[Cite as McKenzie v. McKenzie, 2013-Ohio-4859.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             MARION COUNTY




KATY MCKENZIE,

        PLAINTIFF-APPELLEE,                          CASE NO. 9-13-15

        v.

JOSEPH ANDREW MCKENZIE,                              OPINION

        DEFENDANT-APPELLANT.




                Appeal from Marion County Common Pleas Court
                                 Family Court
                          Trial Court No. 2012 DR 190

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                         Date of Decision: November 4, 2013




APPEARANCES:

        Nathan D. Witkin for Appellant
Case No. 9-13-15


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Joseph A. McKenzie (“Joseph”) brings this

appeal from the judgment of the Common Pleas Court of Marion County, Family

Division granting an uncontested divorce to plaintiff-appellee Katy L. McKenzie

(“Katy”). Joseph challenges the trial court’s ruling on the basis that he was denied

an opportunity to participate in the hearing. For the reasons set forth below, the

judgment is reversed in part and affirmed in part.

       {¶2} Initially this court notes that Katy chose not to file an appellate brief.

“If an appellee fails to file the appellee’s brief within the time provided by this

rule, or within the time as extended, the appellee will not be heard at oral

argument except by permission of the court upon a showing of good cause

submitted in writing prior to argument; and in determining the appeal, the court

may accept the appellant’s statement of the facts and issues as correct and reverse

the judgment if appellant’s brief reasonably appears to sustain such action.”

App.R. 18(C).

       {¶3} Joseph and Katy were married on July 26, 2008. Doc. 11. One child,

Damien, was born during the marriage. Doc. 11. Katy filed a complaint for

divorce on December 19, 2012. Doc. 11. In the complaint, Katy alleged that

Joseph was guilty of gross neglect of duty, that the parties had lived separate and

apart for one year without cohabitation, and that they are incompatible. Doc. 11.


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Joseph did not file an answer. On January 30, 2013, the trial court notified the

parties that a pretrial hearing would be held on February 12, 2013. Doc. 21. The

order contained the following notice.

         In the event the Defendant fails to file an Answer or appear for
         pretrial with counsel this matter will proceed as an uncontested
         final hearing.

Doc. 21. On February 12, 2013, Katy and Joseph both appeared for the pretrial

conference. However, since Joseph had failed to file an answer, the trial court

proceeded as if it were an uncontested final hearing. Tr. 2. Joseph was present in

the courtroom, but was not offered an opportunity to present any evidence or to

cross-examine the witnesses. The trial court immediately granted the divorce and

ordered that all of the terms proposed by Katy be adopted, including denying

Joseph any parenting time with Damien.1 Tr. 15-16. The trial court entered its

journal entry granting the divorce on February 13, 2013. Doc. 22. Joseph filed his

notice of appeal on March 14, 2013. Doc. 25. On appeal, Joseph raises the

following assignments of error.

                                   First Assignment of Error

         [Joseph] was denied his procedural due process rights to be
         heard prior to a deprivation of protected property rights under
         the due process clause of the U.S. and Ohio Constitutions.




1
  Interestingly, the judgment entry states that Joseph had failed to appear even though the record indicates
that he was present the entire time.

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                          Second Assignment of Error

      [Joseph] was denied his right to cross-examine adverse witnesses
      under the due process clause of U.S. and Ohio Constitutions, the
      Ohio Rules of Evidence, and common law.

                           Third Assignment of Error

      The trial court violated R.C. 3119.08 by ordering child support
      against [Joseph] without providing [Joseph] with an order of
      specific and holiday parenting time.

                          Fourth Assignment of Error

      The trial court made an inequitable division of property without
      indicating the basis for its award in sufficient detail to enable the
      reviewing court to determine if the award is fair, equitable and
      in accordance with the law.

                           Fifth Assignment of Error

      The trial court did not afford [Joseph] the opportunity to
      request a continuance and abused its discretion in denying his
      request for a continuance.

      {¶4} In the first and second assignments of error, Joseph challenges the trial

court’s failure to provide him with an opportunity to present evidence or to cross-

examine the witnesses of Katy based upon his failure to file an answer. The Ohio

Civil Rules provide that the provisions for a default judgment do not apply to

complaints for divorce. Civ.R. 75(F). This court has addressed the issue of

whether a party who fails to file an answer to a complaint for divorce can be

denied an opportunity to participate in the proceedings in Skaggs v. Skaggs, 3d

Dist. Marion No. 9-94-60, 1995 WL 368838 (June 23, 1995). In Skaggs, the

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defendant failed to file an answer to his wife’s complaint for divorce and for

custody of their minor child. The trial court held a hearing on an uncontested

divorce proceeding even though the defendant was present without counsel at the

hearing. The trial court then proceeded to grant the divorce, divide the property,

determine custody of the child, and to establish child support for the child. On

appeal the defendant challenged the decision of the trial court to exclude him from

presenting evidence or cross-examining the plaintiff’s witnesses. This court stated

as follows.

       Upon review of the record, it appears to us that the trial judge
       was proceeding under the assumption that because defendant
       failed to file an answer to plaintiff’s complaint, the entire matter
       was uncontested. Based on this assumption, it appears that the
       trial judge did not provide defendant with any meaningful
       opportunity to participate in the proceedings.

       We note that in Ohio, courts have held that preventing a party
       from presenting evidence at a divorce trial because they failed to
       file a formal answer constitutes an abuse of discretion. * * * In
       the instant case, we believe that defendant has set forth facts
       which could have had an impact on the trial court’s property
       division if he had been provided with the opportunity to present
       those facts at trial.    Moreover, we find that the judgment
       entered by the trial court was in substance a default judgment
       which may not be properly entered in a divorce action. Civ.R.
       75(G). Therefore, in light of defendant’s apparent intent to
       defend this action, we do not believe that his failure to file a
       formal answer should have precluded him from testifying or
       presenting evidence at his trial.

Id. This court determined that by appearing at the hearing, the defendant had

indicated his intent to participate in the matter. Id. However, this court did hold

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that although the defendant had made an appearance sufficient to entitle him to the

right to present evidence and cross-examine opposing witnesses, his failure to file

an answer was an admission of the grounds of the divorce. Id.

       {¶5} More recently, this position has been reiterated by other courts. In

Rue v. Rue, the second district addressed a situation where the defendant wife

failed to file an answer to the plaintiff husband’s complaint for divorce. 169 Ohio

App.3d 160, 2006-Ohio-5131, 862 N.E.2d 166 (2d Dist.). The facts of Rue were

that the plaintiff alleged in his complaint that the parties were incompatible, that

the defendant had committed extreme cruelty and was guilty of gross neglect. Id.

at ¶2. The plaintiff then requested that the trial court grant him a divorce, custody

of the children, child support, attorney’s fees, and spousal support. Id. The court

indicated that the record showed that defendant did not file an answer, but did

appear at the pretrial unrepresented. Id. The trial court informed the defendant

that until she obtained counsel and filed a motion for leave to file an answer, she

could not participate in the proceedings. Id. On appeal, the court held that the trial

court in effect rendered a default judgment of divorce by not allowing the

defendant to participate meaningfully in the trial. Id. at ¶61. The court then held

that it was reversible error.    “A divorce litigant may not be prevented from

presenting evidence because the litigant has failed to file an answer.” Id. at ¶63.

The court noted that this rule may cause some problems with the court’s docket,


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but held that the goal of managing the docket must be second to the right to a fair

trial and that the trial court may not mandate that a divorce litigant has an attorney.

       It may be good case management for a domestic-relations court
       to maintain a separate docket for noncontested divorces, and we
       are aware that this is a venerable practice within some of the
       counties in our jurisdiction. But the fact that a divorce litigant
       has not filed an answer does not prevent the litigant from
       contesting one or more issues in the divorce. In the occasional
       case, this may mean that a case set for hearing on the
       noncontested docket may have to be reset for the contested
       docket because the nonanswering, and hitherto unassertive,
       defendant shows up at the hearing intending to contest one or
       more issues. In this case, though, the pretrial conference alerted
       the trial court to the fact that this was a contested case, despite
       the fact that [defendant] had not answered the complaint, so
       there was an opportunity to reset the case on the contested
       docket.

       The trial court also seems to have been under the impression
       that a divorce litigant may not proceed pro se. It may be almost
       as unwise for a divorce litigant to proceed pro se as it is for a
       defendant in a capital murder case to do so, but a divorce
       litigant, unlike a criminal defendant, has no right to the
       appointment of counsel at state’s expense if the litigant is
       indigent. A divorce litigant who cannot afford an attorney is not
       thereby barred from being heard. To hold otherwise would
       violate the Due Process and Equal Protection clauses of the
       Fourteenth Amendment to the United States Constitution and
       the Open Court provision in Article 1, Section 16 of the Ohio
       Constitution.

Id. at ¶64-65. The court held that although the divorce was affirmed as it was not

disputed that the parties were incompatible, the remainder of the judgment was

reversed for further proceedings. Id. at 67.



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       {¶6} The position taken in Rue, supra, has been accepted by other courts as

well. In Franklin v. Franklin, the tenth district stated “that the default judgment

rule in Civ.R. 55 does not apply in divorce proceedings pursuant to Civ.R. 75(F);

therefore, a party may still appear at the final hearing and present evidence

regardless of that party's failure to answer the complaint.” Franklin v. Franklin,

10th Dist. Franklin No. 11AP-713, 2012-Ohio-1814, ¶8 (holding that failure to

appear at a final hearing does not waive the right to factual findings). The fifth

district has also stated that if a party appears for the hearing, he or she would be

“permitted to present evidence at the hearing regardless of [the party’s] default in

failing to answer the complaint.” Gordon v. Gordon, 5th Dist. Muskingum Nos.

CT2007-0072, CT2007-0081, 2009-Ohio-177, ¶17 (finding that appellant waived

her right to present evidence by not appearing at the hearing).

       {¶7} These cases, including Skaggs, were all based upon the holding of the

fourth district in Campbell v. Campbell. 4th Dist. Gallia No. 92CA39, 1993 WL

307535 (Aug. 13, 1993). In Campbell, the wife filed for divorce and her husband

failed to file an answer. At the final hearing, the husband appeared to contest the

valuations of the property that his wife had put forth. The trial court informed the

husband that he could not present any evidence because he failed to file an answer.

The husband did not object to the trial court’s refusal to allow him to present

evidence. On appeal, the court stated as follows.


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        [T]he trial court erroneously prevented appellant from
        presenting evidence in the case sub judice. The trial court ruled
        that because appellant failed to file an answer, he could not
        present evidence. We disagree. Civ.R. 75(F) provides that
        Civ.R. 55, the default judgment rule, does not apply in domestic
        relations cases. See, also, Mills v. Mills (Sept. 21, 1990),
        Montgomery App. No. 12100, unreported; Stewart v. Stewart
        (Feb. 16, 1990), Huron App. No. H-89-35, unreported; Robinette
        v. Robinette (1988), 41 Ohio App.3d 25, 534 N.E.2d 386. In this
        particular case, we believe the trial court should have provided
        appellant the opportunity to present evidence in his behalf.
        There is no indication or argument in the record that allowing
        appellant to present evidence would have unfairly prejudiced
        appellee or unnecessarily disrupted the orderly administration
        of justice.

Id.   The court then held that the trial court committed reversible error by

preventing the husband from presenting evidence at the hearing. Id.

        {¶8} Here, we have a similar situation. Joseph failed to file an answer,

however he appeared at the first pretrial hearing, which was held less than two

months after the complaint was filed.2 His presence at the hearing entitled him to

present evidence and to cross-examine the witnesses.                     Although he appeared

without counsel, he is not required by law to have counsel. See, Rue, supra. At

the hearing, he was not permitted to present any evidence concerning the property

division, child custody, or child support. He was also not permitted to cross-

examine the witnesses presented by Katy. The effect of the trial court’s actions

was to grant a default judgment of divorce, which is not permitted by Civil Rule


2
  The first pretrial was held 53 days after the complaint was served upon Joseph. The return of service
indicates that Joseph received the summons and complaint on December 21, 2012. Doc. 18.

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75(F). As understandable as the trial court’s desire to control the docket is, this

was an initial pretrial and the trial court could easily have reset the matter for a

contested hearing. Rue, supra. Viewing the evidence presented by Joseph, the

civil rules, the case law, and the record, it appears that Joseph has set forth

sufficient facts and law to support a reversal based upon the trial court’s failure to

allow Joseph to present evidence at the hearing or to cross-examine Katy’s

witnesses. App.R. 18(C). The first and second assignments of error are sustained.

       {¶9} Although the first and second assignments of error are sustained as to

the requirement that Joseph be permitted to present evidence and confront the

witnesses for Katy, this does not automatically reverse the entire judgment. This

court held in Skaggs that the appropriate remedy in this case is to vacate the part of

the judgment pertaining to the property division and child custody, but to affirm

the granting of the divorce.

       [D]ue to the defendant’s failure to answer plaintiff’s complaint,
       we affirm the judgment of the trial court granting a divorce to
       plaintiff on the grounds of incompatibility. However, due to the
       trial court’s failure to allow defendant to present evidence at
       trial, we vacate that portion of the trial court’s judgment entry
       pertaining to the division of property and child custody and
       remand this case to that court to conduct a full evidentiary
       hearing regarding the same. At the hearing, both parties shall
       be given an opportunity to present evidence regarding the
       division of their property and the custody of their minor [child].

Skaggs, supra. A similar result was reached by the second district in Rue. Here,

the decree of divorce was granted on the grounds of incompatibility. Since Joseph

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failed to file an answer to the complaint which alleged that the parties were

incompatible, the portion of the judgment granting a divorce on the grounds of

incompatibility is affirmed.      However, since Joseph was prohibited from

presenting evidence at trial, the portion of the judgment entry pertaining to all

other matters is vacated. The case is remanded for the trial court to conduct a new,

contested, full evidentiary hearing on these matters.

       {¶10} Having found error prejudicial to Joseph during the trial, the third,

fourth, and fifth assignments of error addressing rulings from the trial court and

the denial of the motion to continue are rendered moot. Thus, this court need not

address them at this time. App.R. 12(A)(1)(c).

       {¶11} For the reasons set forth above and having found error prejudicial to

the appellant, the judgment of the Common Pleas Court of Marion County, Family

Division is affirmed only as to the judgment granting the divorce. The portion of

the entry regarding all other issues is vacated and the matter is remanded for

further proceedings in accord with this opinion.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                 Cause Remanded

PRESTON and SHAW, J.J., concur.

/jlr




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