McGilton v. McGilton

2024 Ohio 219

• Court: Ohio Court of Appeals
• Decided: January 22, 2024
• Docket: 2023-P-0098
• Status: Published

Opinion

[Cite as McGilton v. McGilton, 2024-Ohio-219.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

AMBER D. MCGILTON, CASE NO. 2023-P-0098

Petitioner-Appellee, Civil Appeal from the - vs - Court of Common Pleas, Domestic Relations Division BRENT L. MCGILTON,

Respondent-Appellant. Trial Court No. 2023 DR 00642

MEMORANDUM OPINION

Decided: January 22, 2024 Judgment: Appeal dismissed

Laura A. Luka, Luka Brown, LLP, P.O. Box 2729, Toledo, OH 43606 (For Petitioner- Appellee).

Brent L. McGilton, pro se, PID# 3484799, Ohio County Correctional Center, 1501 Eoff Street, Wheeling, WV 26003 (Respondent-Appellant).

ROBERT J. PATTON, J.

{¶1} On December 6, 2023, appellant, Brent L. McGilton, filed a pro se appeal

from a November 3, 2023 entry.

{¶2} App.R. 3(A) expressly states that the only jurisdictional requirement for filing

a valid appeal is to file it within the time allowed by App.R. 4. The Supreme Court has

held that the failure to comply with the time requirements of App.R. 4(A) is a jurisdictional

defect, which is fatal to an appeal. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 17,

citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60 (1988). {¶3} “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 by App.R.

3 within 30 days of that entry.” See App.R. 4(A)(1). Civ.R. 58(B) directs the clerk of

courts to serve the parties with notice of the entry within three days of entering the

judgment upon the journal. If Civ.R. 58(B) service does not occur within three days, the

time to appeal does not begin to run until service is made and noted in the appearance

docket. Coles v. Lawyers Title Ins. Corp., 163 Ohio App.3d 659, 664, 2005-Ohio-5360.

{¶4} Here, the trial court issued its entry on November 3, 2023. The clerk of

courts noted on the appearance docket that notice of the entry under Civ.R. 58(B) was

issued to the parties on that same date. Therefore, pursuant Civ.R. 58(B), the time to

appeal began to run from November 3, 2023. The deadline for appellant to file his notice

of appeal was December 4, 2023, which was not a holiday or a weekend. Thus,

appellant’s December 6, 2023 notice of appeal was untimely filed by 2 days.

{¶5} This court is not empowered to extend the time deadline in civil cases.

Pendell, supra at 60; see also App.R. 14(B).

{¶6} Based upon the foregoing, this appeal is dismissed as untimely pursuant to

App.R. 4(A)(1).

EUGENE A. LUCCI, P.J.,

MATT LYNCH, J.,

concur.

Case No. 2023-P-0098