Kranek v. Richards

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 7th District Court of Appeals » 2011 » Kranek v. Richards

Kranek v. Richards

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-6374

Case Date: 12/07/2011

Plaintiff: Kranek

Defendant: Richards

Preview:[Cite as Kranek v. Richards, 2011-Ohio-6374.]

STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

CHRISTIAN KRANEK PETITIONER-APPELLEE VS. SARAH J. RICHARDS RESPONDENT-APPELLANT CHARACTER OF PROCEEDINGS:

) ) ) ) ) ) ) ) )

CASE NO. 11 JE 2

OPINION

Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 10DR227 Affirmed in part. Reversed in part. Remanded.

JUDGMENT:

APPEARANCES: For Petitioner-Appellee: Christian Kranek, Pro se 111 Euclid Street Amsterdam, Ohio 43903 Atty. Peter S. Olivito 606-612 Sinclair Building Steubenville, Ohio 43952 Atty. Kristopher M. Haught 2021 Sunset Boulevard Steubenville, Ohio 43952 JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: December 7, 2011

For Respondent-Appellant:

[Cite as Kranek v. Richards, 2011-Ohio-6374.]

WAITE, P.J.

{1}

Appellant Sarah J. Richards appeals the judgment of the Jefferson

County Court of Common Pleas which issued a four-year Civil Stalking Protection Order ("CSPO") against her in favor of Appellee Christian Kranek ("Christian"), along with Appellee's wife Nicholette Kranek ("Nicholette"), and three children, C.K.1 (one month old), C.K.2 (one year old), and J.K. (ten years old). Appellant and Christian were talking on the phone about visitation issues regarding their child J.K. when Appellant threatened to kill him and his family. Three weeks later, Christian received a threatening message on his answering machine, and identified Appellant's voice on the recording. A CSPO must be based on a pattern of conduct, and two incidents closely related in time constitutes a pattern of conduct. R.C. 2903.211(D)(1). Even though Christian has not responded to this appeal, the record does not reasonably support reversal. However, the record does reflect that the court told the parties it would dismiss the CSPO with respect to the child J.K., as all custody issues pertaining to that child file was under the jurisdiction of another court. The trial court failed to dismiss as to J.K. Hence, the judgment is partially reversed and the case remanded for the trial court to file a corrected judgment entry removing J.K. from the CSPO. {2} On August 3, 2010, Christian filed a petition for a CSPO against

Appellant. Appellee sought relief for himself, his wife, and three children. The court granted a temporary protection order and set a full hearing for August 20, 2010. Appellant, Christian and Nicholette testified at the hearing. Christian and Nicholette both described the phone call of July 30, 2010. Christian had called Appellant to

-2discuss visitation issues regarding their child J.K. (Tr., p. 14.) J.K. was speaking to Appellant, but the child became upset and started to cry, then left the room. (Tr., p. 6.) Christian picked up the phone and Nicholette activated the speaker phone

feature so that she could hear the conversation. Nicholette heard Appellant say, "I'll kill you and your family." (Tr., p. 6.) Christian heard Appellant say: "I'll kill you and your whole family." (Tr., p. 15.) Christian also heard Appellant say: "You know I'm capable of it and if I can't do it I know someone who will." (Tr., p. 15.) {3} Approximately 30 minutes after the phone call, a police officer arrived at

the house due to a report of child abuse made by Appellant to the Madison County Sheriff's Department. (Tr., p. 8.) The officer found that J.K. was fine, and took a report about the threatening phone call made by Appellant. When Nicholette wrote down what Appellant had said, she left out the word "kill" and wrote: "I'm going to and you and your family." (Tr., p. 9.) She testified in court, though, that Appellant said she was going to kill them. {4} Christian and Nicholette also testified about a message left on their

telephone answering machine on August 19, 2010, in which the caller said: "I'm going to get you. I'm hiding. I'm waiting for you[.]" (Tr., p. 18.) Christian and Nicholette both recognized Appellant's voice leaving this message. (Tr., pp. 11, 18.) {5} Christian testified that, sometime before J.K.'s birth in 2000, Appellant

threw an ashtray at him that left a permanent scar. (Tr., p. 21.) There was also testimony that Appellant displayed a gun to Nicholette during a custody exchange of J.K. (Tr., p. 11.) This incident occurred in a McDonald's restaurant approximately 18

-3months prior to the death threat in July of 2010. One other incident mentioned in the record is a threat Appellant made to Nicholette: "About a year-and-a-half ago

[Appellant] was telling me, you know, I just need to butt out, mind my own business or else she'll kick my butt." (Tr., p. 13.) {6} During the CSPO hearing, the parties explained to the court that

Appellant had permanent custody of J.K. and that Christian had visitation rights. Custody and visitation had initially been decided by the Jefferson County Court of Common Pleas, Juvenile Division. Jurisdiction over the juvenile was then transferred to the Madison County Court of Common Pleas, Juvenile Division, after Appellant moved to that county. The trial judge determined that judicial custody of J.K. fell under the jurisdiction of Madison County and that the CSPO would be dismissed as to J.K. (Tr., pp. 35-36.) {7} On August 26, 2010, the court filed its judgment entry making the

CSPO permanent until August 3, 2014. On September 1, 2010, Appellant filed a request for findings of fact and conclusions of law. On January 5, 2011, the court issued its findings. The court made several findings: that custody, visitation and child support were contested; that Appellant threatened to kill Christian and his family due to the custody dispute; and that Appellant was responsible for multiple threats of physical harm that were designed to cause mental distress in order to influence the outcome of the custody dispute. The court determined that the evidence showed a pattern of threats of physical harm against the persons listed on the CSPO petition.

-4{8} Appellant filed this timely appeal on February 3, 2011. Appellee has According to App.R. 18(C), we "may accept the

not responded to this appeal.

appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." {9} Although Appellant lists four assignments of error, the first three

assignments deal with specific facts found by the court and these findings all relate to the fourth assignment of error challenging the manifest weight of the evidence. For these reasons, all the assignments will be treated together. ASSIGNMENTS OF ERROR 1, 2, 3, AND 4 {10} "THE TRIAL COURT ERRED IN FINDING THAT CUSTODY,

VISITATION AND SUPPORT ARE CONTESTED. {11} "THE TRIAL COURT ERRED IN FINDING THAT SARAH J.

RICHARDS MADE MULTIPLE THREATS OF PHYSICAL HARM DESIGNED TO CAUSE MENTAL DISTRESS IN ORDER TO INDUCE CHRISTIAN KRANEK TO FORGO ANY CUSTODY CHALLENGES. {12} "THE TRIAL COURT ERRED IN FINDING THAT THE CONDUCT OF

SARAH J. RICHARDS CONSTITUTES A PATTERN OF THREATS OF PHYSICAL HARM AND CAUSING MENTAL DISTRESS TO CHRISTIAN KRANEK AND THE PERSONS LISTED ON THE PETITION FOR A DOMESTIC STALKING CIVIL PROTECTION ORDER.

-5{13} "THE TRIAL COURT [SIC] DECISION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE." {14} In this appeal, Appellant is challenging the factual basis of the trial Thus, Appellant's manifest weight of the evidence argument

court's judgment.

encompasses all issues raised in this appeal. R.C. 2903.214 governs the issuance of a CSPO. The petitioner must demonstrate, by a preponderance of the evidence, that the respondent has engaged in menacing by stalking. Strausser v. White, 8th Dist. No. 92091, 2009-Ohio-3597,

Download 11-je-2.pdf