Jensen v. Jensen , 2019 Ohio 4703 ( 2019 )

[Cite as Jensen v. Jensen, 2019-Ohio-4703.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
ERIC JENSEN :
:
Plaintiff-Appellant : Appellate Case No. 2019-CA-29
:
v. : Trial Court Case No. 2017-DR-1122
:
ASHLEY JENSEN : (Appeal from Common Pleas Court –
: Domestic Relations Division)
Defendant-Appellee :
:
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OPINION
Rendered on the 15th day of November, 2019.
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GREGORY K. LIND, Atty. Reg. No. 0055227, 20 South Limestone Street, Suite 340,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellant
ERIC M. SOMMER, Atty. Reg. No. 0066363, 202 North Limestone Street, Suite 250,
Springfield, Ohio 45503
Attorney for Defendant-Appellee
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FROELICH, J.
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{¶ 1} Eric Jensen appeals from a final decree of divorce issued by the Clark County
Court of Common Pleas, Domestic Relations/Juvenile Division, which granted Ashley
Jensen’s counterclaim for divorce, named her the legal and custodial parent of the parties’
two minor children, made provisions for parenting time and child support, and divided the
parties’ property. For the following reasons, the trial court’s judgment will be affirmed in
part and reversed in part, and the matter will be remanded for further proceedings.
I. Background and Procedural History
{¶ 2} The parties married on June 9, 2012, and they have two minor children
together: a son born in 2011 and a daughter born in 2013. On December 18, 2017, Mr.
Jensen filed a complaint for divorce, alleging that his wife was guilty of gross neglect of
duty and extreme cruelty and that the parties were incompatible. Mr. Jensen further
alleged that the parties were the owners of a one-half interest in property located on
Dayton-Springfield Road in Fairborn, as well as household appliances, furniture,
automobiles, and personal property.
{¶ 3} Along with his complaint, Mr. Jensen filed an affidavit of custody, indicating
that the children had resided with both parents until December 10, 2017. Since then, the
children had resided with their mother. In a separate affidavit, Mr. Jensen stated that
Mrs. Jensen had been arrested on December 10, 2017 for domestic violence and assault,
which occurred in front of the children. Mr. Jensen claimed that his wife was alcoholic
and abused drugs. Mr. Jensen sought temporary custody of the children, which he
received in an ex parte order.
{¶ 4} On December 21, 2017, Mrs. Jensen moved for relief from the ex parte order
and to be granted immediate temporary custody of the children. She supported her
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motion with an affidavit, stating that Mr. Jensen has ongoing daily substance abuse issues
with alcohol, that he becomes enraged when drinking, and that he was convicted of
assaulting her in March 2017. Mrs. Jensen stated that Mr. Jensen filed a “spurious
domestic violence charge” against her and used it to obtain temporary custody of the
children. Mrs. Jensen suggested her grandmother as a suitable third-party placement
pending a hearing. The grandmother filed an affidavit indicating her willingness to care
for the children.
{¶ 5} On January 4, 2018, the trial court gave temporary custody of the children to
Janet Jensen,1 set visitation for the parties, and ordered the parties to complete hair
follicle drug testing. (There is nothing further in the record regarding any testing.) The
trial court scheduled a review hearing for January 8, 2018, a pretrial conference for March
31, 2018, and trial for April 12, 2018. The court appointed a guardian ad litem (GAL) and
ordered him to “present” his report to the court and the parties by the date of the pretrial
conference.
{¶ 6} On January 5, Mrs. Jensen moved for temporary custody of the children and
exclusive use of the marital home. She also filed an answer to the complaint, admitting
the three paragraphs concerning residency, the date of marriage, the children, and the
parties’ property. Mrs. Jensen denied the allegations regarding grounds for divorce, and
she asked for dismissal of the complaint.
{¶ 7} The court conducted review hearings with the parties, their counsel, and the
guardian ad litem on January 8 and January 29, 2018. The record does not reflect what
1 Janet Jensen is not the grandmother who filed the affidavit, and the record does not
explain how Janet Jensen is related to the parties.
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happened at those hearings, but after each hearing, the court continued the temporary
orders. On February 9, 2018, the trial court filed an “agreed temporary order,” which
named Mrs. Jensen the residential and legal custodian of the children for the pendency
of the case, granted her exclusive use of the marital home, and addressed the filing of
Mrs. Jensen’s 2017 tax return; the agreed order did not address visitation by Mr. Jensen.
{¶ 8} In March 2018, the parties filed a motion for mediation, which the court
granted. Mr. Jensen subsequently sought a continuance of the April trial date, indicating
that his counsel would be out-of-state on vacation and unavailable. The court
rescheduled the trial for May 4, 2018. It appears from the record that a pretrial
conference was held on May 4, and the trial later was rescheduled for September 7, 2018.
{¶ 9} On July 11, 2018, Mrs. Jensen moved for a modification of her husband’s
visitation on the ground that “safety issues have arisen which indicate that unsupervised
visitation is no longer appropriate.” She indicated that Mr. Jensen had been driving
without a license, was intoxicated during visitation with the children, and behaved
irresponsibly during visitation. Mrs. Jensen asked that unsupervised visitation be
suspended until Mr. Jensen “can show proof of compliance with a drug and alcohol
treatment program.” The motion stated that Mrs. Jensen’s counsel had discussed these
matters with the GAL, who “shares these concerns and concurs with this motion.” The
motion itself indicated that the motion would be heard on July 13, 2018.
{¶ 10} On July 13, 2018, the trial court ordered that Mr. Jensen “shall have
parenting time * * * subject to the approval and supervision of Ashley Jensen until further
order of the court.” It further stated that Mr. Jensen could petition for additional parenting
time “when he can provide proof of compliance with a substance abuse treatment
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program.”
{¶ 11} The court conducted another pretrial conference on August 23, 2018.
{¶ 12} On September 5, 2018, Mr. Jensen’s counsel sought another continuance
of the trial date. He indicated that he would be out of the country on vacation on that
date.
{¶ 13} On February 4, 2019, Mr. Jensen’s counsel moved for leave to withdraw as
counsel on the ground that Mr. Jensen had failed to pay the remainder of his retainer.
Counsel indicated that Mr. Jensen would be acting pro se thereafter. A few days later,
the trial court granted the motion for leave to withdraw.
{¶ 14} The matter came before the court for a hearing on February 15, 2019. No
transcript of that hearing is in the record. However, the same day, the court filed an order
granting Mrs. Jensen leave to file a counterclaim in this action and continuing the final
hearing (trial) until March 14, 2019.
{¶ 15} Mrs. Jensen subsequently filed a counterclaim, which alleged, among other
things, that Mr. Jensen was guilty of gross neglect of duty and that the parties were
incompatible and no longer desired to be married. Mrs. Jensen’s counterclaim contained
two sentences regarding the parties’ property: one indicating that they owned specific real
estate on Dayton-Springfield Road and another indicating that the parties “possess
personal property and other tangible and intangible assets and debts.” Mrs. Jensen
sought a divorce from Mr. Jensen, an “equitable distribution of the parties’ marital assets
and debts, custody of the parties[’] minor children,” and any other orders as may be “fair
and just.” Mrs. Jensen did not attach any supporting documents or affidavits to her
counterclaim.
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{¶ 16} A final hearing was held on March 14, 2019. Mrs. Jensen appeared with
counsel; Mr. Jensen was not present. Mrs. Jensen testified that both she and her
husband were residents of Clark County for more than six months before the complaint
was filed, that they were married on June 9, 2012, that they have two children of which
Mr. Jensen is the father, that she was not then pregnant, and that she and her husband
were incompatible. Mrs. Jensen’s counsel further asked her if she had “had a chance to
review the final Decree of Divorce which has been prepared” and if she “believe[d] that
that [was] a fair disposition of the case.” Mrs. Jensen responded affirmatively to both of
those questions. Mrs. Jensen’s stepfather also testified that he had observed Mr. and
Mrs. Jensen and that they were incompatible.
{¶ 17} Immediately after the testimony, the trial court stated:
The Court does find from the evidence that it has proper jurisdiction of the
parties and the subject matter in this case. The Court also finds from the
evidence that the Defendant in this case is entitled to a divorce and the
parties are therefore released from the obligations of their marriage except
as set forth in the terms of this Divorce Decree. It is approved by the Court
in its entirety and it’s made a Final Order of the Court. This will need to be
filed upstairs in the Clerk’s office and that will then finalize this matter.
Good luck to you, ma’am.
(Tr. at 7.)
{¶ 18} The final decree of divorce was filed the same day (March 14). In the
decree, the court found that the parties were incompatible and no longer wished to be
married to each other, and it granted the parties a divorce from one another. The court
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ordered Mr. Jensen to pay an outstanding indebtedness to the GAL in the amount of
$293. The court found that the parties jointly owned the property located on Dayton-
Springfield Road in Fairborn and ordered Mr. Jensen to quitclaim his interest to Mrs.
Jensen; Mrs. Jensen would assume the indebtedness on the property. The parties each
retained any motor vehicle currently titled in their name and were to pay any indebtedness
on those vehicles individually. The decree stated that “[a]ll personal property has
previously been equitably divided pursuant to the mutual satisfaction of the parties.” The
parties were to retain their separate bank accounts and retirement plans.
{¶ 19} The decree named Mrs. Jensen as the residential parent and legal
custodian of the children, with Mr. Jensen receiving parenting time “pursuant to the mutual
agreement of the parties.” Mr. Jensen was ordered to pay child support of $246.53 per
month per child if health insurance were provided by a party and, if not, $227.76 in
monthly child support plus $50.96 cash medical support per child. The decree noted that
Mr. Jensen was last employed by Piqua Concrete, but was not currently employed. The
order stated that a “Notice to Withdraw shall issue to [Mr. Jensen’s] employer when he
becomes reemployed.” Attached to the decree was a “Child Support Results Summary,”
which stated the annual income and adjusted annual income of the parties, and provided
calculations for Mr. Jensen’s child support obligation.
{¶ 20} Mr. Jensen appeals from the trial court’s judgment, raising four assignments
of error.
II. Grounds for Divorce
{¶ 21} Mr. Jensen’s first assignment of error states: “Whether the court errored
[sic] as a matter of law in granting the parties a divorce without proper grounds as set
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forth in R.C. 3105.01?” Mr. Jensen argues that Mrs. Jensen did not allege any grounds
for divorce, she “failed to have testimony and reasons for her desire to terminate the
marriage,” and the parties did not agree at the hearing that they were incompatible.
{¶ 22} The grounds and procedures for obtaining a divorce in Ohio are purely
statutory. Freels v. Powers-Freels, 2d Dist. Clark No. 2015-CA-9, 2015-Ohio-3915,
¶ 16. “Divorce is a creature of state statute, and the power of the General Assembly over
the entire subject of marriage, as a civil status, and its dissolution, is unlimited except as
restricted by the state and federal constitutions.” Barth v. Barth, 113 Ohio St. 3d 27,
2007-Ohio-973, 862 N.E.2d 496, ¶ 9, citing Coleman v. Coleman, 32 Ohio St. 2d 155, 159,
291 N.E.2d 530 (1972). A common pleas court may grant a divorce for one of several
causes, including “Incompatibility, unless denied by either party.” R.C. 3105.01(K).
{¶ 23} With the permission of the trial court, Mrs. Jensen filed a counterclaim for
divorce on February 19, 2019. She alleged that Mr. Jensen was guilty of “gross neglect
of duty” and that the parties were incompatible.
{¶ 24} Mrs. Jensen and her stepfather both testified at the final hearing that she
and her husband were incompatible. Mr. Jensen also had alleged in his complaint that
the parties were incompatible, and he provided no evidence at the final hearing to dispute
Mrs. Jensen’s evidence regarding the incompatibility of the parties. Accordingly, the trial
court did not err in granting Mrs. Jensen’s counterclaim for divorce based on
incompatibility.
{¶ 25} Mr. Jensen’s first assignment of error is overruled.
III. Allocation of Parental Rights
{¶ 26} Mr. Jensen’s second assignment of error states: “Whether the trial court
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errored [sic] in allocating parental rights and responsibilities without consideration of the
best interest of the minor children?” Mr. Jensen states that the “trial transcript lacks any
information as to how the trial court Judge determined parental rights and
responsibilities.”
{¶ 27} Upon satisfactory proof of the causes of divorce, the trial court must “make
an order for the disposition, care, and maintenance of the children of the marriage, as is
in their best interests, and in accordance with [R.C. 3109.04.]” R.C. 3105.21(A); see also
R.C. 3109.04(A). “The court has two choices in this regard – either ordering shared
parenting or giving residential and legal custody to one parent.” Sivertsen-Kuhn v. Kuhn,
2d Dist. Greene No. 2019-CA-17, 2019-Ohio-3525, ¶ 9. In this case, neither parent
sought shared parenting.
{¶ 28} Pursuant to R.C. 3109.04(F)(1), the trial court must consider all relevant
factors in determining the best interest of a child with respect to custody and visitation,
including, but not limited to: the wishes of the child’s parents; the wishes and concerns of
the child, if appropriate; the child’s interaction and interrelationship with his or her parents,
siblings, and any other person who may significantly affect the child’s best interest; the
child’s adjustment to home, school, and community; the mental and physical health of all
persons involved in the situation; the parent more likely to honor and facilitate parenting
time or visitation and companionship rights; whether either parent has failed to make all
required child support payments; whether either parent previously has been convicted of
or pleaded guilty to any criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent has denied the other parent’s
right to parenting time in accordance with an order of the court; and whether either parent
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has established a residence, or is planning to establish a residence, outside this state.
See also Portis-Phillips v. Phillips, 2d Dist. Clark No. 2016-CA-34, 2016-Ohio-7803, ¶ 19.
{¶ 29} The trial court is not required to discuss the factors in R.C. 3109.04
individually when making its best-interest determination. See Palichat v. Palichat, 2019-
Ohio-1379, __ N.E.3d __, ¶ 28 (2d Dist.). Rather, “[t]he critical issue is whether the
record supports the trial court’s conclusions and whether it explained its best-interest
determination sufficiently. Id., citing Hutchinson v. Hutchinson, 2d Dist. Montgomery No.
26221, 2014-Ohio-4604, ¶ 33-36 (finding that the record supported the trial court’s
explanation for its best-interest determination despite its failure to discuss each best-
interest factor by name).
{¶ 30} In addition, R.C. 3109.051 governs parenting time of non-residential
parents. See Schwenn v. Schwenn, 2d Dist. Greene No. 2017-CA-48, 2018-Ohio-2755,
¶ 12. In divorce proceedings involving a child where shared parenting is not ordered,
the statute requires the trial court to make “a just and reasonable order or decree
permitting each parent who is not the residential parent to have parenting time with the
child at the time and under the conditions that the court directs * * *.” R.C. 3109.051(A).
R.C. 3109.051(D) directs the trial court to consider 16 statutory factors in determining
whether to grant parenting time, in establishing a specific parenting time schedule, and in
determining other parenting time matters.
{¶ 31} A trial court enjoys broad discretion when determining the appropriate
allocation of parental rights and responsibilities. Miller v. Miller, 37 Ohio St. 3d 71, 74,
523 N.E.2d 846 (1988); Montei v. Montei, 2d Dist. Clark No. 2013 CA 24, 2013-Ohio-
5343, ¶ 28. Absent an abuse of that discretion, a reviewing court will affirm the custody
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determination of the trial court. Miller at 74; Montei at ¶ 28. An abuse of discretion
means that a trial court’s decision is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 32} We have often emphasized that “[m]ost abuses of discretion ‘will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.’ ” Kossoudji v. Stamps, 2016-Ohio-7693, 65 N.E.3d 815, ¶ 22 (2d Dist.),
quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990). (Other citation omitted.) “A decision is
unreasonable if there is no sound reasoning process that would support that decision.”
AAAA Ents. at 161.
{¶ 33} The entire transcript of the final hearing is seven pages long; Mrs. Jensen’s
testimony comprises 2 1/2 pages, and her stepfather’s testimony consisted of four
questions. The stepfather’s testimony did not address the parties’ two children; it was
limited to his statements that he had observed Mr. and Mrs. Jensen and that they were
incompatible. Mrs. Jensen’s testimony about the children was limited to a few questions
regarding the birth dates and parentage of the children. Mrs. Jensen provided no
information about the children’s development, their mental and physical health, and their
relationships with family members, including their father. Nor did Mrs. Jensen provide
any evidence at the final hearing about Mr. Jensen’s visitation with the children and his
interactions with her regarding the children. Mrs. Jensen’s testimony that the proposed
final decree of divorce was “a fair disposition of the case” was inadequate to establish
that the terms of the divorce decree were in the best interest of the children.
{¶ 34} The record suggests that the GAL had significant contact with the Jensen
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family and prepared a GAL report for the court. That report was not filed with the clerk,
but the record suggests that it was prepared in August 2018 in anticipation of the
September 2018 trial date, which was continued. There is no indication in the record
that a subsequent report was prepared and provided to the court and the parties. The
transcript of the March 14 hearing gives no indication that the GAL attended the final
hearing, and the GAL report was not referenced by Mrs. Jensen, her counsel, or the court.
The final decree of divorce also does not reference the GAL report, and there is nothing
in the final decree of divorce to indicate that the allocation of parental rights and
responsibilities was based on or consistent with the GAL report.
{¶ 35} At the conclusion of the final hearing, the trial court found “from the
evidence” that it had jurisdiction and that the parties were entitled to a divorce. The trial
court approved the proposed final decree of divorce in its entirety without comment. The
court made no findings related to the best interest of the children, nor did it indicate that
it had considered the children’s best interest. The trial court did not mention the GAL
report. Given the sparse record, we conclude that the trial court abused its discretion by
allocating parental rights and responsibilities and visitation as it did.
{¶ 36} We include the trial court’s calculation of child support in our reversal of the
trial court’s allocation of parental rights and responsibilities. Attached to the decree of
divorce was “child support results summary,” which provided calculations for Mr. Jensen’s
child support obligations. The source(s) for the amounts of annual income and adjusted
annual income received by the parties is not apparent from the record; no financial
disclosures were filed. In addition, we note that the calculations do not appear on the
Ohio Child Support Guideline Worksheet, pursuant to R.C. 3119.021 and R.C. 3119.022.
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{¶ 37} Mr. Jensen’s second assignment of error is sustained.
IV. Property Division
{¶ 38} Mr. Jensen’s third assignment of error states: “Whether the property division
was an abuse of discretion?”
{¶ 39} In his third assignment of error, Mr. Jensen claims that the trial court’s
division of property was inequitable, and that there was no factual basis in the record to
support the trial court’s judgment. Mr. Jensen further claims that neither the transcript of
proceedings nor the final decree of divorce indicates that the court considered the factors
enumerated in R.C. 3105.171.
{¶ 40} “When dividing married parties’ assets and liabilities upon divorce, a court
must first determine what is marital property and what is not.” Bergman v. Bergman, 2d
Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 27. The trial court must classify specific
property as marital or separate, and where appropriate, must distribute separate property
to the owner. Id., citing R.C. 3105.171(B) and (D). The court’s classification must be
supported by competent, credible evidence. Id., citing Mays v. Mays, 2d Dist. Miami No.
2000-CA-54, 2001 WL 1219345, *3 (Oct. 12, 2001); Renz v. Renz, 12th Dist. Clermont
No. CA2010-05-034, 2011-Ohio-1634, ¶ 17.
{¶ 41} “A trial court has broad discretion when dividing marital property.” Williams
v. Williams, 2018-Ohio-611, 106 N.E.3d 317, ¶ 7 (2d Dist.), citing Bisker v. Blake, 69 Ohio
St.3d 608, 609, 635 N.E.2d 308 (1994). In making a division of marital property and in
determining whether to make and the amount of any distributive award under this section,
the court must consider all of the following factors:
(1) The duration of the marriage;
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(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to reside in
the family home for reasonable periods of time, to the spouse with
custody of the children of the marriage;
(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an interest in an
asset;
(6) The tax consequences of the property division upon the respective
awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to effectuate an
equitable distribution of property;
(8) Any division or disbursement of property made in a separation
agreement that was voluntarily entered into by the spouses;
(9) Any retirement benefits of the spouses, excluding the social security
benefits of a spouse except as may be relevant for purposes of dividing a
public pension;
(10) Any other factor that the court expressly finds to be relevant and
equitable.
R.C. 3105.171(F). “Since the court, pursuant to R.C. 3105.171(F)(2), must consider both
the parties’ assets and liabilities, ‘an equitable division of marital property necessarily
implicates an equitable division of marital debt.’ ” Kraft v. Kraft, 2d Dist. Montgomery No.
25982, 2014-Ohio-4852, ¶ 41, quoting Buzard v. Buzard, 2d Dist. Clark No. 2011 CA 18,
2012-Ohio-2658, ¶ 32.
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{¶ 42} “A trial court must indicate the basis for its division of marital property in
sufficient detail to enable a reviewing court to determine whether the award is fair,
equitable, and in accordance with the law.” Janis v. Janis, 2d Dist. Montgomery No.
23898, 2011-Ohio-3731, ¶ 43, citing Young v. Young, 2d Dist. Clark Nos. 08CA59 and
08CA61, 2009-Ohio-3504, ¶ 6, and R.C. 3105.171(G). “When reviewing the trial court’s
marital property division, the reviewing court is limited to determining whether,
considering the totality of the circumstances, the trial court abused its discretion in
fashioning the award.” (Citation omitted.) James v. James, 101 Ohio App. 3d 668, 680,
656 N.E.2d 399 (2d Dist.1995). Additionally, a trial court’s failure to consider the factors
set forth at R.C. 3105.171(F) to guide the division of marital property is an abuse of
discretion. Mays at *6.
{¶ 43} Here, the record is devoid of any evidence to support the trial court’s
property division. The parties agreed in their respective complaint and counterclaim that
they owned a home, automobiles, and personal property. However, the record contains
no specific information about their assets, their liabilities, their sources of income
(including employment), and their expenses. The divorce decree stated that Mr. Jensen
had worked at Piqua Concrete and was unemployed at the time of the final hearing, and
the attached “Child Support Results Summary” indicated that he had annual income of
$24,960 and adjusted annual income of $24,460.80; there is no evidence in the record to
support any of those statements or figures. Neither party filed an Affidavit of Income and
Expenses (Uniform Domestic Relations Form – Affidavit 1) or an Affidavit of Property
(Uniform Domestic Relations Form – Affidavit 2).
{¶ 44} As with the allocation of parental rights, Mrs. Jensen’s testimony that the
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proposed final decree of divorce was “a fair disposition of the case” was not a sufficient
basis for the trial court’s division of marital property. With the record before us, the trial
court’s division of property was an abuse of discretion.
{¶ 45} Mr. Jensen’s third assignment of error is sustained.
V. Due Process
{¶ 46} Mr. Jensen’s fourth assignment of error states: “Whether the plaintiff was
denied due process by not being afforded the right to attend the final divorce trial?”
{¶ 47} In his appellate brief, Mr. Jensen claims that his absence from the hearing
was due to his incarceration in the Greene County Jail on a probation violation. He states
that he filed a motion on March 12, 2019, in the Xenia Municipal Court, asking to be
transported on a one-day furlough to the Clark County Court of Common Pleas for the
final divorce hearing on March 14, 2019. Mr. Jensen states that his motion was denied,
resulting in his failure to appear for the final divorce hearing. Mr. Jensen’s brief indicates
that a copy of his motion to the municipal court was attached as Exhibit 1; no exhibit was
attached to his brief.
{¶ 48} Mr. Jensen recognizes that, as an incarcerated prisoner, he had “no
absolute due process right” to attend the final hearing. E.g., Jagodzinski v. Abdul-Khaliq,
5th Dist. Licking No. 17-CA-22, 2018-Ohio-1898, ¶ 25, citing Mancino v. Lakewood, 36
Ohio App. 3d 219, 221, 523 N.E.2d 332 (8th Dist.1987). However, he claims that the
denial of his motion to attend the final divorce hearing was an abuse of discretion in this
case.
{¶ 49} Based on the record before us, we cannot conclude that Mr. Jensen’s due
process rights were violated. There is nothing in this record to indicate that Mr. Jensen
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was, in fact, incarcerated on March 14, 2019, when the final hearing was held. Mr.
Jensen did not file a motion with the trial court (i.e., the domestic relations court),
explaining that he was incarcerated at the Greene County Jail and had filed a motion for
a furlough in the Xenia Municipal Court. Mr. Jensen did not seek a continuance of the
final divorce hearing in the event that his motion in the municipal court were denied. The
transcript of the March 14 final hearing merely indicated that Mr. Jensen was served with
notice of the hearing and was not present; no one provided an explanation for his
absence.
{¶ 50} Mr. Jensen’s fourth assignment of error is overruled.
VI. Conclusion
{¶ 51} The trial court’s judgment will be affirmed in part, reversed in part, and
remanded for further proceedings. Specifically, the trial court’s judgment will be affirmed
to the extent that it granted the parties a divorce from one another. In all other respects,
the trial court’s judgment will be reversed, and the matter will be remanded for further
proceedings on custody of the children, parenting time rights of the non-residential parent,
child support, property division, and any other relevant matters. Upon remand, the trial
court also should ensure that all documents submitted to the court by the parties and/or
the guardian ad litem are filed with the clerk of courts and made part of the record. If
appropriate, those documents may be filed under seal.
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WELBAUM, P.J. and TUCKER, J., concur.
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Copies sent to:
Gregory K. Lind
Eric M. Sommer
Hon. Thomas J. Capper