[Cite as Kleemeier v. Schlau, 2014-Ohio-468.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



MADELINE M., n.k.a. MADELINE                    :   APPEAL NO. C-130361
KLEEMEIER,                                          TRIAL NO. P08-242Z
                                                :
         Plaintiff-Appellee,
                                                :
   vs.                                                 O P I N I O N.
                                                :
STEPHEN SCHLAU,
                                                :
         Defendant-Appellant.




Civil Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 12, 2014



Cornetet, Meyer, Rush & Kirzner and Karen P. Meyer, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                         OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


           {¶1}    Defendant-appellant Stephen Schlau appeals the judgment of the

Hamilton County Juvenile Court dismissing his objections and adopting the decision

of the magistrate in this child-support matter. Because we determine that the trial

court erred in vacating the magistrate’s order granting Schlau an extension of time to

file objections and in failing to consider Schlau’s amended objections, we reverse the

trial court’s judgment and remand the matter to the trial court with instructions to

rule on Schlau’s amended objections.

           {¶2}    In 2008, a child-support order was registered in the trial court

ordering Schlau to pay support to plaintiff-appellee Madeline Kleemeier1 for the

benefit of their biological child, L.M. Kleemeier moved to modify that child-support

order in 2010. In connection with the request for modification, the magistrate

entered two decisions relevant to this appeal: one on April 19, 2012, (“the April 19

decision”) and one on May 1, 2012, (“the May 1 decision”). The trial court adopted

both the April 19 and the May 1 decisions, but the record does not reflect service of

those decisions on the parties or their counsel.

           {¶3}    On June 12, 2012, Schlau simultaneously filed a request for findings of

fact and conclusions of law and objections with respect to the May 1 decision.

Although captioned as objections, Schlau’s filing was essentially a request for an

extension of time to file objections, wherein Schlau asserted that he was never served

with the May 1 decision, and that he had discovered its existence only after the Child

Support Enforcement Agency (“CSEA”) contacted him on June 5.                             Schlau also


1   We note that Kleemeier did not file a brief with this court or otherwise appear in this appeal.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



reserved the right to file amended objections once the requested transcript had been

received.

       {¶4}   The magistrate entered an order on August 14, 2012, granting Schlau’s

request for an extension of time to file objections. The magistrate specifically found

that neither the parties nor their attorneys had been served with either the April 19

or May 1 decisions.

       {¶5}   Schlau filed amended objections on August 24, 2012.           Within his

objections, Schlau requested an extension of time with regard to the April 19

decision, stating that neither he, nor his counsel, had been served with that decision

and that he had only discovered the existence of the April 19 decision at a hearing in

front of the magistrate on June 24, 2012. Schlau also renewed his request for an

extension of time with regard to filing objections to the May 1 decision, but he did

not renew his request for findings of fact and conclusions of law. Schlau then stated

his objections to the merits of both the April 19 and May 1 decisions.

       {¶6}   On May 14, 2013, the trial court entered its decision adopting the

magistrate’s May 1 decision. In doing so, the trial court “dismissed” Schlau’s June

12, 2012 objections to the May 1 decision as filed out of time, and sua sponte set aside

the magistrate’s August 14, 2012 order granting Schlau an extension of time to file

objections. The trial court found that both parties had stated “on the record” that

they had received the May 1 decision, although the date of service was “unclear.” The

trial court also found that no objections had been filed with regard to the April 19

decision, and that Schlau had requested findings of fact and conclusions of law with

regard to the May 1 decision, but none had been filed by the trial court. Schlau now

appeals from the trial court’s decision.

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       {¶7}   We address Schlau’s four assignments of error together, all of which

challenge the trial court’s decision dismissing his objections and adopting the

magistrate’s May 1 decision. Schlau primarily argues that the trial court erred under

Civ.R. 53(D)(5) in vacating the magistrate’s order granting him an extension of time

to file objections where the record supported his assertion that he had never been

served with either the April 19 or May 1 decision.

       {¶8}   As an initial matter, we note that the Rules of Juvenile Procedure

govern a child-support matter before the juvenile court. See Juv.R. 1(A). Therefore,

we substitute Juv.R. 40, the equivalent to Civ.R. 53, in Schlau’s argument. See In re

K.M., 3d Dist. Shelby Nos. 17-11-15, 17-11-16 and 17-11-17, 2011-Ohio-3632, ¶ 19.

       {¶9}   In juvenile court, a magistrate’s decision must be served on all parties

or their attorneys within three days after the decision is filed. Juv.R. 40(D)(3)(a)(iii).

Service must be made in accordance with Civ.R. 5(B), which requires, in part,

completed proof of service. Juv.R. 20(B). A party normally must file objections to a

magistrate’s decision in juvenile court within 14 days after the decision is filed.

Juv.R. 40(D)(3)(b)(i). However, Juv.R. 40(D)(5) provides:

              For good cause shown, the court shall allow a

              reasonable extension of time for a party to file a motion

              to set aside a magistrate’s order or file objections to a

              magistrate’s decision. ‘Good cause’ includes, but is not

              limited to, a failure by the clerk to timely serve the party

              seeking the extension with the magistrate’s order or

              decision.

(Emphasis added.)

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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} Schlau contends that he was not served with either the April 19 or the

May 1 decision, and that he only became aware of the May 1 decision after the CSEA

contacted him on June 5, 2012. Similarly, Schlau contends that he only became

aware of the April 19 decision on June 24, 2012, at a hearing in front of the

magistrate. The record is devoid of any proof of service for the April 19 and May 1

decisions on either party or their attorneys, as required by Juv.R. 40(D)(3)(a)(iii)

and Juv.R. 20(B). Although the trial court found that the parties had stated “on the

record” that they had received the May 1 decision, the record belies such a finding.

       {¶11} The record supports Schlau’s assertion that neither he nor his attorney

was timely served with the April 19 and May 1 decisions, thus the trial court was

required to allow Schlau a reasonable extension of time to file objections. See Juv.R.

40(D)(5). Moreover, Schlau filed his amended objections within a reasonable period

of time—ten days after the entry of the magistrate’s order granting him an extension

of time to file. See May v. May, 4th Dist. Adams No. 11CA910, 2012-Ohio-2348, ¶ 25

(concluding that a trial court should have considered an appellant’s objections under

Civ.R. 53(D)(5) where the appellant had filed the objections, at the latest, 12 days

after having received the magistrate’s decision). Therefore, the trial court erred in

sua sponte vacating the magistrate’s order granting Schlau an extension of time, and

the trial court should have independently reviewed and ruled on Schlau’s amended

objections filed August 24, 2012, “to ascertain that the magistrate ha[d] properly

determined the factual issues and [had] appropriately applied the law.” See Juv.R.

40(D)(4)(d).

       {¶12} We sustain Schlau’s assignments of error to the extent that we

determine that the trial court erred in adopting the magistrate’s May 1 decision by

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                    OHIO FIRST DISTRICT COURT OF APPEALS



setting aside the magistrate’s order granting Schlau an extension of time to file

objections, and that the trial court should have considered Schlau’s amended

objections to the April 19 and May 1 decisions.

       {¶13} The judgment of the trial court is reversed, and this cause is remanded

to the trial court to rule on Schlau’s amended objections filed August 24, 2012, under

Juv.R. 40(D)(4)(d), and for proceedings consistent with the law and this opinion.

                                                Judgment reversed and cause remanded.


HENDON, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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