Rachel v. Rachel
2013 Ohio 3692
Ohio Ct. App.2013Background
- Michele (Wife) and Daniel (Husband) Rachel married in 1981; two adult children emancipated before divorce.
- Husband is incarcerated since 2007 for kidnapping, felonious assault, aggravated robbery, and aggravated burglary; projected release 2022.
- Wife filed for divorce August 16, 2012; service by certified mail to prison; uncontested trial set for December 4, 2012.
- Husband moved for video/phone appearance and temporary spousal support; Wife moved to strike his answer and counterclaims for defective service.
- Magistrate’s December 4, 2012 hearing; final decree of divorce issued December 10, 2012; marriage ended February 25, 2007 (date of Husband’s imprisonment).
- Final decree awarded Wife 401(k) and real estate to Husband; each party received personal property, vehicles, accounts, pensions, debts, and paid own living expenses; no spousal support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Stay during conciliation petition | Husb. argues failure to stay violates due process and R.C. 3117.07. | Husb. asserts court should stay until conciliation ruling. | No stay required; Stark County has not adopted conciliation statute. |
| Right to appear by video/phone | Husb. seeks appearance by video/phone at trial. | Argues right to attend civil trial is absolute due to incarceration. | No absolute right; incarceration does not bar civil trial absence. |
| Service of motion to strike | Husb. denied receipt of motion to strike; service improper under Civ.R. 5. | Wife properly served by certified mail with return receipt; proof of service shown. | Service valid; no vacatur required. |
| Equitable distribution | Husb. seeks different division, appraisal, or recognition of date of divorce for property. | Court’s distribution warranted; no error in lack of adjustments. | No abuse of discretion; record incomplete for some issues; judgment affirmed. |
Key Cases Cited
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (Ohio 1980) (unavailable transcript permits presumption of regularity, affirm if record incomplete)
- State ex rel. Motley v. Capers, 23 Ohio St.3d 56 (Ohio 1986) (transcript unavailable for indigent appellant; alternative procedures may apply)
- In re Lemon, 5th Dist. No. 2002 CA 00098, 2002-Ohio-6263 (Ohio 2002) (plain-error review when no objections filed to magistrate’s decision)
- Postel v. Koksal, 5th Dist. No. 08-COA-0002, 2009-Ohio-252 (Ohio 2009) (objections to magistrate’s decision required for appellate review; otherwise plain error)
- Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (Ohio 1981) (an abuse-of-discretion standard governs marital-property division)