Henderson-Austin v. AkiliHenderson-Austin v. Akili
Lana M. Henderson, pro se
2654 Noble Road, #8
Cleveland, Ohio 44121
FOR APPELLEE
Mtu Akili, pro se
Inmate No. 35039060
FCI McDowell
P.O. Box 1009
Welch, West Virginia 24801
I. Background
{¶1} Plaintiff-appellant Diva Akili, formerly known as Lana Henderson-Austin, appeals the decision of the Cuyahoga County Court of Common Pleas Division of Domestic Relations dismissing her complaint for divorce against defendant-appellee Mtu Akili, formerly known as Darin Anthony Austin. The parties appeared before the trial court pro se. We affirm the trial court‘s decision.
{¶2} On May 12, 2017, appellant initiated a divorce case against appellee based on all of the divorce grounds pursuant to
{¶3} A trial was held on August 9, 2017. Appellant was the sole witness. The evidence in the record includes extensive affidavits by the parties and several copies of correspondence between them. The trial court dismissed the matter, finding that appellant failed to establish the existence of a common-law marriage.
{¶4} Appellant filed the instant appeal challenging the trial court‘s ruling. We affirm.
II. Assignments of Error and Analysis
A. Trial Court‘s Refusal to Admit Certain Evidence and Motions
{¶6} Appellant‘s first assigned error challenges the trial court‘s refusal to admit certain evidence, rulings on discovery, and rulings on motions submitted by appellant. Appellant expresses disapproval of the trial court‘s demeanor and decisions, and recites information that appellant believes the trial court should have considered. The information consists of appellant‘s assertions about the conduct, activities, or knowledge of third parties; unsubstantiated events; and statements about the appellee.
{¶7} The admission or exclusion of evidence rests within the discretion of the trial court. State v. Robb, 88 Ohio St.3d 59, 68, 723 N.E.2d 1019 (2000). An appellate court will not disturb a decision of the trial court to admit or exclude evidence absent a clear and prejudicial abuse of discretion. Donovan v. Donovan, 110 Ohio App.3d 615, 620, 674 N.E.2d 1252 (12th Dist.1996); State v. Robinson, 8th Dist. Cuyahoga No. 99917, 2014-Ohio-2973, ¶ 23.
{¶8} Appellant did not present the individuals referenced in her argument as witnesses or offer other evidence supporting the truth of her assertion that a common-law marriage exists. The trial court‘s conduct of proceedings is also guided by the Ohio Rules of Evidence. The statements that appellant attributes to nonwitnesses to support her case is governed by a rule of evidence known as the hearsay rule. The rule provides, subject to limited exceptions, a
{¶9} The hearsay rule was formulated to enhance the reliability of evidence placed before the court. Generally, out-of-court statements are not considered to be reliable because the person making the statement “is not present at trial, not under oath, and not subject to cross-examination.” State v. Kilbane, 8th Dist. Cuyahoga Nos. 38428, 38383, and 38433, 1979 Ohio App. LEXIS 10550, 22 (July 3, 1979).
{¶10} The trial court also has complete discretion as to how it manages dockets and how it controls discovery, and we will not disturb its decision unless there is an abuse of discretion. Bayview Loan Serv., L.L.C. v. St. Cyr, 8th Dist. Cuyahoga No. 104655, 2017-Ohio-2758, ¶ 26, citing 6750 BMS, L.L.C. v. Drentlau, 2016-Ohio-1385, 62 N.E.3d 928, ¶ 18 (8th Dist.), citing State ex rel. V Cos. v. Marshall Cty. Aud., 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). “An abuse of discretion implies the trial court was arbitrary, unreasonable, or unconscionable.” Id. at ¶ 20.
{¶11} Appellant fails to identify legal grounds that would support her appellate arguments by rule, statute, or relevant case law. We recognize that appellant is proceeding pro se, without the advice of a licensed attorney. However, “[u]nder Ohio law, pro se litigants are held to the same standard as all other litigants.” Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 29, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996).
{¶12}
{¶13} The proffered cases are criminal law cases addressing motions to suppress evidence seized after a traffic stop: Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996); State v. Brite, 120 Ohio App.3d 517, 698 N.E.2d 478 (4th Dist.1997); State v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998); State v. Moeller, 12th Dist. Butler Case No. CA99-07-128, 2000 Ohio App. LEXIS 4904 (Oct. 23, 2000); and Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
{¶14} Based on a thorough review of the record, we do not find that the trial court abused its discretion. Further, appellant has failed to support her argument pursuant to
B. Sufficiency of the Evidence
{¶15} Appellant‘s second assigned error echoes many of the assertions set forth in the first assigned error. To the extent the arguments involve the trial court‘s rulings on the evidence or conduct of the proceedings, those matters have been addressed and resolved by our decision denying the first assigned error.
{¶16} The second assigned error also suffers from the
{¶17} Based on the over-arching theme of appellant‘s brief, we construe appellant‘s second assigned error as a challenge to the sufficiency of the evidence to support the trial court‘s determination. In a civil sufficiency of the evidence analysis, “the question is whether, after
{¶18} Common-law marriage was statutorily abolished on October 10, 1991. Faison v. Faison, 8th Dist. Cuyahoga No. 84942, 2005-Ohio-2733, ¶ 13, citing
{¶19} The establishment of a common-law marriage requires clear and convincing evidence of:
(1) an agreement to marry in praesenti by parties competent to contract; (2) cohabitation as husband and wife; (3) the parties must hold themselves out as husband and wife, and (4) the parties are treated and reputed as husband and wife by the community.
Id. at ¶ 12, citing Nestor v. Nestor, 15 Ohio St.3d 143, 146, 472 N.E.2d 1091 (1984).
{¶20} The Ohio Supreme Court explained:
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. The agreement to marry in praesenti is the essential element of a common-law marriage. Its absence precludes the establishment of such a relationship even though the parties live together and openly engage in cohabitation. Although cohabitation and reputation are necessary elements of a common law marriage, this court has previously held that standing alone they do not constitute a common-law marriage.
Nestor at 146, citing In re Redman: Hiland v. Ohio, 135 Ohio St. 554, 21 N.E.2d 659 (1939).
{¶22} Appellant asserts that the parties “jumped the broom”1 at her parent‘s home on or about February 14, 1987, when appellant was 16 years of age. The parents are now deceased. However, “jumping the broom,” without license and ceremony, is not a legally recognized marriage.
{¶23} The trial court determined that, on February 14, 1987, appellant was 16 years of age, an age that required parental consent pursuant to
{¶24} Further to the element of cohabitation as husband and wife, as well as the remaining requirements of holding themselves out to the community as husband and wife and recognition of that status by the community, the evidence must reflect that the cohabitation as husband and wife was open, and in the manner of a couple “in a marital state.” “There must be a holding out to those with whom they normally come in contact.” Id.
Plaintiff provided no testimony or evidence that the parties had cohabited, introduced themselves as husband and wife, shared a bank account, traveled together, shared household expenses or carried on a sexual relationship. Furthermore, no evidence was presented that a common-law marriage was established after the Plaintiff reached the age of majority, therefore, no longer needing parental consent. The Court finds that the Plaintiff failed to meet her burden of proof by clear and convincing evidence that a valid marriage took place, and from the date Plaintiff turned eighteen until the effective date of the statute abolishing common-law marriage, no evidence or testimony was provided to effectuate the existence of a common-law marriage.
Judgment entry No. 100333817 (Aug. 30, 2017), p. 2.
{¶26} Based on our review of the record, we agree with the trial court‘s conclusions. Appellee was a member of the armed forces prior to his October 1993 incarceration and was stationed in Germany in 1990. Appellee alleges that the parties had not been in communication for a number of years, and that any contact between the parties ended in March 1991.
{¶27} A copy of handwritten correspondence postmarked in February 2014 is addressed to appellee and signed by appellant. The contents indicates that appellant desired to correspond by email. Her full name is listed at the bottom of the correspondence and indicates that she is “J‘s cousin,” as though reminding appellee of her identity.
{¶28} In a March 14, 2014 correspondence from appellant to appellee, appellant remarks that it is “fine” but “strange” that appellee did not remember her though they considered themselves “a couple for seven years.” “You don‘t even remember me.” The letter also says that both parties were aware that appellee was involved in other relationships, which does not indicate that the parties held themselves out to the public as husband and wife.
{¶30} Regardless of the assertions made by the parties, the onus is on appellant to establish the elements of a common-law marriage as set forth in Nestor, 15 Ohio St.3d at 146, 472 N.E.2d 1091. The evidence presented by appellant is insufficient to support the establishment of the marriage.
{¶31} Appellant‘s second assignment of error is overruled.
{¶32} The trial court‘s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the domestic relations division 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.
ANITA LASTER MAYS, JUDGE
TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR