Swartz v. Gwiner ( 2016 )

[Cite as Swartz v. Gwiner, 2016-Ohio-4907.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
BRIAN SWARTZ,
CASE NO. 13-15-41
PLAINTIFF-APPELLANT,
v.
CARRIE GWINER, OPINION
DEFENDANT-APPELLEE.
Appeal from Seneca County Common Pleas Court
Juvenile Division
Trial Court No. 20370016
Judgment Reversed
Date of Decision: July 11, 2016
APPEARANCES:
John C. Filkins for Appellant
Case No. 13-15-41
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Brian Swartz (“Swartz”) brings this appeal from the
judgment of the Court of Common Pleas of Seneca County, Juvenile Division, dismissing
his objections as untimely filed and adopting the decision of the magistrate. For the
reasons set forth below, the judgment is reversed.
{¶2} Swartz and Carrie Gwiner (“Gwiner”) are the parents of a child born in April
2002. Doc. 40. Swartz and Gwiner entered into a shared parenting agreement, which
included a deviation of child support to $0, and the agreement was approved by the trial
court, on November 19, 2003. Id. On May 13, 2015, Gwiner filed a motion to modify
the shared parenting plan and requesting child support, which had previously been
waived. Id. Gwiner also has another child from a different relationship. Id. The
magistrate denied the parenting schedule modification, but did modify the child support.
Id. The magistrate filed his decision on October 26, 2015. Id. On that same day, the trial
court approved the decision and adopted it as its own entry. Doc. 41.
{¶3} On November 9, 2015, Swartz filed his objections to the magistrate’s
decision, alleging that the magistrate erred in using Gwiner’s figure for health insurance
as that covered insurance for her and the additional child as well as his child. Doc. 42.
The trial court denied the objections on November 13, 2015, because the trial court found
the objections to be untimely filed as they were filed by fax. Doc. 43. Swartz filed a
timely appeal from this judgment. Doc. 44. On appeal, Swartz raises the following
assignment of errors.
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Case No. 13-15-41
First Assignment of Error
The trial court erred as a result of its failure to comply with the
statutory calculation of child support when it granted [Gwiner] credit
for health insurance costs that cover the parties’ minor child of the
appellee.
Second Assignment of Error
The trial court erred as a result of its finding that [Swartz’s] objections
were not timely filed when the objections were in fact filed on the
fourteenth day of the objection period.
In the interest of clarity, we will address the assignments of error out of order.
{¶4} We initially note that Gwiner has chosen not to file a brief in this matter. “If
an appellee fails to file the appellee’s brief within the time provided by this rule, or
within the time as extended, the appellee will not be heard at oral argument * * * and in
determining the appeal, the court may accept the appellant’s statement of the facts and
issues as correct and reverse the judgment if appellant’s brief reasonably appears to
sustain such action.” App.R. 18(C).
{¶5} In the second assignment of error Swartz claims that the trial court erred in
finding that his objections were not timely filed. All objections to a magistrate’s decision
must be filed within fourteen days. Juv.R. 40(D)(3)(b)(i). Swartz filed his objections to
the decision on the 14th day, but, as set forth in the journal entry denying the objections,
he filed them by fax. The filing of objections to a magistrate’s decision is not one of the
documents permitted to be filed by fax pursuant to Seneca County Juvenile Court Rule
1.07. However, the objections were file stamped and docketed as “Plaintiffs objection to
magistrates decision filed by Atty Filkins on behalf of Brian Swartz.” It was filed on the
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Case No. 13-15-41
14th day after the magistrate’s decision was filed. The fact that the documents were not
filed in a proper manner does not change the fact that the documents were accepted for
filing and were actually filed by the deadline. See King v. Penn, 43 Ohio St. 57 (1885)
(holding that when a document is delivered to the clerk of court’s office to be filed, it is
deemed filed) and Ins. Co. of N. Am. v. Reese Refrig., 89 Ohio App. 3d 787, 627 N.E.2d
637 (3d Dist. 1993) (holding that a file-stamp is evidence that a document was filed).
The record shows that objections were timely filed and should have been considered by
the trial court. The second assignment of error is sustained.
{¶6} In the first assignment of error, Swartz claims that the trial court erred in
adopting the magistrate’s erroneous calculation of the health insurance costs because it
included the costs for Gwiner and another child as well as Swartz’s child. However, the
trial court never addressed these issues. Thus, this matter must be reversed for
consideration by the trial court before this court can address it. For that reason, the first
assignment of error is sustained.
{¶7} Having found prejudicial error in the particulars assigned and argued, the
judgment of the Court of Common Pleas of Seneca County, Juvenile Division, is reversed
and the matter is remanded for further consideration by the trial court.
Judgment Reversed
And Cause Remanded
SHAW, P.J. and ROGERS, J., concur.
/hls
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