[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




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