fear of imminent serious physical harm on the Fourth of July 2022," and thus there was no need to determine whether any fear would have been reasonable.
{¶31} However, as set forth in our discussion of the first assigned error, it was not incumbent on Rupeka to use the precise wording of the statute to demonstrate her fear of imminent serious physical harm. The trial court heard testimony from which it could reasonably infer such fear.
{¶32} Accordingly, the court properly admitted and considered the history between the parties in determining the reasonableness of Rupeka's fear. Mokros' second assigned error lacks merit.
{¶33} The judgment is affirmed.
MARY JANE TRAPP, J., MATT LYNCH, J., concur.