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Miller v. Evans

Court of Appeals of Ohio, Fifth District, Stark

February 12, 2018

ROBERT C. MILLER Plaintiff - Appellant
v.
NANCY EVANS Defendant-Appellee

         Appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2014-DR-566

          For Plaintiff-Appellant CRAIG T. CONLEY

          For Defendant-Appellee Arnold F. Glantz RICHARD B. PINHARD

          Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J. JUDGES.

          OPINION

          Baldwin, J.

         {¶1} Plaintiff-appellant Robert C. Miller appeals from the July 10, 2017 Judgment Entry of the Stark County Court of Common Pleas, Domestic Relations Division, denying plaintiff-appellant's Motion for Frivolous Conduct Sanctions against Attorney Arnold F. Glantz.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On May 27, 2014, appellant Robert C. Miller filed a complaint for divorce against Nancy Evans. On June 18, 2014, Evans, who was represented by Attorney Arnold Glantz, filed an answer and counterclaim for divorce. Evans, in her counterclaim, alleged that she and appellant were incompatible and requested that she be granted a divorce from appellant on the basis of her counterclaim.

         {¶3} Appellant, on October 22, 2014, voluntarily dismissed his complaint for divorce. Evans dismissed her counterclaim on January 8, 2015.

         {¶4} Thereafter, on January 10, 2017, appellant filed a Motion for Frivolous Conduct Sanctions against Attorney Glantz pursuant to Civ.R. 11 and/or R.C. 2323.51. Appellant, in his motion, alleged that Evans had not authorized Attorney Glantz to file a counterclaim for divorce and was otherwise unaware of its filing. Appellant, in support of his motion, attached the partial transcript from the deposition of Nancy Evans taken on December 15, 2016 in an unrelated case. Evans, during such deposition, had testified that she was not aware that she had filed a counterclaim for divorce against appellant, that she loved him and would never divorce him, and that the two were very compatible. Evans further testified that the counterclaim was filed without her knowledge or permission.

         {¶5} A hearing on the Motion for Frivolous Conduct Sanctions was held on June 23, 2017. During the pendency of the motion, appellant's attorney advised the trial court that he was seeking relief under Civ.R. 11 only.

         {¶6} At the hearing, Evans testified that while she recalled testifying during her deposition that she was unaware that a counterclaim for divorce had been filed on her behalf, she remembered giving Attorney Glantz permission to file the counterclaim. When asked why her testimony differed from her previous deposition testimony, Evans testified that she "was under a lot of stress and this whole three years have been very stressful to me and it has affected by ability to make the right comments." Transcript of June 23, 2017 hearing at 8. She further testified that she had been confused. At the time of the deposition, Evans was in her 70s. At the June 23, 2017 hearing, Evans testified that she had given Attorney Glantz permission to do what was necessary to protect her against her husband's divorce claim and denied that he had filed the counterclaim on his own. According to Evans, she did not consider herself incompatible with her husband and the statement in the counterclaim that the two were incompatible was not truthful.

         {¶7} When questioned by the trial court, Evans testified that her recollection was better at the time of the June 23, 2017 hearing than when she was deposed because the place where the deposition took place had upset her extremely. The deposition had taken place at the office of appellant's daughter who is an attorney.

         {¶8} At the hearing, Attorney Arnold Glantz testified that while he had indicated to the trial court at the temporary orders hearing that appellant and Evans got along well, he filed the counterclaim alleging that they were incompatible for strategic purposes. ...


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