[Cite as Rachel v. Rachel, 2013-Ohio-3692.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
MICHELE RACHEL                                :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 2012CA00243
DANIEL RACHEL                                 :
                                              :
                    Defendant-Appellant       :       OPINION




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

JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           August 26, 2013

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DEAN L. GRASE                                     DANIEL RACHEL
116 Cleveland Avenue N.W.                         #503-216
Courtyard Centre #703                             Marion Correctional Institution
Canton, OH 44702                                  Box 57
                                                  Marion, OH 43301
[Cite as Rachel v. Rachel, 2013-Ohio-3692.]


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
Stark County, Case No. 2012CA00243                                                       3


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
Stark County, Case No. 2012CA00243                                                         4


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 DEFENDANT’S MOTION FOR CONCILIATION

IN VIOLATION OF DEFENDANT’S 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 DEFENDANT’S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION; OHIO

CONSTITUTION, ARTICLE I, §1, §2 AND §16.

       {¶9}   “III. THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE AN

ORDER TO STRIKE DEFENDANT’S ANSWER AND COUNTERCLAIMS AFTER

DEFENDANT SHOWED EVIDENCE ON THE RECORD THAT THE DEFENDANT HAD

NOT RECEIVED SERVICE OF PLAINTIFF’S MOTION TO STRIKE IN VIOLATION OF

DEFENDANT’S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION; OHIO

CONSTITUTION ARTICLE I, §2 & § 16 AND CIVIL R. 5.

       {¶10} “IV. THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER AN

EQUITABLE DISTRIBUTION OF THE COUPLE’S ASSETS AND PROPERTY, AWARD

DEFENDANT HIS FAMILY HEIRLOOMS, GRANT AN APPRAISAL OF THE

PROPERTY, OR RECOGNIZE THE DIVISION OF PROPERTY AS OF THE DATE OF
Stark County, Case No. 2012CA00243                                                         5


THE FILING OF THE COMPLAINT FOR DIVORCE IN VIOLATION OF DEFENDANT’S

RIGHTS TO DUE PROCESS AND EQUAL PROTECTION; OHIO CONSTITUTION,

ARTICLE I, §1, §2 & §16 AND R.C. 3105.171.”

                                                 I.

       {¶11} Husband alleges the trial court erred when it failed to stay the divorce

proceedings after he filed his petition for conciliation. Husband cites to R.C. 3117.07

which states, “during the period beginning with the filing of the petition for conciliation

and continuing until expiration of any court order made pursuant to division (E) of

section 3117.06 of the Revised Code, neither spouse may file or proceed with any

action for divorce * * *.”

       {¶12} R.C. Chapter 3117, Conciliation of Marital Controversies, is

       “applicable only in counties in which the court of common pleas

       determines that social conditions and the number of domestic relations

       cases in the county render the conciliation procedures provided necessary

       to proper consideration of marital controversies.       Such determinations

       shall be made by the judge of the common pleas in counties having only

       one such judgment, or by a majority of the judges of the court of common

       pleas in counties having more than one such judge.”

       {¶13} In this case, Husband filed a petition for conciliation on November 29,

2012 and the trial date for Wife’s complaint for divorce was scheduled for December 4,

2012. We find the trial court did not err in failing to stay the divorce proceedings until it

ruled on Husband’s petition for conciliation, as the trial court did not have authority to

hear Husband’s petition. Pursuant to R.C. 3117.01 et seq., conciliation is only available
Stark County, Case No. 2012CA00243                                                      6


if the county’s court of common pleas has adopted the provisions of the statute. As our

research indicates the Stark County Court of Common Pleas has not adopted the

provisions of the conciliation statute, Husband could not seek redress pursuant thereto.

Accordingly, Husband’s first assignment of error is overruled.

                                               II.

       {¶14} Husband next argues the trial court erred when it failed to allow him to

appear at the December 4, 2012 trial after he filed a general motion to appear by video

or telephone for all proceedings. We find Husband’s argument to be without merit. We

have frequently 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,

00-CA-99, 2001 WL 1775387 *2, (March 24, 2011), 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. CT-6-0061, 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; Allen v. Allen, 5th Dist. No. CT2013-0015, 2013-Ohio-2729. Accordingly,

Husband’s second assignment of error is overruled.

                                               III.

       {¶15} Husband argues the trial court erred when it failed to vacate an order

striking his answer and counterclaims because he did not receive service of the motion

to strike pursuant to Civil Rule 5.

       {¶16} Civil Rule 5(A) states “every pleading subsequent to the original complaint

* * *shall be served upon each of the parties.” Service pursuant to Civil Rule 5 may be

made by “mailing it to the person’s last known address by United States mail, in which
Stark County, Case No. 2012CA00243                                                        7


event service is complete upon mailing.” Civ.R.5(B)(2)(c). A served document “shall be

accompanied by a completed proof of service which shall state the date and manner of

service * * * Documents filed with the court shall not be considered until proof of service

is endorsed thereon or separately filed.” Civ.R. 5(B)(3).

       {¶17} In this case, the motion to strike was filed with instructions to the clerk to

serve Husband with the motion via certified mail, return receipt requested, at Mansfield

Correctional Institution. On October 9, 2012, the Stark County Clerk of Courts sent a

copy of the motion to strike and the order on the motion to strike to Husband via

certified mail, return receipt requested. Service by certified mail was completed on

October 19, 2012. Service by certified mail is valid under Civil Rule 5(B)(2)(c) and,

pursuant to the rule, is complete upon mailing.

       {¶18} Husband contends that pursuant to the language in Civ.R. 5(B)(3)

(“documents filed with the court shall not be considered until proof of service is

endorsed thereon or separately filed”), the court should not have considered the motion

to strike because there was no proof of service endorsed on the request. However, we

find that adequate proof of service was shown by Wife through the instructions filed with

the Stark County Clerk of Courts to serve the motion and by the return receipt filed

indicating Husband was served with the both the motion and order. See Colopy v.

Nationwide Ins. Co., 9th Dist. No. C.A. 17019, 1995 WL 5000061 (Aug. 23, 1995).

Accordingly, Husband’s third assignment of error is overruled.

                                               IV.

       {¶19} Husband finally argues the trial court erred when it failed to order an

equitable distribution of the parties’ assets and property.      A trial court’s division of
Stark County, Case No. 2012CA00243                                                         8

marital property is reviewed for abuse of discretion. Cherry v. Cherry, 66 Ohio St.2d

348, 355, 421 N.E.2d 1293 (1981). An abuse of discretion implies a decision that is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶20} We first note that Husband did not file a motion to set aside the

magistrate’s order or file objections to the magistrate’s order in the time frame provided

by Civil Rule 53. When a party fails to file objections to a magistrate’s decision, Civ.R.

53(D)(3)(b)(iv) provides that “a party shall not assign as error on appeal the court’s

adoption of any factual finding or legal conclusion * * * unless the party has objected to

that finding or conclusion as required by Civ.R.53(D)(3)(b).” Postel v. Koksal, 5th Dist.

No. 08-COA-0002, 2009-Ohio-252, ¶ 25. Due to Husband’s failure to object to the

magistrate’s decision, this Court reviews the decision for plain error. In re Lemon, 5th

Dist. No. 2002 CA 00098, 2002-Ohio-6263. The doctrine of plain error is limited to

exceptionally rare cases in which the error, left unobjected to at the trial court, “rises to

the level of challenging the legitimacy of the underlying judicial process itself.” See

Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 1997-Ohio-401, 679 N.E.2d 1099.

       {¶21} Further, upon filing his Notice of Appeal, Husband filed a praecipe,

requesting the court reporter prepare a transcript of the proceedings held on December

4, 2012. Husband also filed a motion for trial transcripts to be provided at the state’s

expense with an affidavit of indigency. The trial court did not rule on the motion. The

trial court’s failure to rule on a motion creates a presumption that the trial court

overruled the motion. Brown v. Brown, 11th Dist. No. 2001-L-051, 2002-Ohio-4364 at ¶

33. We find the trial court did not err in overruling Husband’s motion to prepare the
Stark County, Case No. 2012CA00243                                                         9


transcript at the state’s expense.      Civil due process requires only notice and an

opportunity to be heard, not provision of transcripts in civil proceedings.        Jones v.

Jones, 2d Dist. No. 95-CA-22, 1996 WL 715441 (Dec. 13, 1996). Instead, provision of

transcripts to indigent parties is limited to criminal cases, termination of parental rights,

and defense of paternity cases. Id.

       {¶22} The Ohio Supreme Court has held that a transcript is “unavailable” for the

purposes of App.R. 9(C) to an indigent appellant unable to bear the cost of providing a

transcript. State ex rel. Motley v. Capers, 23 Ohio St.3d 56, 491 N.E.2d 311 (1986).

Thus, if Husband had demonstrated he was indigent and unable to afford the costs of a

transcript, the procedure set forth in App.R. 9(C) may have been a means for him to

satisfy his burden pursuant to App.R. 9(B).

       {¶23} The record reflects Husband failed to file a transcript of the December 4,

2012 trial pursuant to App.R. 9(B) or submit a statement of evidence pursuant to App.R.

9(C). When portions of the transcript necessary for resolution of assigned errors are

omitted from the record, the reviewing court has nothing to pass upon and thus, as to

those assigned errors, the court has no choice but to presume the validity of the lower

court’s proceedings, and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,

400 N.E.2d 384 (1980). Because Husband has failed to provide this court with those

portions of the transcript necessary for resolution of the assigned errors, i.e. the

transcript of the December 4, 2012 trial before the magistrate, we must presume the

regularity of the proceedings below affirm, pursuant to the directive set forth in Knapp.

We find no plain error existed in the trial court’s decision regarding equitable distribution
Stark County, Case No. 2012CA00243                                                 10


of the parties’ assets and property. Accordingly, Husband’s fourth assignment of error

is overruled.

       {¶24} Based on the foregoing, the judgment of the Stark County Common Pleas

Court, Domestic Relations Division, is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. PATRICIA A. DELANEY


                                             _________________________________
                                             HON. CRAIG R. BALDWIN




WSG:clw 0710
[Cite as Rachel v. Rachel, 2013-Ohio-3692.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


MICHELE RACHEL                                   :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
DANIEL RACHEL                                    :
                                                 :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2012CA00243




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Common Pleas Court, Domestic Relations Division, is affirmed. Costs

to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY


                                                     _________________________________
                                                     HON. CRAIG R. BALDWIN
