Thirion v. Thirion
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[Cite as Thirion v. Thirion, 2004-Ohio-6178.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO ELAINE THIRION, Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2004-L-132 - vs - : JOSEPH P. THIRION, Defendant-Appellant. : : Civil appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 01 DR 000231. Judgment: Appeal dismissed. Donald J. Ezzone, Donald J. Ezzone Co., L.P.A., Interstate Square Building I, 4230 State Route 306, #240, Willoughby, OH 44094 (For Plaintiff-Appellee). Joseph P. Thirion, pro se, 2641 State Route 7, Andover, OH 44003 (DefendantAppellant). JUDITH A. CHRISTLEY, J. {¶1} On August 5, 2004, appellant, Joseph P. Thirion, filed a notice of appeal from a September 12, 2003 judgment of the Lake County Court of Common Pleas, Domestic Relations Division. In that judgment, the trial court granted the parties a divorce. Thus, appellant s notice of appeal was filed almost eleven months after the judgment had been issued by the trial court. {¶2} App.R. 4(A) states: {¶3} A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure. {¶4} Loc.R. 5(C) of the Eleventh District Court of Appeals provides: {¶5} In the filing of a Notice of Appeal in civil cases in which the trial court clerk has not complied with Civ.R. 58(B), and the Notice of Appeal is deemed to be filed out of rule, appellant shall attach an affidavit from the trial court clerk stating that service was not perfected pursuant to App.R. 4(A). The clerk shall then perfect service and furnish this Court with a copy of the appearance docket in which date of service has been noted. Lack of compliance shall result in the sua sponte dismissal of the appeal under App.R. 4(A). (Emphasis sic.) {¶6} In the present case, appellant has not complied with the thirty-day rule set forth in App.R. 4(A) nor has appellant alleged that there was a failure by the trial court clerk to comply with Civ.R. 58(B). The time requirement is jurisdictional in nature, and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. of Elections (1988), 40 Ohio St.3d 58, 60; App.R. 14(B). {¶7} Accordingly, this appeal is dismissed sua sponte pursuant to App.R. 4(A). DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur. 2
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