[This opinion has been published in Ohio Official Reports at
70 Ohio St.3d 172.]
STRACK, APPELLANT, v. PELTON, F.K.A. STRACK, APPELLEE.
[Cite as Strack v. Pelton, 1994-Ohio-107.]
Civil procedure—Motion for relief from judgment pursuant to Civ.R. 60(B) is not
timely when filed more than one year after judgment, and more than one
year after the new evidence upon which it is based became admissible.
(No. 93-1070—Submitted May 25, 1994—Decided August 31, 1994.)
Appeal from the Court of Appeals for Ashtabula County, No. 92-A-1751.
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{¶ 1} On October 19, 1977, appellant, David A. Strack, filed a complaint
for a divorce from his wife, appellee, Donna M. Strack (now Pelton). David alleged
in the complaint that no children were born as issue of the marriage. Donna alleged
in her answer that she was pregnant with a child of the marriage. Blood-grouping
tests were conducted on the parties and revealed that David could not be excluded
as father of the child in question.
{¶ 2} In June 1978, the trial court entered its judgment granting the parties
a divorce. This divorce decree stated that one child had been born as issue of the
marriage and ordered David to pay $40 per week in child support until the child
reached the age of eighteen.
{¶ 3} In October 1987, nine years after the judgment of divorce, appellant
filed a motion for a human leukocyte antigen ("HLA") genetic test to determine
conclusively his paternity of the child in question. The results of the HLA test
excluded appellant as the father of the child.
{¶ 4} On January 22, 1990, David filed a motion pursuant to Civ.R. 60(B)
for relief from certain aspects of the divorce decree as it related to paternity and
child support of the parties' child.
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{¶ 5} David testified at a hearing on the motion that the parties had not
engaged in sexual intercourse at all during the 1977 calendar year. Donna admitted
that towards the end of April 1977, while she was intoxicated, she had a sexual
"incident" (but not intercourse) with an unknown man named "Jim." The child in
question was born nine months later on January 18, 1978. The trial court overruled
David's motion, and the court of appeals affirmed.
{¶ 6} The cause is now before this court pursuant to an allowance of a
motion to certify the record.
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Bobulsky & Grdina and Samuel L. Altier, for appellant.
Robert S. Wynn, for appellee.
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MOYER, C.J.
{¶ 7} This case presents the question whether a motion for relief from
judgment pursuant to Civ.R. 60(B) is timely when filed more than one year after
judgment, and more than one year after the new evidence upon which it is based
became admissible. For the following reasons, we hold that it is not.
{¶ 8} Civ.R. 60(B) provides in part:
"On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)
newly discovered evidence which by due diligence could not have been discovered
in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation or other misconduct of an
adverse party; (4) the judgment is satisfied, released or discharged, or a prior
judgment upon which it has been based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should have prospective application; or
(5) any other reason justifying relief from judgment. The motion shall be made
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within a reasonable time, and for reasons (1), (2) and (3) not more than one year
after the judgment, order or proceeding was entered or taken. A motion under
subdivision (B) does not affect the finality of a judgment or suspend its operation."
{¶ 9} In order for a party to prevail on a motion for relief from judgment
under Civ.R. 60(B), the movant must demonstrate the following:
"(1) the party has a meritorious defense or claim to present if relief is
granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.
60(B)(1) through (5); and (3) the motion is made within a reasonable time, and,
where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year
after the judgment, order or proceeding was entered or taken." GTE Automatic
Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146,
1 O.O.3d 86,
351 N.E.2d
113, paragraph two of the syllabus.
{¶ 10} These requirements are independent and in the conjunctive; thus the
test is not fulfilled if any one of the requirements is not met. Id. at 151,
1 O.O.3d
at 88,
351 N.E.2d at 116. The standard by which we review a decision on a Civ.R.
60(B) motion is abuse of discretion. See Rose Chevrolet, Inc. v. Adams (1988),
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Ohio St.3d 17, 20,
520 N.E.2d 564, 566.
{¶ 11} Appellant alleges his claim is meritorious because the results of an
HLA blood test disqualify him as the father of the child in question. The test results
are admissible to determine paternity pursuant to R.C. 3111.09 and 3111.10. Thus,
Strack argues, he may have a "meritorious claim" for the purpose of Civ.R. 60(B)
analysis.
{¶ 12} Second, appellant argues he is entitled to relief under one of the
provisions of Civ.R. 60(B)(1) through (5) because he has come forward with new
evidence, a proper ground under Civ.R. 60(B)(2).
{¶ 13} Appellant asserts that his claim falls under Civ.R. 60(B)(4) and (5),
and not the more specific provision that deals with newly discovered evidence. We
disagree. The basis of Strack's motion is test results that were not available at the
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time of the divorce decree. The results are evidence; they are newly discovered. A
straightforward and logical reading of Civ.R. 60(B)(2) dictates that it applies.
{¶ 14} Civ.R. 60(B)(5) applies only when a more specific provision does
not apply. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 66, 5 OBR 120,
122,
448 N.E.2d 1365, 1367. Here, Civ.R. 60(B)(2) specifically addresses newly
discovered evidence; thus, there is no reason to invoke the less specific catchall
provision, Civ.R. 60(B)(5). The claim under Civ.R. 60(B)(4) fails for similar
reasons. We hold, therefore, that Civ.R. 60(B)(2) is the provision of the rule that
applies to Strack's claim.
{¶ 15} The third prong of the Civ.R. 60(B) test is that the motion must be
made within a reasonable time, and where the grounds for relief are Civ.R.
60(B)(1), (2) or (3), not more than one year after judgment. See GTE, supra. Strack
filed his Civ.R. 60(B) motion in 1987, approximately nine years after the judgment
of divorce and five years after the results of genetic testing became admissible in
this state. R.C. 3111.09 and 3111.10. This filing delay falls far outside the oneyear time limitation imposed by Civ.R. 60(B)(2). The fact that Strack filed his
motion shortly after he received the results of the genetic testing is not legally
relevant. The time limits of Civ.R. 60(B) refer to the judgment from which relief
is sought, and not to the time of discovery of the new evidence. Strack bears some
responsibility to assert timely his new evidence. The law cannot assume lack of
knowledge of the admissibility of HLA test results. We decline the invitation to
alter the clear meaning of Civ.R. 60(B).
{¶ 16} Even if we were to apply Civ.R. 60(B) loosely and allow extra time
not provided for by the rule, we would have to look to the time when the evidence
became admissible to determine paternity, in this case 1982. Because Strack asserts
that he has contested paternity of the minor child from before the time of the divorce
decree, we may impute to him the knowledge of the newly developed technology
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January Term, 1994
to support his claim. For these reasons, we concur with the trial court's
determination that Strack did not file his Civ.R. 60(B) motion in a timely manner.
{¶ 17} We are not unaware that our decision in effect declares as static a
state of facts that reliable scientific evidence contradicts. Nonetheless, there are
compelling reasons that support such a decision. A claim under Civ.R. 60(B)
requires the court to carefully consider the two conflicting principles of finality and
perfection. In Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144-145, 24 OBR 362,
364,
493 N.E.2d 1353, 1356, this court declared, "[f]inality requires that there be
some end to every lawsuit, thus producing certainty in the law and public
confidence in the system's ability to resolve disputes. Perfection requires that every
case be litigated until a perfect result is achieved. For obvious reasons, courts have
typically placed finality above perfection in the hierarchy of values." Finality is
particularly compelling in a case involving determinations of parentage, visitation
and support of a minor child.
{¶ 18} For the foregoing reasons, we affirm the judgment of the court of
appeals.
Judgment affirmed.
A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK and F.E. SWEENEY, JJ.,
concur.
PFEIFER, J., dissents.
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PFEIFER, J., dissenting.
{¶ 19} Civ. R. 60(B)(4) is the applicable provision in this case. The
judgment against Strack in 1978 placed a continuing obligation upon him, an
obligation that it is inequitable, even ridiculous, to continue to apply, given that the
facts upon which it was based have been unmistakably disproved.
{¶ 20} The character of the judgment against Strack is specifically
addressed in Civ. R. 60(B)(4), in that it has continuing, prospective application.
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The judgment in this case need not be retroactively undone—but its prospective,
inequitable application can be stopped easily.
{¶ 21} Since Civ. R. 60(B)(4) is the applicable provision, a motion
thereunder must be made "within a reasonable time." In paternity cases, the extent
of the relationship between the wrongly identified "father" and the child will be the
key factor in the determination. If the child has come to rely upon the "father" for
both financial and emotional support, the reasonable time period has expired.
{¶ 22} In the present case, however, the lack of a relationship between
Strack and the child is evidence that Strack did file his motion within a reasonable
time. Strack has not seen the child, who is now sixteen years old, for twelve years.
He has grown up without Strack's support and guidance. In fact, the child already
has a father figure with whom he and his mother live, who presumably provides
what the family needs. In short, Strack serves no function to the child, and their
legal separation would do no emotional harm to the child.
{¶ 23} There is no reason for this court to indulge in a legal fiction which
forces the parties involved to continue living a lie. Strack should not be refunded
any of the payments he made prior to the filing of his motion, but he should not be
forced to continue to pay child support where he has no biological or psychological
connection with the child. Certainly, Rule 60(B)(4) provides the means to correct
a continuing mistake.
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