Wernert v. Wernert

• Decision Date: 07 February 1991
• Docket Number: No. DR,DR
• Citation: 579 N.E.2d 800,61 Ohio Misc.2d 436
• Parties: WERNERT v. WERNERT. 90-0349.
• Court: Ohio Court of Common Pleas

Page 436

61 Ohio Misc.2d 436

579 N.E.2d 800

WERNERT v. WERNERT.

No. DR 90-0349.

Court of Common Pleas of Ohio,

Lucas County,

Division of Domestic Relations.

Decided Feb. 7, 1991.

Bruce Comly French, Ada, for plaintiff.

GALVIN, Judge.

UPON REQUEST TO PROCEED BY WAY OF DEPOSITION.

This matter is before the court upon plaintiff's memorandum in support of her cause of action and upon her request to proceed by way of deposition.

On March 2, 1990, the plaintiff, Patricia N. Wernert, filed a complaint for divorce in the Lucas County Court of Common Pleas, Division of Domestic Relations, against the defendant, David E. Wernert, alleging in the complaint that she was a resident in the county of Lucas, state of Ohio, for more than six months prior to her incarceration, the marriage of the parties occurring June 17, 1961, in Toledo, Lucas County, Ohio, and the birth of a son on September 16, 1963.

Plaintiff further alleges the ownership and possession of personal property, and defendant's ownership and possession of personal property, and that the parties may owe certain outstanding financial obligations of the marriage. Plaintiff requests the court to award her a divorce on the grounds of gross neglect of duty, and extreme cruelty. Plaintiff also alleges that the parties have lived separate and apart for one year without cohabitation. Plaintiff requests that there be an equitable division of the property of the marriage, and that the defendant be ordered to pay any outstanding debts of the marriage.

Plaintiff filed her action on a poverty affidavit, filed Schedules I (affidavit of income), II (Uniform Child Custody Jurisdiction Act affidavit), III (monthly expenses--under oath, no expenses), and IV (Property Division and Alimony--under oath, no property of any type listed for either party by the plaintiff).

A review of the file suggests that service was obtained upon the defendant March 7, 1990, in accordance with the Ohio Rules of Civil Procedure.

The defendant filed a pro se "complaint for divorce" on March 19, 1990, stating that inter alia "defendant agrees with all stipulations of the complaint, and accepts all financial obligations accruing from the marriage, but respectfully moves this court that any charges, fees, attorney fees, accruing from the divorce be born by the plaintiff." The court has treated the complaint as an answer pursuant to the Ohio Rules of Civil Procedure.

This case was scheduled for trial on April 30, 1990, with neither plaintiff nor defendant appearing before the court, and the court acknowledges that each of these parties was incarcerated at the time of filing the complaint for divorce and remain incarcerated. The records of the Court of Common Pleas of Lucas County, Ohio indicate that on November 22, 1976, the defendant was convicted of the offense of aggravated murder as charged in the first count of the indictment while the offender was committing aggravated burglary, that he purposefully killed two or more persons, and that he was sentenced to die by electrocution. Appeal was taken. Plaintiff, on November 22, 1976, was convicted of the offense of aggravated murder while committing an aggravated burglary; the offense was committed for hire; and she was sentenced to death by electrocution. Appeal was taken. The court presumes that said sentence was reversed, and the parties are serving lifetime sentences.

The plaintiff filed a motion on April 12, 1990 to allow testimony pursuant to Evid.R. 804(B)(1) or (4), noting that "kin folk are not available as witnesses following their estrangement from their parents."

The court granted the plaintiff until May 15, 1990 to file a brief in support of this motion. The court, failing to receive any brief or communication from counsel for plaintiff, dismissed this cause on August 8, 1990, pursuant to Civ.R. 41 (failure to prosecute).

Thereafter, the plaintiff's counsel notified the court that on May 14, 1990 he had filed his memorandum. The court found that the Clerk of Courts had received and file-stamped said document on that date but failed to deliver the document or notify the court that same was filed. Thereupon, the case was reinstated by the court, and is now before the court on the issue raised by the plaintiff: whether a prisoner has a constitutional right to be divorced during the period of his or her incarceration in the county of residence prior to the incarceration. This is a case of first impression.

Counsel notes in his brief that the defendant herein had previously filed a complaint for divorce in Allen County, Ohio, the place of his incarceration. That action was dismissed by the Court of Common Pleas of Allen County in 1989, upon defendant's voluntary application.

The plaintiff has not presented to the court any case which supports plaintiff's position in this case. The plaintiff states in the memorandum in support of plaintiff's cause of action that these parties were both residents of Lucas County, Ohio prior to their incarceration for the requisite six months in advance of filing. In Gonzalez v. Gonzalez (Feb. 9, 1983), Lorain App. No. 3384, unreported, the court found where a party is incarcerated in a prison in a county different from the parties' home, the proper venue is the county where the party came from and not the county where the prison is located. Citing Bowers v. Baughman (1972), 29 Ohio App.2d 277, 58 O.O.2d 492, 281 N.E.2d 201, the court held: "A change of residence must be voluntary, and an involuntary incarceration alone will not effect change of residence." Plaintiff cites State, ex rel. Saunders, v. Court of Common Pleas of Allen Cty. (1987), 34 Ohio St.3d 15, 16, 516 N.E.2d 232, 233, also in support of proceeding in Lucas County.

Therefore, the plaintiff has sought to file the action for divorce in the proper county for the commencement of actions in a divorce proceeding, assuming facts most advantageous to the plaintiff, as the defendant has not placed any fact in dispute regarding residence, the marriage, and/or the birth of the parties' child (now presumably an adult and fully emancipated).

The plaintiff has not requested the court to transport her to the proceeding, nor has the defendant, at the present time. Plaintiff is represented by counsel, but the defendant is not. The plaintiff indicates that "Ohio courts have declined to find a constitutional right for incarcerated persons to attend the trial of a civil action in which he (or she) is a party." Mancino v. Lakewood (1987), 36 Ohio App.3d 219, 221, 523 N.E.2d 332, 334; Drescher v. Summers (1986), 30 Ohio App.3d 271, 273, 30 OBR 469, 470-471, 507 N.E.2d 1170, 1172-1173 (Jackson, J., concurring); Holt v. Pitts (C.A.6, 1980), 619 F.2d 558; In re Warden of Wisconsin State Prison (C.A.7, 1976), 541 F.2d 177.

Plaintiff is requesting the ability to present the entire case by way of deposition: the establishment of the jurisdiction, the grounds for divorce, the corroboration thereof, the division of property, and payment of the bills. Plaintiff cites in support of her position a decision from the Court of Appeals for Lucas County, Marshall v. Marshall (May 12, 1989), Lucas App. No. L-88-239, unreported, 1989 WL 50658.

In Allstate Ins. Co. v. Rule (1980), 64 Ohio St.2d 67, 18 O.O.3d 299, 413 N.E.2d 796, the Ohio Supreme Court found that where a plaintiff failed to appear on the date set for a hearing, the court may order either a Civ.R. 41(B)(1) dismissal or a continuance. Plaintiff cites numerous cases in her brief indicating that prisoners retain their right to access to the courts for the purpose of divorce. Whitney v. Buckner (1987), 107 Wash.2d 861, 734 P.2d 485; Hall v. Hall (1983), 128 Mich.App. 757, 341 N.W.2d 206; Corpus v. Estelle (C.A.5, 1977), 551 F.2d 68; Thompson v. Bond (W.D.Mo.1976), 421 F.Supp. 878.

The dispositive issue for this court, given that no request has been made for the court to order that the prisoner(s) be transported to this court for purposes of allowing access to the court, is limited to whether to allow the use of deposition(s) in this divorce proceeding or to dismiss the complaint for divorce without prejudice and allow plaintiff to refile upon her release from prison. In this particular case, the issue is complicated by the fact that the defendant is also incarcerated and his wishes in regard to the matter of the final hearing are unknown except that he also requests a divorce, that there may be disputed factual issues, and that no witnesses are available according to the attorney for the plaintiff.

The Sixth District Court of Appeals in Marshall, supra, quoting from the fifth headnote of In re Warden, supra, considered the following matters:

" ' * * * the substantiality of the matter at issue, the importance of an early determination of the matter, whether the trial can reasonably be delayed until the prisoner is released, whether dispositive questions of law have been decided, whether prisoner has shown a probability of success, whether testimony of prisoner is needed and, if so, whether a disposition would be reasonably adequate, whether the prisoner is represented and, if not, if his presence is reasonably necessary to present his case.' "

Further, the court in Marshall, supra, citing Eastman v. Eastman (Ala.Civ.App.1983), 429 So.2d 1058, determined: " * * * [T]he proper remedy for an incarcerated prisoner is to take one's own testimony upon oral examination or upon written questions. * * * " The court went on to suggest Civ.R. 30, Depositions upon Oral Examination, and Civ.R. 31, Depositions of Witnesses upon Written Questions, are designed to effectively provide those persons in such a position as plaintiff's the constitutional safeguards of notice and an opportunity to be heard. Marshall, supra.

In Laguta v. Serieko (1988), 48 Ohio App.3d 266, 267, 549 N.E.2d 216, 217, the court found that where the plaintiff is unrepresented by counsel and is incarcerated, the " * * * trial courts should...