Lumbog v. Suansing , 2019 Ohio 1871 ( 2019 )

[Cite as Lumbog v. Suansing, 2019-Ohio-1871.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
LECADIA LUMBOG C.A. No. 29135
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
FERNANDO SUANSING COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. DR-2017-05-1449
DECISION AND JOURNAL ENTRY
Dated: May 15, 2019
TEODOSIO, Presiding Judge.
{¶1} Lecadia Lumbog appeals the entry of the Summit County Court of Common
Pleas, Domestic Relations Division, overruling her objections to the magistrate’s decision. We
affirm.
I.
{¶2} In May 2017, Ms. Lumbog filed for a divorce from Fernando Suansing. In May
2018, the matter proceeded to a hearing before the magistrate, who issued a decision determining
that a divorce should be granted, with provisions for the division of property, spousal support,
and child support. The magistrate’s decision was filed on May 31, 2018, and that same day the
trial court adopted the decision pursuant to Civ.R. 53(D)(4)(b) and entered judgment. The trial
court’s judgment noted that objections were to be filed within fourteen days.
{¶3} On June 15, 2018, Ms. Lumbog filed her objections to the magistrate’s decision.
Mr. Suansing filed a motion to dismiss the objections as untimely. On July 11, 2018, the trial
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court issued a ruling on objections, concluding that any objections had to be filed on or before
June 14, 2018, and overruling Ms. Lumbog’s objections as untimely.
{¶4} Ms. Lumbog now appeals, raising one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT [ERRED] IN COMPUTING THE TIME ALLOWED IN
CIV.R. 53(D)(3)(b)(i) AND SUMMIT COUNTY LOCAL RULE 27.04 BY
FAILING TO ADD THREE DAYS FROM THE DATE OF MAILING AND
INCLUDING THE DAY OF THE ACT FROM THE DESIGNATED PERIOD
OF TIME IN VIOLATION OF [CIV.R. 6(A)] AND (D).
{¶5} In her assignment of error, Ms. Lumbog argues the trial court erred in calculating
the time period allowed for filing her objections to the magistrate’s decision. We disagree.
{¶6} Civ.R. 53(D)(3)(b) provides:
Objections to Magistrate’s Decision.
(i) Time for Filing. A party may file written objections to a magistrate’s decision
within fourteen days of the filing of the decision, whether or not the court has
adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i). If any party timely files objections, any other party may also file
objections not later than ten days after the first objections are filed. If a party
makes a timely request for findings of fact and conclusions of law, the time for
filing objections begins to run when the magistrate files a decision that includes
findings of fact and conclusions of law.
Likewise, Loc.R. 27.04(A) of the Court of Common Pleas of Summit County, Domestic
Relations Division, provides: “Objections to a magistrate’s decision shall be filed and served
upon the opposing party within 14 days after the date the decision is filed.”
{¶7} In the case before us for review, the magistrate’s decision was filed on May 31,
2018. This fact is undisputed by Ms. Lumbog. The fourteenth day after the filing of the
magistrate’s decision was June 14, 2018. Under both Civ.R. 53(D)(3)(b)(i) and Loc.R. 27.04(A)
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of the Court of Common Pleas of Summit County, Domestic Relations Division, objections to
the magistrate’s decision were due on or before June 14, 2018.
{¶8} Ms. Lumbog contends that Civ.R. 6(A) and (D) should be applied in order to
extend this deadline. Civ.R. 6(A) provides, in pertinent part:
In computing any period of time prescribed or allowed by these rules, by the local
rules of any court, by order of court, or by any applicable statute, the day of the
act, event, or default from which the designated period of time begins to run shall
not be included.
Ms. Lumbog fails to show how the trial court misapplied this rule in its calculation. The “day of
the act” in question was the filing of the magistrate’s decision on May 31, 2018. That day was
not included in the fourteen-day period. The first day of the fourteen-day period was June 1,
2018, and correspondingly, the fourteenth day was June 14, 2018. We find no error in this
calculation.
{¶9} Civ.R. 6(D) provides:
Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other
document upon that party and the notice or paper is served upon that party by
mail or commercial carrier service under Civ.R. 5(B)(2)(c) or (d), three days shall
be added to the prescribed period.
Ms. Lumbog argues that the trial court should have added three days, pursuant to Civ.R. 6(D), to
the fourteen-day period for filing objections. Neither Civ.R. 53(D)(3)(b)(i) nor Loc.R. 27.04(A)
of the Court of Common Pleas of Summit County, Domestic Relations Division, required Ms.
Lumbog to “do some act or take some proceedings within a prescribed period after the service of
a notice or other document upon that party.” Civ.R. 6(D) applies only where the period for filing
begins after the service of notice, and notice is served by mail. See Pogacsnik v. Jewett, 9th Dist.
Lorain No. 91CA005216, 1992 WL 181011, *2. The time period for the filing of objections
under both Civ.R. 53(D)(3)(b)(i) and Loc.R. 27.04(A) of the Court of Common Pleas of Summit
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County, Domestic Relations Division, is premised upon the filing of the magistrate’s decision; it
is not premised upon the service of notice or the mailing of the decision. The addition of three
days pursuant to Civ.R. 6(D) is therefore inapplicable.
{¶10} We conclude the trial court did not err in calculating the time period allowed for
the filing of objections to the magistrate’s decision and in determining that Ms. Lumbog’s
objections to the magistrate’s decision were untimely. Ms. Lumbog’s assignment of error is
overruled.
III.
{¶11} Ms. Lumbog’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
TONY DALAYANIS, Attorney at Law, for Appellant.
ERIC SKIDMORE, Attorney at Law, for Appellee.