Wilcox v. Wilcox , 2018 Ohio 3642 ( 2018 )

[Cite as Wilcox v. Wilcox, 2018-Ohio-3642.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SARA N. WILCOX (BUTTS) : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
GRANT T. WILCOX : Case No. 17-CA-90
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 2015 DR 00574
JUDGMENT: Dismissed
DATE OF JUDGMENT: September 7, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SARA N. BUTTS ERIC J. ALLEN
9268 Mulberry Road 4605 Morse Road
Mount Perry, OH 43760 Suite 201
Gahanna, OH 43230
Licking County, Case No. 17-CA-90 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Grant T. Wilcox, appeals the November 13, 2017
judgment entry of the Court of Common Pleas of Licking County, Ohio, Domestic
Relations Division, denying his motion for reconsideration. Plaintiff-Appellee is Sara N.
Wilcox (Butts).
FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties were granted a divorce on March 23, 2017. One child was born
as issue of the marriage. Appellee was named the residential parent and sole legal
custodian and guardian of the minor child.
{¶ 3} On April 21, 2017, appellee filed an ex parte motion for change of parenting
time, claiming appellant consumed alcohol in excess during his assigned parenting time
with the child. On April 28, 2017, appellant filed a motion to modify the divorce decree by
increasing his parenting time. Appellant also requested that appellee be found in
contempt for denying parenting time to his mother-supervisor on the child's birthday.
{¶ 4} A hearing before a magistrate was held on May 4, 2017. By order filed May
8, 2017, the magistrate temporarily modified appellant's parenting time to supervised
visitation at the Close to Home Supervised Visitation Center.
{¶ 5} The magistrate held a final hearing on the motions on July 26, 2017. By
decision filed September 27, 2017, the magistrate granted appellee's motion and modified
appellant's parenting time to occur at the Close to Home Supervised Visitation Center.
The magistrate denied appellant's motion to increase his parenting time and his request
to find appellee in contempt. On same date, the trial court approved and adopted the
magistrate's decision, and noticed the parties of their right to file objections.
Licking County, Case No. 17-CA-90 3
{¶ 6} On October 9, 2017, appellant requested a transcript and an extension to
file objections to the magistrate's decision. By judgment entry filed October 11, 2017, the
trial court found the certificate of service did not contain a date of service and ordered
appellant to correct the defect by October 20, 2017. The trial court stated failure to do so
would result in a denial of any extension. The trial court went on to grant appellant an
extension until fourteen days within preparation of the transcript if the transcript is
requested and the deposit is paid by October 25, 2017, and the final cost of the transcript
is paid within two weeks of it being prepared.
{¶ 7} On October 31, 2017, the trial court filed a judgment entry wherein it found
appellant had requested and paid the deposit for a transcript in a timely manner, but had
failed to correct the service defect. As a result, the trial court denied appellant's request
for an extension of time to file objections. The trial court went on to find that appellant
had until October 16, 2017 to file objections and that date had passed.
{¶ 8} On November 9, 2017, appellant filed a motion for reconsideration of the
October 31, 2017 judgment entry, claiming the trial court permitted appellee to file
objections on a separate matter without a proper proof of service. By judgment entry filed
November 13, 2017, the trial court denied the motion to reconsider and struck appellee's
objections for failure to properly provide a proof of service.
{¶ 9} On November 14, 2017, appellant filed a motion for reconsideration nearly
identical to the November 9, 2017 motion. By judgment entry filed November 16, 2017,
the trial court denied the motion.
Licking County, Case No. 17-CA-90 4
{¶ 10} On November 30, 2017, appellant filed an appeal on the trial court's
November 13, 2017 judgment entry denying his first motion for reconsideration. This
matter is now before this court for consideration. Assignment of error is as follows:
I
{¶ 11} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION FOR RECONSIDERATION."
I
{¶ 12} In his sole assignment of error, appellant claims the trial court erred in
denying his motion for reconsideration. We find we do not have jurisdiction to address
the merits of appellant's assignments of error. Appellant did not timely file his objections
to the magistrate's decision pursuant to Civ.R. 53(D)(3)(b)(i), nor did he file a timely
appeal pursuant to App.R. 4(A).
{¶ 13} Pursuant to Civ.R. 53(D)(3)(b)(i), "[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 no objections are timely filed, App.R. 4(A) provides that a party may file
a notice of appeal within thirty days after the trial court enters its judgment adopting the
magistrate's decision.
{¶ 14} In this case, the magistrate filed her decision on September 27, 2017. The
trial court approved and adopted the decision on the same date, and noticed the parties
as follows:
Licking County, Case No. 17-CA-90 5
The parties have a right to file objections to the Magistrate's decision
pursuant to the Notice to Parties attached to the decision. If either party
files timely objections to the decision, the objections shall act as an
automatic stay of the execution of this Judgment Entry. * * * The party
intending to file objections shall file a general objection; a motion, with
proposed Order, to extend the time for filing supplemental objections; and
a request for a transcript. Filing only a request for a transcript and a request
to extend time to file objections shall not stay the execution of this Judgment
Entry.
{¶ 15} On October 9, 2017, appellant filed a request to prepare transcript. On
same date, appellant filed a request for an extension to file objections. The certificates
of service were improperly executed. By judgment entry filed October 11, 2017, the trial
court ordered appellant to correct the defect on the extension request by October 20,
2017. Appellant did not do so. By judgment entry filed October 31, 2017, the trial court
found appellant failed to certify that appellee had been served a copy of the motion and
therefore denied the extension request. As noted by the trial court, the trial court "waited
an additional ten (10) days to see if the Defendant would correct the defect after the
deadline had lapsed. No such action was taken." The trial court went on to find that
appellant had until October 16, 2017 to file objections and that day had already passed.1
1We note the trial court entered its ruling after or on the thirtieth day for appellant to have
filed an appeal of the trial court's September 27, 2017 judgment entry depending on
whether a three day extension was warranted under Civ.R. 6(D). However, appellant
could have filed a general objection as instructed by the trial court which would have
Licking County, Case No. 17-CA-90 6
{¶ 16} Without timely objections to the magistrate's decision, the trial court's
September 27, 2017 judgment entry remained in effect. Appellant did not file an appeal
of the trial court's September 27, or October 31, 2017 decisions pursuant to App.R. 4(A),
but instead filed a motion to reconsider on November 9, 2017, the denial of which is what
appellant appealed.
{¶ 17} "The Ohio Rules of Civil Procedure do not provide for motions for
reconsideration, therefore such motions are considered a nullity." McCullough v. Catholic
Diocese of Columbus, 5th Dist. Fairfield No. 99CA77, 2000 WL 329658, *1 (Mar. 13,
2000), citing Pitts v. Department of Transportation, 67 Ohio St. 2d 378, 423 N.E.2d 1105
(1981). Accord Merkle v. Merkle, 5th Dist. Licking No. 13-CA-31, 2014-Ohio-81; Primmer
v. Lipp, 5th Dist. Fairfield No. 02-CA-94, 2003-Ohio-3577. "It follows that a judgment
entered on a motion for reconsideration is also a nullity and a party cannot appeal from
such a judgment." McCullough, citing Kauder v. Kauder, 38 Ohio St. 2d 265, 313 N.E.2d
797 (1974); Primmer at ¶ 7.
{¶ 18} Because appellant appealed the trial court's denial of his motion for
reconsideration which is a nullity, we lack jurisdiction to entertain appellant's appeal.
stayed the execution of the judgment or could have corrected the defect which he chose
not to do.
Licking County, Case No. 17-CA-90 7
{¶ 19} Accordingly, the appeal is dismissed.
By Wise, Earle, J.
Wise, John, P.J. and
Gwin, J. concur.
EEW/db 827