COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61310 AIDA ELVIRA ORTIZ : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION JOSE R. ORTIZ : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 24, 1992 CHARACTER OF PROCEEDING: Civil Appeal from Domestic Relations No. CP D-198773 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: VINCENT F. GONZALEZ 2159 West Boulevard Cleveland, Ohio 44102 For Defendant-Appellee: JOAN M. LITZOW Terminal Tower, Suite 840 50 Public Square Cleveland, Ohio 44113-2203 - 2 - KRUPANSKY, J.: Plaintiff-appellant Aida Elvira Ortiz appeals from an order of the domestic relations court denying and dismissing her complaint for divorce, alimony and division of property against defendant-appellee Jose R. Ortiz. The underlying facts are largely undisputed. The parties originally entered into a common law marriage in Ohio in 1976 followed by a ceremonial marriage in Ohio in August 1985. On July 28, 1986 plaintiff filed an alimony only action against defendant in Cuyahoga County Common Pleas Court, Domestic Relations Division, Case No. 86-D-171357. The parties subsequently entered into a separation agreement which divided the parties' marital property and the domestic relations court incorporated the agreement into its October 8, 1986 final decree granting plaintiff alimony. The parties thereafter separated but obtained no formal divorce decree. Plaintiff subsequently moved to the Commonwealth of Puerto Rico in November 1986 while defendant continued to reside in Cleveland until his retirement from General Motors in January 1988. The record demonstrates the parties reunited sometime following their original separation during this period. Defendant ultimately joined plaintiff in Puerto Rico following his retirement to live with her in a residence acquired in October 1987 and jointly titled to both of them. The relationship again soured and plaintiff returned to Cleveland from Puerto Rico in May 1989. - 3 - The parties thereafter filed independent actions for divorce. Defendant filed a civil law action for divorce only in the Superior Tribunal of Puerto Rico, Court of Ponce in Yauco, Civil No. CS-89-338 on August 26, 1989 (the "Puerto Rico Case"). Plaintiff filed an action for divorce, alimony and division of property in Cuyahoga County Common Pleas Court, Domestic Relations Division, Case No. 89-D-198773 on December 5, 1989 (the "Ohio Case"). The parties do not dispute that plaintiff completed service of process in the Ohio Case prior to completion of service in the Puerto Rico Case, thereby, conferring original jurisdiction on the Ohio Court. During the course of the proceedings in the Ohio Case, defendant filed motions for an extension of time to respond to the complaint, to continue the trial scheduled for February 27, 1990, and to dismiss the Ohio Case for lack of jurisdiction. The domestic relations court in the Ohio Case granted defendant's motion for leave to plead and for a continuance, but denied defendant's motion to dismiss in an entry journalized March 21, 1990. Proceedings also continued in the Puerto Rico Case where plaintiff appeared with counsel on May 18, 1990 for a hearing on the pending divorce only action. The parties do not dispute that plaintiff did not request any affirmative relief in the Puerto Rico Case. The Puerto Rico Court journalized a decree of divorce only following the hearing on June 1, 1990 and the divorce decree - 4 - does not address division of the parties' marital property, alimony or support. The Ohio Case proceeded to trial commencing October 4, 1990 following submission of pretrial briefs by the parties. The record demonstrates that following opening statements, the domestic relations court continued the trial and granted defendant's oral and subsequent written motions for leave to file a belated answer to the complaint. Defendant entered an oral answer at the hearing and subsequently filed a written answer prior to the continued trial date both of which generally denied the allegations in plaintiff's complaint and raised no affirmative defenses. However, defendant subsequently filed a second motion to dismiss the Ohio Case contending the action was barred by res judicata due to the intervening Puerto Rico divorce decree. The transcript of proceedings on the continued trial date in the Ohio Case demonstrates the domestic relations court reserved ruling on the res judicata dispute and received testimony on the merits. (Tr. 52). The domestic relations court subsequently journalized a three-page decision and judgment entry denying and dismissing plaintiff's entire complaint containing claims for divorce, alimony and division of property following the conclusion of the trial on January 15, 1991. Plaintiff timely appeals raising three assignments of error. - 5 - Plaintiff's first assignment of error argues the domestic relations court erred in dismissing her complaint in the Ohio Case on the basis of res judicata as follows: THE COURT ERRED IN NOT RULING ON THE ISSUE OF ALIMONY, SUPPORT AND PROPERTY DIVISION. A. The Court erred by asserting an Affirmative Defense on behalf of the Defendant not properly pleaded and therefore waived by the Defendant. B. The Court understood and accepted that Puerto Rico bifurcates and divides its divorce cases, first dealing with fault and in a subsequent session dealing with alimony and support, and erred by not proceeding to rule on the issue of support, alimony and property division properly before it. C. The court erred by failing to exercise its full jurisdiction and decide all issues properly before it. D. Having established that the Ohio Court had original jurisdiction over the parties, and that the Court in Puerto Rico had not addressed all issues requiring a second Complaint and Trial the Court erred in not ruling on all issues before it. Plaintiff's first assignment of error is well-taken. Plaintiff argues the domestic relations court improperly dismissed her complaint and declined to rule on her pending claims for alimony, support and property division in the action based upon the prior divorce decree in the Puerto Rico Case. As noted above, the record demonstrates defendant's belated oral and written answers to plaintiff's complaint failed to raise the affirmative defense of res judicata as required by Civ. R. - 6 - 1 8(C). Plaintiff correctly notes the Ohio Supreme Court has held that the affirmative defense of res judicata may not be raised by a motion to dismiss as in the case sub judice. The Court, in State ex rel. Freeman v. Morris (1991), 62 Ohio St. 3d 107, held as follows: Nor was the case subject to dismissal under Civ. R. 12(B). Civ.R. 8(C) designates res judicata an affirmative defense. Civ. R. 12(B) enumerates defenses that may be raised by motion and does not mention res judicata. Accordingly, we hold that the defense of res judicata may not be raised by motion to dismiss under Civ. R. 12(B). See Johnson v. Linder (1984), 14 Ohio App. 3d 413. Id. at 109. Accord Lynes v. Lynes (Dec. 12, 1991), Cuyahoga App. No. 59662, unreported. Plaintiff filed a motion to strike defendant's motion to dismiss prior to the continued trial date since this defense was not properly pleaded in defendant's answer. The record demonstrates that defendant failed to file any response to this motion to strike or seek to amend his answer to properly raise this defense of res judicata. In fact, defendant's oral and written answers to plaintiff's complaint specifically denied that defendant had even filed a complaint for divorce in the Puerto Rico case. Defendant's contention that plaintiff impliedly 1 Civ. R. 8(C) provides in pertinent part as follows: Affirmative Defenses. In pleading to a previous pleading, a party shall set forth affirmatively *** res judicata *** and any other matter constituting an avoidance or affirmative defense. - 7 - consented to the trial of the affirmative defense of res judicata under Civ. R. 15(B) lacks merit since the record demonstrates to the contrary that plaintiff repeatedly objected to the improper manner in which defendant raised the issue of res judicata and any trial of this issue. As a result, defendant failed to properly raise the affirmative defense of res judicata and the domestic relations court's dismissal of plaintiff's complaint must be reversed and the case remanded for further proceedings. Id. Defendant was afforded ample opportunity to present the defense of res judicata in a proper manner after his request to continue the trial in the Ohio Case enabled him to obtain the divorce decree in the subsequently commenced Puerto Rico Case. The interests of justice dictate that parties seeking to employ procedural gamesmanship to defeat substantive rights will be held to strict compliance with the rules. Cf. Perotti v. Ferguson (1983), 7 Ohio St.3d 1. Accordingly, plaintiff's first assignment of error is well taken and the case is remanded to the domestic relations court for further proceedings. Plaintiff's second assignment of error challenges the domestic relations court's finding concerning the timing of the parties' reunion as follows: THE COURT ERRED IN FINDING THAT THE PARTIES REESTABLISHED THEIR MARRIAGE BETWEEN JANUARY AND MARCH, 1988 IN VIEW OF THE DEFENDANT'S STIPULATION AND THE EVIDENCE THAT THEY - 8 - PURCHASED A HOME IN PUERTO RICO AS HUSBAND AND WIFE IN OCTOBER, 1987. Plaintiff's second assignment of error lacks merit. The parties argued in the domestic relations court that the division of the parties' assets and determination of other financial issues depended upon when the parties "reestablished their marital partnership" following their original separation. Plaintiff contends the domestic relations court's finding that "the parties reestablished the marital partnership in Puerto Rico" "at some time between January, 1988 and March 1988" rather than at an earlier time is against the manifest weight of the evidence presented by the parties at trial. (Domestic Relations Court Decision and Judgment Entry at 6). Although we conclude the domestic relations court's finding is not against the manifest weight of the evidence, the issue of when the parties "reestablished their marital partnership" is not relevant to resolution of the pending financial issues since the parties in the case sub judice were merely separated prior to their reunion and had not obtained a complete divorce. Compare Fields v. Fields (1987), 39 Ohio App. 3d 187 (reunion following divorce). The parties in the case sub judice remained husband and wife during their original separation not intending to obtain a divorce and any property either party acquired individually thereafter during their separation may remain marital property subject to division in the discretion of the domestic relations court. Hakeman v. Hakeman (Dec. 17, 1981), Cuyahoga App. No. - 9 - 43475, unreported. Accordingly, the domestic relations court is directed on remand to focus on the division of the parties' accumulated joint property and commingling of individual assets following their separation when equitably resolving the pending financial issues rather than relying upon the time when the parties "reestablished their marital partnership." The domestic relations court shall also include in this adjudication the parties respective rights in the GM-UAW pension fund. The parties did not dispute at trial that they reunited after the October 8, 1986 separation agreement, but presented conflicting evidence as to when this occurred. Plaintiff presented testimony the parties reunited as early as December 1986 or January 1987 when defendant joined her for a two-week period in Puerto Rico over the holiday season. Plaintiff also testified she returned to Cleveland for several months in the first half of 1987 and stayed with defendant most of the time. Plaintiff testified the parties subsequently filed joint tax returns, created joint accounts and purchased their Puerto Rico residence jointly in October 1987 in part with substantial amounts due to plaintiff from defendant but not paid under terms of the prior separation agreement. Defendant returned to Puerto Rico in September 1987 in connection with the purchase of a residence but stayed only a short period of time. Plaintiff lived alone in the house until defendant returned in January 1988 following his retirement from General Motors in Cleveland. - 10 - Defendant presented conflicting testimony the parties' reunion did not occur until after his return to Puerto Rico in January 1988 upon retirement from General Motors. Such evidence amply supports the domestic relations court's finding on this issue and we decline plaintiff's request to substitute our judgment for that of the domestic relations court concerning the credibility of the witnesses or the weight to be given their testimony. It is well established that "[j]udgments supported by some competent, credible evidence *** will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus. Based upon our review of the record sub judice, there is evidence to support the domestic relations court's conclusion that the parties did not "reestablish their marital partnership" prior to January, 1988. However, as noted above, the domestic relations court is directed to make an equitable determination concerning plaintiff's pending claims for divorce, alimony, support and property division on remand and is not limited by technicalities such as the time when the parties reunited. Hakeman v. Hakeman, supra. Accordingly, plaintiff's second assignment of error is overruled. Plaintiff's third assignment of error follows: - 11 - THE COURT ERRED IN RULING THAT PLAINTIFF- APPELLANT DID NOT REQUEST ALIMONY OR PROPERTY DIVISION IN VIEW OF THE PENDING OHIO CASE. Plaintiff's third assignment of error lacks merit. Plaintiff contends the domestic relations court improperly found that plaintiff did not request a division of the parties' marital property or alimony in the Puerto Rico Court. However, based upon our resolution of plaintiff's first and second assignments of error this assignment of error is moot. As a result, we decline to address this third assignment of error in accordance with App. R. 12(A)(1)(c). The judgment of the domestic relations court dismissing plaintiff's complaint for divorce, alimony and division of property is reversed. The domestic relations court is directed on remand to adjudicate all claims in plaintiff's complaint including divorce, alimony and division of property and the GM- UAW pension fund. Judgment reversed and remanded for further proceedings consistent with this opinion. Judgment accordingly. - 12 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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. DAVID T. MATIA, C.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .