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Rachel v. Rachel

Court of Appeals of Ohio, Fifth District

August 26, 2013

MICHELE RACHEL Plaintiff-Appellee
v.
DANIEL RACHEL Defendant-Appellant

Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2012DR00964

DEAN L. GRASE For Plaintiff-Appellee

DANIEL RACHEL For Defendant-Appellant

Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

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 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 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 DEFENDANTS MOTION FOR CONCILIATION IN VIOLATION OF DEFENDANTS 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 DEFENDANTS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION; OHIO ...


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