[Cite as Nwankwo v. Uzodinma, 2022-Ohio-565.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
OLUCHI IJEOMA NWANKWO, : CASE NO. CA2021-08-098
Appellee, : OPINION 2/28/2022 : - vs - :
NNAMDI KENFRANCIS UZODINMA, :
Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DR20080487
Blake P. Somers LLC, and Jordan M. Feldkamp, for appellee.
Charles H. Bartlett, Jr., for appellant.
M. POWELL, P.J.
{¶1} Appellant, Nnamdi Kenfrancis Uzodinma ("Husband"), appeals a decision of
the Butler County Court of Common Pleas, Domestic Relations Division, annulling his
marriage to appellee, Oluchi Ijeoma Nwankwo ("Wife"), on the ground Wife's consent to the
marriage was obtained by fraud.
{¶2} The parties were born in Nigeria and grew up as neighbors there. Wife Butler CA2021-08-098
immigrated to the United States with her family in her early teens and became a naturalized
American citizen. In 2010 or 2011, when the parties were in their mid-twenties, Husband
contacted Wife through Facebook. Husband was still living in Nigeria at the time. The
parties courted via Facebook and discussed marriage. In 2014, Wife travelled to Nigeria
where the parties were married in a traditional Nigerian ceremony. Wife returned to the
United States; Husband moved to the United States once he obtained a "fiancé visa." They
were legally married on May 3, 2015. Wife added Husband to her cellphone plan and
Kemba Credit Union bank account.
{¶3} During the marriage, both parties deposited their paychecks into their joint
bank account. Husband was employed by two different companies, AstraZeneca and
Americans Choice HealthCare Services ("Americans Choice"). His AstraZeneca
paychecks were directly deposited into the bank account whereas Husband physically
deposited his Americans Choice paychecks into the bank account.
{¶4} The parties discussed starting a family. Although Husband was affectionate
toward Wife and regularly gave her loving cards and notes, the lack of physical intimacy
strained the marriage. Husband claimed he was unable to perform due to stress. The
parties dispute whether the marriage was "consummated." The parties began the process
of In Vitro Fertilization ("IVF") to start a family.
{¶5} In 2019, the parties bought a house. That same year, Husband obtained his
green card, paving the way for him to apply for his American citizenship. Husband often
spoke of obtaining his American citizenship and began pressing Wife to allow him to apply.
Wife wanted Husband to wait as the fee for the citizenship application was $800 and the
parties were incurring substantial IVF-related expenses. Nonetheless, Husband applied for
his American citizenship without telling Wife.
{¶6} Wife accompanied Husband to his citizenship interview in October 2019.
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Husband became a naturalized American citizen on December 6, 2019, and obtained his
American passport on December 13, 2019. Once Husband obtained his American
citizenship, his behavior changed. While the parties continued discussing having a family
and Husband continued to give Wife affectionate cards and texts, "there was a disconnect,"
Husband became distant, and he no longer wanted to attend IVF appointments.
{¶7} Just prior to applying for citizenship, Husband stopped depositing his
Americans Choice paychecks into the parties' joint bank account. Then, his AstraZeneca
paychecks stopped being directly deposited into the bank account after February 2020.
Husband falsely claimed this was the result of a payroll glitch. Unbeknownst to Wife,
Husband opened a personal Chase bank account on June 8, 2020, using a friend's car lot
address for the account. Husband subsequently instructed AstraZeneca to directly deposit
his paychecks into his Chase bank account.
{¶8} Just prior to June 17, 2020, Husband deleted his Facebook account,
purportedly to focus more on the family. Then, on June 17, 2020, two weeks before an IVF
appointment to collect his sperm, Husband disappeared and did not take Wife's calls or
reply to her texts or emails. Wife filed a missing-person report with police. On July 1, 2020,
Wife received a message from Husband, asking her to stop saying he was missing and
telling her he needed time and space. In her quest to find Husband between June 17, 2020,
and July 1, 2020, Wife began reviewing his emails and internet search history. She
discovered that up to ten days before he disappeared, Husband had repeatedly visited
escort services sites as well as "Plenty of Fish," an online dating site. Wife also discovered
emails between Husband and a Canadian visa expert, that Husband had downloaded an
application on June 10, 2020, allowing him to call and text using a phone number other than
his, and a "Weekly Pay Report," indicating Husband had been working for Grubhub
unbeknownst to her. Wife further found messages between Husband and his younger
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brother in which Husband expressed his desire to "find a way out." Husband never returned
to the marital home.
{¶9} On August, 3, 2020, Wife filed a complaint to annul her marriage to Husband
on the ground of fraud. Specifically, Wife alleged that her consent to the marriage was
obtained by fraud because Husband married her only to obtain his American citizenship.
The trial court held a hearing on the motion on January 28, 2021. Both parties testified. On
March 4, 2021, the trial court found that Wife was entitled to an annulment of the parties'
marriage under R.C. 3105.31(D) because Husband had engaged in fraud to obtain Wife's
consent to the marriage. Specifically, the trial court found that Wife's evidence, when
considered in its totality, established that
[Husband] engaged in fraud to obtain his citizenship through his marriage to [Wife]. This affected the marital relations in its essential parts. [Husband's] behavior toward his wife and their marriage changed shortly and drastically after obtaining his citizenship and passport.
Additionally, [Husband] planned a financial and practical exit, and then left the marriage shortly before he was to engage in his part of the IVF process. This contradicts his representations that he was excited to start a family with [Wife].
While the facts are consistent with present day life and differ somewhat from the facts in much of Ohio's older case law, the evidence meets the criteria for annulment based on the statute and case law.
In reaching its decision, the trial court found that Wife's testimony was more credible than
Husband's testimony. A judgment entry and decree of annulment was journalized on May
6, 2021.
{¶10} Husband moved for a new trial pursuant to Civ.R. 59, arguing that he was
entitled to a new trial under Civ.R. 59(A)(6) and (7) because there was no direct evidence
of fraud and it was not proven by clear and convincing evidence. Husband further argued
he was entitled to a new trial pursuant to Civ.R. 59(A)(1), (2), and (3) because irregularity
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in the proceedings, Wife's misconduct, and surprise prevented him from presenting certain
evidence. On July 28, 2021, the trial court denied Husband's motion for a new trial.
{¶11} Husband now appeals the trial court's annulment of the marriage and denial
of his motion for a new trial, raising two assignments of error.
{¶12} Assignment of Error No. 1:
{¶13} THE TRIAL COURT ERRED IN GRANTING AN ANNULMENT TO THE
PLAINTIFF BASED ON FRAUD IN THE INDUCEMENT.
{¶14} Husband argues that the trial court erred in annulling the parties' marriage on
the ground of fraud under R.C. 3105.31(D).
{¶15} R.C. 3105.31(D) provides that a marriage may be annulled where "the
consent of either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, cohabitated with the other as husband or
wife[.]"
{¶16} "The elements of fraud are an actual or implicit misrepresentation of material
facts made with knowledge that the representation is false or with disregard for its truth or
falsity with the intention of misleading the other party into relying upon it, and a reliance by
the other party upon the misstated facts with a resulting injury as a consequence[.]" Slavin
v. Slavin, 8th Dist. Cuyahoga No. 49087, 1985 Ohio App. LEXIS 8237, *10 (June 27, 1985).
{¶17} The parties disagree over the appropriate burden of proof in an annulment
case. Husband argues that fraud under R.C. 3105.31(D) must be established by clear and
convincing evidence, which is "that measure or degree of proof which is more than a mere
'preponderance of the evidence,' but not to the extent of such certainty as is required
'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established." State ex
rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54. Wife argues that the burden
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of proof in an annulment case is a preponderance of the evidence, which "is defined as that
measure of proof that convinces the judge or jury that the existence of the fact sought to be
proved is more likely than its nonexistence." Id.
{¶18} A party seeking an equitable remedy, such as declaratory judgment, setting
aside or reformation of a written document, or reformation or rescission of a contract, must
prove a fraud claim with clear and convincing evidence, while a party seeking a monetary
remedy must prove fraud by the preponderance of the evidence. Weiss v. Kearns, 11 Ohio
St.2d 73, 75 (1967); Lapkovitch v. Rankl & Ries Motorcars, Inc., 5th Dist. Stark No.
2021CA00062, 2021-Ohio-4436, ¶ 27. See also Chester v. Jordan, 2d Dist. Champaign No.
97 CA 0007, 1998 Ohio App. LEXIS 658 (Feb. 20, 1998) (Generally, to establish a claim of
fraud seeking +-money damages, a preponderance of the evidence is sufficient. It is only
where fraud is alleged as a basis for equitable relief that the more stringent clear and
convincing evidence standard applies). Marriage is a contract, and an annulment under
R.C. 3105.31(D) seeks to set aside that contract for fraud.
{¶19} The Tuscarawas County Court of Common Pleas applied a clear-and-
convincing-evidence standard in an annulment case for fraud. Anderson v. Anderson, 8
Ohio Misc. 97, 1966 Ohio Misc. LEXIS 252 (C.P.1966). Similarly, the Eighth District Court
of Appeals applied a clear-and-convincing-evidence standard in upholding a trial court's
judgment annulling a marriage for fraud. Slavin, 1985 Ohio App. LEXIS 8237 at *14. Other
jurisdictions have likewise held that when a spouse seeks to annul a marriage based upon
fraud in the inducement, such fraud must be proven by clear and convincing evidence. See
Travis A. v. Vilma B., 153 N.Y.S.3d 674, 197 A.D.3d 1401 (2021); In re Marriage of
Goodwin-Mitchell & Mitchell, 40 Cal.App.5th 232, 253 Cal.Rptr.3d 123 (2019); and Seirafi-
Pour v. Bagherinassab, 197 P.3d 1097 (Okla.App.2008). We therefore hold that when a
marriage is sought to be annulled for fraud under R.C. 3105.31(D), such fraud must be
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proven by clear and convincing evidence.
{¶20} Establishing fraudulent intent by direct evidence is difficult as intent to mislead
is rarely shown by direct evidence. TRAX Constr. Co. v. Reminderville, 11th Dist. Lake
Nos. 2020-L-113, 2020-L-127, and 2021-L-008, 2021-Ohio-3481, ¶ 53. "In proving knowing
falsity and intent to mislead or deceive, a plaintiff is not necessarily required to present
direct evidence, such as a confession by the tortfeasor[.]" Andrew v. Power Marketing
Direct, Inc., 10th Dist. Franklin No. 11AP-603, 2012-Ohio-4371, ¶ 50. Rather, a plaintiff
may present circumstantial evidence to show intent to defraud. Id.; TRAX Constr. Co. at ¶
53. Circumstantial evidence is that which can be "inferred from reasonably and justifiably
connected facts." Hinerman v. Grill on Twenty First, L.L.C., 5th Dist. Licking No. 2020 CA
00054, 2021-Ohio-859, ¶ 88. Circumstantial evidence and direct evidence inherently
possess the same probative value. Id.
{¶21} "'It is a general rule that false representation as to character, health, wealth
and external conditions do not constitute such fraud as will annul a marriage contract. In
order to be such a fraud it must affect the marital relation in its essential parts.'" Stepp v.
Stepp, 9th Dist. Medina No. 03CA0052-M, 2004-Ohio-1617, ¶ 4, quoting Kraus v. Kraus, 6
Ohio N.P. 248, 9 Ohio Dec. 515 (C.P.1899). "Fraud in inducing a party to enter into
marriage is insufficient; the fraud must be in a matter essential to the marriage relation itself
or affecting the legality of the union." Stepp at ¶ 5. See also Joy v. Joy, 12 Ohio Dec. 574,
1900 Ohio Misc. LEXIS 157 (C.P.1900).
{¶22} Several jurisdictions have recognized that an annulment may be had for fraud
where a defendant spouse induced the plaintiff spouse to marry with the ulterior objective
of entering the United States and obtaining an immigration or citizenship benefit. See In re
Marriage of Liu, 197 Cal.App.3d 143, 242 Cal.Rptr.649 (1987); Travis A., 153 N.Y.S.3d 674;
Seirafi-Pour, 197 P.3d 1097; and Miller v. Miller, 1998 OK 24, 956 P.2d 887 (1998) (stating
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that misrepresentations which have been found to go to the essence of the marital
relationship, generally in an action for annulment, include concealment of the fact that one
party married the other for the sole purpose of obtaining a "green card" from the Immigration
Department).
{¶23} Husband argues that the trial court erred in annulling the parties' marriage for
fraud because Wife failed to prove fraudulent intent by clear and convincing evidence.
Husband asserts there is ample evidence that his intent was "in fact to have a real marriage"
because the parties were romantically involved for three to four years prior to getting
married, engaged in a traditional Nigerian ceremony, were legally married in the United
States, remained married for five years, purchased a home and lived together, commingled
their finances, and participated in IVF to have children. Husband further asserts the
marriage failed not because he intended it only as a mechanism to obtain an American
citizenship but because Wife was upset the marriage was not consummated and that
Husband had borrowed money from relatives and sold the marital car, and because Wife
continually threatened him with divorce and deportation and was physically abusive to him
during arguments. Husband claims that "[i]t was not until six months after becoming a U.S.
citizen that [he] left his wife, and then only after she moved her mother and sister into the
marital home, that [he] decided he had had enough."
{¶24} Upon a thorough review of the record, we find that Wife presented clear and
convincing evidence that her consent to the marriage was obtained by Husband's fraud.
{¶25} Although the parties grew up as neighbors in Nigeria, the record indicates that
they did not stay in touch after Wife immigrated to the United States in her early teens. In
2010 or 2011, when they were in their mid-twenties, Husband first reached out to Wife
through Facebook. Husband was living in Nigeria at the time. The parties courted for a few
years via Facebook and discussed marriage, a topic which Husband initiated. In 2014, Wife
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travelled to Nigeria where the parties were married in a traditional Nigerian ceremony. Wife
testified that she would have moved to Nigeria to live with Husband. However, Husband
had no desire to live in Nigeria with Wife, "It was get married and move [to the United
States]." By contrast, Husband testified it was Wife's idea for the couple to live in the United
States and that he wished to remain in Nigeria but ultimately preferred to move his family
to the United States. Wife returned to the United States. Husband joined her once he
obtained a "fiancé visa." They were legally married in May 2015, within 90 days of Husband
entering the United States with his "fiancé visa."
{¶26} Except for the lack of physical intimacy, the parties' marriage proceeded
normally until 2019 when Husband obtained his permanent green card, paving the way for
him to apply for his American citizenship. Wife testified that Husband's desire to become
an American citizen became a topic of conversation in the summer of 2019, that he was the
only one who brought it up it, and that his insistence almost became an argument. At the
time, Wife believed a green card holder had to wait five years before applying for an
American citizenship. She later learned that a green card holder married to an American
citizen could obtain an American citizenship after three years.
{¶27} Prior to applying for citizenship, Husband stopped depositing his Americans
Choice paychecks into the parties' joint bank account. He then applied for his American
citizenship without telling Wife. She learned about the citizenship application when she
noticed that $5,000 was missing from their joint bank account and confronted Husband
about it. Husband told Wife he used the money to ship a marital car to Nigeria, pay debts
he had in Nigeria, and use the balance for the application fee. However, Husband testified
he borrowed money from his family to pay for the $800 application fee.
{¶28} After Husband obtained his American citizenship and American passport in
December 2019, his behavior changed. Notably, he became distant and no longer desired
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to attend IVF appointments, belying his professed love for Wife and desire to have a family.
Then, in March 2020, Husband's AstraZeneca paychecks stopped being directly deposited
into the parties' joint bank account. Husband falsely claimed this was the result of a payroll
glitch. Despite his representation to Wife that he had resolved the "payroll glitch," his
AstraZeneca paychecks were still not directly deposited into the joint bank account as of
June 2020.
{¶29} In June 2020, Husband actively and secretly prepared his financial and
practical exit from the marriage. Specifically, the record shows that Husband opened a
personal Chase bank account on June 8, 2020, deleted his Facebook account and visited
escort services sites and an online dating website prior to disappearing on June 17, 2020,
had his AstraZeneca paycheck directly deposited in his Chase bank account on June 19,
2020, exchanged messages with Canadian visa experts, and finally contacted Wife on July
1, 2020, telling her he needed time and space. Husband never returned to the marital
home. Wife testified she found messages between Husband and his younger brother
expressing Husband's desire to "find a way out."
{¶30} Husband relies on the fact that after the parties were romantically involved for
three or four years before they married, they "stayed married for five years" and were
romantically involved during their marriage. Wife testified that Husband was affectionate
before and during the marriage. Jurisdictions have recognized that premarital
representations of love, affection, and commitment are not enough to warrant an annulment
based upon fraud when a marriage breaks down and love and commitment prove
unenduring. See Travis A., 153 N.Y.S.3d 674; Miller, 956 P.2d 887. However, Husband
could not apply for his American citizenship until after he legally married Wife, a naturalized
American citizen, and subsequently obtained his green card. In other words, Husband had
to remain married to Wife a certain number of years before he could apply for citizenship.
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The record plainly shows that once Husband obtained his green card in 2019, things rapidly
evolved as Husband secretly applied for his American citizenship that same year, became
a naturalized American citizen that same year, subsequently drastically changed his
behavior toward Wife and their marriage, and exited the marriage within six months of
becoming an American citizen.
{¶31} Even though the parties were married for five years, the marriage was never
consummated. Husband's testimony that the IVF team confirmed he was not impotent, in
conjunction with his practice of visiting online escort services and dating website, belies his
claim he was "unable to perform" sexually. Husband's failure to follow through the IVF
process and consummate the marriage provides the necessary context to Husband's
conduct described above as reliable evidence that he married Wife to obtain his American
citizenship.
{¶32} Therefore, the foregoing circumstantial evidence shows that Husband had an
ulterior motive and undisclosed intent for the marriage, namely, to enter the United States
with a "fiancé visa," subsequently obtain a green card, and then obtain his American
citizenship and American passport. The trial court could reasonably infer from the evidence
that Husband intended to exit the marriage as soon as he had obtained his goal and as
soon as it was expedient.
{¶33} We recognize that the parties' testimony was at times conflicting. As stated
above, the trial court found that Wife's testimony was more credible than Husband's
testimony. "[W]here the decision in a case turns upon credibility of testimony, and where
there exists competent and credible evidence supporting the findings and conclusions of
the trial court, deference to such findings and conclusions must be given by the reviewing
court." Myers v. Garson, 66 Ohio St.3d 610, 614, 1993-Ohio-9. The trial court was in the
best position to assess Wife and Husband, to observe their demeanor, gestures, and voice
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inflections, and to use those observations in weighing the credibility of their testimony.
Chasteen v. Dix Road Property Mgt., L.L.C., 12th Dist. Butler Nos. CA2020-04-055 and
CA2020-04-056, 2021-Ohio-463, ¶ 47.
{¶34} Accordingly, the trial court did not err in annulling the parties' marriage on the
ground that Wife's consent to the marriage was obtained by Husband's fraud under R.C.
3105.31(D). "Where fraud is so grievous that it places the injured party in an intolerable
relationship, it robs the marital contract of all validity. Equity will not deny relief where a
deceitful plan, laid and consummated, inevitably defeats the essential purposes of a
marriage." In re Marriage of Rabie, 40 Cal.App.3d 917, 922, 115 Cal.Rptr. 594 (1974).
{¶35} Husband's first assignment of error is overruled.
{¶36} Assignment of Error No. 2:
{¶37} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A
NEW TRIAL.
{¶38} Husband moved for a new trial pursuant to Civ.R. 59(A)(1), (2), (3), (6), and
(7), which provides:
"A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:
(1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party;
(3) Accident or surprise which ordinary prudence could not have guarded against;
***
(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case;
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(7) The judgment is contrary to law[.]
{¶39} A motion for a new trial under Civ.R. 59(A)(1), (2), and (3) is reviewed under
an abuse-of-discretion standard. See Nationwide Agribusiness Ins. Co. v. Heidler, 12th
Dist. Clinton Nos. CA2018-06-003, CA2018-07-004, CA2018-09-012, and CA2018-09-015,
2019-Ohio-4311; Sheffield v. Estate of Bentley, 12th Dist. Fayette No. CA2014-12-020,
2015-Ohio-3834; and Wright v. Suzuki Motor Corp., 4th Dist. Meigs Nos. 03CA2 thru
03CA4, 2005-Ohio-3494. When presented with a Civ.R. 59(A)(6) motion for a new trial, a
trial court weighs the evidence and considers the credibility of the witnesses to determine
whether the manifest weight of the evidence supports the judgment. Koerper v. Szabo,
10th Dist. Franklin No. 18AP-734, 2019-Ohio-3159, ¶ 35; Kramer v. Kramer, 12th Dist.
Clermont No. CA87-02-014, 1987 Ohio App. LEXIS 9901, *7 (Dec. 7, 1987). An appellate
court does not directly review whether the judgment was against the manifest weight of the
evidence; rather, the appellate court determines whether the trial court abused its discretion
in denying or granting the Civ.R. 59(A)(6) motion. Koerper at ¶ 35; Kramer at *8. A motion
for a new trial brought under Civ.R. 59(A)(7) is reviewed de novo. Nationwide at ¶ 72. De
novo review means that this court uses the same standard the trial court should have used.
Id. at ¶ 71.
{¶40} Husband challenges the trial court's denial of his motion for a new trial,
presenting two issues for review. Under his first issue for review, Husband argues that the
trial court erred in denying his motion for a new trial under Civ.R. 59(A)(6) and (7).
{¶41} Husband's motion raised the same claims he now asserts on appeal, to wit,
Husband's fraudulent intent was not proven by clear and convincing evidence; the trial court
inferred fraudulent intent based upon conduct that was not contemporaneous with the
marriage but occurred five years later; no evidence was presented that Husband was faking
impotence; no evidence was presented that Husband planned his departure from the start
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of the marriage; and Husband had ample reasons to be conflicted about remaining in a
physically and verbally abusive marriage. The trial court denied the motion, stating it had
observed the witnesses on the stand, considered the evidence, and stated its reasons in its
decision.
{¶42} In its decision annulling the parties' marriage, the trial court noted that the
parties disputed whether the marriage was consummated and whether Husband was truly
unable to perform or was instead driven by motive, that the lack of intimacy placed some
strain on the marriage, and that the parties began the process of IVF to attempt to start a
family. The trial court stated it would consider this evidence in weighing the parties'
credibility. Husband testified that after the parties started the IVF process, medical
personnel "confirmed with a force, I am not impotent." Husband's arguments regarding the
applicable burden of proof, the lack of evidence, direct or otherwise, regarding his fraudulent
intent, and the reasons he did not remain in the marriage are premised upon the same facts
set forth in his first assignment of error. For the reasons set forth in our discussion of
Husband's first assignment of error, the trial court did not err in denying his motion for a
new trial under Civ.R. 59(A)(6) and (7). See Oberhauser v. Mabe, 12th Dist. Butler No.
CA2008-11-266, 2009-Ohio-3680.
{¶43} Under his second issue for review, Husband argues that the trial court erred
in denying his motion for a new trial under Civ.R. 59(A)(1), (2), and (3). Husband asserts
that Wife engaged in misconduct when she falsely testified that Husband's AstraZeneca
paychecks were last deposited into the parties' joint bank account in February 2020. In an
affidavit attached to his motion, Husband states that following a March 2020 clerical error,
AstraZeneca mailed paper paychecks to Husband who then deposited them and that Wife
was aware. Husband's affidavit includes bank statements from the parties' Kemba joint
bank account showing deposits of approximately $1,700 every two weeks in April and May
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2020 and a final deposit of $1,685.89 on June 8, 2020.1 Husband asserts he was surprised
by Wife's testimony and was therefore not prepared to present bank statements showing
these deposits. Moreover, "the implication that he no longer deposited his checks was not
– with ordinary prudence – something he could have anticipated the court as seeing relevant
to his intent and guarded against." Husband further asserts that "much to his dismay," his
attorney failed to present an audio recording of one of the parties' arguments which would
have confirmed Wife's violent and threatening temperament.
{¶44} The trial court denied the motion, finding that
[Wife] filed a motion to compel [Husband] to produce documents, which was granted. At the time of the final hearing, many of the documents submitted by [Wife] were obtained through subpoena or provided directly by [Wife].
[Husband] was represented by competent counsel at the final hearing. [Husband] had ample opportunity to present all relevant evidence, and did provide evidence and testimony in support of his position.
{¶45} An irregularity for purposes of Civ.R. 59(A)(1) is "any matter 'as constitutes a
departure from the due, orderly and established mode of proceeding therein, where a party,
with no fault on his part, has been deprived of some right or benefit otherwise available to
him.'" Thomas v. Bur. of Workers' Comp., 2d Dist. Montgomery Nos. 26805 and 26813,
2016-Ohio-7246, ¶ 96. Accident or surprise, to constitute grounds for a new trial under
Civ.R. 59(A)(3), "must not arise from the negligence of the aggrieved party or of her
counsel." Gould v. Gould, 12th Dist. Butler No. CA2004-01-010, 2005-Ohio-416, ¶ 11. "A
trial court's decision overruling a motion for a new trial on the ground of accident or surprise
is not reversible error unless the moving party shows that she exercised proper diligence in
1. The bank statements attached to Husband's affidavit show deposits of approximately $1,700; Husband asserts the deposits were the paper paychecks issued by AstraZeneca after March 2020. We note that the amount of these deposits was smaller by several hundreds of dollars than the amount of most of Husband's directly deposited AstraZeneca paychecks. - 15 - Butler CA2021-08-098
the preparation of her case to prevent surprise and that she used all means reasonably
available to overcome the effect of the surprise." Id.
{¶46} We find that the trial court did not abuse its discretion in denying Husband's
motion for a new trial regarding trial counsel's failure to present an audio recording of one
of the parties' arguments. Husband testified that Wife continually threatened him with
divorce and deportation and that she was physically abusive to him during arguments.
When trial counsel failed to present the recording at the end of the hearing, Husband did
nothing. "[I]t was clearly incumbent upon defendant to act promptly and claim relief at the
earliest opportunity, using every means reasonably available at the time to remedy the
effect of the failure of proof. This he utterly failed to do, or try to do." Kroger v. Ryan, 83
Ohio St. 299, 306 (1911). Instead of promptly making known his disappointment and
surprise, Husband "was content to observe silence, let the [hearing] proceed and take his
chances of a favorable verdict upon the evidence as given." Id. "[A] new trial will not be
granted on the ground of surprise when the party might have been duly informed by the
exercise of ordinary diligence, or where it was induced by his own oversight, forgetfulness
or neglect, or where the surprised party has failed to observe due diligence in seeking a
remedy[.]" Id.
{¶47} We further find that the trial court did not abuse its discretion in denying
Husband's motion for a new trial regarding Wife's alleged misconduct. Husband
acknowledges that the bank statements attached to his motion were available to him before
the hearing. The record shows that Husband was served with Wife's first set of
interrogatories and request for production of documents in October 2020. In particular, Wife
requested that Husband "produce the last 48 months of statements from any financial
account identified in your response to Interrogatory 14," that is, Husband's bank account
statements from October 2016 to October 2020. Husband's answers to Wife's
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interrogatories identified the parties' Kemba joint bank account as one of his financial
accounts. Thus, Wife's discovery request put Husband on notice that she intended to rely,
in part, on his failure to deposit his AstraZeneca paychecks after February 2020. Husband
never provided the requested bank account records. Had he done so, he would have had
the opportunity to specifically challenge Wife's testimony. Instead, Husband simply testified
that he did deposit his AstraZeneca paper paychecks into the parties' joint bank account
between April and early June 2020 and that "we can go to the bank and verify[.]" Husband's
failure to adequately investigate Wife's fraud claim and exercise proper diligence in the
preparation of his case cannot be called "surprise" and does not entitle Husband to a new
trial on the grounds of "irregularity in the proceedings" or "misconduct of the prevailing
party."
{¶48} In light of the foregoing, the trial court did not abuse its discretion in denying
Husband's motion for a new trial under Civ.R. 59(A)(1), (2), and (3).
{¶49} Husband's second assignment of error is overruled.
{¶50} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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