[Cite as Allen v. Allen, 2013-Ohio-2729.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LISA LEIGH ALLEN : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2013-0015
:
JOHN DALE ALLEN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Domestic
Relations Division, Case No. DB2011-
0815
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 21, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
SCOTT T. HILLIS JOHN DALE ALLEN, pro se
Hillis & Small, LLC Prisoner No. 614204
825 Adair Ave. c/o HCF-POB 59
Zanesville, OH 43701 Nelsonville, OH 45764
Muskingum County, Case No.CT2013-0015 2
Delaney, J.
{¶1} Defendant-Appellant John Dale Allen appeals from the March 7, 2013
Judgment Entry of the Muskingum County Common Pleas Court, Domestic Relations
Division. Plaintiff-Appellee Lisa Leigh Allen did not file a brief.
FACTS AND PROCEDURAL HISTORY
{¶2} The parties were married on July 7, 2007 in Muskingum County and no
children were born of the marriage. Appellee filed an Amended Complaint for Divorce
on November 18, 2011 and appellant filed an Answer and Counterclaim on December
7, 2011. An Amended Divorce Decree was filed on October 10, 2012, from which
appellant appealed on October 30, 2012. The appeal was dismissed on November 26,
2012 because appellant failed to pay the required deposit.
{¶3} On January 8, 2013, appellant filed a “Motion for Relief from Judgment or
Order” in the trial court pursuant to Civ.R. 60(B). In the motion, appellant argued the
Amended Divorce Decree “was based upon fraud” and stated:
Unfortunately, [appellant] was incarcerated during the entire
divorce proceeding and had no access to a law library for
purposes of legal research.
[Appellant] was not permitted to state and argue his
Counterclaims nor the division of marital property, pensions
or retirement benefits. Even though [appellant] was
incarcerated, the court should have allowed some alternative
way for [appellant] to defend himself in the divorce (video,
telephone, etc.).
Muskingum County, Case No.CT2013-0015 3
[Appellant] was denied due process, equal protection under
the law and the court abused its discretion in the issuance of
the Amended Divorce Decree.
For the foregoing reasons, the Amended Divorce Decree
must be vacated or set aside under Civ.R. 60 and this case
must be remanded for hearing under [appellant’s]
Counterclaims, the proper division of marital property and
spousal support.
{¶4} On March 7, 2013, the trial court overruled appellant’s motion, stating in
pertinent part:
* * * *.
In the present case, [appellant’s] motion simply makes a
general allegation of fraud and does not state with any
particularity any facts or circumstances supporting this
general allegation of fraud nor set forth any basis upon
which the Court might find [appellant’s] claim to have merit.
[Appellant] was given notice of the hearing as required by
Civil Rule 75. Ohio Courts have held that a party has no
absolute no process right to attend the trial of a civil action.
If such a request is made, however, the Court has a duty to
give careful consideration to such a request.
In the present case, Defendant made no request to be
present or transported for the final hearing. Having waived
Muskingum County, Case No.CT2013-0015 4
his request to be present at the final hearing [appellant]
cannot now raise this issue to bolster a Civil Rule 60(B)
motion to set aside the Judgment Entry of Divorce granted
October 10, 2012.
* * * *.
{¶5} Appellant now appeals from the trial court’s judgment entry.
ASSIGNMENTS OF ERROR
{¶6} “I. JOHN DALE ALLEN WAS DENIED DUE PROCESS.”
{¶7} “II. JOHN DALE ALLEN WAS DENIED EQUAL PROTECTION UNDER
THE LAW.”
{¶8} “III. THE TRIAL COURT ABUSED ITS DISCRETION.”
ANALYSIS
I., II., III.
{¶1} Appellant’s three assignments of error are related and will be considered
together.
{¶2} Appellant argues his rights were violated because the trial court did not
“allow [him] to be heard” during his divorce proceedings. .
{¶3} First, appellant argues his rights of due process and equal protection were
violated because he was not present at the divorce hearing. As the trial court pointed
out, we find no evidence in the record that appellant filed a motion to convey or
otherwise requested to be present at the final hearing.1 Moreover, we have frequently
1
Appellant’s statement of the case indicates “On November 22, 2011, [appellant]
notified his custodians and the court to have him transported to the January 9, 2012
hearing,” but there is no evidence thereof in the record.
Muskingum County, Case No.CT2013-0015 5
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, 5th Dist. No.
00-CA-99, 2001 WL 1775387 *2, (Mar. 24, 2001), 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. CT06-0061, 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.
We find the trial court did not violate appellant’s rights of due process and equal
protection.
{¶4} Finally, appellant argues the merits of his counterclaim in the divorce
case, to wit: that appellee earned more money than he did and the trial court should
have taken this into account in awarding spousal support. Appellant did not
successfully appeal from the final divorce decree because he failed to pay the
mandatory costs and his appeal was dismissed. Any argument regarding the spousal
support could have been raised in a direct appeal of the original divorce decree, but
having failed to successfully file a direct appeal, appellant is now barred by the doctrine
of res judicata. Schrader v. Schrader, 5th Dist. No. 2012CA00010, 2012-Ohio-4032, ¶
25, citing State ex rel. Carroll v. Corrigan, 91 Ohio St.3d 331, 332, 2001–Ohio–54, 774
N.E.2d 771.
Muskingum County, Case No.CT2013-0015 6
CONCLUSION
{¶5} Appellant’s three assignments of error are overruled and the judgment of
the Muskingum County Court of Common Pleas, Domestic Relations Division, is
affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
PAD:kgb