[Cite as Wood v. Hein, 2014-Ohio-5564.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


Carrie Wood,                                     :

                Plaintiff-Appellee,              :
                                                                       No. 14AP-382
v.                                               :                 (C.P.C. No. 14DR01-0161)

Daniel Hein,                                     :                (REGULAR CALENDAR)

                Defendant-Appellant.             :




                                          D E C I S I O N

                                  Rendered on December 18, 2014


                Yvette Carmon Davis, for appellee.

                Michael A. Partlow, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas,
                              Division of Domestic Relations

KLATT, J.
        {¶ 1} Defendant-appellant, Daniel Hein, appeals a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, that granted plaintiff-
appellee, Carrie Wood, a divorce from Hein. For the following reasons, we reverse that
judgment and remand for further proceedings.
        {¶ 2} Wood filed a complaint for divorce against Hein on January 17, 2014. Hein
did not answer the complaint. The case came before the trial court for a final hearing on
April 11, 2014. Both Wood and Hein appeared at the hearing.
        {¶ 3} Before proceedings commenced, the trial court and Hein engaged in the
following colloquy:
No. 14AP-382                                                                             2

              JUDGE MASON: Mr. Hein, this is set for an uncontested
              trial, today. Tell me why it is you're here.

              DANIEL HEIN: Because I was – I didn't get service for it and
              I do contest it.

              JUDGE MASON: And you what?

              DANIEL HEIN: I do contest the divorce.

              JUDGE MASON: A review of the Court Record indicates that
              you were served by certified mail, which went unclaimed.
              And then Plaintiff's counsel sent out ordinary mail service as a
              follow-up to that, which never was returned undeliverable.
              And according to the Ohio Rules of Civil Procedure, that's
              good service and that was back in January of this year. It's
              now April, and this is the first appearance you've made. You
              have not placed by any kind of response of pleading any of
              these issues into contest. This was properly scheduled for an
              uncontested hearing and under the circumstances and my
              review of the file, I'm going to allow the Plaintiff to go forward
              uncontested.

              DANIEL HEIN: I can't speak at all?

              JUDGE MASON: Pardon me?

              DANIEL HEIN: I can't speak at all, Your Honor[,] before we
              do that?

              JUDGE MASON: This is not a trial and this is not an
              opportunity for you to contest any of the related issues to
              these proceedings. You're welcome to stay and view. It's an
              open court and an open proceeding.

(Tr. 3-4.)
       {¶ 4} The trial court then accepted testimony from Wood and a witness that
Wood called. Hein was not permitted to enter his own testimony or cross-examine the
witnesses. When Hein interjected that Wood lied when she stated the couple had no
marital property, the trial court threatened to eject Hein from the courtroom.
       {¶ 5} Immediately after the hearing, the trial court issued a divorce decree, which,
in addition to granting Wood a divorce, ordered Hein to pay spousal support, Wood's
No. 14AP-382                                                                              3

attorney fees, and court costs. Hein now appeals from that judgment, and he assigns the
following errors:
               ASSIGNMENT OF ERROR NO. I: THE  TRIAL   COURT
               ERRED, AS A MATTER OF LAW, BY DENYING THE
               APPELLANT AN OPPORTUNITY TO PARTICIPATE IN THE
               PROCEEDINGS BEFORE THE TRIAL COURT AT THE
               DIVORCE HEARING.

               ASSIGNMENT OF ERROR NO. II: THE TRIAL COURT
               ERRED AND ABUSED ITS DISCRETION BY ORDERING
               THE APPELLANT TO PAY SPOUSAL SUPPORT TO THE
               APPELLEE, INCLUDING THE APPELLEE'S COUNSEL
               FEES.

       {¶ 6} By his first assignment of error, Hein argues that the trial court erred in
refusing to allow him to participate in the hearing. We agree.
       {¶ 7} " '[P]reventing a party from presenting evidence at a divorce trial because
[that party] failed to file a formal answer constitutes an abuse of discretion.' " McKenzie
v. McKenzie, 3d Dist. No. 9-13-15, 2013-Ohio-4859, ¶ 4, quoting Skaggs v. Skaggs, 3d
Dist. No. 9-94-60 (June 23, 1995). A judgment of divorce entered after a court bars the
non-answering spouse from meaningful participation in the divorce trial is, in effect, a
default judgment. McKenzie at ¶ 4, 8; Rue v. Rue, 169 Ohio App.3d 160, 2006-Ohio-5131,
¶ 61 (2d Dist.). However, Civ.R. 75(F) states that Civ.R. 55, the rule that governs default
judgments, does not apply in actions for divorce. The inapplicability of Civ.R. 55:
               is consistent with the trial court's independent obligations: (1)
               pursuant to R.C. 3105.171(B) to divide the marital and
               separate property equitably between the parties; and (2)
               pursuant to R.C. 3109.04(A)[,] "after hearing the testimony of
               either or both parents," to allocate the parental rights and
               responsibilities for the care of the minor children of the
               marriage "in a manner consistent with the best interest of the
               children." The performance of this independent judicial duty
               does not lend itself to judgment by default.

Rue at ¶ 62.
       {¶ 8} Due to the inapplicability of Civ.R. 55 in divorce proceedings, "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. No. 11AP-713, 2012-Ohio-1814,
¶ 8; accord McKenzie at ¶ 8 (despite the husband's failure to answer the divorce
No. 14AP-382                                                                              4

complaint, "[h]is presence at the hearing entitled him to present evidence and to cross-
examine the witnesses"); Gordon v. Gordon, 5th Dist. No. CT2007-0072, 2009-Ohio-177,
¶ 17 (if the wife "had appeared for the hearing, she would have been permitted to present
evidence at the hearing regardless of her default in failing to answer the complaint [for
divorce]"). "[T]he fact that a divorce litigant has not filed an answer does not prevent the
litigant from contesting one or more of the issues in the divorce." Rue at ¶ 64.
         {¶ 9} Here, while Hein did not answer the divorce complaint, he appeared at the
final hearing and announced that he contested the divorce. We conclude that the trial
court erred in denying him the opportunity to participate in the final hearing.
Accordingly, we sustain Hein's first assignment of error.
         {¶ 10} By sustaining Hein's first assignment of error, we have rendered moot his
second assignment of error. Therefore, we decline to address the second assignment of
error.
         {¶ 11} For the foregoing reasons, we sustain the first assignment of error, which
renders moot the second assignment of error. We reverse the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, and we remand this case
to that court for further proceedings consistent with law and this decision.
                                                     Judgment reversed; cause remanded.

                              TYACK and BROWN, JJ., concur.
