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Williams v. Williams

Court of Appeals of Ohio, Twelfth District

July 29, 2013

SHERRI E. WILLIAMS, Plaintiff-Appellee,
KENNY WILLIAMS, Defendant-Appellant.


Elizabeth Ann Yauch, for plaintiff-appellee

Fred S. Miller, Baden & Jones Building, for defendant-appellant



{¶ 1} Defendant-appellant, Kenny Williams (husband), appeals a divorce decree of the Warren County Court of Common Pleas, Domestic Relations Division. For the reasons stated below, we affirm in part and reverse in part.

{¶ 2} Husband and plaintiff-appellee, Sherri E. Williams (wife), were married in 1983 and two children were born during the marriage. During the marriage, husband worked as a guard at Warren Correctional Institution and thus was entitled to a pension through the Public Employee Retirement System (PERS). Wife worked at a private company and contributed only to Social Security for her retirement savings.

{¶ 3} On May 16, 2011, wife filed a complaint for divorce. In her complaint, wife asserted that the parties have lived separate and apart since July 2006. Husband agreed with this date in his answer and counterclaim. Thereafter, a hearing was held regarding several issues in the divorce. During the hearing, wife made an oral motion to amend her complaint to reflect that the parties separated in July 2007. The trial court granted this motion. The parties then presented conflicting evidence as to whether they separated in July 2006 or July 2007. Additionally, the parties disputed whether a student loan debt incurred for the parties' son was a marital or nonmarital debt.

{¶ 4} After the conclusion of the hearing, the court found that the parties' marriage terminated on July 2007 because the parties continued their financial relationship up until this time. Additionally, the court ordered husband to be solely responsible for the student loan debt of the parties' son. Over husband's objection, the court also divided husband's PERS account between the parties without considering wife's Social Security benefits.

{¶ 5} Husband now appeals, raising four assignments of error.

{¶ 6} Assignment of Error No. 1:


{¶ 8} Husband's first assignment of error concerns whether the trial court committed a procedural error in allowing wife to amend her complaint during the hearing to change the termination date of the marriage. Specifically, Husband contends the termination date in wife's complaint constituted a judicial admission. Wife responds by arguing that husband has waived this argument on appeal because he did not explicitly state he was objecting to the trial court's decision in altering the date of the marriage.

{¶ 9} We begin by addressing the standard of review. The failure to timely advise a trial court of possible error, by objection or otherwise, results in a waiver of the issue for purposes of appeal. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). The fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court's attention, and hence avoided or otherwise corrected. Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982).

{¶ 10} However, an exception to this rule occurs once a party makes his position sufficiently clear to the trial court such that the court has an opportunity to correct a mistake or defect in the charge. DuBoe v. Accurate Fabrication, 10th Dist. Franklin No. 98AP-842, 1999 WL 33893941 (July 20, 1999), citing Presley v. Norwood, 36 Ohio St.2d 29 (1973). In such circumstances, a "party does not waive his objections to the court's charge by failing to formally object thereto." (Emphasis sic.) Presley at paragraph one of the syllabus. See also Van Scyoc v. Huba, 9th Dist. Summit No. 22637, 2005-Ohio-6322, ¶ 16.

{¶ 11} In the case at bar, the record shows that husband made the trial court fully aware that he was disputing the issue in question. Specifically, husband argued that he did not believe the termination date of the marriage was in issue because wife's complaint and his answer used the same termination date for the marriage. Further, he stated he disagreed with amending the complaint during trial because he had not received a written motion to amend the complaint and thus he did not have enough time to prepare regarding the new date. Accordingly, husband made his position sufficiently clear to the trial court and he has not waived this issue.

{¶ 12} Next, we address whether wife's complaint constituted a judicial admission and whether the court erred when it permitted wife to amend her complaint. A judicial admission is a "formal statement, made by a party or a party's counsel in a judicial proceeding, that act[s] as a substitute for legal evidence at trial." Haney v. Law, 1st Dist. Hamilton No. C-070313, 2008-Ohio-1843, ¶ 7. If a party "unequivocally concedes a fact, that concession constitutes a judicial admission for the purposes of trial." Id. The Ohio Supreme Court has recognized that judicial admissions can occur during the pleading stage. Id. at ¶ 8 citing Gerrick v. Gorsuch, 172 Ohio St. 417, 420 (1961). Pleadings containing admissions against interest are admissible as evidence against the pleader, as long as the admissions involve material and competent facts. Haney at ¶ 7. Therefore, "a party who has alleged and has the burden of proving a material fact need not offer any evidence to prove that fact if its judicially admitted by the pleadings of the adverse party." Gerrick at 420.

{¶ 13} While a pleading can constitute a judicial admission, Civ.R. 15 outlines the rule regarding the amendment of pleadings. Civ.R. 15(A) provides that parties can amend their pleadings after a responsive pleading is served by leave of court or by written consent of the adverse party.[1] A trial court should freely give a party leave to amend his pleadings when "justice so requires." Civ.R. 15(A).

{¶ 14} Other districts have found that parties may move to amend their pleadings pursuant to Civ.R. 15(A) even though the statements in the pleadings could have constituted judicial admissions before the amendment. Stevens v. Cox, 6th Dist. Wood No. WD-08-020, 2009-Ohio-391; Duncan v. Charter One Bank, 4th Dist. Scioto No. 02-CA2855, 2003-Ohio-1907. Both of these districts reasoned that while parties are generally bound by their written admissions, this rule gives way to Civ.R. 15(A), which encourages trial courts to allow parties to amend their pleadings "when justice so requires." Stevens at ¶ 57-58; Duncan at ¶ 15-16. See also Badalmenti v. Kirkland, 11th Dist. Lake No. 90-L-15-151(Nov. 29, 1991); Core v. Champaign County Bd. of County Commrs., S. D. Ohio No. 3:11-CA-166, 2012 WL 3073418, *4 (July 30, 2012).

{¶ 15} However "any admissions contained in the original pleadings still may be offered as evidence, even after a party has amended his original pleading with leave of court." Duncan at ¶ 16. Therefore, a party can submit both the original pleading and the amended pleading and the competing admissions contained with these pleadings will give rise to a genuine issue of fact. Id.

{¶ 16} Therefore, this court finds that a trial court may permit a party to amend a pleading pursuant to Civ.R. 15 even though the statements in the pleadings could constitute judicial admissions if the pleading was not amended. However, both the original pleading and the amended pleading may be used as evidence in determining the disputed fact.

{¶ 17} An appellate court reviews a trial court's decision to grant or deny a motion to amend a complaint for abuse of discretion. Scovanner v. Ohio Valley Voices, 12th Dist. Clermont No. CA2012-02-017, 2012-Ohio-3629, ¶ 28. An abuse of discretion connotes more than a mere error of law or judgment, instead requiring a finding that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Civ.R. 15(A) favors a liberal amendment policy and a motion for leave to amend should be granted absent a finding of bad faith, undue delay, or undue prejudice. State ex rel. Doe v. Caper, 132 Ohio St.3d 365, 2012-Ohio-2686, ¶ 8. The primary consideration when deciding whether to grant or deny leave to amend is whether there will be actual prejudice because of delay. Textiles, Inc. v. Design Wise, Inc., 12th Dist. Madison Nos. CA2009-08-015, CA2009-08-018, 2010-Ohio-1524, ¶ 83.

{¶ 18} In the present case, wife's complaint originally stated that the marriage terminated "on or about July 2006." In his answer, husband agreed that the marriage terminated on this date. During the hearing, wife moved to amend her complaint to reflect that the marriage terminated in July 2007. Wife explained that she miswrote the date of the termination of the marriage because it had been numerous years since the physical separation. The court granted this motion reasoning husband had been on notice regarding this issue for several months. The court recorded in its notes in December 2011, five months before the hearing, that there was a dispute between the parties regarding the marriage termination date. Additionally, wife's counsel stated that the parties discussed a different termination date during a settlement conference that occurred on October 11, 2011. During the discussion, husband's counsel conceded that the parties "talked about this" issue.

{¶ 19} We find that the trial court did not abuse its discretion in permitting wife to amend her complaint. Husband was not unduly prejudiced by the amendment of the termination date because he had notice regarding the dispute for several months. Husband actually conceded that the parties talked about the termination date at settlement conference. Additionally, there is no evidence that wife amended her complaint in bad faith as the divorce proceedings occurred five or six years after the parties separated. Lastly, there are no allegations that amending the complaint caused an undue delay in the divorce proceedings. As there was no evidence of bad faith, undue delay, or undue prejudice, we find the trial court did not abuse its discretion in granting wife's motion to amend the complaint.

{¶ 20} Husband's first assignment of error is overruled.

{¶ 21} Assignment of Error No. 2:


{¶ 23} Husband's second assignment of error challenges whether there was sufficient evidence to support the trial court's determination that the marriage terminated on July 31, 2007. In its final decision, the trial court used July 31, 2007 as the termination date of the marriage for purposes of dividing husband's retirement account. Husband argues that the evidence established that the parties' marriage ended in 2006 as that is the date that the parties stopped living together.

{¶ 24} R.C. 3105.171(A)(2) provides that, except when the court determines it would be inequitable, for purposes of property valuation, the date of the final hearing is the date of termination of the marriage. Fillis v. Fillis, 12th Dist. Clermont Nos. CA2008-10-093, CA2008-10-101, 2009-Ohio-2808, ¶ 8. As this court has noted previously, "R.C. 3105.171(A)(2) creates a statutory presumption that the proper date for the termination of a marriage is the date of the final divorce hearing." Doyle v. Doyle, 12th Dist. Warren No. CA2006-02-027, 2007-Ohio-2554, ¶ 15.

{¶ 25} However, the statute permits a trial court to select a different date of termination, if it considers the date of the final divorce hearing to be "inequitable." Fillis at ¶ 15. R.C. 3105.171(A)(2)(b) provides:

If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, 'during the marriage' means the period of time between those dates selected and specified by the court.

The Supreme Court of Ohio has noted:

The choice of a date as of which assets available for equitable distribution should be identified and valued must be dictated largely by pragmatic considerations. * * * [T]he precise date upon which any marriage irretrievably breaks down is extremely difficult to determine, and this court will avoid promulgating any unworkable rules with regard to this determination. ...

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