COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61006, 61029 : MAUREEN E. SCHAEFFER : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : PATRICIA S. SHENTON, : TRUSTEE, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT NOVEMBER 12, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 171397 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: WILLIAM F. CHINNOCK MARSHALL J. WOLF 14600 Detroit Avenue Wolf & Akers Lakewood, Ohio 44107 1515 The East Ohio Bldg. 1717 East Ninth Street Cleveland, Ohio 44114 -2- PATRICIA A. BLACKMON, J.: This appeal is from a judgment of the Cuyahoga County Court of Common Pleas against Berton T. Schaeffer defendant- appellant, cross-appellee, hereinafter Appellant in favor of Maureen E. Schaeffer plaintiff-appellee, cross-appellant, hereinafter Appellee in the amount of $83,500. Having reviewed the record and the legal arguments of the parties, we affirm the judgment of the trial court. The apposite facts follow. In June, 1989, Appellee filed a complaint against Appellant and his sister, Patricia S. Shenton, for damages, which was to compensate her for the nursing and custodial care she rendered to Appellant and his sister's mother, Enid I. Schaeffer, hereinafter Mrs. Schaeffer. At the time of the filing, Appellee and Appellant were legally married; however, a divorce action was pending. Appellant claimed in her complaint that she orally agreed to provide the care needed by Mrs. Schaeffer, and Appellant and his sister agreed that for Appellee's services she would receive one-half of Mrs. Schaeffer's remaining trust estate. The trial court agreed with her, awarded her fifty percent of the trust property, and a total judgment for $83,500, along with interest from January 2, 1989. The record established that in June, 1984, a discussion was held regarding the nursing and custodial care of Mrs. Schaeffer, which Appellee, a nurse, was asked to provide. The parties to this discussion were Appellant, Appellee, and Appellant's sister. Sometime later, they all agreed to this arrangement and Appellee -3- was promised one-half of Mrs. Schaeffer's trust estate. Thereafter, Mrs. Schaeffer moved from Washington, D.C. to Appellant and Appellee's home in Lakewood, Ohio. She changed her trust, and Appellant was named sole beneficiary of her will and sole trustee of her living trust. Initially, Appellant's father and mother executed reciprocal wills and living trusts naming one another beneficiary with the remainder to Appellant and his sister. It was after Appellant's father's death in June, 1984, that the parties entered into the oral agreement. The basis for the agreement was to avoid placing Mrs. Schaeffer in a nursing home and depleting her estate as well as the belief that Appellee would provide the best care to Mrs. Schaeffer. From June, 1984, to January, 1989, Appellee provided nursing and custodial care to Mrs. Schaeffer who suffered from the following: cirrhosis of the liver, brain damage from alcohol, bronchitis with emphysema, diabetes, and epilepsy. In December, 1987, Appellant moved out of the home to Illinois because of his job. In January, 1988, Appellee suggested placing Mrs. Schaeffer in a nursing home. In response, Appellant offered to pay Appellee from both the trust and from his own funds, if Appellee continued to care for his mother. Appellee continued to care for Mrs. Schaeffer until Mrs. Schaeffer's death a year later. On January 14, 1989, Appellee asked to be paid for the services rendered as agreed; Appellant refused, moved out of the -4- home permanently, and told Appellee he was filing for a divorce. Sometime in February, 1989, the trust estate was terminated and the assets distributed to Appellant. Thereafter, a lawsuit was filed which is the substance of this appeal. During the trial, it was undisputed that Mrs. Schaeffer's financial assets were to be used for Mrs. Schaeffer's nursing and custodial care. Additionally, the record reflects that neither the original complaint nor the amended complaint was served on Appellant's sister. Nevertheless, Appellant was served, and he filed an answer denying Appellee's claim and for his grounds he argued that the contract was void because of the statute of frauds and the termination of Mrs. Schaeffer's trust. The trial court was not persuaded. In support of his appeal, Appellant asserts three assignments of error. The first assignment of error states: THE COURT ERRED IN IMPOSING LIABILITY FOR AN ORAL CONTRACT FOR THE DEBT OF ANOTHER BY A NAMED DEFENDANT NOT SERVED WITH PROCESS. Appellant, in support of this assignment of error, argues that Appellee failed to serve Patricia S. Shenton, his sister. Appellant argues that this failure constitutes a non-compliance with "the Rules of Civil Procedure, relating to service of process, and in that the Complaint and Amended Complaint allege an oral contract with Defendant Patricia S. Shenton, imposing liability upon Appellant herein is without a proper basis." Appellant's Brief at 10. -5- It appears that Appellant is trying to argue, although not cogently, that the failure to serve Defendant Patricia S. Shenton should somehow vitiate this lawsuit or cause its dismissal. This court is not persuaded by his argument. Appellee filed an Amended Complaint in this matter to address the fact that the trust property had been distributed to Appellant. This Amended Complaint also alleged that such a distribution of the trust property was in violation of his agree- ment with Appellee. As a result, the Amended Complaint requested that the court either impose a constructive trust on Appellant or hold him personally liable to Appellee for her services to his mother. It is clear from the facts and pleadings in this case that Patricia S. Shenton was not an indispensable party to this lawsuit. Furthermore, Appellant, according to the record, failed to file a motion to join an indispensable party or assert this proposition as an affirmative defense in his Answer. The record reflects that prior to the filing of this lawsuit Mrs. Schaeffer's trust had been terminated and the assets distributed to Appellant. Additionally, the evidence and record reflect that it was predominately Appellant who entered into the oral contract with Appellee and not his sister. This assignment of error is without merit and is overruled. Appellant's second assignment states: THE COURT ERRED IN IMPOSING LIABILITY UNDER AN ORAL CONTRACT FOR THE DEBT OF ANOTHER. (Ohio Revised Code 1335.05) -6- Appellant argues that the trial court erred in imposing liability under an oral contract for the debt of another, because such an imposition of liability is violative of the Statute of Frauds provision contained in R.C. 1335.05. R.C. 1335.05 reads, in pertinent part, as follows: No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person; nor to charge an executor or administrator upon a special promise to answer damages out of his own estate; nor to charge a person upon an agreement made upon consideration of marriage, or upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them, or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized. The issue raised by this assignment of error is whether Appellant is being required to answer for the debt of another person. The evidence adduced at trial established that neither Appellant nor his sister, Patricia S. Shenton, was required to answer for the debt of another from their own assets. The underlying policy considerations of R.C. 1335.05 are obvious. Undoubtedly, the legislature intended to insulate third parties from having their assets taken or attached, for the debt of another, where no written agreement exists imposing such liability. -7- The distinction, however, between the scenario contemplated by the legislature and that of the instant case is that the assets from which payment of the debt should be rendered were not Appellant's assets. The evidence brought forth during the trial was that Appellee would be compensated from the trust property of Mrs. Schaeffer's trust according to the initial agreement and not the personal assets of Appellant. Appellant and his sister were acting as agents on behalf of their mother, who at the time of the agreement had sufficient assets to cover her own debt to Appellee. The record further reflects that certain changes were made in the trust to insure that the debts of Mrs. Schaeffer could be satisfied (i.e., a change in the trustee and beneficiary), which changes Mrs. Schaeffer made herself. This court agrees with the reasoning of Appellee that there is absolutely no evidence that Appellee was looking directly to Appellant, directly and personally, for payment when she entered into the June, 1984 oral agreement. Instead, it is apparent that the oral agreement was entered into on Mrs. Schaeffer's behalf, by her children acting as her agents. Therefore, as Appellee correctly asserts, Appellant and his sister were not agreeing to answer for the debt of another person with their own assets. Assignment of error two is therefore overruled. Assignment of error three states: THE COURT ERRED IN IMPOSING LIABILITY FOR SERVICES RENDERED TO THE HEAD OF A FAMILY PRECLUDED UNDER THE FAMILY RELATIONSHIP DOCTRINE, WHERE NO ENFORCEABLE CONTRACT EXISTS. [sic] -8- The essence of Appellant's argument, supporting this assignment of error, is that the Family Relation Doctrine negates as a matter of law any obligation to pay for services rendered to a head of household by a family member, unless certain circumstances are present. Undoubtedly, the Family Relationship Doctrine is an established rule of law in Ohio. The doctrine establishes that no obligation to pay for services rendered, board furnished, or the like, will be implied in favor of one who was a member of the family of the person for whom the services were rendered, or to whom the board was furnished; no recovery can be had in such cases unless it is established that there was a lack of mutuality of services or benefits, or an express contract. In re Estate of Bowman (1956), 102 Ohio App. 121. However, the Family Relationship Doctrine is inapplicable to the instant case. The facts of In re Estate of Bowman, supra, are almost identical to the facts of the instant case and in that case the court held that the Family Relationship Doctrine did not apply to preclude the daughter-in-law from pursuing her claim for compensation. Based on the holding in Bowman, this assignment of error is overruled. This court will now direct its attention to the assignment of error promulgated in support of Appellee's cross-appeal. It states: -9- THE TRIAL COURT ERRED IN FAILING TO FIND UPON THE UNDISPUTED EVIDENCE THAT MAUREEN AND BERTON'S JANUARY, 1988, ORAL AGREEMENT SUPERSEDED THE 1984 AGREEMENT BETWEEN MAUREEN AND ENID, AND IN FAILING TO RENDER JUDGMENT IN FAVOR OF MAUREEN FOR THE REASONABLE VALUE OF HER SERVICES IN THE AMOUNT OF $241,374. In support of this assignment of error, Appellee argues that "it is undisputed that an express oral contract between Berton as an individual and Maureen came into existence in January, 1988, which superseded the 1984 agreement between Enid and Maureen." Appellee's Brief at 7. The trial court, in a bench trial, is the trier of fact and this court is bound as a matter of law to give substantial deference to its role in that regard. The characterization of the evidence in this regard as undisputed is erroneous. In fact, a decision on this issue appears to be purely a matter of evaluating the credibility of Appellant and Appellee, whose testimony was in total conflict. Appellant argues he did not make any agreements and Appellee argues that Appellant made both the 1984 and the 1988 agreements. Based on the judgment of the trial court, it appears that the trial court found that the 1984 agreement did exist and should be honored, but the 1988 agreement was not proven by a preponderance of the evidence. A review of the record lends credence to this decision by the trial court. There was corroborative evidence of the 1984 agreement; Mrs. Schaeffer changed both the trustee of her trust and the beneficiary of her will. From this circumstantial evidence, a reasonable inference can be drawn that this was done -10- to provide compensation for her care and to insure that Appellee received one-half of the remaining funds upon Mrs. Schaeffer's demise. There is no corroborative evidence of this nature regarding the 1988 agreement. Therefore, this assignment of error is overruled. We hold that a promise to pay for services may be implied under circumstances where there is independent corroborative action on the part of one of the parties or a third party beneficiary that would substantiate the existence of the oral agreement and that the Family Relation Doctrine does not apply to services rendered to a mother-in-law by her daughter-in-law, except under the limited circumstances of mutuality of services and benefits or an express agreement that no compensation will be paid. Judgment affirmed. -11- It is ordered that Appellee recover of Appellant her 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 Common Pleas Court 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. DAVID T. MATIA, C.J., and FRANCIS E. SWEENEY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .