Neace v. Neace
Annotate this Case
Download PDF
[Cite as Neace v. Neace, 2003-Ohio-276.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY James E. Neace, : : : : Case No. 02CA2824 : : DECISION AND JUDGMENT ENTRY : : RELEASED: 1-15-03 : Plaintiff-Appellant vs. Carolyn C. Neace, Defendant-Appellee. APPEARANCES Van A. Gander, Columbus, Ohio, for appellant.1 Mark J. Cardosi, Portsmouth, Ohio, for appellee. Kline, J.: James {¶1} E. by the entered Neace appeals Scioto the County Domestic Relations Division. final Court divorce Common of decree Pleas, Mr. Neace contends that he missed the final hearing because the trial court failed to give him proper notice of the date for the hearing, and that the court deprived him of by conducting the hearing examination Because the court should give his pro right se in to his crossabsence. litigants wide latitude, and because the record does not clearly reflect 1 Appellant James Neace represented himself pro se in the trial court. the date set for the hearing after Mr. Neace s continuance of the July 19, 2001 hearing, we agree. Accordingly, we reverse the judgment of the trial court. I. {¶2} In 2000, Mr. Neace filed a complaint for divorce against Mrs. Neace. for trial counsel, on The case first came before the court November presented 15, evidence 2000. and Mr. Neace, rested his through case, but reserved a right to present rebuttal witnesses. Mrs. Neace was unable to complete her presentation of evidence, and the case was continued. {¶3} Eventually, April 17, 2001. Mr. Neace s the case was scheduled for trial on However, on that day, the court granted counsel s motion to withdraw from representation of Mr. Neace. {¶4} On April 19, 2001, the court issued a Notice of Hearing, which stated: {¶5} The above captioned case has been set before the Honorable Judge David E. Spears, * * * on 07/19/01, at 9:00 AM. Second Case Scheduled {¶6} (09/18/01 at 9:00 1st case, if necessary) {¶7} Additionally, on April 19, 2001, the court filed an Entry Resetting Hearing, which stated: Upon {¶8} motion, for good cause shown the hearing scheduled for April 17, 2001 at 9:00 a.m. is hereby reset to the 19 day of July, 2001 at 9:00 a.m. to 4:30 p.m. So ordered. {¶9} The date and times on the Entry Resetting Hearing {¶10} were written in by hand. The entry also includes a handwritten notation, 2nd case, below the words 19 day of July. Finally, below the phrase So ordered, the entry contains a handwritten notation stating 9-18-01 1st Case @ 9:00 if necessary. {¶11} The record reflects that Mr. service of both the notice and the entry. Neace received On July 18, 2001, Mr. Neace filed a motion for a continuance in which he informed the court that due to health problems, he had to attend a medical appointment on July nineteenth, and that he would be having surgery on July twenty-seventh. Mr. Neace apologized for the short notice. He also asked the court to Please notify when it is convenient for you. My address is: * * *. Mr. Neace included his telephone number alongside his address. {¶12} The trial court did not put on an entry granting or denying Mr. Neace s request for a continuance, and the record contains no indication that the court contacted him. However, the court held trial on the case on September 18, 2001. The next entry in the record is the trial court s decision, wherein the court found that Mr. Neace had received notice of the trial and failed to appear. court proceeded to hear the testimony offered by The Mrs. Neace, then divided the parties assets and debts without giving Mr. Neace an opportunity for cross-examination or hearing Mr. Neace s rebuttal evidence. Mr. Neace appeals, asserting that the trial court {¶13} erred in finding that he received proper notice of the trial date and in proceeding with the trial in Mr. Neace s absence. Mr. Neace contends that the trial court s actions deprived him of his constitutional right to cross-examine witnesses, and that Mrs. Neace perjured herself when she testified on September 18, 2001. II. {¶14} Mr. Neace contends that the trial court did not provide him with proper notice of the September 18, 2001 trial date. Pursuant to Civ.R. 75(L), In all cases where there is no counsel of record for the adverse party, the court shall give the adverse party notice of the trial upon the merits. the party s The notice shall be made by regular mail to last known address, and shall be mailed least seven days prior to the commencement of trial. at The purpose of this provision specific to unrepresented parties is to give notice so that a party will not be divorced without knowing the time of the actual hearing. Staff Note to Civ.R. 75. {¶15} Due process of law requires that every party to an action be afforded a reasonable opportunity to be heard after a reasonable notice of such hearing. Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 125. reasonable notice is The issue of what constitutes left for a case-by-case analysis. Zashin, Rich, Sutula & Monastra Co., L.P.A. v. Offenberg (1993), 90 Ohio App.3d 436, 443. In general, the notice meets due process requirements as long as it is reasonably calculated to give actual notice. Mitchell v. Mitchell (1980), 64 Ohio St.2d 49, paragraph two of the syllabus. A properly noticed party to a trial has a duty to exercise reasonable diligence to inform himself subsequent continuances of the trial. (Cal.2000), 92 693; 470 766; (Fla.App.1985), Cal.Rptr.2d So.2d of the dates of In re Phillip F. Hirsch Parker v. Muldowney v. Dingman (Cal.App.1925), 122 Cal.Rptr. 309. {¶16} We recognize that the same Rules of Civil Procedure that apply to litigants with counsel bind even pro se litigants. Meyers v. First Natl. Bank (1981), 3 Ohio App.3d 209, 210. However, to decide cases on their merits and further the interest of justice, we must give pro se litigants wide latitude, particularly with regard to formal requirements. Miller v. Kutschbach (1996), 111 Ohio App.3d 157, 159, fn.3. To be sure, this court has firmly rejected all notions that pro se litigants be held to the same standard as attorneys during trial court proceedings. Karmasu v. Tate (1992), 83 Ohio App.3d 199, 206, citing Wright v. Miller (Mar. 8, 1991), Highland App. No. 752. See, also, In re Paxson (July 1, 1992), Scioto App. No. 91CA2008 (holding that the court must afford considerable latitude to pro se actions brought by prisoners). In this case, the notice for the trial date of {¶17} July 19, 2001 mentioned the September 18, 2001 date only parenthetically. date listed only Likewise, a the entry handwritten setting abbreviation the for trial the September date after the words so ordered, as an apparent afterthought. the Neither used a complete sentence to explain significance of the September instead simply read if necessary. 18, 2001 date, but Mr. Neace s motion for a continuance clearly indicated that he did not objectively understand the significance of the September 18, 2001 date. If he had understood, he would not have asked the court to please notify him of the date that would be convenient for the court to reschedule the trial. Civ.R. 75(L) gives courts extra responsibility to {¶18} assist parties to divorce proceedings who are unrepresented by counsel. The purpose of Civ.R. 75(L), to prevent divorce trials from going forward without a party actually knowing the time and date of the hearing, was not served in this case. we would If Mr. Neace had been represented by counsel, find that his counsel had a duty to exercise reasonable diligence to clarify the notice and entry with the court or follow up on the motion for a continuance to ascertain the new trial date. However, for a lay person it seems patently reasonable that he or she would expect a response if, upon his or her last contact with another, he or she provides contact information and asks for a letter or telephone call rescheduling a meeting. In evaluating reasonable notice on a case-by-case basis, the notice in this case was not reasonably calculated to give Mr. Neace actual notice of the trial date. Given the leniency we must afford pro se litigants and the interests of justice to be served by permitting Mr. Neace to have the opportunity to cross-examine and present rebuttal evidence, we find that proceeding the with Neace s absence. trial the court trial and abused its entering discretion judgment in in Mr. Accordingly, we reverse the judgment of the trial {¶19} court. JUDGMENT REVERSED. Abele, J., Concurs in Judgment and Opinion with Opinion: To 20. be sure, appellant's representation during this proceeding (three different counsel at different times coupled with intermittent pro se representation, and then represented by yet different counsel on appeal who has, I understand, recently withdrawn from the case) has unduly confused and appellant's complicated this incarceration instant case may have alleged confusion. matter. Additionally, the of during also Thus, I pendency contributed find criticize the trial court's actions. it to very the appellant's difficult to Nevertheless, in the interest of providing all litigants the opportunity to be heard and to present evidence, I reluctantly agree with the principal opinion's disposition of this matter. that appellant could have scheduled hearing date. court need appellant not to begin conduct been confused It appears concerning the Fortunately, however, the trial at square one, but may permit cross-examination and to present rebuttal evidence, if any. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED and the cause remanded to the trial court for further proceedings consistent with this opinion, costs herein taxed to appellee. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as the date of this Entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Harsha, J.: Abele, J.: Dissents. Concurs in Judgment and Opinion with Opinion. For the Court BY: Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
