Nash v. Nash , 2019 Ohio 3430 ( 2019 )

[Cite as Nash v. Nash, 2019-Ohio-3430.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MICHELE NASH nka HALL : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellant : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
NICHOLAS NASH : Case No. 19 CA 3
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Court of Common Pleas, Case No.
14DR00439
JUDGMENT: Dismissed
DATE OF JUDGMENT: August 22, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ROGER SOROKA MATTHEW A. PETIT
JOSHUA BEDTELYON 116 Cleveland Avenue North, Ste. 808
AARON JONES Canton, Ohio 44702
Soroka and Associates, LLC
503 South Front Street, Suite 205 PATRICK J. WILLIAMS
Columbus, Ohio 43215 300 E. 3rd Street, Suite 1
Dover, Ohio 44622
Guernsey County, Case No. 19 CA 3 2
Baldwin, J.
{¶1} Plaintiff-appellant Michele Nash nka Hall appeals from the December 27,
2018 Nunc Pro Tunc Entry issued by the Guernsey County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and appellee, who were married on August 28, 2010, are the
parents of Z.N. (DOB 1/18/12). On September 26, 2014, appellant filed a complaint for
divorce against appellee. A Divorce Decree was filed on September 21, 2015 that
incorporated the parties’ Separation Agreement. A Decree of Shared Parenting also was
issued on September 21, 2015. Pursuant to the Decree, which adopted the parties’
Shared Parenting Plan, appellant was designated the primary residential custodian and
residential parent. The Decree provided that if either party relocated out of state or one-
hundred fifty (150) miles away or more, the visitation provided for in the plan would be
replaced with the trial court’s standard long distance parenting schedule.
{¶3} On August 17, 2018, appellee filed a Motion for Reallocation of Parental
Rights. Appellee, in his motion, stated that appellant had moved to Pennsylvania with
Z.N. on August 17, 2018 without filing a Notice of Intent to Relocate. Appellee, in his
affidavit, stated that by the time he was ready to oppose relocation, appellant had moved
back to Ohio and that on August 14, 2018 he was informed that appellant intended to
move back to Pennsylvania.
{¶4} A hearing on the motion was held before a Magistrate on September 25,
2018. The Magistrate, in a Decision filed on October 5, 2018, found that an out of state
relocation three times on one year constituted a change in circumstances and found that
it was in Z.N.’s best interest that appellee be named the residential parent. The
Guernsey County, Case No. 19 CA 3 3
Magistrate, in her Decision, stated that neither party had requested an in camera interview
with Z.N. The trial court, on October 5, 2018, filed a Judgment Entry approving and
adopting the Magistrate’s Decision.
{¶5} Thereafter, appellant filed objections to the Magistrate’s Decision and
appellee filed a response to the same. Pursuant to an Entry filed on November 28, 2018,
the trial court denied the objections.
{¶6} On December 27, 2018, the trial court filed a Nunc Pro Tunc Entry to correct
the spelling of appellant’s name and the case number in its November 28, 2018 Entry.
{¶7} On January 25, 2019, appellant appealed from the trial court’s December
27, 2018 Nunc Pro Tunc Entry, raising the following assignments of error on appeal:
{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND
THAT A CHANGE IN CIRCUMSTANCES HAD OCCURRED.”
{¶9} “II. THE TRIAL COURT ERRED WHEN IT DECLINED TO CONDUCT AN
IN CAMERA INTERVIEW OF THE MINOR CHILD.”
{¶10} For the reasons which follow, we find it unnecessary to reach the merits of
appellant's assignments of error.
{¶11} The record reflects the trial court entered an order in the instant case dated
November 28, 2018 in which it denied appellant’s objections. On December 27, 2018 the
court entered a Nunc Pro Tunc entry, in which it modified its November 28, 2018 Entry to
correct the spelling of appellant’s name and the case number. Appellant filed her Notice
of Appeal on January 25, 2019.
{¶12} Appellant's Notice of Appeal was filed within thirty days of the court's
December 27, 2018 Nunc Pro Tunc Entry but not within thirty days of the trial court's
Guernsey County, Case No. 19 CA 3 4
November 28, 2018 Entry. The question presented, therefore, is whether the nunc pro
tunc entry in the instant case extended the period within which appellant could perfect her
appeal to this court.
{¶13} A nunc pro tunc order speaks as of the date of the original judgment, and
does not extend the 30–day filing period for an appeal. Gold Touch, Inc. v. TJS Lab, Inc.,
130 Ohio App.3d 106, 719 N.E.2d 629 (1998). Thus, a nunc pro tunc entry does not affect
substantive rights, and it is not a new final order for purposes of appeal. Perfection Stove
Co. v. Scherer, 120 Ohio St. 445, 448, 166 N.E. 376 (1929) (nunc pro tunc entry that “did
not operate to deprive the defendants in error of any rights which the previous order had
accorded them, nor make that order any less final, was not effective to postpone the date
when the period within which an appeal is authorized to be prosecuted begins to run”);
State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, syllabus (“A nunc
pro tunc judgment entry issued for the sole purpose of complying with Crim.R. 32(C) to
correct a clerical omission in a final judgment entry is not a new final order from which a
new appeal may be taken”); Gold Touch, Inc. v. TJS Lab, Inc., 130 Ohio App.3d 106, 109,
719 N.E.2d 629 (8th Dist.1998) (“the use of the nunc pro tunc order in this case did not
act to extend the normal thirty-day filing period for an appeal since no substantive
changes were made to the final order”).
{¶14} The nunc pro tunc entry in the instant case neither created an additional
right nor denied an existing right of the appellant. Nor did it make substantive changes to
the trial court’s November 28, 2018 Entry. Entry merely corrected clerical errors.
Consequently, said nunc pro tunc entry does not extend the time for perfecting appellant's
appeal pursuant to Perfection Stove, supra. Appellant's notice of appeal, therefore, was
Guernsey County, Case No. 19 CA 3 5
untimely filed pursuant to App. R. 4(A) because it was not filed within thirty days of the
court's November 28, 2018 Entry.
{¶15} Accordingly, appellant's appeal is dismissed for lack of jurisdiction.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.