Rachel v. Rachel ( 2013 )

[Cite as Rachel v. Rachel, 2013-Ohio-3692.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
MICHELE RACHEL : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2012CA00243
DANIEL RACHEL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2012DR00964
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 26, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DEAN L. GRASE DANIEL RACHEL
116 Cleveland Avenue N.W. #503-216
Courtyard Centre #703 Marion Correctional Institution
Canton, OH 44702 Box 57
Marion, OH 43301
[Cite as Rachel v. Rachel, 2013-Ohio-3692.]
Gwin, P.J.
{¶1} Appellant-Husband appeals the December 10, 2012 judgment entry of the
Stark County Common Pleas Court, Domestic Relations Division, granting a final
decree of divorce.
Facts & Procedural History
{¶2} Michele Rachel (“Wife”) and Daniel Rachel (“Husband”) were married in
1981. Husband and wife have two adult children who were emancipated prior to the
filing of the divorce petition. In 2007, Husband was sentenced to sixteen (16) years in
prison for kidnapping, felonious assault, aggravated robbery, and aggravated burglary.
Husband is currently incarcerated at the Marion Correctional Institution and has a
projected release date of October 28, 2022.
{¶3} Wife filed a complaint for divorce on August 16, 2012. Attached to the
complaint was a notice of hearing setting an uncontested trial for December 4, 2012 or
a contested case pre-trial for February 7, 2013. Husband was served with the
complaint via certified mail to Marion Correctional Institution on August 20, 2012. On
September 12, 2012, Husband filed a motion to appear at any hearings by video or
phone from Marion Correctional Institution and a motion for temporary spousal support.
{¶4} On September 28, 2012, Husband filed an affidavit of indigency, an
answer, and counterclaims. In the answer and counterclaims, Husband stated Wife
failed to include all household income, all property and assets in her filings. Husband
again requested spousal support. Wife filed a motion to strike Husband’s answer and
counterclaims pursuant to Ohio Civil Rules 8(B), 12(A)(1), and 12(F) on October 9,
2012. Wife argued the answer was not filed within twenty-eight (28) days of the
Stark County, Case No. 2012CA00243 3
complaint and the answers provided by Husband were not responsive to the complaint
because they did not admit or deny the allegations of the complaint. Wife instructed the
Stark County Clerk of Courts to serve Husband with the motion by certified mail at
Marion Correctional Institution. The trial court granted Wife’s motion to strike on
October 9, 2012. Husband was served with a copy of the motion and order on October
19, 2012.
{¶5} Husband filed a motion for appraisal of property and motion to vacate
order to strike defendant’s answer and counterclaims on November 19, 2012. Husband
sought to vacate the order striking his answer and counterclaims because Wife failed to
comply with Civil Rule 5. The trial court did not rule on Husband’s motion to vacate. On
November 21, 2012, Wife filed an amended affidavit of property. Husband filed a
petition for conciliation pursuant to R.C. 3117 on November 29, 2012.
{¶6} A hearing was held before the magistrate on December 4, 2012. On
December 10, 2012, the trial court granted the divorce. In the final divorce decree, the
magistrate determined the marriage ended as of February 25, 2007, the date of
Husband’s imprisonment. The magistrate awarded Wife her 401(k) and awarded
Husband the real estate titled in his name. Further, the magistrate awarded each party
the personal property, vehicles, bank accounts, pensions and debts incurred in their
names and ordered each party to pay their own living expenses. No spousal support
was awarded to either party. The final divorce decree was signed by the magistrate and
adopted and approved by the trial court judge. The final decree provided language
stating that “a party may, pursuant to Ohio Civil Rule 53, file a written motion to set
against a magistrate’s order within ten (10) days of the filling an Order. A party may file
Stark County, Case No. 2012CA00243 4
a written objection to the Magistrate’s Decision within fourteen (14) days of the filing of a
decision.” Husband did not file a motion to set aside the magistrate’s order or file any
objections to the magistrate’s decision. Husband filed an appeal on December 27,
2012, and raises the following assignments of error on appeal:
{¶7} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO STAY THE
PROCEEDINGS UNTIL IT RULED ON DEFENDANT’S MOTION FOR CONCILIATION
IN VIOLATION OF DEFENDANT’S RIGHTS TO DUE PROCESS AND EQUAL
PROTECTION; OHIO CONSTITUTION, ARTICLE I, §2 & §16 AND R.C. 3117.07.
{¶8} ”II. THE TRIAL COURT ERRED WHEN IT FAILED TO ALLOW THE
DEFENDANT TO APPEAR IN THE HEARING AFTER DEFENDANT PROPERLY
FILED A TIMELY MOTION TO APPEAR BY VIDEO OR TELEPHONE IN VIOLATION
OF DEFENDANT’S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION; OHIO
CONSTITUTION, ARTICLE I, §1, §2 AND §16.
{¶9} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE AN
ORDER TO STRIKE DEFENDANT’S ANSWER AND COUNTERCLAIMS AFTER
DEFENDANT SHOWED EVIDENCE ON THE RECORD THAT THE DEFENDANT HAD
NOT RECEIVED SERVICE OF PLAINTIFF’S MOTION TO STRIKE IN VIOLATION OF
DEFENDANT’S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION; OHIO
CONSTITUTION ARTICLE I, §2 & § 16 AND CIVIL R. 5.
{¶10} “IV. THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER AN
EQUITABLE DISTRIBUTION OF THE COUPLE’S ASSETS AND PROPERTY, AWARD
DEFENDANT HIS FAMILY HEIRLOOMS, GRANT AN APPRAISAL OF THE
PROPERTY, OR RECOGNIZE THE DIVISION OF PROPERTY AS OF THE DATE OF
Stark County, Case No. 2012CA00243 5
THE FILING OF THE COMPLAINT FOR DIVORCE IN VIOLATION OF DEFENDANT’S
RIGHTS TO DUE PROCESS AND EQUAL PROTECTION; OHIO CONSTITUTION,
ARTICLE I, §1, §2 & §16 AND R.C. 3105.171.”
I.
{¶11} Husband alleges the trial court erred when it failed to stay the divorce
proceedings after he filed his petition for conciliation. Husband cites to R.C. 3117.07
which states, “during the period beginning with the filing of the petition for conciliation
and continuing until expiration of any court order made pursuant to division (E) of
section 3117.06 of the Revised Code, neither spouse may file or proceed with any
action for divorce * * *.”
{¶12} R.C. Chapter 3117, Conciliation of Marital Controversies, is
“applicable only in counties in which the court of common pleas
determines that social conditions and the number of domestic relations
cases in the county render the conciliation procedures provided necessary
to proper consideration of marital controversies. Such determinations
shall be made by the judge of the common pleas in counties having only
one such judgment, or by a majority of the judges of the court of common
pleas in counties having more than one such judge.”
{¶13} In this case, Husband filed a petition for conciliation on November 29,
2012 and the trial date for Wife’s complaint for divorce was scheduled for December 4,
2012. We find the trial court did not err in failing to stay the divorce proceedings until it
ruled on Husband’s petition for conciliation, as the trial court did not have authority to
hear Husband’s petition. Pursuant to R.C. 3117.01 et seq., conciliation is only available
Stark County, Case No. 2012CA00243 6
if the county’s court of common pleas has adopted the provisions of the statute. As our
research indicates the Stark County Court of Common Pleas has not adopted the
provisions of the conciliation statute, Husband could not seek redress pursuant thereto.
Accordingly, Husband’s first assignment of error is overruled.
II.
{¶14} Husband next argues the trial court erred when it failed to allow him to
appear at the December 4, 2012 trial after he filed a general motion to appear by video
or telephone for all proceedings. We find Husband’s argument to be without merit. We
have frequently noted divorce is a civil proceeding and an incarcerated prisoner has no
absolute due process right to attend a civil trial to which he is a party. Sweet v. Sweet,
00-CA-99, 2001 WL 1775387 *2, (March 24, 2011), citing Mancino v. Lakewood, 36
Ohio App.3d 219, 221, 523 N.E.2d 332 (8th Dist. 1987); see also Alexander v.
Alexander, 5th Dist. No. CT-6-0061, 2007-Ohio-3933; Wagner v. Strip, 5th Dist. No. 11-
CA-82, 2012-Ohio-4954, appeal not allowed, 134 Ohio St.3d 1470, 2013-Ohio-553, 983
N.E.2d 369; Allen v. Allen, 5th Dist. No. CT2013-0015, 2013-Ohio-2729. Accordingly,
Husband’s second assignment of error is overruled.
III.
{¶15} Husband argues the trial court erred when it failed to vacate an order
striking his answer and counterclaims because he did not receive service of the motion
to strike pursuant to Civil Rule 5.
{¶16} Civil Rule 5(A) states “every pleading subsequent to the original complaint
* * *shall be served upon each of the parties.” Service pursuant to Civil Rule 5 may be
made by “mailing it to the person’s last known address by United States mail, in which
Stark County, Case No. 2012CA00243 7
event service is complete upon mailing.” Civ.R.5(B)(2)(c). A served document “shall be
accompanied by a completed proof of service which shall state the date and manner of
service * * * Documents filed with the court shall not be considered until proof of service
is endorsed thereon or separately filed.” Civ.R. 5(B)(3).
{¶17} In this case, the motion to strike was filed with instructions to the clerk to
serve Husband with the motion via certified mail, return receipt requested, at Mansfield
Correctional Institution. On October 9, 2012, the Stark County Clerk of Courts sent a
copy of the motion to strike and the order on the motion to strike to Husband via
certified mail, return receipt requested. Service by certified mail was completed on
October 19, 2012. Service by certified mail is valid under Civil Rule 5(B)(2)(c) and,
pursuant to the rule, is complete upon mailing.
{¶18} Husband contends that pursuant to the language in Civ.R. 5(B)(3)
(“documents filed with the court shall not be considered until proof of service is
endorsed thereon or separately filed”), the court should not have considered the motion
to strike because there was no proof of service endorsed on the request. However, we
find that adequate proof of service was shown by Wife through the instructions filed with
the Stark County Clerk of Courts to serve the motion and by the return receipt filed
indicating Husband was served with the both the motion and order. See Colopy v.
Nationwide Ins. Co., 9th Dist. No. C.A. 17019, 1995 WL 5000061 (Aug. 23, 1995).
Accordingly, Husband’s third assignment of error is overruled.
IV.
{¶19} Husband finally argues the trial court erred when it failed to order an
equitable distribution of the parties’ assets and property. A trial court’s division of
Stark County, Case No. 2012CA00243 8
marital property is reviewed for abuse of discretion. Cherry v. Cherry, 66 Ohio St.2d
348, 355, 421 N.E.2d 1293 (1981). An abuse of discretion implies a decision that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶20} We first note that Husband did not file a motion to set aside the
magistrate’s order or file objections to the magistrate’s order in the time frame provided
by Civil Rule 53. When a party fails to file objections to a magistrate’s decision, Civ.R.
53(D)(3)(b)(iv) provides that “a party shall not assign as error on appeal the court’s
adoption of any factual finding or legal conclusion * * * unless the party has objected to
that finding or conclusion as required by Civ.R.53(D)(3)(b).” Postel v. Koksal, 5th Dist.
No. 08-COA-0002, 2009-Ohio-252, ¶ 25. Due to Husband’s failure to object to the
magistrate’s decision, this Court reviews the decision for plain error. In re Lemon, 5th
Dist. No. 2002 CA 00098, 2002-Ohio-6263. The doctrine of plain error is limited to
exceptionally rare cases in which the error, left unobjected to at the trial court, “rises to
the level of challenging the legitimacy of the underlying judicial process itself.” See
Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 1997-Ohio-401, 679 N.E.2d 1099.
{¶21} Further, upon filing his Notice of Appeal, Husband filed a praecipe,
requesting the court reporter prepare a transcript of the proceedings held on December
4, 2012. Husband also filed a motion for trial transcripts to be provided at the state’s
expense with an affidavit of indigency. The trial court did not rule on the motion. The
trial court’s failure to rule on a motion creates a presumption that the trial court
overruled the motion. Brown v. Brown, 11th Dist. No. 2001-L-051, 2002-Ohio-4364 at ¶
33. We find the trial court did not err in overruling Husband’s motion to prepare the
Stark County, Case No. 2012CA00243 9
transcript at the state’s expense. Civil due process requires only notice and an
opportunity to be heard, not provision of transcripts in civil proceedings. Jones v.
Jones, 2d Dist. No. 95-CA-22, 1996 WL 715441 (Dec. 13, 1996). Instead, provision of
transcripts to indigent parties is limited to criminal cases, termination of parental rights,
and defense of paternity cases. Id.{¶22} The Ohio Supreme Court has held that a transcript is “unavailable” for the
purposes of App.R. 9(C) to an indigent appellant unable to bear the cost of providing a
transcript. State ex rel. Motley v. Capers, 23 Ohio St.3d 56, 491 N.E.2d 311 (1986).
Thus, if Husband had demonstrated he was indigent and unable to afford the costs of a
transcript, the procedure set forth in App.R. 9(C) may have been a means for him to
satisfy his burden pursuant to App.R. 9(B).
{¶23} The record reflects Husband failed to file a transcript of the December 4,
2012 trial pursuant to App.R. 9(B) or submit a statement of evidence pursuant to App.R.
9(C). When portions of the transcript necessary for resolution of assigned errors are
omitted from the record, the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower
court’s proceedings, and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,
400 N.E.2d 384 (1980). Because Husband has failed to provide this court with those
portions of the transcript necessary for resolution of the assigned errors, i.e. the
transcript of the December 4, 2012 trial before the magistrate, we must presume the
regularity of the proceedings below affirm, pursuant to the directive set forth in Knapp.
We find no plain error existed in the trial court’s decision regarding equitable distribution
Stark County, Case No. 2012CA00243 10
of the parties’ assets and property. Accordingly, Husband’s fourth assignment of error
is overruled.
{¶24} Based on the foregoing, the judgment of the Stark County Common Pleas
Court, Domestic Relations Division, is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 0710
[Cite as Rachel v. Rachel, 2013-Ohio-3692.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MICHELE RACHEL :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DANIEL RACHEL :
:
:
Defendant-Appellant : CASE NO. 2012CA00243
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Common Pleas Court, Domestic Relations Division, is affirmed. Costs
to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN