[Cite as Cook v. Cook, 2024-Ohio-328.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JOSHUA D. COOK JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 23-CA-00007 ISAAC T. COOK
Defendant-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of Common Pleas, Case No. 23-DV-00153
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 31, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOSHUA D. COOK ISAAC T. COOK Inmate No. A785788 1300 Parkview Place, Apt. 5B Chillicothe Correctional Institution Roseville, Ohio 43777 15802 State Route 104 N. Chillicothe, Ohio 45601 Perry County, Case No. 23-CA-00007 2
Hoffman, P.J. {¶1} Plaintiff-appellant Joshua Cook appeals the judgment entered by the Perry
County Common Pleas Court dismissing his complaint for a divorce from Defendant-
appellee Isaac Cook.
STATEMENT OF THE CASE1
{¶2} On June 23, 2023, Appellant filed the instant action pro se, seeking a
divorce from Appellee. Appellant was incarcerated at all times throughout the pendency
of this case. Appellant alleged as grounds for divorce he and Appellee had lived separate
and apart for over one year, Appellee has been willfully absent for one year, and Appellee
was guilty of adultery. Appellee was served with the complaint, but did not file an answer.
{¶3} The case was set for a hearing on October 4, 2023. Appellant requested
the hearing be held by video so he could participate from prison. The trial court overruled
the motion after conferring with the Ohio Department of Rehabilitation and Corrections
(hereinafter “ODRC”), which represented to the trial court it could not accommodate
lengthy hearings or video access for settlement negotiations. The trial court granted
Appellant leave to participate in hearings by telephone if he was able to show proof from
an agent of ODRC fourteen days prior to any scheduled hearings confirming telephone
access. The trial court also notified Appellant if he presented his testimony by telephone,
he must have a person authorized to administer oaths at his location.
{¶4} Appellee appeared for the hearing on October 4, 2023, despite having not
filed an answer Appellant did not appear for the hearing by telephone. By judgment filed
October 6, 2023, the trial court notified the parties if Appellee did not file an answer and
1 The facts underlying this appeal are not a part of the record before this Court. Perry County, Case No. 23-CA-00007 3
counterclaim within fourteen days, the case would be dismissed. Appellee did not file an
answer, and the trial court dismissed the action. It is from the October 24, 2023 judgment
of the trial court dismissing his complaint for divorce Appellant prosecutes his appeal,
assigning as error:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING
AN UNCONTESTED DIVORCE AND ALLOWING THIS MATTER TO BE
DISMISSED WITHOUT GRANTING AN UNCONTESTED DIVORCE.
II. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF
DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
ONE SECTION TEN OF THE OHIO CONSTITUTION BY DISMISSING AN
UNCONTESTED DIVORCE.
III. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
ACCESS TO THE COURTS TO ATTEND HIS HEARINGS AS
REQUESTED AND IGNORED HIS REQUEST TO ORDER ODRC TO
HAVE APPELLANT PRESENT VIA PHONE OR VIDEO.
IV. THE TRIAL COURT ERRED BY NOT GRANTING AN
V. THE TRIAL COURT WAS BIASED AND DID NOT AFFORD THE
APPELLANT THE SAME RIGHTS AS A HETEROSEXUAL PERSON; AS
THIS DIVORCE IS RELATED TO A SAME SEX MARRIAGE. Perry County, Case No. 23-CA-00007 4
VI. THE DISMISSAL OF THIS MATTER VIOLATES THE UNITED
STATES CONSTITUTION’S PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENTS.
{¶5} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
The decision may be by judgment entry in which case it will not be
published in any form.
{¶6} This appeal shall be considered in accordance with the aforementioned
rule.
I., II., IV.
{¶7} In his first, second, and fourth assignments of error, Appellant argues the
trial court erred in dismissing his complaint for an uncontested divorce.
{¶8} It is apparent from the trial court’s entry following the October 4, 2023
hearing, Appellant did not appear via telephone, as previously allowed by the trial court, Perry County, Case No. 23-CA-00007 5
to present testimony establishing his grounds for divorce. The trial court’s post-hearing
judgment noted Appellee did appear for the hearing.
{¶9} A transcript of the proceedings from the hearing was requested by Appellant
at state expense. The motion was denied, and we do not have a transcript of the
proceedings of the hearing. However, as a result of the hearing, the trial court entered
judgment giving Appellee fourteen days to file an answer or counterclaim, and notified the
parties failure to so file would cause the action to be dismissed. In the absence of a
transcript demonstrating evidence was presented to the trial court demonstrating grounds
for divorce were established, we have no choice but to presume regularity in the
proceedings below and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199,
400 N.E.2d 384, 385 (1980).
{¶10} The first, second, and fourth assignments of error are overruled.
III.
{¶11} Appellant argues the trial court erred in denying his request to participate in
the hearing by video or telephone.
{¶12} An incarcerated prisoner has no absolute due process right to attend a civil
trial to which he is a party. E.g., Pryor v. Pryor, 4th Dist. Ross No. 09CA3096, 2009-Ohio-
6670, 2009 WL 4862140, ¶ 29. “’A ruling on the request of an incarcerated criminal to
prosecute a * * * civil action by requiring penal authorities to transport him to a preliminary
hearing or trial rests within the sound discretion of the trial court.’” Mancino v. City of
Lakewood, 36 Ohio App.3d 219, 221, 523 N.E.2d 332 (8th Dist. 1987). An abuse of
discretion connotes that the court's attitude is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 140 (1983). Perry County, Case No. 23-CA-00007 6
{¶13} The trial court inquired as to the ability of ODRC to allow Appellant to
participate by video, and was informed a video hearing could not be accommodated. The
trial court granted Appellant leave to participate in hearings by telephone if he was able
to show proof from an agent of ODRC fourteen days prior to any scheduled hearings
confirming telephone access. The trial court also notified Appellant if he presented his
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[Cite as Cook v. Cook, 2024-Ohio-328.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JOSHUA D. COOK JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 23-CA-00007 ISAAC T. COOK
Defendant-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of Common Pleas, Case No. 23-DV-00153
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 31, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOSHUA D. COOK ISAAC T. COOK Inmate No. A785788 1300 Parkview Place, Apt. 5B Chillicothe Correctional Institution Roseville, Ohio 43777 15802 State Route 104 N. Chillicothe, Ohio 45601 Perry County, Case No. 23-CA-00007 2
Hoffman, P.J. {¶1} Plaintiff-appellant Joshua Cook appeals the judgment entered by the Perry
County Common Pleas Court dismissing his complaint for a divorce from Defendant-
appellee Isaac Cook.
STATEMENT OF THE CASE1
{¶2} On June 23, 2023, Appellant filed the instant action pro se, seeking a
divorce from Appellee. Appellant was incarcerated at all times throughout the pendency
of this case. Appellant alleged as grounds for divorce he and Appellee had lived separate
and apart for over one year, Appellee has been willfully absent for one year, and Appellee
was guilty of adultery. Appellee was served with the complaint, but did not file an answer.
{¶3} The case was set for a hearing on October 4, 2023. Appellant requested
the hearing be held by video so he could participate from prison. The trial court overruled
the motion after conferring with the Ohio Department of Rehabilitation and Corrections
(hereinafter “ODRC”), which represented to the trial court it could not accommodate
lengthy hearings or video access for settlement negotiations. The trial court granted
Appellant leave to participate in hearings by telephone if he was able to show proof from
an agent of ODRC fourteen days prior to any scheduled hearings confirming telephone
access. The trial court also notified Appellant if he presented his testimony by telephone,
he must have a person authorized to administer oaths at his location.
{¶4} Appellee appeared for the hearing on October 4, 2023, despite having not
filed an answer Appellant did not appear for the hearing by telephone. By judgment filed
October 6, 2023, the trial court notified the parties if Appellee did not file an answer and
1 The facts underlying this appeal are not a part of the record before this Court. Perry County, Case No. 23-CA-00007 3
counterclaim within fourteen days, the case would be dismissed. Appellee did not file an
answer, and the trial court dismissed the action. It is from the October 24, 2023 judgment
of the trial court dismissing his complaint for divorce Appellant prosecutes his appeal,
assigning as error:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING
AN UNCONTESTED DIVORCE AND ALLOWING THIS MATTER TO BE
DISMISSED WITHOUT GRANTING AN UNCONTESTED DIVORCE.
II. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF
DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
ONE SECTION TEN OF THE OHIO CONSTITUTION BY DISMISSING AN
UNCONTESTED DIVORCE.
III. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
ACCESS TO THE COURTS TO ATTEND HIS HEARINGS AS
REQUESTED AND IGNORED HIS REQUEST TO ORDER ODRC TO
HAVE APPELLANT PRESENT VIA PHONE OR VIDEO.
IV. THE TRIAL COURT ERRED BY NOT GRANTING AN
V. THE TRIAL COURT WAS BIASED AND DID NOT AFFORD THE
APPELLANT THE SAME RIGHTS AS A HETEROSEXUAL PERSON; AS
THIS DIVORCE IS RELATED TO A SAME SEX MARRIAGE. Perry County, Case No. 23-CA-00007 4
VI. THE DISMISSAL OF THIS MATTER VIOLATES THE UNITED
STATES CONSTITUTION’S PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENTS.
{¶5} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
The decision may be by judgment entry in which case it will not be
published in any form.
{¶6} This appeal shall be considered in accordance with the aforementioned
rule.
I., II., IV.
{¶7} In his first, second, and fourth assignments of error, Appellant argues the
trial court erred in dismissing his complaint for an uncontested divorce.
{¶8} It is apparent from the trial court’s entry following the October 4, 2023
hearing, Appellant did not appear via telephone, as previously allowed by the trial court, Perry County, Case No. 23-CA-00007 5
to present testimony establishing his grounds for divorce. The trial court’s post-hearing
judgment noted Appellee did appear for the hearing.
{¶9} A transcript of the proceedings from the hearing was requested by Appellant
at state expense. The motion was denied, and we do not have a transcript of the
proceedings of the hearing. However, as a result of the hearing, the trial court entered
judgment giving Appellee fourteen days to file an answer or counterclaim, and notified the
parties failure to so file would cause the action to be dismissed. In the absence of a
transcript demonstrating evidence was presented to the trial court demonstrating grounds
for divorce were established, we have no choice but to presume regularity in the
proceedings below and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199,
400 N.E.2d 384, 385 (1980).
{¶10} The first, second, and fourth assignments of error are overruled.
III.
{¶11} Appellant argues the trial court erred in denying his request to participate in
the hearing by video or telephone.
{¶12} An incarcerated prisoner has no absolute due process right to attend a civil
trial to which he is a party. E.g., Pryor v. Pryor, 4th Dist. Ross No. 09CA3096, 2009-Ohio-
6670, 2009 WL 4862140, ¶ 29. “’A ruling on the request of an incarcerated criminal to
prosecute a * * * civil action by requiring penal authorities to transport him to a preliminary
hearing or trial rests within the sound discretion of the trial court.’” Mancino v. City of
Lakewood, 36 Ohio App.3d 219, 221, 523 N.E.2d 332 (8th Dist. 1987). An abuse of
discretion connotes that the court's attitude is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 140 (1983). Perry County, Case No. 23-CA-00007 6
{¶13} The trial court inquired as to the ability of ODRC to allow Appellant to
participate by video, and was informed a video hearing could not be accommodated. The
trial court granted Appellant leave to participate in hearings by telephone if he was able
to show proof from an agent of ODRC fourteen days prior to any scheduled hearings
confirming telephone access. The trial court also notified Appellant if he presented his
testimony by telephone, he must have a person authorized to administer oaths at his
location. Appellant failed to avail himself of the procedure set forth by the trial court to
allow him to participate by telephone. We find the trial court did not abuse its discretion
in its provision for allowing Appellant access to the court.
{¶14} The third assignment of error is overruled.
V.
{¶15} In his fifth assignment of error, Appellant argues the trial court did not accord
him the same rights afforded to heterosexual couples seeking divorce. The record does
not establish Appellant’s claim he was treated differently based on the fact this case
involved a same-sex marriage.
{¶16} The fifth assignment of error is overruled.
VI.
{¶17} In his sixth assignment of error, Appellant argues the trial court’s dismissal
of the complaint for divorce constitutes cruel and unusual punishment. The Eighth
Amendment’s prohibition against cruel and unusual punishment is a concept applicable
to criminal punishment, and does not apply to dismissal of the instant civil action. Perry County, Case No. 23-CA-00007 7
{¶18} The sixth assignment of error is overruled.
{¶19} The judgment of the Perry County Common Pleas Court is affirmed.
By: Hoffman, P.J. Wise, J. and Baldwin, J. concur