[Cite as Stapleton v. Stapleton, 2012-Ohio-6280.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      LAWRENCE COUNTY


JOHNNY STAPLETON, JR.,                              :
                                                    :
             Plaintiff-Appellant,                   :       Case No: 12CA10
                                                    :
             v.                                     :
                                                    :       DECISION AND
TIFFANY STAPLETON,                                  :       JUDGMENT ENTRY
                                                    :
             Defendant-Appellee.                    :       Filed: December 27, 2012



                                             APPEARANCES:

Johnny Stapleton, Jr., Chillicothe, Ohio, pro se Appellant.

Robert C. Delawder, Ironton, Ohio, for Appellee.


Kline, J.:

        {¶1}      Johnny Stapleton Jr. (hereinafter “Johnny”) appeals the judgment of the

Lawrence County Court of Common Pleas. The trial court granted Johnny and Tiffany

Stapleton (hereinafter “Tiffany”) a divorce from each other. On appeal, Johnny argues

that the trial court erred by awarding Tiffany a fifty-percent interest in the proceeds from

Johnny’s personal-injury lawsuit. We agree. Because Tiffany’s pleadings admit that

there is no marital property to be divided, Johnny did not have to prove that proceeds

from the lawsuit are his separate property. Tiffany’s admission definitively established

this fact. Accordingly, we reverse the trial court’s judgment and remand this cause to

the trial court for further proceedings consistent with this opinion.

                                                    I.
Lawrence App. No. 12CA10                                                            2


       {¶2}   After being shot by a police officer, Johnny filed a personal-injury lawsuit

(hereinafter the “Lawsuit”) against various defendants. (Although the particulars of the

Lawsuit are not in the record, we take judicial notice of Case Number 1:11cv375 in the

United States District Court, Southern District of Ohio, Western Division. See Hart v.

Hudson, 4th Dist. No. 10CA19, 2010-Ohio-5954, ¶ 26.) Johnny filed the Lawsuit on

June 9, 2011, and the Lawsuit was settled on October 11, 2012.

       {¶3}   On January 31, 2012, Johnny filed a Complaint for Divorce against

Tiffany. Paragraph 9 of Johnny’s complaint states the following:

       “The parties     [ ] DO    [√] DO NOT have marital property to be divided.”

Thus, the face of the complaint shows that Johnny checked the box for DO NOT.

       {¶4}   On March 5, 2012, Tiffany filed her Answer and Counterclaim. Tiffany’s

Answer and Counterclaim does not reference the Lawsuit. Rather, Tiffany’s Answer

and Counterclaim “admits the allegations contained in paragraph nine (9)” of Johnny’s

complaint. In other words, Tiffany admitted that there was no marital property to be

divided. Moreover, Tiffany’s counterclaim “incorporates [the no-marital-property

admission] as if fully rewritten herein.”

       {¶5}   On April 11, 2012, the trial court held a divorce hearing. Tiffany appeared

at the hearing, but Johnny did not. During the hearing, Tiffany and her attorney had the

following exchange about the Lawsuit:

“DELAWDER: The only real asset that remains is a law suit that is pending against the

City of Ironton and your [sic] asking the Judge to make an order that you would receive

half of any settlement if there was going to be one?

“STAPLETON: Yes sir.” Transcript at 6.
Lawrence App. No. 12CA10                                                             3


       {¶6}   On April 13, 2012, the trial court granted Tiffany and Johnny “a divorce

from each other on the grounds of incompatibility.” Divorce Decree at 2. In the divorce

decree, the trial court granted Tiffany a fifty-percent interest in proceeds from the

Lawsuit. As the court held, “[T]here is a pending civil case wherein Johnny Stapleton is

the Plaintiff, which resulted from the Plaintiff being shot, and, upon settlement of the

case, the WIFE will be entitled to ½ of any and all settlement proceeds.” Id.

       {¶7}   Johnny appeals and asserts the following assignment of error: I. “The trial

court abused its discretion when it ruled Wife was entitled to one-half of Husband’s

personal injury compensation.”

                                             II.

       {¶8}   In his sole assignment of error, Johnny contends that the trial court erred

in awarding Tiffany a fifty-percent interest in the proceeds from the Lawsuit.

       {¶9}   “Trial courts must divide marital property equitably between the spouses.

R.C. 3105.171(B). * * * Because the trial court possesses great discretion in reaching an

equitable distribution, we will not reverse its ultimate division of property absent an

abuse of discretion.” O’Rourke v. O’Rourke, 4th Dist. No. 08CA3253, 2010-Ohio-1243,

¶ 15. An abuse of discretion connotes more than a mere error of judgment; it implies

that the court’s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶10} “Before a trial court divides property in a domestic proceeding, it must

classify the property as marital or separate. R.C. 3105.171(B). * * * Property acquired

during the marriage is presumed to be marital property, unless it is shown to be

separate property.” Jones v. Jones, 4th Dist. No. 07CA25, 2008-Ohio-2476, ¶ 20. “The
Lawrence App. No. 12CA10                                                           4


court shall distribute a spouse’s separate property to that spouse unless an exception

exists under [R.C. 3105.171(E)] or some other provision of the statute.” Stringfield v.

Stringfield, 7th Dist. No. 05 MO 16, 2007-Ohio-1116, ¶ 14, citing R.C. 3105.171(D).

“Generally, the party claiming that an asset is separate property has the burden of

proving the claim by a preponderance of the evidence.” Hook v. Hook, 189 Ohio

App.3d 440, 2010-Ohio-4165, 938 N.E.2d 1094, ¶ 19 (6th Dist.); see also Barkley v.

Barkley, 119 Ohio App.3d 155, 168, 694 N.E.2d 989 (4th Dist.1997).

       {¶11} Johnny bases his appeal on R.C. 3105.171(A)(6)(a)(vi), which states the

following: “‘Separate property’ means all real and personal property and any interest in

real or personal property that is found by the court to be * * * [c]ompensation to a

spouse for the spouse’s personal injury, except for loss of marital earnings and

compensation for expenses paid from marital assets[.]” And because of R.C.

3105.171(A)(6)(a)(vi), Johnny argues that proceeds from the Lawsuit are separate

property, not marital property. Tiffany, however, argues that Johnny did not meet the

burden of proof for establishing separate property. According to Tiffany, Johnny

              did not appear for the hearing on the matter and did not

              present any evidence related to the proceeds from pending

              litigation. The only evidence presented was that of [Tiffany]

              and, after hearing the evidence presented, the Trial Court

              made an equitable division of assets and debts and

              concluded that [Tiffany] was entitled to one half of the

              proceeds from pending litigation involving [Johnny]. Brief of

              Appellee at 6.
Lawrence App. No. 12CA10                                                              5


       {¶12} Here, we find that proceeds from the Lawsuit are not marital property

subject to division under R.C. 3105.171(B). We also find that Johnny did not have to

present evidence on the issue of marital property versus separate property. This is so

because Tiffany’s Answer and Counterclaim admits that “[t]he parties * * * DO NOT

have marital property to be divided.” (Emphasis sic.) Complaint for Divorce at ¶ 9. “An

admission in a pleading dispenses with the need to present evidence and is equivalent

to proof of the fact.” 75 Ohio Jurisprudence 3d, Pleading, Section 193; accord Crowl

Lumber Co., Inc. v. Wallace, 7th Dist. No. 08 CA 851, 2008-Ohio-5733, ¶ 24; Rhoden v.

Akron, 61 Ohio App.3d 725, 727, 573 N.E.2d 1131 (9th Dist.1988). Therefore, because

of Tiffany’s admission, Johnny did not have to prove that his interest in the Lawsuit was

separate property as opposed to marital property. Tiffany’s admission already proved

that fact. See Gerrick v. Gorsuch, 172 Ohio St. 417, 178 N.E.2d 40 (1961), paragraph

two of the syllabus (“A party who has alleged and has the burden of proving a material

fact need not offer any evidence to prove that fact if it is judicially admitted by the

pleadings of the adverse party. In such an instance, any evidence with respect to that

fact can have no material effect.”); Faieta v. World Harvest Church, 10th Dist. No.

08AP-527, 2008-Ohio-6959, ¶ 47.

       {¶13} Finally, Tiffany did nothing to change her admission that there was no

marital property to be divided. “An admission in a pleading may be amended pursuant

to Civ.R. 15(A).” Hummel v. Suglia, 11th Dist. No. 2002-L-104, 2003-Ohio-5226, ¶ 16;

see also Hersch v. E.W. Scripps Co., 3 Ohio App.3d 367, 375, 445 N.E.2d 670 (8th

Dist.1981). But Tiffany did not amend her Answer and Counterclaim before the divorce

hearing. Moreover, the admission in Tiffany’s Answer and Counterclaim cannot be
Lawrence App. No. 12CA10                                                             6


changed to conform to the evidence. In relevant part, Civ.R. 15(B) states: “When issues

not raised by the pleadings are tried by express or implied consent of the parties, they

shall be treated in all respects as if they had been raised in the pleadings.” (Emphasis

added.) But here, the issue of marital property was raised in the pleadings. As a result,

Civ.R. 15(B) cannot apply, and the evidence from the divorce hearing cannot change

Tiffany’s admission. See State Farm Mut. Auto. Ins. Co. v. Dicenzo, 1 Ohio App.3d 68,

69, 439 N.E.2d 456 (10th Dist.1981) (Civ.R. 15(B) did not apply because “the issue of

ownership was raised by plaintiff and admitted by defendant”); Lamb v. Carver, 8th Dist.

No. 70673, 1997 WL 253176, *2-3 (May 15, 1997). As the Tenth Appellate District held,

“[I]f a party fails to introduce in evidence an admission in a pleading and permits that

issue to be tried before the trial court, said party does not waive the benefit of the

admission in the pleading.” State Farm at paragraph two of the syllabus. Therefore,

despite the evidence presented at the divorce hearing, Johnny did not waive the benefit

of Tiffany’s admission.

       {¶14} For the foregoing reasons, the trial court abused its discretion by awarding

Tiffany a fifty-percent interest in any proceeds from the Lawsuit. The admission in

Tiffany’s Answer and Counterclaim definitively establishes that proceeds from the

Lawsuit are not marital property. Accordingly, we reverse the judgment of the trial court,

and we remand this cause to the trial court for further proceedings consistent with this

opinion.

                                    JUDGMENT REVERSED AND CAUSE REMANDED.
Lawrence App. No. 12CA10                                                           7


                                  JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE REVERSED and this cause BE
REMANDED to the trial court for further proceedings consistent with this opinion.
Appellee shall pay the costs herein taxed.

      The Court finds that there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Lawrence County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J.:    Concurs in Judgment & Opinion.
McFarland, J.: Concurs in Judgment Only.



                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
