SANDRA S. STEVENS v. MARK L. STEVENS
C.A. No. 17CA0084-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF MEDINA, OHIO
January 28, 2019
[Cite as Stevens v. Stevens, 2019-Ohio-264.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 17DR0260
Dated: January 28, 2019
CARR, Judge.
{¶1} Appellant Mark Stevens (“Husband“) appeals, pro se, from judgments of the Medina County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} In 1996, Husband married Appellee Sandra Stevens (Wife). No children were born of the marriage. In May 2015, the martial home burned to the ground and Husband was ultimately convicted of aggravated arson. In June 2017, Wife filed a complaint for divorce.
{¶3} On June 9, 2017, a notice of “Uncontested or Case Management Hearing” for August 9, 2017 was filed. Thereafter, Husband, who was incarcerated, filed a motion to participate in the hearing by telephоne. Husband also filed a motion for leave instanter to timely file his answer. Wife, appearing pro se, responded to Husband‘s motion to participate by telephone by filing her own mоtion requesting that Husband‘s motion be denied.
{¶5} On September 27, 2017, Husband filed a motion for a forty-five day extension оf time to file objections to the magistrate‘s decision. Husband asserted that the extension was required “to obtain documents from the Clerk assuring the Defendant was properly served by the Plaintiff since he did not receive service of her July 25, 2017 Request to Deny Defendant to Participate by Telephone that was granted after the hearing was held.” Thereafter, without the trial court ruling оn his motion, on October 23, 2017, Husband filed his objections to the magistrate‘s decision. A transcript of the proceedings was not filed in the trial court. On November 7, 2017, the trial court denied Husband‘s motion for аn extension of time.
{¶6} Husband filed a notice of appeal on December 1, 2017, challenging the denial of his motion for an extension of time and the divorce decree.
II.
Jurisdiction
{¶7} Before wе address Husband‘s assignments of error, we pause to consider our jurisdiction. “This Court is obligated to raise sua sponte questions related to our jurisdiction.” Roman v. Kalk, 9th Dist. Summit No. 28712, 2018-Ohio-2502, ¶ 10, citing Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972). “Even if a trial court‘s journal entry is a judgment or finаl order, it is not appealable if it does not comply with the rules prescribed by the Ohio Supreme Court regarding the timing of appeals.” Zaffer v. Zaffer, 9th Dist. Lorain No. 10CA009884, 2011-Ohio-3625, ¶ 3.
{¶8}
(1) Appeal from order that is final upon its entry. Subject to the provisions of
App.R. 4(A)(3) , a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required byApp.R. 3 within 30 days of that entry.(2) Appeal from order that is not final upon its entry. Subject to the provisions of
App.R. 4(A)(3) , a party who wishes to appeal from an order that is not final upon its entry but subsequently becomes final--such as an order that merges into a final ordеr entered by the clerk or that becomes final upon dismissal of the action--shall file the notice of appeal required byApp.R. 3 within 30 days of the date on which the order becomes final.(3) Delay of clerk‘s service in civil case. In a civil case, if the clerk has not completed service of the order within the three-day period prescribed in
Civ.R. 58(B) , the 30-day periods referenced inApp.R. 4(A)(1) and4(A)(2) begin to run on the date when the clerk actually completes service.
{¶9}
{¶10} While Husband‘s appeal from the November 2017 entry would be timely, on its face, Husband‘s appeal from the divorce decree appears untimely. In this case, the trial court seems to have attempted to direct the clerk of courts to serve the divorce decree on the parties by writing “cc: Sandra S. Stevens nkа Shaw[,] Mark L. Stevens[,]” below the signature line on the
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE HUSBAND‘S MOTION FOR AN EXTENSION OF TIME TO FILE OBJECTIONS AGAINST THE MAGISTRATE‘S DECISION SERVED[.] (SIC)
{¶11} Husband argues in his first assignment of error that the trial court erred in failing to grant his motion for an extension of time to file objections. Specifically, he argues that “good cause” for granting the motion existed because the clerk failed to sеrve him with the magistrate‘s decision. See
{¶12}
{¶13} However, Husband did not argue in his motion for an extension of time that he was not served with the magistrate‘s decision. Instead, he asserted that a 45-day extension was warrаnted so that he could “obtain documents from the Clerk assuring the Defendant was properly served by the Plaintiff since he did not receive service of her July 25, 2017 Request to
{¶14} Husband‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE MAGISTRATE ERRED WHEN IT CONSIDERED THE WIFE‘S REQUEST TO DENY THE HUSBAND‘S MOTION TO PARTICIPATE BY TELEPHONE WITHOUT A PROPER CERTIFICATE OF SERVICE[.]
ASSIGNMENT OF ERROR III
THE MAGISTRATE ERRED WHEN HE PERMITTED EVIDENCE FROM THE HUSBAND‘S CRIMINAL CONVICTION THAT RESULTED FROM A NO-CONTEST PLEA.
ASSIGNMENT OF ERROR IV
THE HUSBAND WAS DENIED HIS DUE PROCESS RIGHTS EMBEDDED IN THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶15} Husband argues in his second assignment of error that the magistrate erred in considering Wife‘s motion to deny Husband‘s participation at the hearing by telephone when Wife‘s motion did not contain a proper certificate of service. Husband argues in his third assignment of error that the magistrate erred when the magistrate permitted evidence from
{¶16} Husband could have objected to the magistrate‘s decision based upon each of these issues, and in fact attempted to do so. However, Husband did not timely file objections.
{¶17} Here, not only did Husband fail to timely object to the magistrate‘s decision, he also has failed to develop a plain error argument on appeal. This Court will not create a plain error argument for him. See Horak v. Decker, 9th Dist. Summit No. 28731, 2018-Ohio-3659, ¶ 41. In addition, Husband never filed a transcript of the hearing in the trial court or in this Court. Accordingly, we would be unable to fully review the mеrits of the issues even if Husband had argued plain error. Finally, Husband has framed his arguments in terms of errors by the magistrate, instead of errors by the trial court. See Lathan v. Andrews, 9th Dist. Summit No. 28382, 2017-Ohio-4419, ¶ 14 (“[T]his Court has held that claims of error on aрpeal must be based on the actions of the trial court.“).
III.
{¶19} Husband‘s assignments of error are overruled. The judgment оf the Medina 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 Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal еntry 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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
CALLAHAN, J.
CONCUR.
APPEARANCES:
MARK L. STEVENS, pro se, Appellant.
SUSAN J. LAX, Attorney at Law, for Appellee.