[Cite as Stevens v. Stevens, 2011-Ohio-6741.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MELISSA STEVENS JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 11CAF080074
DOWARD STEVENS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 09DRA03110
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 27, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TERRENCE P. FLAHIVE ROBERT M. OWENS
1 West Winter Street Owens Law Office, LPA
Delaware, Ohio 43015 Robert M. Owens
46 North Sandusky Street, Suite 202
Delaware, Ohio 43015
Delaware County, Case No. 11CAF080074 2
Hoffman, P.J.
(¶1) Defendant-appellant Doward L. Stevens appeals the July 15, 2011
Judgment Entry entered by the Delaware County Court of Common Pleas, which
overruled his objections to the magistrate’s April 29, 2011 decision, and approved and
adopted said decision as order of the court. Plaintiff-appellee is Melissa L. Stevens.1
STATEMENT OF THE CASE AND FACTS
(¶2) Appellant and Appellee were married on May 19, 1990. Two children
were born as issue of said union. Appellee filed a Complaint for Divorce on March 3,
2009. Appellant filed an Answer and Counterclaim on March 24, 2009. The trial court
issued temporary orders including asset/debt restraining orders. During the course of
the marriage, Appellee’s mother won a large lottery jackpot, of which Appellee received
a portion.
(¶3) On June 18, 2009, Appellant served Appellee with written discovery.
Appellant’s Request for Admissions specifically asked Appellee to “Admit that the lottery
winnings are marital assets”. Appellee did not respond to the discovery despite
numerous attempts by Appellant’s counsel to obtain such. As a result, on July 29,
2009, Appellant filed a Motion to Compel Discovery and to Deem Certain Matters
Admitted pursuant to Civil Rule 36. The trial court granted Appellant’s motion to compel
and ordered Appellee to supply answers to admissions “within 14 days—8/14/2009”.
Magistrate’s August 3, 2009 Order, at 2. After Appellee failed to comply with the order,
Appellant filed a Motion to Accept Matters Deemed Admitted per Civil Rule 36 on
August 17, 2009.
1
Appellee did not file a brief in this matter.
Delaware County, Case No. 11CAF080074 3
(¶4) Appellee filed her answers to Appellant’s First Request for Admissions on
August 20, 2009. Therein, Appellee specifically denied the lottery winnings were marital
assets. Appellant filed a motion for sanctions pursuant to Civ. R. 37 as well as a motion
to strike the untimely responses.
(¶5) The magistrate conducted a final hearing on January 11, 2010, and April
6, 2010. The parties were permitted to argue their respective positions relative to the
discovery and compliance issues. The magistrate denied Appellant’s request for the
court to treat, as admitted, Appellee’s statement the lottery proceedings were marital
assets. Appellant raised an on-going objection to any evidence pertaining to the lottery
proceeds.
(¶6) The magistrate issued a decision on April 29, 2011. Appellant filed timely
objections to the magistrate’s decision. Via Judgment Entry filed July 15, 2011, the trial
court overruled Appellant’s objections, and approved and adopted the magistrate’s
decision as order of the court.
(¶7) It is from this Judgment Entry Appellant appeals, assigning as error:
(¶8) “I. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO
APPELLANT BY WRONGLY REJECTING APPELLEE’S ADMISSION THAT CERTAIN
LOTTERY WINNINGS WERE MARITAL ASSETS.”
(¶9) This case comes to us on the accelerated calendar. App. R. 11. 1, which
governs accelerated calendar cases, provides in pertinent part:
(¶10) “(E) Determination and judgment on appeal.
Delaware County, Case No. 11CAF080074 4
(¶11) “The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason for the court's
decision as to each error to be in brief and conclusionary form.
(¶12) “The decision may be by judgment entry in which case it will not be
published in any form.”
(¶13) This appeal shall be considered in accordance with the aforementioned
rule.
I
(¶14) In his sole assignment of error, Appellant contends the trial court
committed prejudicial error by failing to deem, as admitted, Appellee’s statement the
lottery proceedings were marital assets. We disagree.
(¶15) Civ.R. 36 provides, in pertinent part:
(¶16) “(A) Request for admission
(¶17) “A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any matters within the
scope of Rule 26(B) set forth in the request that relate to statements or opinions of fact
or of the application of law to fact, including the genuineness of any documents
described in the request. * * *
(¶18) “* * * The matter is admitted unless, within a period designated in the
request, not less than twenty-eight days after service thereof or within such shorter or
longer time as the court may allow, the party to whom the request is directed serves
upon the party requesting the admission a written answer or objection addressed to the
matter, signed by the party or by his attorney. * * *
Delaware County, Case No. 11CAF080074 5
(¶19) “(B) Effect of admission
(¶20) “Any matter admitted under this rule is conclusively established unless the
court on motion permits withdrawal or amendment of the admission. * * * [T]he court
may permit withdrawal or amendment when the presentation of the merits of the action
will be subserved thereby and the party who obtained the admission fails to satisfy the
court that withdrawal or amendment will prejudice him in maintaining his action or
defense on the merits. * * *”
(¶21) We agree with Appellant a party's failure to timely respond to a request for
admissions results in matters being automatically admitted under Civ.R. 36(A).
Nevertheless, we find the trial court did not abuse its discretion or commit prejudicial
error in accepting Appellee’s late responses to the request for admissions. See, Balson
v. Dodds (1980), 62 Ohio St.2d 287.
(¶22) Appellant served Appellee with written discovery on June 18, 2009.
Appellee did not timely respond to the discovery. As a result, on July 29, 2009,
Appellant filed a Motion to Compel Discovery and to Deem Certain Matters Admitted
pursuant to Civil Rule 36. The trial court granted Appellant’s motion to compel and
ordered Appellee to supply answers to admissions “within 14 days—8/14/2009”.
Magistrate’s August 3, 2009 Order, at 2. Appellee filed her answers to Appellant’s First
Request for Admissions on August 20, 2009.
(¶23) Civ. R. 36(B) vests the trial court with discretion to permit withdrawal or
amendment of admissions. See, Aetna Casualty and Surety Company v. Roland (1988),
47 Ohio App.3d 93, 547 N.E.2d 379. This Court cannot find the court abused its
discretion unless we find the court's decision was unreasonable, arbitrary, or
Delaware County, Case No. 11CAF080074 6
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
Further, this Court may not substitute its judgment for that of the trial court when
reviewing a matter directed to the court's discretion. Pons v. Ohio State Medical Board
(1993), 66 Ohio St.3d 619, 614 N.E.2d 748. We find the trial court’s decision to accept
the late discovery did not constitute an abuse of discretion.
(¶24) Appellant’s sole assignment of error is overruled.
(¶25) The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Delaware County, Case No. 11CAF080074 7
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MELISSA STEVENS :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DOWARD STEVENS :
:
Defendant-Appellant : Case No. 11CAF080074
For the reason stated in our accompanying Opinion, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY