Opinion
CASE NO. 2023-L-022
12-29-2023
Jerome SHAVEL, Plaintiff-Appellant, v. Ginger L. SHAVEL, Defendant-Appellee.
Kenneth J. Cahill, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH 44077 (For Plaintiff-Appellant). Joseph G. Stafford, Nicole A. Cruz and Kelley R. Tauring, Stafford Law Co., L.P.A., North Point Tower, 1001 Lakeside Avenue, Suite 1300, Cleveland, OH 44114 (For Defendant-Appellee).
Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Trial Court No. 2019 DR 000216.
Kenneth J. Cahill, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH 44077 (For Plaintiff-Appellant).
Joseph G. Stafford, Nicole A. Cruz and Kelley R. Tauring, Stafford Law Co., L.P.A., North Point Tower, 1001 Lakeside Avenue, Suite 1300, Cleveland, OH 44114 (For Defendant-Appellee).
OPINION
MATT LYNCH, J.
{¶1} Plaintiff-appellant, Jerome Shavel, appeals from the judgment of the Lake County Court of Common Pleas, Domestic Relations Division, finding that Jerome and defendant-appellee, Ginger L, Shavel, had a common law marriage and granting their divorce. For the following reasons, we affirm in part and reverse in part the decision of the lower court and remand for further proceedings consistent with this opinion.
{¶2} On April 18, 2019, Jerome filed a Complaint for Divorce from Ginger. Ginger filed an Answer on May 10, 2019. She also filed a Motion to Enact Common Law Marriage for Marital Division and Spousal Support Purposes on July 30, 2019. Therein, she asserted that, while the parties were married through a ceremony in 2004, they previously had a common law marriage from 1987 to 2004, and she was entitled to a share of marital assets from 1987.
{¶3} Ginger filed a motion for leave to file an amended answer on July 10, 2020, which was granted. As amended, the Answer included a Counterclaim which restated the above claim regarding common law marriage and alleged that she was entitled to divorce on the grounds of gross neglect of duty and extreme cruelty.
{¶4} The divorce was tried before the judge at a trial commencing on November 25, 2020. The following testimony and evidence were presented:
{¶5} Jerome and Ginger testified that they were married for the first time on March 1, 1980. They subsequently were granted a dissolution of their marriage on April 4, 1988. They were married a second time in a ceremony on May 21, 2004. The couple had two children together, born in 1980 and 1982.
{¶6} According to Jerome, he and Ginger lived in multiple residences following their marriage in 1980 and moved into a residence in Twinsburg around 1982 or 1983. Ginger had a bachelor’s degree and held various jobs during their relationship. After the dissolution in 1988, Jerome resided with friends and his mother before moving back into the Twinsburg residence with Ginger and their children in late summer or early fall of 1989. He lived with Ginger as a matter of "convenience" financially, as well as for the sake of their children, and noted that the two did not get along well or communicate on a regular basis, although they returned to being intimate at some point after his return. He indicated that although he had dated other women after their dissolution, he did not see any women from the time they became remarried in 2004 until 2014.
{¶7} Jerome testified that from 1988 to 2004 he was not married to Ginger, he did not buy her a wedding ring, and he did not tell others she was his wife. He stated that they had not shared a bedroom since the mid-90s. He described a situation where his daughter became upset at some point in time because she found out about her parents’ dissolution via internet court records.
{¶8} Jerome indicated, and the exhibits documented, that he had designated Ginger as his wife on employee paperwork, listing Ginger as his wife and emergency contact in a May 1996 Employee Personal Information form. His January 1999 Retirement Plan Election of Benefits also stated his filing status as "married" and listed Ginger as his spouse and beneficiary.
{¶9} Jerome testified that Ginger filed joint tax returns for both of them from 1988 through 2018, but he did not recall signing the returns. He indicated that he was unaware whether joint returns can only be filed by a husband and wife. He testified that, following the dissolution, he gave his paychecks to Ginger and she would pay the household bills. A mortgage document from June 1990 was signed by both Jerome and Ginger and contained an indication of "h/w" (husband and wife). Mortgage documents from 1992, 1996, 2001, and 2004, referenced the two as "husband and wife." Jerome indicated that his statement in these documents that he was married was untruthful.
{¶10} The parties’ adult daughter, Elisha Cox, testified that she discussed the 2004 marriage with her mother and Ginger stated that its purpose was for her to become eligible for social security payments. Ginger testified that she told Cox the purpose of the marriage was to renew their vows.
{¶11} Ginger indicated that the couple initially ended their 1980 marriage due to Jerome’s infidelity. After the dissolution, Jerome left the home but came to see the children every day. She let him return to the residence about a month later and he began sleeping there again. A few months after his return, she had the child support ordered in the dissolution stopped. She testified that she did not tell most of their friends or their children they had a dissolution of their marriage. After he returned to the house, they went out "together as a couple," went to friends’ homes, and "would go out every weekend." According to her, she referred to him as her husband and he referred to her as his wife during that time. She indicated that they continued to celebrate March 1, the date of their 1980 marriage, as their anniversary.
{¶12} According to Ginger, the two had a joint bank account "for most of the time [they] were together." She filed their taxes "married, filing jointly" from 1980 until 2019, although records of the tax returns were not submitted. Refunds from their taxes were deposited into their joint account.
{¶13} Ginger testified that she did about 85 percent of household chores while also holding jobs outside of the home during their relationship. She testified that she does not believe she is currently capable of working due to her age (71) and health concerns.
{¶14} On November 10, 2022, the court issued a Judgment Entry in which it determined that the parties had entered into a common law marriage. In support of its conclusion, it observed that no one knew of the parties’ 1988 dissolution, and, thus, those in the community knew them as husband and wife. It also noted the designations that the two were married on the mortgage paperwork, retirement benefits, and health insurance, as well as the fact that the two maintained a joint bank account. The court found that several instances of Jerome’s testimony lacked credibility. It concluded that the totality of the evidence established a common law marriage from March 1, 1980, to November 25, 2020, finding that "[t]he evidence shows the Plaintiff desired the benefits of cohabitation, the reputation in the local community that the parties were husband and wife, and their prior agreement in praesenti to be married after their 1988 dissolution." It found that the 401(k), valued in excess of $570,000, was "earned during the marriage" and each party should receive 50%. In determining the award of spousal support, it considered, inter alia, the duration of marriage of over 40 years.
{¶15} On January 26, 2023, the trial court issued a Judgment Entry of Divorce, restating its finding of the common law marriage, finding that Ginger established the cause of "extreme cruelty," and granting the divorce. It ordered Jerome to pay spousal support of $2,000 a month and allocated Jerome’s 401(k) Plan.
{¶16} Jerome timely appeals and raises the following assignments of error:
{¶17} "[1.] The trial court erred in holding that the parties continued to be married after their divorce on April 4, 1988. {¶18} "[2.] The trial court erred in granting Ginger leave to file an amended [answer] and counterclaim after the close of discovery."
{¶19} In his first assignment of error, Jerome argues that the lower court erred in "holding that Jerome and Ginger had a common-law marriage between the date of their divorce and October 1991, when Ohio prohibited common-law marriage" since there was no evidence to support a conclusion that the couple intended to be married during that time period.
[1, 2] {¶20} "A common law marriage is the marital joinder of a man and a woman without the benefit of formal papers or procedures. Such marriages are not favored in Ohio, but have long been recognized as lawful if certain elements or circumstances are found to be present." Nestor v. Nestor, 15 Ohio St.3d 143, 145, 472 N.E.2d 1091 (1984). Pursuant to R.C. 3105.12(B)(1), common law marriages occurring after October 10, 1991, are not recognized in Ohio. "However, common law marriages that occurred prior to that date are recognized as valid and shall remain so until terminated by death, dissolution, divorce, or annulment." (Citation omitted.) Bevan v. Bevan, 11th Dist. Lake No. 2005-L-018, 2006-Ohio-2775, 2006 WL 1519654, ¶ 21.
[3–5] {¶21} "An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law * * *." Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832 (1912), at syllabus. "The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife." Nestor at 146, 472 N.E.2d 1091. The absence of an agreement between the parties precludes the establishment of such a relationship. Id.
[6] {¶22} "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." Id.
[7, 8] {5123} "Where there is no direct proof in reference to the formation of the contract of marriage in praesenti, testimony regarding cohabitation and community reputation tends to raise an inference of the marriage. This inference is given more or less strength according to the circumstances of the particular case. The inference is generally strengthened with the lapse of time during which the parties are living together and cohabitating as man and wife." Nestor at 146, 472 N.E.2d 1091. In contrast, where there is direct evidence of the formation of the contract of marriage in praesenti, evidence of cohabitation and reputation of living together "should be given even greater weight to further strengthen the inference of marriage." Id.
[9, 10] {¶24} We recognize that a common law marriage must be established by clear and convincing evidence. Markley v. Hudson, 143 Ohio St. 163, 54 N.E.2d 304 (1944), paragraph two of the syllabus. "Clear and convincing evidence 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." (Citation omitted.) State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. In reviewing whether the trial court erred in determining a common law marriage existed, we observe that this court reviewed a common law marriage finding for an abuse of discretion, although that matter involved the adoption of a magistrate’s decision. Bevan, 2006-Ohio-2775, at ¶ 22. A lower court’s finding that a common law marriage existed has also been reviewed under a manifest weight standard. Lawrence v. Rein, 11th Dist. Trumbull No. 91-T-4528, 1992 WL 208557, * 3 (Aug. 28, 1992); Douple v. Wagner, 2d Dist. Montgomery No. 24228, 2011-Ohio-1281, 2011 WL 945966, ¶ 76 ("we must review all of the evidence, and after giving due deference to the factual findings of the trial court, determine if we are persuaded by clear and convincing evidence that a common law marriage existed") (citation omitted). While there is some conflicting case law as to which of these standards apply, we find here that the evidence does not rise to the standard necessary to satisfy the requirement that a common law marriage was established by clear and convincing evidence as required by the Supreme Court in Markley.
{¶25} Prior to proceeding to an analysis of whether a common law marriage was created in 1988, we must address a finding made by the trial court in its November 10, 2022 Judgment Entry. The trial court determined: "Based upon the totality of the evidence * * *, this Judge finds the Defendant has proven the existence of each element necessary for a common law marriage by clear and convincing evidence from March 1, 1980 through November 25, 2020." Similarly, in the Judgment Entry of Divorce, it found that "the parties entered into a common law marriage on March 1, 1980." The evidence presented by the parties, however, demonstrated that they engaged in a ceremonial marriage on March 1, 1980, which continued until the dissolution on April 4, 1988. Both Ginger and Jerome testified that they were "married" on March 1, 1980, indicating a wedding date rather than the commencement of a common law marriage. Further, the judgment entry granting the dissolution stated that the Shavels were "Husband and Wife having married on or about the 1st day of March, 1980 in the City of Garfield Heights, Ohio." A common law marriage is one that occurs in the absence of formalities rather than one initiated by a marriage ceremony. Nestor at 145, 472 N.E.2d 1091. Since there appears to be no dispute that the parties were married pursuant to a ceremonial marriage on March 1, 1980, and remained married until the time of the dissolution in 1988, during that period, they were not engaged in a common law marriage.
{¶26} We recognize that a trial court can choose equitable dates for the duration of a marriage pursuant to R.C. 3105.171(A)(2)(b) ("[i]f the court determines that the use of [the date of the marriage and the date of the final hearing] would be inequitable, the court may select dates that it considers equitable in determining marital property"). In Taylor v. Taylor, 2d Dist. Miami No. 2012-CA-16, 2013-Ohio-2341, 2013 WL 2485149, the parties were married via a ceremony, divorced, entered a common law marriage, and then remarried again through a ceremony. The court found it was not an error to set the duration of their marriage from the initial ceremonial marriage date through the time of their final divorce since the parties had entered a common law marriage in the interim. Id. at ¶ 49, 52. Here, however, the court did not state that March 1, 1980, was the equitable date of the marriage but was the date of the commencement of the common law marriage. While it may be proper for the trial court to have found March 1, 1980, to November 25, 2020, to be equitable dates for the duration of the marriage if there was a common law marriage which began after the parties’ dissolution, it is necessary to first determine whether such a marriage existed. We hold that, unlike in Taylor, a common law marriage did not exist.
[11] {¶27} We will first address, however, Ginger’s argument, that Jerome failed to demonstrate that the court’s finding they were in a common law marriage affected his substantial rights and that he does not challenge the classification of marital property or demonstrate the common law marriage finding impacted this classification or the determination of spousal support. The lower court specifically addressed factors relating to the length of the marriage when making findings on the 401(k), stating that it was earned "during the marriage" (Jerome began working at his present employer in 1987), and noting the 40-year length of the marriage in the spousal support findings. It is reasonable to discern that, had the court found the parties were not married from 1988 to 2004, its determination on the distribution of the 401(k) would have been different. It cannot be concluded from the record exactly how much weight the court gave to the duration of the marriage in awarding spousal support. Under these circumstances, we find it necessary to consider whether the trial court’s finding that there was a common law marriage was made in error.
{¶28} In his argument that there was not a common law marriage, Jerome argues that there was a lack of direct evidence of an agreement to marry, particularly regarding whether the two specifically discussed the issue of marriage. We agree that the record does not demonstrate the two entered a specific verbal agreement to be married during the period from 1988 to 2004. The parties’ agreement to enter a common law marriage, can be established through direct testimony of their agreement but also "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, 15 Ohio St.3d at 146, 472 N.E.2d 1091.
{¶29} Testimony presented by both parties established that the two had a period of separation after the dissolution where they lived apart from one another. They presented contradictory testimony on other facts relating to the timeline of their relationship, with Ginger indicating Jerome moved into the house approximately a month after the dissolution but also testifying as to other dates he returned, as will be addressed further below. Jerome, on the other hand, indicated he did not move back in until over a year after the dissolution. They resumed intimacy, according to Jerome, after he returned home, although the record does not indicate the frequency of this contact and Jerome indicated they had maintained separate bedrooms for an extended period of time. Jerome indicated that the two continued to live together out of financial convenience, a conclusion supported by their daughter’s testimony that Ginger remarried Jerome in 2004 for potential social security benefits. Ginger testified that the two introduced themselves to others as husband and wife while Jerome denied this was the case. While there was testimony that the two did not tell others about their dissolution, Ginger indicated this was because she was embarrassed to do so. No other testimony was provided regarding the specific friends or family members to whom either had introduced themselves as married.
{¶30} The foregoing summary of the parties’ testimony demonstrates that there is limited and contradictory evidence to indicate when or if the parties agreed to engage in a common law marriage prior to the abolishment of common law marriages in 1901. The parties were granted a dissolution in April 1988, at which time it must be presumed they no longer had the intention to be married. There is conflicting testimony as to the period of time for which Jerome was no longer living with Ginger but there is no question that a period elapsed during which he lived separately before returning to the house. This is particularly a matter of concern where Ginger’s testimony was inconsistent on how long Jerome was gone from the home. She stated he moved out for about a month after the dissolution happened. However, she also testified that "four to five months" passed after the July 1987 hearing on dissolution before Jerome returned to their home. This would have placed Jerome in the house around December of 1987 or January of 1988, four months before the dissolution of the marriage occurred.
{¶31} Further, Ginger’s indication that the two continued to live as a married couple immediately after the dissolution is called into question by her own testimony. Ginger indicated that she had allowed Jerome to continue paying child support for a couple of months after he moved back in "to make sure it was going to work." However, her testimony does not indicate when she decided that the relationship began to "work." Ginger testified that the reason she got a divorce was because "there [were] more and more telling signs of his cheating. And eventually, I got very angry and couldn’t put up with it anymore, and I was done, and I divorced him." She then began questioning Jerome’s fidelity the "very first year he came back." In other words, in the year he returned to the home after the two clearly evidenced their intent not to be married by obtaining a dissolution, she was in the process of determining whether the marriage would work and recognized that Jerome continued to participate in the very activity that caused her to seek a divorce. Although she testified that she believed they were in a common law marriage, she fails to establish when such marriage commenced, particularly where Jerome consistently denied his intent to enter into such a marriage. While we recognize the lower court properly decides issues of credibility, even if viewed as credible, Ginger’s testimony does not establish by clear and convincing evidence that there was a meeting of the minds to enter a common law marriage. See State v. Cox, 8th Dist. Cuyahoga No. 38737, 1979 WL 210140, *3 (Apr. 26, 1979) (there was not clear and convincing evidence of a common law marriage given the "dearth of evidence" on the issue of holding out to the community where appellant testified he introduced appellee as his wife and that some relatives believed them to be married, this fact was not corroborated, and the appellee "categorically denied any such holding out").
{¶32} The evidence presented to corroborate Ginger’s version of events, which included mortgages and records from Jerome’s employer indicating the two were married, was almost exclusively from periods after 1991, when common law marriage was no longer permitted. All but one of the documents provided were from time periods ranging from 1992 to 2004. These documents have little value as they do not demonstrate what is required: that the parties engaged in a common law marriage before October 10, 1991.
{¶33} We recognize that courts have considered evidence post-dating 1991 as evidence of an existing common law marriage. See Estate of Everhart v. Everhart, 2014-Ohio-2476, 14 N.E.3d 438, ¶ 31 (12th Dist.) (considering joint tax returns in 2008-2011 in relation to whether a common law marriage existed); West v. West, 3d Dist. Van Wert No. 15-22-01, 2022-Ohio-4561, 2022 WL 17751482, ¶ 16-17 (considering the fact that the wife changed her last name to qualify for health insurance in 1994). However, in Everhart, the subsequent records were considered as bolstering other evidence that the couple was engaged in a common law marriage, including the fact that the husband gave the wife an engagement ring and wedding band in 1987. Id. at ¶ 30. Similar circumstances existed in West, where the appellate court considered evidence after 1991 when evaluating the wife’s credibility while taking into account the fact that the husband gave his wife a ring in 1990 as a symbol of becoming husband and wife. In both instances, the testimony bolstered evidence that the husband took an act to demonstrate his intention to be married, which was not the case here. We also observe that in Bevan, 2006-Ohio-2775, although presented with documentary evidence of a relationship between the parties ranging from 1982-2001, in analyzing the existence of a common law marriage, this court considered as evidence of the marriage "documentary evidence from the years prior to October 1991." Id. at ¶ 24.
{¶34} While a 1990 mortgage document containing a notation of "h/w" after the parties’ names was submitted, this is essentially the only piece of evidence to corroborate Ginger’s testimony that the two held out as married before 1991. This court has held that, where there is evidence that a couple obtained financing as husband and wife and occasionally referred to each other as married, this did not establish a common law marriage where there was testimony that the wife considered herself as single and the husband failed to produce evidence that they held themselves out as married to their family or others. Terry v. Brenneman, 11th Dist. Ashtabula No. 1344, 1988 WL 94388, *2 (Sept. 9, 1988).
{¶35} The limited evidence in support of common law marriage is further weakened by the fact that the couple engaged in a ceremonial marriage in 2004. If the two were in a valid common law marriage, which would provide them with the benefits of a ceremonial marriage, such a marriage would be unnecessary. Courts have found that such an act is inconsistent with assertions that a couple had a common law marriage. See In re Hammonds’ Estate, 39 Ohio Misc. 96, 101, 315 N.E.2d 843 (C.P. 1973) (where alleged husband stated after a "so called common-law ceremony was performed that he was going to remarry" the purported wife, this indicated "in effect, that he himself did not recognize the existence of the common-law marriage"); In re Derryberry, Iowa App. No. 13-0408, 2014 WL 2884760 (June 25, 2014) (the "fluctuating status of the parties’ relationship" and "inconsistent signals regarding their intent to be married" included the fact that they were manned multiple times).
[12] {¶36} In support of her argument that a common law marriage existed, Ginger cites to Taylor, 2013-Ohio-2341. In Taylor, the court found a common law marriage existed where the parties acted as if they were married, never separated, raised their children together, and held themselves out as husband and wife in the community. Id. at ¶ 49-52. It is distinguishable, however, since here there was a period of separation and circumstances surrounding Jerome’s return to the house outlined above which make a meeting of the minds to enter a common law marriage less certain. Bevan, 2006-Ohio-2775, is also distinguishable. In Bevan, this court affirmed a finding of a common law marriage where the parties cohabitated for 26 years, the husband listed the wife on his health insurance, and there was testimony they held themselves out to be married to their acquaintances and the community. There, multiple witnesses outside of the couple testified that they held themselves out to be married, unlike here where only the conflicting testimony of the parties was presented. Id. at ¶ 24.
We acknowledge Ginger's argument that this matter should be affirmed because Jerome's counsel failed to disclose in his appellant’s brief the case of Bevan as precedent directly contrary to his claims. Given the factual distinctions in this authority, we do not find the failure to cite this case rises to the level of misconduct or dishonesty, nor do we find that it warrants penalizing Jerome by failing to consider the merits of his appeal.
{¶37} We find Lehman v. Lehman, 8th Dist. Cuyahoga No. 60823, 1992 WL 125236 (June 4, 1992), to be instructive. In Lehman, it was determined that a common law marriage did not exist where the couple dissolved a ten-year marriage and continued to act as though they were manned, although the husband believed the marriage was dissolved, they did not share a bedroom, and the husband dated other women. Under these circumstances, the court found that the appellant failed to establish "the fundamental requirement" of a "meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife." (Citation omitted.) Id. at *4.
{¶38} We find that there was neither a common law marriage during the period following Jerome and Ginger’s first ceremonial marriage from 1980 to 1988, nor did Ginger establish the existence of one prior to 1991. Since the record indicates that the court considered this time period in its award of spousal support and property disposition, on remand it is necessary for the trial court to consider these matters taking into account only the time period where the parties were legally married and in light of the fact that they did not have a common law marriage.
{¶39} The first assignment of error is with merit.
[13] {¶40} In his second assignment of error, Jerome argues that the trial court erred in granting Ginger’s request to amend her Answer. He argues that she was aware of the facts giving rise to her claim of a common law marriage at the time she filed her Answer and exhibited undue delay by waiting until over a year to amend her Answer.
[14] {¶41} Civ.R. 15(A) provides that "[a] party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading * * *. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave." "[T]he language of 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 to the opposing party." Hoover v. Sumlin, 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984).
[15, 16] {¶42} A motion to amend is reviewed by the appellate court for an abuse of discretion. Deutsche Bank Natl. Trust Co. v. Germane, 11th Dist. Portage No. 2012-P-0024, 2012-Ohio-5833, 2012 WL 6114977, ¶ 21; Morgan v. Natale, 11th Dist. Trumbull No. 2021-T-0038, 2022-Ohio-1281, 2022 WL 1134193, ¶ 57. An abuse of discretion is the " ‘failure to exercise sound, reasonable, and legal decisionmaking.’ " State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). "[W]here the issue on review has been confided to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error." Id. at ¶ 67.
{¶43} Ginger moved for leave to file an amended Answer in which she alleged that the parties married not in 2004 but in 1988. To the extent that Jerome argues she was aware of the common law marriage when she filed her initial Answer, we observe that it is possible she was not aware of the significance of the common law marriage at that time. Nonetheless, regardless of the reasons this claim was not included in the Answer, we do not find the decision to grant the motion to amend was an abuse of discretion.
{¶44} Significantly, Ginger filed a Motion to Enact Common Law Marriage for Marital Division and Spousal Support Purposes less than three months after her Answer, on July 30, 2019. This raised her argument that there was a common law marriage commencing after the dissolution and that she was entitled to a share of marriage assets since that time. Although this did not amend the Answer, it placed Jerome on notice of these claims, which provided counsel sufficient time to prepare for the trial commencing over a year after this filing. Further, documents in support of Ginger’s claim of common law marriage, including the mortgage and employment information, were filed over four months in advance of the first trial date. Under these circumstances, we find neither undue delay nor prejudice. Since this filing made counsel aware that Ginger would be raising issues related to common law marriage, his claims of "sandbagging" lack merit.
[17] {¶45} In addressing a request for leave to amend, "a trial court’s ‘primary consideration is whether there is actual prejudice’ " due to the delay. Darby v. A-Best Products Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811 N.E.2d 1117, ¶ 20. Also Frayer Seed, Inc. v. Century 21 Fertilizer and Farm Chemicals, Inc., 51 Ohio App.3d 158, 165, 555 N.E.2d 654 (3d Dist.) ("[a]s amendments are to be freely granted so that cases can be decided on their merits, ample reason for refusal to grant a motion to amend should be shown, and actual prejudice to an opposing party is the most important factor to be considered in the granting or withholding of leave to amend"). Courts have found that even where there is some delay in seeking to amend a pleading, there is no abuse of discretion to grant leave where this did not result in prejudice to the opposing party. See McConnell v. Hunt Sports Ents., 132 Ohio App.3d 657, 679, 725 N.E.2d 1193 (10th Dist.1999) (while a motion to file an amended complaint "could be considered untimely, the trial court did not abuse its discretion in allowing the amendment that added count three because appellant was not prejudiced as a result"), For those reasons outlined above, there was a lack of prejudice to Jerome from the granting of leave to amend.
{¶46} Jerome’s citation to Thompson Farms, Inc. v. Estate of Thompson, 7th Dist. Columbiana No. 20 CO 0014, 2021-Ohio-2364, 2021 WL 2879372, is unavailing. The appellate court found no abuse of discretion in denying a motion for leave to amend that was filed one month before the scheduled trial and would have required a fifth continuance of a trial to complete discovery. Id. at ¶ 82-83. Here, unlike in Thompson, Jerome had notice well in advance of the trial of the issue relating to common law marriage.
{¶47} The second assignment of error is without merit.
{¶48} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, Domestic Relations Division, finding that the Shavels had a com- mon law marriage and granting their divorce, is affirmed in part, reversed in part, and this matter is remanded for further proceedings consistent with this opinion. Costs to be taxed against the parties equally.
JOHN J. EKLUND, P.J., concurs,
MARY JANE TRAPP, J., concurs in part and dissents in part with a Dissenting Opinion.
MARY JANE TRAPP, J., concurs in part and dissents in part with a Dissenting Opinion.
{¶49} While I concur with the majority’s determination that the trial court did not err in granting leave to Ms. Shavel to file an amended answer and counterclaim, I respectfully dissent from the majority's decision to reverse the trial court’s finding that the parties had a common law marriage.
{¶50} "A common law marriage is the marital joinder of a man and a woman without the benefit of formal papers or procedures." Nestor v. Nestor, 15 Ohio St.3d 143, 145, 472 N.E.2d 1091 (1984). "An agreement of marriage in praesenti [at the present time], when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law * * *." Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832 (1912), syllabus. "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, 472 N.E.2d 1091.
{¶51} "[A]ll of the essential elements to a common law marriage must be established by clear and convincing evidence." Id. " ‘Clear and convincing evidence 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 v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶52} The majority fails to recognize the critical difference between the trial court’s role as the trier of fact and our role as a reviewing court. The Supreme Court of Ohio has held that "[t]he weight of this evidence is for the [trier of fact] to determine." (Emphasis added.) Markley v. Hudson, 143 Ohio St. 163, 170, 54 N.E.2d 304 (1944); see State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus ("On the trial of a case, either civil or criminal, the weight to be given the evidence * * * [is] primarily for the trier of the facts"). "Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. * * * Weight is not a question of mathematics, but depends on its effect in inducing belief.’ " (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed. 1990).
{¶53} By contrast, "[o]nce the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof." (Emphasis added.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). "The determination of the [trial] court should not be overturned unless it is unsupported by clear and convincing evidence." Id.
{¶54} Here, the trial court heard testimony from the parties and one of their daughters over four days. It considered numerous exhibits, and most importantly, evaluated the credibility of each witness. The trial court also issued painstakingly comprehensive findings of fact and conclusions of law, stating as follows:
{¶55} "In the instant case, the parties held themselves out as married immediately after the dissolution to their two children. Certainly, the children are not just members of the local community, but key members. [Mr. Shavel] returned to the marital household some months after the dissolution in 1988.
{¶56} "The fact pattern herein is not unique for a court to find a common law marriage as the case law cited herein demonstrates. The evidence shows [Mr. Shavel] desired the benefits of cohabitation, the reputation in the local community was that the parties were husband and wife, and their prior agreement in praesenti to be married after their 1988 dissolution. [Mr. Shavel] cannot now shirk the responsibilities and division of property which accompany a valid common law marriage.
{¶57} "Based upon the totality of the evidence as set forth hereinabove, this Judge finds [Ms. Shavel] has proven the existence of each element necessary for a common law marriage by clear and convincing evidence from March 1, 1980 through November 25, 2020, the first day of trial herein." (Emphasis sic.)
{¶58} A review of the trial transcript supports the trial court’s factual findings. Critically, it also supports the trial court’s credibility assessments and its determination that there was sufficient evidence to produce a firm belief in its mind of the existence of a common law marriage. The conclusions of law correctly state the legal standard to be applied to the facts.
{¶59} In reversing the trial court’s judgment, the majority acts as a second trial court instead of a reviewing court. For instance, the majority states "there is limited and contradictory testimony to indicate when or if the parties agreed to engage in a common law marriage." The existence of "contradictory" evidence does not equate to a failure to meet the clear and convincing standard. The Supreme Court of Ohio has held that "[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). "A fact finder is free to believe all, some, or none of the testimony of each witness appearing before it." State v. Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, 2012 WL 6727343, ¶ 58.
{¶60} Here, the trial court found Ms. Shavel’s testimony was more credible and carried more weight than Mr. Shavel’s competing testimony, which it found to be "disingenuous," "not credible," "vague," and "nonresponsive." For example, the trial court highlighted the following portions of Mr. Shavel’s testimony:
"Q. Well, sir, when you file a joint return, you are filing as husband and wife; are you not?
"A. I don’t know. I really don’t know.
"Q. So you don’t know joint returns saying that you are husband and wife on a joint return, right? You don’t know that?
"A. I don’t know, no. I don’t know that. "* * *
"Q. * * * [Y]ou and [Ms. Shavel], basically, functioned as husband and wife in terms of how you paid your bills and took care of the children once you went back to living with [Ms. Shavel]?
"A. Yes.
"* * *
"Q. You would go to family functions, family reunions, family get-togethers, and you introduced [Ms. Shavel] as your wife, correct?
"A. Yes.
"* * *
"Q. And you would agree with me, sir, up until the point in time that you left the home, [Ms. Shavel] was a good wife?
"A. Yes.
"Q. [Ms. Shavel] was a good homemaker?
"A. Yes.
"Q. [Ms. Shavel] was a good mother?
"A. Yes.
"Q. And when need be, [Ms. Shavel] also made sure she was a good grandmother when there was a problem with one of your children taking care of a child?
"A. Yes.
"Q. And you would agree with me the only thing - the only time [Ms. Shavel] really got upset with you is when you engaged in activity with some of your lady friends?
"A. Yes.
"Q. [Ms. Shavel] just couldn’t take it anymore at some point in time?
"A. Yes.
"Q. And that is what led us here?
"A. Yes."
{¶61} There is no compelling reason to second-guess the trial court’s determinations in this case regarding weight and credibility.
{¶62} The majority next states that the documentary "evidence presented to corroborate [Ms. Shavel’s] version of events * * * was almost exclusively from periods after 1991, when common law marriage was no longer permitted." The majority cites no authority indicating that a party’s testimony must be corroborated by documentary evidence. In fact, there are cases in which the existence of a common law marriage was based solely on witness testimony. See, e.g., Gearhart v. Gearhart, 5th Dist. Richland No. 2007CA0026, 2008-Ohio-23, 2008 WL 62286. In addition, despite acknowledging that a 1990 mortgage document corroborates Ms. Shavel’s testimony and that "courts have considered evidence post-dating 1991 as evidence of an existing common law marriage," the majority draws a contrary inference. According to the Supreme Court of Ohio, however, "a court of appeals [shall] be guided by a presumption that the findings of the trier-of-fact were indeed correct." Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). " ‘[E]very reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * * If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’ " Id., fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191-192 (1978).
{¶63} The majority also states that the "limited evidence in support of common law marriage is further weakened by the fact that the couple engaged in a ceremonial marriage in 2004." In support, the majority cites a 1973 probate court decision, In re Estate of Hammonds, 39 Ohio Misc. 96, 315 N.E.2d 843 (P.C. 1973), and a decision from an Iowa appellate court, In re Marriage of Derryberry, 853 N.W.2d 301, 2014 WL 2884760 (Iowa App. 2014). The majority’s citation to these nonbinding authorities further illustrates the fallacy of its approach. Hammonds involved a trier of fact’s determination that a former spouse failed to establish the elements of a common law marriage by clear and convincing evidence. See id. at 102, 315 N.E.2d 843. It did not involve appellate review of the trial court’s determination. In Derryberry, the appellate court expressly reviewed the evidence de novo. See id. at *3, *7. Therefore, unlike reviewing courts in Ohio, it was permitted to second-guess the trial court’s factual determinations.
{¶64} The majority further attempts to distinguish the case upon which the trial court relied, Taylor v. Taylor, 2d Dist. Miami No. 2012-CA-16, 2013-Ohio-2341, 2013 WL 2485149, by citing the period in which the parties were not living together after the 1988 dissolution and the "circumstances surrounding" Mr. Shavel’s return to the house. According to the majority, this evidence "make[s] a meeting of the minds to enter a common law marriage less certain." (Emphasis added.) Certainty is not required. As this court explained in a prior case, "the evidence of a common law marriage between [the parties], as it appears in the record, is not beyond a reasonable doubt—but that is not the standard of proof. The evidence produced in the mind[ ] of * * * the trial court a firm belief that a marriage existed, which meets the standard of clear and convincing evidence." Bevan v. Bevan, 11th Dist. Lake No. 2005-L-018, 2006-Ohio-2775, 2006 WL 1519654,¶ 25.
{¶65} Finally, the majority finds the Eighth District’s decision in Lehman v. Lehman, 8th Dist. Cuyahoga No. 60823, 1992 WL 125236 (June 4, 1992), to be "instructive." In that case, the Eighth District found that the trial court did not err in granting summary judgment to the appellee and in dismissing the appellant’s complaint for divorce, "as there was no evidence of a common-law marriage" or "of an oral or written agreement." Id. at *4. Thus, Lehman is procedurally inapposite and does not lend support to the majority’s approach.
{¶66} In sum, an examination of the record demonstrates the trier of fact had sufficient evidence before it to find Ms. Shavel clearly and convincingly established the existence of a common law marriage. Accordingly, I would affirm the trial court’s judgment in full.