Opinion
No. DR 90-0349.
Decided February 7, 1991.
Bruce Comly French, for plaintiff.
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 Wn.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 pursue avenues other than dismissal for want of prosecution in order to ensure that those claims so deserving be adjudicated on their merits. [Citations omitted.] If the risks and expense involved in transporting the prisoner to the courthouse are prohibitive, these courts have suggested a number of other alternatives to dismissal including a bench trial in the prison, trial by depositions, appointment of pro bono counsel to assist the plaintiff, postponement of proceeding if the plaintiff's release is imminent, or dismissal without prejudice leaving open the possibility of the plaintiff's refiling his case at a later date."
In State, ex rel. Reynolds, v. Court of Common Pleas, Probate-Domestic Division (Sept. 1, 1981), Marion App. No. 9-81-29, unreported, 1981 WL 6680, the Third District Court of Appeals heard an action in mandamus to compel the Court of Common Pleas of Marion County to hear a divorce action filed by a plaintiff incarcerated in the Marion Correctional Institute and unrepresented by legal counsel. The court determined that there must be sufficient evidence presented at trial in order for a trial court to make a finding that grounds for the divorce exist. Further, the court determined that the presence of the plaintiff or someone acting for him as attorney to present the evidence to establish the ground was necessary. The Third District Court of Appeals denied the writ of mandamus noting:
"* * * [I]f the case were assigned for hearing the plaintiff would be unable to attend to present his cause and there is no allegation he has counsel to act on his behalf and in his absence.
"* * * There is no allegation that the relator [plaintiff] has sought to take his own deposition or applied to the court to determine that in the interest of justice he be brought before the court for the presentation of his testimony under this section or that his testimony is pertinent to the ground for divorce alleged."
Here, the plaintiff is represented by counsel, the defendant is not. Both parties are incarcerated, and given the nature of their crimes, it is presumably unlikely that either party shall in the immediate future be free from incarceration to pursue an action for divorce. This court has no budget for the purpose of transportation of prisoners, and the county general fund for other county agencies is taxed to its maximum ability to provide statutorily mandated services at the present time. Given the above and the heinous nature of the crimes that each party has been found guilty of that may create a risk to others, particularly children regularly being present at court, this court is not disposed to grant a request by either party to be transported to this court for the purpose of trial.
Based on the foregoing, this cause shall be scheduled for trial within the next sixty days, with each party to receive notice pursuant to the Ohio Rules of Civil Procedure. The plaintiff may present testimony in compliance with Civ.R. 30(A), which provides:
" When depositions may be taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. The attendance of a witness deponent may be compelled by the use of subpoena as provided by Rule 45. The attendance of a party deponent may be compelled by the use of notice of examination as provided by subdivision (B). The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes."
All other statutes, case law, local court rules and Civil Rules governing the granting of divorces must be complied with for the plaintiff to be awarded a divorce and other requests.
This case is limited to the fact situation. The court does not find that the plaintiff prisoner as a matter of law is entitled to access to a civil court for the purpose of obtaining a divorce.
It is therefore ORDERED, ADJUDGED and DECREED that the plaintiff's request to proceed on her complaint for divorce by filing her own deposition in lieu of appearing at trial is granted.
It is further ORDERED that the plaintiff, Patricia N. Wernert, currently incarcerated in the Ohio Reformatory for Women in Marysville, Union County, Ohio, shall be made available at a time convenient for a deposition in the facility. That the plaintiff shall comply with all rules, regulations and safeguards established by the Ohio Reformatory for Women to effectuate her deposition.
Request granted.
Judgment Entry of July 16, 1991.
JUNE ROSE GALVIN, Judge.
This matter came on for hearing on May 6, 1991, on the complaint for divorce filed by the plaintiff on March 2, 1990. In the plaintiff's complaint for divorce she asserts that the defendant has been guilty of gross neglect and extreme cruelty, and that the parties have lived separate and apart without cohabitation for more than one year. Further, the plaintiff, by and through her attorney, was granted leave of court to amend her complaint to include imprisonment of the adverse party in a state or federal penal institution at the time of filing the complaint as a ground for divorce.
The court finds that the defendant, David E. Wernert, has been properly served pursuant to Civ.R. 4.1(1) in the following manner: certified mail sent to the defendant, at P.O. Box 4571, Lima, Ohio 45802, return receipt signed on March 7, 1990. On March 19, 1990, the defendant filed a "complaint for divorce" which shall be treated as an answer to the complaint for divorce. The defendant stated in his answer to the complaint for divorce that he "* * * agrees with all stipulations of the complaint * * *."
The records of the Court of Common Pleas of Lucas County indicate that on November 22, 1976, the defendant was convicted of the offense of aggravated murder, that he purposefully killed two or more persons, and that he was sentenced to die by electrocution. The plaintiff was also convicted of aggravated murder on November 22, 1976 and was sentenced to death by electrocution. Both the plaintiff and defendant appealed their convictions for aggravated murder. No evidence was presented regarding the outcome of those appeals. The plaintiff is currently incarcerated in the Ohio Reformatory For Women, Marysville, Ohio. The defendant is currently incarcerated in the Lima Correctional Institution, Lima, Ohio.
On February 7, 1991, this court cautiously granted the plaintiff's request to proceed on her complaint for divorce by way of deposition in lieu of appearing at trial. The plaintiff was informed, however, that she must comply with all statutes, case law, local court rules and Ohio Civil Rules of Procedure governing the granting of divorce in order to be awarded a divorce.
The court finds that the plaintiff was a bona fide resident of the state of Ohio for six months, and of the County of Lucas for ninety days, immediately preceding the filing of the complaint for divorce. The Court of Appeals in Gonzalez v. Gonzalez (Feb. 9, 1983), Lorain App. No. 3384, unreported, citing Bowers v. Baughman (1972), 29 Ohio App.2d 277, 58 O.O.2d 492, 281 N.E.2d 201, found that 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. "A change of residence must be voluntary, and an involuntary incarceration alone will not effect change of residence." Gonzalez, supra.
The court finds that the plaintiff and defendant were married to each other on June 17, 1961, in Toledo, Lucas County, Ohio, that one child, now an emancipated adult, has been born as issue of said union, born September 16, 1963, and that the plaintiff has had no contact with her son since his eighteenth birthday. Further, the court finds that there is no property existing between the parties.
During the course of trial, plaintiff appeared by way of deposition and by and through her attorney, Bruce C. French. The defendant failed to appear. The plaintiff offered the following items into evidence and they were admitted: her deposition, a Certified Copy of Marriage Record, and two pages from the Court of Common Pleas of Lucas County, Trial Docket Orders and Motion Docket Entries.
The plaintiff by way of deposition testified:
"Q. Have you lived with your husband for the past one year?
"A. No, I have not.
"Q. Have you co-habited [ sic], or in other words, had sexual relations in the past year with him?
"A. No, I have not.
"Q. Has he ever been guilty of extreme cruelty towards you, while you were living with him?
"A. Yes.
"Q. Could you describe at least one of those events?
"A. Psychological cruelty; attempting to control my physical freedom.
"Q. Did he ever physically abuse you?
"A. Yes.
"Q. Do you recall when that was?
"A. Shortly after we were married, in Georgia, back in 1961 or 62.
"Q. Did he ever, in fact, fail to provide for you as a husband, in terms of financial support, food and clothing?
"A. No.
"Q. Was he ever drunk?
"A. Yes.
"Q. How recently, prior to you last time of living with him, was he drunk?
"A. Probably about two years.
"Q. Did he ever seek medical attention for his drunkenness?
"A. No, he did not.
"Q. At the time the COMPLAINT in this matter was filed, which would have been in early 1990, was your husband imprisoned in a state facility — THE DEPARTMENT OF CORRECTIONS AND REHABILITATION?
"A. Yes, he was.
"Q. How do you know that?
"A. It is a rule that the OHIO PAROLE AUTHORITY has it on record. I really don't know how to tell you.
"Q. Let me ask you this question. You and your husband were both convicted by the COURT OF COMMON PLEAS of LUCAS COUNTY, at some point?
"A. That is correct.
"Q. What was the sentence that was imposed upon your husband at that time?
"A. At that time it was the DEATH PENALTY.
"Q. Do you recall what year that was?
"A. That would have been in 1976.
"Q. And at some point in time, I assume his sentence of Death was commuted?
"A. Yes, it was.
"Q. Do you recall when that was?
"A. It would have been in 1978.
"Q. I HAVE NO FURTHER QUESTIONS."
"Mr. French instructs witness as to the signing of the notes and completed transcript of the reporter, and asks the following question:
"Do you waive your signature to the transcript of the deposition, in this matter?
"Mrs. Wernert: Yes, I do waive my signature."
"Whereupon deposition is adjourned."
As to the plaintiff's testimony, this court finds her statements lacking in credibility and are inconclusive and vague.
Civ.R. 75(L) states in pertinent parts:
"Testimony. Judgment of divorce, annulment or alimony shall not be granted upon the testimony or admission of a party not supported by other credible evidence. No admission shall be received which the court has reason to believe was obtained by fraud, connivance, coercion or other improper means. * * *."
Addressing the application of Civ.R. 75(L), the court in Ferrie v. Ferrie (1981), 2 Ohio App.3d 122, 123, 2 OBR 136, 137, 440 N.E.2d 1229, 1231, held:
"* * * In the case at bar the referee's report simply stated conclusions and made no mention of whether there was any `other credible evidence' to support those conclusions. We hold that the report must contain a brief summary of the underlying facts and corroborative testimony supporting the legal conclusion, that the plaintiff is entitled to a divorce."
This court recognizes that in Thomas v. Thomas (1982), 5 Ohio App.3d 94, 101, 5 OBR 208, 215, 449 N.E.2d 478, 485, the appellate court found that a divorce could be granted upon the testimony of a party supported by the admissions of the other party which are not collusive. The Thomas case, however, can easily be distinguished from the case at bar. The court in Thomas, after a full hearing, found that a settlement had been reached and proceeded to approve that agreement. Further, both parties were present and represented by counsel. See, also, Glimcher v. Glimcher (1971), 29 Ohio App.2d 55, 58 O.O.2d 37, 278 N.E.2d 37. The case at hand is a trial on the merits and, therefore, the plaintiff must fully comply with Civ.R. 75(L).
Applying the requirements set forth in Civ.R. 75(L), this court finds that the plaintiff has failed to produce other credible evidence supporting her testimony as set forth in the complaint for divorce filed March 2, 1990. Accordingly, the plaintiff has failed to meet her burden of proof and, therefore, has failed to establish grounds for divorce as set forth in the complaint filed March 2, 1990.
The court must now address the amended complaint filed by the plaintiff on May 20, 1991 and heard on July 15, 1991. The plaintiff asserts as the sole ground for divorce "* * * that defendant has been imprisoned in a state penal institution under sentence to the institution at the time of the filing of the complaint and that therefore the plaintiff is entitled to a divorce as demanded."
On May 22, 1991, the defendant filed an answer to the amended complaint for divorce. The defendant stated in his answer "* * * that he understands all four (4) paragraphs listed therein and agrees with all stipulations of this AMENDED COMPLAINT FOR DIVORCE, and accepts all financial obligation[s] accruing from the marriage * * *." In addition, the defendant filed an affidavit with the court waiving any lack of notice or other procedural irregularities in the conduct of the deposition in Marysville, Ohio on March 6, 1991.
This court takes note of the speed to which the defendant filed an answer to the amended complaint. It would appear that the plaintiff and defendant are cooperating with each other in order for the plaintiff to obtain a "divorce" as soon as possible. This court believes that the plaintiff is motivated to seek a divorce, not to end her relationship or marital contract with the defendant, but rather to seek leverage for an early release from incarceration.
A plea of condonation or recrimination is not a bar to a divorce. See R.C. 3105.01 and R.C. 3105.10. Black's Law Dictionary (6 Ed. 1990) 295, defines "condonation" as "[t]he conditional remission or forgiveness, by means of continuance or resumption of [the] marital relationship" and defines "recrimination" as "[a] charge made by an accused person against the accuser; in particular a counter-charge of adultery or cruelty made by one charged with the same offense in a suit for divorce, against the person who has charged him or her * * *" ( id. at 1276). The fact that both the plaintiff and defendant were incarcerated at the time of the filing of the complaint does not affect the plaintiff's request for divorce.
This court is duty-bound to look at the sufficiency of the evidence, the credibility of the witnesses and the weight to be given to the testimony when determining whether the plaintiff has established grounds for divorce. See Buckles v. Buckles (1988), 46 Ohio App.3d 102, 546 N.E.2d 950.
Applying the law as set forth above, the record does reveal that the plaintiff has established that the adverse party was incarcerated in a state penal institution at the time of filing of the complaint pursuant to R.C. 3105.01(H). See Mills v. Mills (Sept. 21, 1990), Montgomery App. No. 12100, unreported, 1990 WL 136585. This court's decision in this case and the plaintiff's entitlement to a divorce are limited to the facts of this case and the manner in which the case was presented. The plaintiff in this case was able to proceed at trial by way of deposition because she had legal counsel involved to present the case. As stated earlier, the plaintiff has failed to establish that the defendant has been guilty of gross neglect of duty and extreme cruelty.
This court finds that the defendant was imprisoned in a state penal institution under sentence to the institution at the time of the filing of the complaint. Accordingly, the plaintiff is entitled to a divorce as demanded.
This court further finds that each party shall be awarded the personal property now in his or her possession, that each party shall retain accounts in any financial institution in his respective name, and that each party shall be responsible for his own debts.
The court further finds that one child, now an emancipated adult, has been born an issue of said union, date of birth September 16, 1963.
In determining the facts in this case, the court has considered all the evidence introduced by the parties.
In making specific findings of facts, the court has set forth those factors relevant to the determination of the issues as well as the specific factors required to be considered by statute on which the parties introduced evidence. The court is not required to make a finding of fact on each and every disputed factual issue. The lack of a specific finding by the court is not an indication that the fact was not considered by the court.
It is therefore ORDERED, ADJUDGED and DECREED that plaintiff shall be and hereby is granted an absolute divorce from the defendant.
It is further ORDERED that the defendant shall pay the costs herein.
Judgment accordingly.