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Volpe v. Volpe

Court of Appeals of Ohio, Sixth District, Erie

December 20, 2019

Alice J. Volpe, nka Martin Appellee
v.
Leonard M. Volpe Appellant

          Trial Court No. 2006-DM-0020

          Shelly L. Kennedy, for appellant.

          DECISION AND JUDGMENT

          SINGER, J.

         {¶ 1} Appellant, Leonard Volpe, appeals the September 4, 2018 judgment of the Erie County Court of Common Pleas affirming the magistrate's decision to deny appellant's motion to modify spousal support. For the following reasons, we affirm.

         {¶ 2} Appellant sets forth one assignment of error:

The trial court errored [sic] as a matter of law by not serving the appellant with the magistrate's decision until the expiration of the 14-day objection period so as to prejudice the appellant by not giving him the meaningful opportunity to file objections to the magistrate's decision.

         Facts

         {¶ 3} In 2006, appellant and his former wife were granted a dissolution by the trial court, and in the decree of dissolution, appellant was ordered to pay spousal support.

         {¶ 4} On March 8, 2010, appellant filed a motion to modify spousal support and stay of collections enforcement due to a job loss. In August 2010, an evidentiary hearing on the matter was held before a magistrate.

         {¶ 5} Almost eight years later, on July 19, 2018, the magistrate issued his decision recommending that the motion to modify spousal support and requested stay be denied.[1] On September 4, 2018, the trial court affirmed the magistrate's decision and denied the motion to modify spousal support and stay of collections enforcement.

         {¶ 6} On October 3, 2018, appellant filed a pro se notice of appeal from the magistrate's decision. On November 5, 2018, we ordered appellant to file an amended notice of appeal from the September 4, 2018 final order of the court. Thereafter appellant, via counsel, filed an appellate brief, in which it was asserted that appellant was appealing from the trial court's September 4, 2018 judgment entry.

         Argument

         {¶ 7} Appellant argues the trial court erred in denying his motion to modify spousal support and affirming the magistrate's decision because the clerk did not serve him with a copy of the July 19, 2018 decision prior to the expiration of the 14-day objection period, in violation of Civ.R. 53(D)(3)(a)(iii). Appellant contends the court's failure to comply with Civ.R. 53 deprived him of a meaningful opportunity to file objections to the magistrate's decision. Appellant submits he filed untimely objections to the magistrate's decision, on October 10, 2018, but the court did not accept them, ruling on October 17, 2018 that "there is no pending Magistrate's Decision from which to object." Appellant claims the court blamed him for failing to keep the clerk apprised of his current address, which appellant maintains is false, as he notified the clerk's office of his new address on January 10, 2017.

         {¶ 8} Appellant requests an order remanding the case to the trial court for him to file objections to the magistrate's decision, and for the trial court to conduct ...


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