West v. West

2022 Ohio 4561

• Court: Ohio Court of Appeals
• Decided: December 19, 2022
• Docket: 15-22-01
• Status: Published

Opinion

[Cite as West v. West, 2022-Ohio-4561.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

JOY A. WEST,

PLAINTIFF-APPELLEE, CASE NO. 15-22-01

v.

THOMAS E. WEST, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Domestic Relations Division Trial Court No. DR-18-11-110

Judgment Affirmed

Date of Decision: December 19, 2022

APPEARANCES:

Howard A. Elliott for Appellant

Glenn H. Troth for Appellee Case No. 15-22-01

SHAW, J.

{¶1} Defendant-Appellant, Thomas E. West (“Thomas”), appeals the April

11, 2022 judgment entry-decree of divorce of the Van Wert County Court of

Common Pleas, Domestic Relations Division, granting Plaintiff-Appellee, Joy A.

West (“Joy”), a divorce from him.

Facts and Relevant Procedural History

{¶2} On November 21, 2018, Joy filed a complaint for divorce (with

children), claiming that a common law marriage had been created between herself

and Thomas on November 6, 1990. Joy alleged as grounds gross neglect of duty

and extreme cruelty and that the parties were incompatible. On the same date, Joy

filed a motion for temporary orders. According to the return of service filed in the

record, Thomas was personally served with the summons, complaint and motion on

December 13, 2018. Thomas appeared pro se at a hearing on temporary orders. An

order filed January 9, 2019 rescheduled a pretrial in the matter for February 6, 2019.

{¶3} On February 22, 2019, Joy filed a motion, pursuant to Civ.R. 8(D), to

have deemed admitted the allegations contained in the complaint based upon

Thomas’ failure to file a responsive pleading or respond to the complaint. On March

1, 2019, a magistrate filed an “order granting admissions.”

{¶4} On March 28, 2019, Joy filed a motion for contempt based on the

temporary orders, which was served on Thomas, and the matter was set for hearing.

On May 7, 2019, counsel entered an appearance for Thomas and thereafter filed -2- Case No. 15-22-01

various motions, including a motion for relief from judgment of the March 1, 2019

“order granting admissions,” and for leave of court to file an answer to Joy’s

complaint for divorce. Joy then filed a response, to which Thomas replied. By

judgment entry dated February 18, 2020, the trial court denied these motions and

set the matter for hearing to determine if there was a common law marriage between

the parties.

{¶5} After hearings were held on the issue of the common law marriage only,

the trial court found that Joy had proved, by clear and convincing evidence, that the

parties had a common law marriage as of November 6, 1990. A final divorce

hearing was subsequently held, and the trial court thereafter granted Joy a divorce

based on the grounds of gross neglect of duty and extreme cruelty, a distribution of

the assets and debts of this marriage, and made an award of spousal support to Joy.

{¶6} Thomas appealed and raises the following assignments of error:

Assignment of Error No. 1

The trial court committed a reversible error by precluding the Defendant from presenting evidence or testimony as to the existence of a common law marriage where he appeared to defend at the first hearing that took place after service of completion of process upon him and where nonetheless did not timely file an answer to the complaint.

Assignment of Error No. 2

Owing to a lack of sufficient evidence as the essential elements of a common law marriage, the trial [court] erred in finding that

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there was a valid common law marriage created on November 6, 1990.

Assignment of Error No. 3

The court, in granting a divorce herein to the Plaintiff both on grounds of extreme cruelty and gross neglect of duty, committed error in making those findings due to a lack of a coboration [sic] as to such grounds.

First and Second Assignments of Error

{¶7} We will consider the first and second assignments of error together. On

appeal, Thomas does not dispute that he failed to timely file an answer to the initial

complaint, instead arguing that the trial court erred by precluding him from

presenting evidence or testimony as to the existence of a common law marriage

where he did appear at the first hearing on temporary orders.

{¶8} At the outset, we note that the trial court issued a judgment entry finding

that Thomas failed to show excusable neglect for the failure to file his answer within

the time provided in Civ.R. 6(B). Excusable neglect was also not shown to justify

the late request to set aside the magistrate’s order. Accordingly, the trial court stated

in its judgment entry that during the hearing to determine if there was a common

law marriage, Thomas would “not be able to present evidence to refute whether

there was a common law marriage between the parties; however, the Plaintiff still

needs to prove, by clear and convincing evidence, that a common law marriage

exists between the parties.” (Doc. No. 51). “If the Court finds there is a marriage

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then the parties shall then need to present evidence on the issues of the care and

custody of the minor child, as well equitable property division and spousal support

if appropriate.” (Id.)

{¶9} We recognize in considering Thomas’ first assignment of error that the

“Ohio Civil Rules provide that the provisions for a default judgment do not apply

to complaints for divorce.” McKenzie v. McKenzie, 3d Dist. Marion No. 9-13-15,

2013-Ohio-4859, ¶ 4, citing Civ.R. 75(F). In McKenzie, we discussed our earlier

case Skaggs v. Skaggs, 3d Dist. Marion No. 9-94-60 (June 23, 1995), which held

that the trial court in effect rendered a default judgment, but stated the following:

This court determined that by appearing at the hearing, the defendant had indicated his intent to participate in the matter. * * * However, this court did hold that although the defendant had made an appearance sufficient to entitle him to the right to present evidence and cross-examine opposing witnesses, his failure to file an answer was an admission of the grounds of the divorce.

Id. That case then concluded “plaintiff’s admission regarding the grounds for

divorce did not constitute an admission regarding any other matters such as

property division and child custody.” Skaggs at *2. Similarly, in McKenzie, we

found that although the part of the judgment pertaining to the property division and

child custody was in substance a default judgment, we affirmed the portion of the

judgment granting a divorce. McKenzie at ¶ 9.

{¶10} Here, Thomas characterizes this case as one in which the trial court

basically entered a default judgment on the issue of whether a common law marriage

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existed. However, as the record reflects, Joy had not been excused from proof of

her claim of a common law marriage but, rather, the trial court required Joy to prove

the establishment of a common law marriage by clear and convincing evidence for

a judgment to be granted by the trial court. During a hearing over two days, the trial

court heard extensive testimony and evidence on the issue, followed by written final

arguments from both parties. Thomas was present with counsel, and the record

reflects that Thomas had the opportunity to effectively confront Joy’s witnesses by

cross-examination before the trial court and also was allowed to present some

rebuttal testimony to the corroborative evidence offered.

{¶11} In these circumstances, this Court finds that Thomas has not

demonstrated that any reversible error was committed by the trial court and,

therefore, Thomas’ first assignment of error is overruled.

{¶12} We next address Thomas’ second assignment of error that Joy failed

to introduce sufficient evidence of the elements necessary for the trial court’s

finding that there was a valid common law marriage created on November 6, 1990.

{¶13} Although Ohio has prohibited common law marriages after October

10, 1991, common law marriages that occurred prior to that date continue to be

recognized. R.C. 3105.12(B)(1)(2). A common law marriage is established when

the following elements are present:

(1) an agreement of marriage in praesenti; (2) cohabitation as husband and wife; and (3) a holding out by the parties to those

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with whom they normally come into contact, resulting in a reputation as a married couple in the community.

State v. DePew, 38 Ohio St.3d 275, 279, citing Nestor v. Nestor, 15 Ohio St.3d 143

(1984).

{¶14} The party seeking to establish a common law marriage must prove

each of its elements by clear and convincing evidence. Nestor at 146. Clear and

convincing evidence is that degree of proof which produces in the mind of the trier

of fact “a firm belief or conviction as to the allegations sought to be established.”

Faison v. Faison, 8th Dist. Cuyahoga No. 84942, 2005-Ohio-2733, ¶ 15, citing Cork

v. Bray, 52 Ohio St.3d 35 (1990). In deciding whether a party has presented clear

and convincing evidence of a common law marriage, the weight to be given the

evidence and the credibility of witnesses is a determination to be made by the trier

of fact. Estate of Everhart v. Everhart, 12th Dist. Fayette Nos. CA2013-07-019 and

CA2013-09-026, 2014-Ohio-2476, ¶ 28.

{¶15} “The contract of marriage in praesenti may be proven either by way of

direct evidence which establishes the agreement, or by way of proof of cohabitation,

acts, declarations, and the conduct of the parties and their recognized status in the

community in which they reside.” Nestor at 146.

{¶16} In the present case, Joy testified that the parties began going out

together and thereafter began living together in October 1990. She testified that the

two were married on November 6, 1990, when Thomas gave her a ring as a symbol

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of their intention of becoming husband and wife. It is undisputed that the parties

had six children together, and when health insurance became available through her

full-time employment in June 1994, Joy changed her last name to West for purposes

of qualifying with her husband and family.

{¶17} Also, according to Joy’s testimony, the parties filed their tax returns

as married filing jointly throughout the marriage. It is clear that the trial court found

her testimony consistent with the documents presented during the hearing. In fact,

a review of the trial court’s decision reveals that it placed reliance on the parties’

marital status as reflected on fifteen years of tax returns, four deeds and two

mortgages with one deed and the mortgages signed by the parties as husband and

wife. It is further clear that the trial court took the other documents, which were

either unsigned copies or documents referencing the parties as husband and wife but

signed by others, into consideration when assessing Joy’s credibility. Joy

additionally presented the testimony of a witness who also recalled a same

conversation with Thomas in early 1992, as Joy herself testified to, about Thomas

asking what the witness had been doing talking to his “wife.”

{¶18} Accordingly, based on our review of the record, we find the trial court

did not err in concluding there was clear and convincing evidence to support its

factual finding that a common law marriage existed between the parties.

{¶19} Thomas’ second assignment of error is also overruled.

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Third Assignment of Error

{¶20} In his third assignment of error, Thomas argues that the trial court

erred in granting a divorce to Joy on the grounds of extreme cruelty and gross

neglect of duty because the record lacks corroborating evidence to support those

findings.

{¶21} While Ohio law does require a plaintiff seeking a divorce to

corroborate her allegations, Civ.R. 75(M), we note again this Court has recognized

that despite a finding that defendant had made an appearance in the divorce action,

the fact remained that defendant did not file a timely answer to plaintiff’s complaint,

and thus, since defendant had not denied plaintiff’s allegation regarding the grounds

for divorce in a responsive pleading, it was deemed admitted for purposes of the

proceedings. Skaggs v. Skaggs, 3d Dist. Marion No. 9-94-60 (June 23, 1995) at *2,

citing Civ.R. 8(D) and Swihart v. Swihart, Union App. No. 14-94-27 (Dec. 13,

1994); see McKenzie v. McKenzie, 3d Dist. Marion No. 9-13-15, 2013-Ohio-4859.

“Civ.R. 8(D) provides that averments in a pleading to which a responsive pleading

is required, other than those as to the amount of damage are admitted when not

denied in a responsive pleading.” Id.

{¶22} Nonetheless, in a decision entered on March 30, 2022, the trial court

found that there was evidence including the medical report of the plaintiff and the

judgment entry of convictions for the crime of domestic violence perpetrated by the

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Defendant against the Plaintiff introduced. “This evidence supports a finding of

gross neglect and extreme cruelty experienced by the Plaintiff.” (Doc. No. 108).

The trial court, in its judgment entry-decree of divorce, then stated that “[t]he

evidence supports a finding of gross neglect of duty and extreme cruelty

experienced by the Plaintiff.” (Doc. No. 109). Upon review, we conclude that the

transcript and record of the final divorce hearing contain direct and corroborating

evidence supporting the trial court’s findings regarding the grounds for the divorce.

{¶23} Accordingly, the trial court did not abuse its discretion in granting a

divorce to Joy. Thomas’ third assignment of error is overruled.

{¶24} For the foregoing reasons, we affirm the judgment of the trial court.

MILLER and WILLAMOWSKI, J.J., concur.

/jlr

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