[Cite as In re D.D.D., 2012-Ohio-5254.]




                          STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT



IN RE:                                          )    CASE NO.    12 JE 7
                                                )
D.D.D.                                          )    OPINION
                                                )
                                                )



CHARACTER OF PROCEEDINGS:                            Civil Appeal from Common Pleas Court,
                                                     Probate Division, Case No. 11AD14.


JUDGMENT:                                            Affirmed.


APPEARANCES:
For Appellee:                                        Attorney John Mascio
                                                     325 North Fourth Street
                                                     Steubenville, Ohio 43952


For Appellant:                                       Attorney George Gbur
                                                     P.O. Box 2733
                                                     East Liverpool, Ohio 43920


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite



                                                     Dated: November 9, 2012
[Cite as In re D.D.D., 2012-Ohio-5254.]
VUKOVICH, J.


         {¶1}   The father appeals the decision of the Jefferson County Probate Court
which granted the petition for adoption filed by the step-father. The father states that
the court erred in allowing the step-father to add lack of support as a reason to
excuse consent for adoption in a supplemental petition where his original petition
claimed only lack of contact. However, when a parent fails to have contact for a year
prior to the petition but has not yet failed to support for the requisite one-year period,
and the parent thereafter continues to not pay support so that the one-year period
passes, the step-parent can add the alternative reason when that reason ripens while
the adoption petition is pending.
         {¶2}   The father also urges that the trial court committed plain error by failing
to issue findings of fact and conclusions of law to explain why the court disagreed
with his evidence on justifiable cause.         Because no request for findings and
conclusions was filed, this argument is without merit. Thus, the judgment of the trial
court is affirmed.
                                   STATEMENT OF THE CASE
         {¶3}   We begin by noting that the father does not raise substantive
arguments that he had justifiable cause for failing to support or contact the child.
Rather, his arguments are both procedural.          Thus, our statement of the case is
restricted only to the basic facts relevant to the issues presented for our review.
         {¶4}   The child was born in February of 2006, while the mother and father
lived together. The mother and father terminated their relationship when the child
was approximately a year old. In December 2009, the mother and the step-father
moved in together, and they got married in August 2010.
         {¶5}   On May 31, 2011, the step-father filed a petition to adopt the child at
issue.    The adoption petition stated that the father’s consent was not required
because the father failed without justifiable cause to provide more than de minimis
contact with the child for a period of at least one year immediately preceding the filing
of the petition.
                                                                                     -2-

      {¶6}   On July 26, 2011, the step-father asked to supplement his petition to
add as a reason that the father had since failed without justifiable cause to provide
for the maintenance and support of the child as required by law or judicial decree for
a period of at least one year preceding the filing of the petition. Specifically, it was
alleged that the father paid nothing since July 21, 2010.
      {¶7}   The father objected to the step-father’s request to supplement the
petition, characterizing it as an attempt to circumvent the requirements of R.C.
3107.07(A) and a violation of Civ.R. 15(E) because it added a new cause of action.
The probate court granted the step-father’s request to supplement on August 25,
2011, which the step-father did that day. The petition was thereafter tried to the court
in early 2012.
      {¶8}   On March 27, 2012, the court filed its entry allowing the step-parent
adoption. The court found that consent was not required because the allegations in
the petition were true and that the adoption was in the child’s best interests. The
father filed a timely appeal in which he raises arguments concerning the allowing of
the supplemental petition and the lack of findings of fact and conclusions of law.
                     ASSIGNMENT OF ERROR NUMBER ONE
      {¶9}   Appellant sets forth two assignments of error, the first of which
provides:
      {¶10} “FOLLOWING         HIS    ORIGINAL       PETITION      FOR     ADOPTION,
STEPFATHER        WAS     ERRONEOUSLY          GRANTED       LEAVE       TO   FILE    A
SUPPLEMENTAL PETITION IN WHICH HE RAISED A NEW BASIS TO ADOPT HIS
STEPSON AND, IN EFFECT, A DIFFERENT CAUSE OF ACTION IN DEROGATION
OF OHIO LAW.”
      {¶11} Pursuant to R.C. 3107.07(A), a parent’s consent to adoption is not
required:
      {¶12} “when it is alleged in the adoption petition and the court, after proper
service of notice and hearing, finds by clear and convincing evidence that the parent
has failed without justifiable cause to provide more than de minimis contact with the
minor or to provide for the maintenance and support of the minor as required by law
                                                                                                -3-

or judicial decree for a period of at least one year immediately preceding either the
filing of the adoption petition or the placement of the minor in the home of the
petitioner1.”
       {¶13} The original adoption petition was filed on May 31, 2011. It claimed
only a lack of communication with the child in the preceding year, that is, from May
31, 2010 through May 31, 2011. Since the father made child support payments in
June and July 2010, the May 31, 2011 petition did not also claim a lack of
maintenance and support in the preceding one year. However, once a year had
passed since the July 21, 2010 payment was made, the step-father sought to
supplement the petition, citing Civ.R. 15(E) in order to include the alternative ground
of failure to support in the year immediately preceding the supplemental petition.
       {¶14} The father argues that the addition of lack of maintenance and support
in a different time period than the lack of communication originally alleged is the
addition of a new and different cause of action that is not in common with the original
petition. He urges that the probate court allowed the step-father to circumvent the
requirements of R.C. 3107.07(A) by permitting the supplemental filing.
       {¶15} The step-father counters that the supplementation merely added an
alternative ground for finding that consent is unnecessary, equating the broader
adoption and consent issue with the cause of action. The step-father notes that
supplemental pleadings are to be used where relevant events occur after the original
pleading such as the case herein.
       {¶16} Besides the general holdings regarding supplemental pleadings under
Civ.R. 15(E), the father cites no cases on point to R.C. 3107.07(A) regarding what a
potential adoptive parent is to do when one alternative is ripe due to the father’s
omissions and then the father continues in his omissions so that the other alternative
ripens while the adoption petition is pending.             It seems he thinks the required
procedure was the filing of an independent adoption petition by the same petitioner


       1
           There are no arguments concerning the one year immediately preceding the placement of the
minor in home of the petitioner. The only pertinent date here is the one year immediately preceding
the filing of the adoption petition.
                                                                                  -4-

against the same respondent in the same court even though an adoption petition is
already properly pending.
       {¶17} Civ.R. 15 provides for amended pleadings in division (A) and
supplemental pleadings in division (E). Unless certain timing requirements are met,
which are inapplicable here, “a party may amend his pleading only by leave of court
or by written consent of the adverse party. Leave of court shall be freely given when
justice so requires.” Civ.R. 15(A).
       {¶18} A supplemental pleading is permitted under Civ.R. 15(E), which
provides in pertinent part: “Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplemental pleading
setting forth transactions or occurrences or events which have happened since the
date of the pleading sought to be supplemented.”
       {¶19} It is often stated that an amended pleading is used to raise matters
existing at the time of the original pleading but overlooked or unknown. Calex Corp.
v. United Steelworkers of America, 137 Ohio App.3d 74, 78, 738 N.E.2d 51 (2000).
Whereas, a supplemental pleading raises transactions, occurrences, or events which
have happened since the original pleading; a supplemental pleading merely
continues or adds to that original cause of action such as adding new acts by the
defendant that modify the nature or amount of damages. Id.; Staff Note Civ.R. 15(E).
       {¶20} Notably, the character of a pleading is determined by the averments it
contains and not by the name given to it. City of Cincinnati v. Cameron, 33 Ohio St.
336 (1878), ¶1 of syllabus. Thus, “if a paper styled ‘supplemental petition’ contains
facts such as would be proper in an amended petition, it may be so treated, and it is
within the discretion of the court to allow such a pleading to be filed during the
progress of a cause.” Id.
       {¶21} In accordance, any misuse of the term “amended” or “supplemental”
when labeling a pleading is not per se prejudicial where there is notice and adequate
opportunity to respond. See Calex, 137 Ohio App.3d at 79 (petition labeled amended
when it was actually supplemental); McKay v. McKay Tire Stores, Inc., 2d Dist. No.
533 (July 11, 1938) (even if the subject matter of a “supplemental” petition should
                                                                                    -5-

have been set forth in an “amended” petition, no prejudice resulted from the form of
the averments). In fact, movants often label their request “amended/supplemental” to
avoid claims that the wrong division was invoked.
       {¶22} The father seems to rely on a case decided prior to the adoption of the
Civil Rules where the Supreme Court stated that the facts in a supplemental pleading
must relate to the original pleading and must be in aid thereof and that a new and
independent cause of action cannot be raised by a supplemental pleading. State ex
rel. Dickman v. Defenbacher, 151 Ohio St. 391, 394, 86 N.E.2d 5 (1949). In that
case, the plaintiff sought to restrain one defendant from paying funds, suffered a
judgment on the pleadings, and then sought to supplement the complaint to compel
different defendants to repay the funds. Id. The supplemental complaint changed
the entire character of the action by proceeding under a different cause of action
against different defendants. Id.
       {¶23} We noted in Calex that the cause of action and defendant stayed the
same and what differed was merely the form of relief and the time period over which
the conduct occurred. Calex, 137 Ohio App.3d at 79 (adding continuing actions). We
concluded that the filing was not an improper attempt to add a new cause of action
as existed in Dickman.     Id.   Dickman is also distinguishable because there was
already a judgment entered in that case by the time supplementation was attempted.
       {¶24} Additionally, Dickman was decided prior to adoption of Civ.R. 15, which
does not limit the type of amendment under Civ.R. 15(A).           In fact, Civ.R. 15
contemplates that many amendments will not have arisen from the conduct,
transaction, or occurrence of the original pleading. That is, Civ.R. 15(C) provides:
“Whenever the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of the original pleading.”
Thus, although an amended petition will not relate back for date purposes if the claim
asserted in the amended filing did not arise of the conduct, transaction, or occurrence
set forth in petition, such an amendment is still permissible.
                                                                                        -6-

         {¶25} A petition for adoption of a certain child was filed by the step-father,
naming the father as respondent. The altered filing was still a petition for adoption of
the same child by the same petitioner naming the same respondent. The allegation
that the father’s consent was unnecessary was set forth in the original filing, and said
allegation remained in the altered filing. Lack of contact for the year preceding the
filing was alleged in the original petition and this ground remained in the altered filing.
The only difference was the addition of an alternative reason why consent was not
required: lack of support. The father’s continuing omissions, which began prior to
the original filing and continued thereafter, finally ripened into a valid reason during
the pendency of the action.
         {¶26} We note that an obligor’s obligation to pay child support does not stop
when a petition for adoption is filed. Also notable is that once the original May 31
petition (alleging only lack of communication) was filed, the father had the opportunity
to make a payment prior to request for supplementation, which would have restarted
his one-year clock for support purposes. He did not do so. (Nor did he attempt
further communication.)
         {¶27} Thus, after a year had passed with absolutely no maintenance or
support, the step-father supplemented his petition to add this additional reason why
the father’s consent to the requested adoption was unnecessary.               Subsequent
omissions by the father occurred after the original pleading.          The subsequently
occurring omissions pertain to the original cause of action, that being a petition for
adoption. Columbus ex rel. Willits v. Cremean, 27 Ohio App.2d 137, 160, 273 N.E.2d
324 (1971) (a supplemental pleading contains matter in common with the original
complaint). The addition of these subsequent omissions merely continue or add to
the original cause of action. See Calex, 137 Ohio App.3d at 78; Staff Note Civ.R.
15(E).
         {¶28} Consequently, permitting the use of Civ.R. 15(E) supplementation was
proper in such a scenario. And even if amendment under Civ.R. 15(A) would have
been more appropriate, prejudice in the labeling is not apparent as the court’s
                                                                                       -7-

discretion to allow either is similar and there existed notice and an opportunity to
respond. This assignment of error is overruled.
                     ASSIGNMENT OF ERROR NUMBER TWO
       {¶29} Appellant’s second assignment of error contends:
       {¶30} “FOLLOWING TWO SEPARATE DAYS OF DISPUTED TESTIMONY
FORTY-TWO DAYS APART, PROBATE JUDGE ERRED IN ISSUING FINAL
DECREE OF ADOPTION WITHOUT MAKING SPECIFIC FINDINGS OF FACT NOR
CONCLUSIONS OF LAW AND WITHOUT FULLY CONSIDERING NATURAL
FATHER’S REBUTTAL ARGUMENTS THAT HE HAD JUSTIFIABLE CAUSE IN
FAILING TO MAINTAIN CONTACT AND PROVIDE CHILD SUPPORT DURING
TIME PERIOD IN QUESTION.”
       {¶31} Appellant argues that, although he did not request findings of fact and
conclusions of law, the court committed plain error by failing to issue findings and
conclusions because it cannot be determined whether the court fully considered his
evidence regarding justifiable cause. He cites to case law providing that the court’s
duty to file findings and conclusions under Civ.R. 52 is mandatory.
       {¶32} The need for findings of fact and conclusions of law, when not governed
by the particular statute being applied, is governed by Civ.R. 52. Here, the statutes
being applied make no provision for automatic findings and conclusions. See R.C.
3107.07(A); 3107.14(C) (if court finds that consent is excused and adoption is in the
child’s best interests, it may issue a final decree of adoption). Thus, as appellant
acknowledges, we turn to Civ.R. 52.
       {¶33} Pursuant to this rule, when questions of fact are tried by the court
without a jury, judgment may be general for the prevailing party unless one of the
parties files a timely written request, in which case the court shall state in writing the
conclusions of fact found separately from the conclusions of law. Civ. R. 52 (a timely
request is defined as one made before the entry of judgment or not later than seven
days after notice of court’s announcement, whichever is later).
       {¶34} Appellant notes that the Supreme Court has held “that a trial court has
a mandatory duty under Civ.R. 52 to issue findings of fact and conclusions of law
                                                                                    -8-

upon request timely made.” In re Adoption of Gibson, 23 Ohio St.3d 170, 173, 492
N.E.2d 146 (1986), citing Werden v. Crawford, 70 Ohio St.2d 122, 124, 435 N.E.2d
424 (1982) (explaining the purpose of the rule and also conditioning the duty “upon
timely request”). However, appellant glosses over the “upon request timely made”
condition.
       {¶35} The court’s mandatory duty under this rule does not arise until a timely
request is made, and if no request is made, there is no duty on the part of the trial
court, even in an adoption case. In re Adoption of Manley, 2d Dist. No. 18946 (Dec.
14, 2001); In the Matter of Adoption of Zachary H., 6th Dist. No. WM96-013 (Mar. 7,
1997); In re Adoption of Cockerham, 5th Dist. No. 1996CA0247 (Jan. 27, 1997). If
there is no duty, then there can be no plain error as appellant contends.
       {¶36} Appellant filed no request for findings and conclusions. Accordingly,
the probate court’s mandatory duty under Civ.R. 52 never arose. Id. Appellant’s
argument that the court erred in failing to issue findings and conclusions is therefore
without merit.
       {¶37} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.



Donofrio, J., concurs.
Waite, P.J., concurs.
