Citation. 22 Ill.391 a.2d 762 (d.c. 1978), 391 A.2d 762 (D.C. 1978)
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Brief Fact Summary.
Plaintiff sued Defendant for custody of the child of the parties, which Defendant answered. After the trial, Defendant filed a motion to amend the pleadings to conform to the evidence and include counterclaims for child custody, child support, separate maintenance, and attorneys’ fees. The trial judge granted the motion to amend and all the relief requested by Defendant. Plaintiff appealed arguing that the motion to amend should not have been granted because Plaintiff had no notice or chance to litigate the counterclaims.
Synopsis of Rule of Law.
Under Rule 15(b) of the Federal Rules of Civil Procedure, a party can move to amend the pleadings to conform to the evidence if issues not brought up in pretrial pleadings are tried with both parties consent. Consent may be express or implied. In order to determine implied consent, one must look to the notice the contesting party had of the claim at issue as well as whether evidence was not objected to or was introduced by the contesting party that only related to the unpleaded issue.
Plaintiff Rueben Moore sued Defendant Sidney Moore for custody of their child. Defendant answered and the matter came to trial on October 20, 1976. Defendant then filed a motion to conform the pleadings to the evidence. Defendant sought to assert a counterclaim for custody, child support, separate maintenance, and attorneys’ fees. Defendant also filed a second motion that itemized the attorneys’ fees. Defendant was awarded all relief she requested, including custody of the child. Plaintiff was given visitation rights provided he posted bond. Plaintiff appealed, arguing that the Court should not have awarded Defendant any relief because Defendant did not request any relief in the pretrial pleadings.
Did Plaintiff impliedly consent to try the issue of Defendant’s counterclaim of custody, child support, visitation and bond, attorneys’ fees, and separate maintenance raised after pretrial proceedings pursuant to Rule 15(b) of the Superior Court Rules of Domestic Relations, which is identical to Rule 15(b) of the Federal Rules of Civil Procedure?
Yes, except as to the award of separate maintenance. Affirmed in part and reversed in part. Under Rule 15(b) of the Superior Court Rules of Domestic Relations, which is identical to the Federal Rules of Civil Procedure, pleadings may be amended to conform to the evidence, even post-judgment, when there are issues brought up at trial which were not raised in the pleadings are tried by consent of the parties. This consent can be express or implied. There must be an indication that the party objecting to the amendment had actual notice of the issues and had an opportunity to respond to the issues not included in the pleadings in order for the amendment to be permissible. Failure to object to evidence or introducing evidence that relates only to the unpleaded issues and not other claims is a good indication that the party opposed to the amendment had notice and opportunity to respond to the issues in question. As to child custody: Plaintiff was aware that the court would decide who would get custody of the child, not just whether Plaintiff would get custody. In addition, the Court heard evidence about whether Plaintiff or Defendant should get custody. As to child support: The trial judge stated that the best interests of the child would require a ruling on support as well as custody. In addition, Plaintiff did not object to Defendant’s introduction of evidence relating to the child’s financial needs. As to visitation and bond: Because the trial court has broad discretion when awarding custody in order to do was is in the best interests of the child, she was within her discretion to allow visitation on condition that Plaintiff post bond as part of the custody order. As to attorneys’ fees: It is customary to award fees to the prevailing party in a custody case. In addition, Plaintiff did not object to evidence of attorneys’ fees introduced and the trial court held a hearing before the fees were awarded. As to separate maintenance: There was no mention of separate maintenance in the pleadings nor was there evidence that pertained to maintenance alone. The evidence of Defendant’s financial needs pertains to the child support issue as well. Therefore, the Court erred in allowing the pleadings to be amended to conform to the evidence in connection with the separate maintenance issue.
This case illustrates how Rule 15(b) of the Federal Rules of Civil Procedure, as applied in this case by the Superior Court Rules of Domestic Relations, is meant to resolve as many issues as possible in one proceeding provided that a party’s right to notice and opportunity to be heard are still protected.