[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 plaintiffappellee, 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 crossexamine 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.