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Allen v. Allen

Court of Appeals of Ohio, Fifth District

June 21, 2013

LISA LEIGH ALLEN Plaintiff-Appellee
v.
JOHN DALE ALLEN Defendant-Appellant

Appeal from the Muskingum County Court of Common Pleas, Domestic Relations Division, Case No. DB2011- 0815

For Plaintiff-Appellee: SCOTT T. HILLIS Hillis & Small, LLC.

For Defendant-Appellant: JOHN DALE ALLEN, pro se.

JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

OPINION

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.).
[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 ...

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