Felton v. Felton – Domestic Violence Protection Order
Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (Ohio 1997).
NATURE OF THE CASE: This case involved a dispute over whether a court has the authority to issue domestic protection decrees if the parties have agreed to a provision prohibiting them from harassing each other.
FACTS: Mr. and Ms. Felton’s dissolution decree contained a no harassment provision. The trial court nevertheless issued a domestic violence protection order. The parties appealed and the court of appeals ruled that the order was unnecessary. The Supreme Court of Ohio granted cert.
ISSUE: May a court issue a domestic violence protection order even if the parties’ dissolution decree includes a no harassment provision?
RULE OF LAW: Yes. A court may issue a domestic violence protection order even if the parties’ dissolution decree includes a no harassment provision.
HOLDING AND DECISION: The no harassment provision contains only a general prohibition whereby each party shall not annoy, harass, or interfere with the other. The remedies and procedures under the protection order statute are in addition to and not in lieu of any other available civil or criminal remedies. Nothing in the statute prohibits an order when the dissolution decree includes a no harassment provision.
Several important features of the protection order give the judge more flexibility than those available with a dissolution or divorce decree. A protection order is much more immediate and consequential. Criminal prosecution and a decree of contempt of court are available for violation of a protection order. A violation of a dissolution decree however is only subject to contempt of court with a fine of up to $250 and imprisonment for not more than 30 days.
Also under the protection order, the statutes provide for the preferred arrest of a violator. In addition, the statute requires that a copy of the protection order be issued to all law enforcement agencies that have jurisdiction to enforce the order and that all agencies maintain an index of the protection orders sent them. A protection order is easier to enforce than a no harassment provision in a dissolution decree. The overwhelming benefits to the victim of domestic violence that the order affords far outweigh the temporary nature of the protection order. A strong public policy demands the issuance of such orders as violence against a former spouse does not stop with the separation.
The burden of proof necessary for the issuance of a protective order is preponderance of the evidence. Under the facts of this case P has shown a prima facie case supporting the issuance of a protective order. The trial court erred in considering D’s answer as evidence in its decision to issue the order.
The only admissible evidence was the uncontroverted testimony of W’s witnesses who testified to D’s violent behavior toward P. The trial judge incorrectly held that corroborating medical evidence was necessary to establish domestic violence. Domestic violence is seldom committed in the presence of eyewitnesses and often the only evidence of such violence is the testimony of the victims. We hold that the evidence presented was by a preponderance of evidence.
DISPOSITION: Reversed and remanded.