[Cite as In re E.B.,
2023-Ohio-2089.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
In re E.B. Court of Appeals No. WD-22-060
Trial Court No. 2021JI0072
DECISION AND JUDGMENT
Decided: June 23, 2023
…
James S. Ardray, for appellee.
Christine M. Smith, for appellant.
…
MAYLE, J.
{¶ 1} Appellant, H.R., on behalf of her child, E.B., appeals the August 23, 2022
judgment of the Wood County Court of Common Pleas, Juvenile Division, denying her
motion for relief from judgment under Civ.R. 60(B), and declining to set aside an
acknowledgment of paternity, pursuant to which appellee, R.B., is recognized as the
child’s legal father. For the following reasons, we reverse the trial court judgment and
remand this matter to the trial court.
I. Background
{¶ 2} H.R. (“mother”) is the mother of E.B. (born in April of 2019). At the time
of E.B.’s birth, mother was in a relationship with R.B. (“father”); they lived together, but
were not married. Both believed that R.B. was the biological father of E.B. On
September 30, 2019, they executed a voluntary acknowledgment of paternity pursuant to
which R.B. is recognized as the child’s legal father.
{¶ 3} By February of 2020, mother and father’s relationship had soured, and
mother, E.B., and mother’s two older children from previous relationships, moved out of
the home they shared with father. Although no formal custody arrangement existed,
father exercised parenting time with E.B. on Wednesdays and weekends.
{¶ 4} Sometime in December of 2020, T.M., with whom mother had had a single
sexual encounter, saw a picture of E.B. on social media and observed that E.B. looked
much like he did at the same age. He reached out to mother, who too saw the
resemblance, and she agreed to genetic testing to determine if T.M. was E.B.’s biological
father. Test results dated January 25, 2021, confirmed that E.B.’s biological father is, in
fact, T.M. (“biological father”).
{¶ 5} On February 10, 2021, mother—purportedly on behalf of the child—filed a
complaint in parentage asserting that based on the results of the genetic tests, the court
should find that a parent-child relationship exists between E.B. and T.M., E.B.’s birth
certificate filed with the Bureau of Vital Statistics should be corrected to reflect that T.M.
2.
is E.B.’s father, child support should be established, and parenting time should be
ordered.1 Biological father filed a motion for visitation.
{¶ 6} Beginning in April of 2021, mother prevented father from visiting with E.B.
On April 23, 2021, father moved to establish visitation rights. On May 10, 2021, he
moved for custody and to dismiss mother’s complaint and biological father’s motion for
lack of standing. In a written decision filed July 15, 2021, the magistrate recommended
that father’s motion be granted. Mother filed objections, as did T.M. Mother also filed a
Civ.R. 60(B) motion for relief from judgment. The trial court overruled mother and
T.M.’s objections and adopted the magistrate’s July 15, 2021 decision. Despite the fact
that this meant that father’s motion to dismiss had been granted—which would ordinarily
bring an end to the action—it ordered that the case would remain open for consideration
of mother’s motion for relief from judgment.
{¶ 7} On May 9, 2022, the magistrate conducted a hearing on mother’s Civ.R.
60(B) motion, at which mother, father, and biological father testified. In a written
decision filed June 6, 2022, the magistrate recommended that mother’s motion be denied.
Mother filed objections to the magistrate’s decision. In a judgment entered on August 23,
2022, the trial court overruled mother’s objections and adopted the magistrate’s decision.
Mother appealed. She assigns the following errors for our review:
1
For reasons that will become apparent, we characterize the arguments and claims here
as belonging to mother.
3.
I. THE TRIAL COURT ERRONEOUSLY INTERPRETED AND
RELIED UPON DECISIONS MADE IN CUYAHOGA ENFORCEMENT
AGENCY V. GUTHRIE (1999), 84 OHIO ST.3D 437 AND
POSKARBIEWICZ V. POSKARBIEWICZ (NO. L-01-1305 MAR. 22, 2002)
2002-OHIO-3666 IN DETERMINING THAT THE MOTION FOR
RELIEF FROM JUDGMENT RELIED UPON NEWLY DISCOVERED
EVIDENCE SO THE CHILD IS PRECLUDED FROM ARGUING AND
THE COURT FROM CONSIDERING CIV.R. 60(B)(5) AS A BASIS FOR
RELIEF[.]
II. THE TRIAL COURT’S TREATMENT OF GENETIC
TESTING AS NEWLY DISCOVERED EVIDENCE DENIES DUE
PROCESS AND EQUAL PROTECTION OF THE LAW AS APPLIED
AND IGNORS [sic] THE SYLLABUS IN GUTHRIE[.]
III. THE COURTS OF APPEAL IN OHIO ARE IN CONFLICT
AS TO THE APPLICATION OF CIV.R. 60(B) AS TO THE
ADJUDICATION OF PATERNITY[.]
IV. THE OVERRIDING OBJECTIVE OF THE CIV.R. 60(B) IS
TO AFFECT [sic] JUSTICE. POLICY CONSIDERATIONS OF THE
UNIFORM PARENTAGE ACT[,] PARTS OF WHICH HAVE BEEN
ADOPTED IN OHIO, DICTATE THE ADOPTION OF A DIFFERENT
JUDICIAL INTERPRETATION OF THE USE OF THIS MECHANISM.
4.
THE DECISION BY THE TRIAL COURT TO LIMIT THE
AVAILABILITY OF THE RELIEF IS AN ABUSE OF DISCRETION[.]
II. Law and Analysis
{¶ 8} In her first assignment of error, mother argues that the trial court misapplied
Ohio case law and erred in rejecting her claim that she was entitled to relief under Civ.R.
60(B)(4) or (5). In her second assignment of error, mother argues that by treating genetic
testing as newly-discovered evidence, the trial court denied her rights to due process and
equal protection under the law. In her third assignment of error, mother argues that there
is an interdistrict conflict as to the application of Civ.R. 60(B) as related to the
adjudication of paternity. And in her fourth assignment of error, mother argues that
policy considerations of the Uniform Parentage Act favor a different judicial
interpretation of Civ.R. 60(B) as a mechanism for vacating an acknowledgment of
paternity.
{¶ 9} Before addressing mother’s assignments of error, we will provide some
background concerning the procedure for establishing paternity under R.C. Chapter 3111,
and we will explain the underlying findings by the magistrate, which eventually led
mother to file her motion for relief from judgment. Because of its tangential relationship
to certain of mother’s arguments, we will also briefly discuss R.C. 3119.96 et seq.,
relating to relief from a paternity determination. We will then summarize the parties’
arguments in support of their positions on the Civ.R. 60(B) motion and the trial court’s
reasons for denying the motion.
5.
A. Procedure for Establishing Paternity
{¶ 10} As previously stated, mother and father executed a voluntary
acknowledgment of paternity on September 30, 2019. Under R.C. 3111.02, the parent
and child relationship between a child and the child’s natural father may be established
by an acknowledgment of paternity. A man is presumed to be the child’s natural father
where an acknowledgment of paternity has been filed and has not become final. R.C.
3111.03(A)(3). Once an acknowledgment of paternity becomes final, it is no longer just
a presumption and “shall be considered a final and enforceable determination of paternity
unless the acknowledgment is rescinded under [R.C.] 3111.28 or 3119.962.” R.C.
3111.03(B).
{¶ 11} Under R.C. 3111.25, “[a]n acknowledgment of paternity is final and
enforceable without ratification by a court when the acknowledgment has been filed with
the office of child support, the information on the acknowledgment has been entered in
the birth registry, and the acknowledgment has not been rescinded and is not subject to
possible recission” under R.C. 3111.27. “After an acknowledgment of paternity becomes
final and enforceable, the child is the child of the man who signed the acknowledgment
of paternity, as though born to him in lawful wedlock.” R.C. 3111.26. Except as
provided in R.C. 2151.232 or 3111.821, for an acknowledgment of paternity filed with
the office of child support to be rescinded, the following must occur:
6.
(1) Not later than sixty days after the date of the latest signature on
the acknowledgment, one of the persons who signed it must do both of the
following:
(a) Request a determination under [R.C.] 3111.38 … of whether
there is a parent and child relationship between the man who signed the
acknowledgment and the child who is the subject of it;
(b) Give the office written notice of having complied with division
(A)(1)(a) … and include in the notice the name of the child support
enforcement agency conducting genetic tests to determine whether there is
a parent and child relationship;
(2) An order must be issued under [R.C.] 3111.46 … determining
whether there is a parent and child relationship between the man and the
child.
(Emphasis added.) R.C. 3111.27(A). In other words, under this statute, unless someone
who has signed an acknowledgment of paternity takes action to rescind it within 60 days
after it is filed with the office of child support and entered in the birth registry, an
acknowledgment of paternity is final and enforceable.
{¶ 12} There is a second method for rescinding an acknowledgment of paternity.
Under R.C. 3111.28, after an acknowledgment becomes final, “a man presumed to be the
father of the child … who did not sign the acknowledgment, either person who signed
the acknowledgment, or a guardian or legal custodian of the child may bring an action to
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rescind the acknowledgment on the basis of fraud, duress, or material mistake of fact.”
(Emphasis added.) An action under R.C. 3111.28 must be brought “no later than one
year after the acknowledgment becomes final.” (Emphasis added.) Id. Restated, once an
acknowledgment of paternity becomes final, an action to rescind the acknowledgment
may be brought within one year of it becoming final by (1) a man presumed to be the
child’s father who did not sign the acknowledgment, (2) either person who signed the
acknowledgment, or (3) a guardian or legal custodian of the child, but only on the basis
of fraud, duress, or material mistake of fact.
{¶ 13} The magistrate observed that no one had alleged that there was any defect
in the acknowledgment of paternity or that it had not been filed with the office of child
support and entered in the birth registry. She also observed that neither mother nor father
had taken steps to rescind the acknowledgment within 60 days and no one had filed any
action within one year of the acknowledgment becoming final. As such, the magistrate
concluded that father is the legal father of the minor child and his “status as legal father is
a final enforceable order.”
{¶ 14} The magistrate further noted that Ohio does not recognize more than two
legal parents. And because the acknowledgment of paternity and the passage of time
rendered father’s status final and enforceable, mother’s complaint could not be viewed as
an action to determine the existence or nonexistence of a father and child relationship
under R.C. 3111.04. She explained that “to establish paternity anew,” mother “would
first need to successfully vacate the finding of paternity already in place.” The magistrate
8.
pointed out that no Civ.R. 60(B) motion had been filed, thus she declined to address the
potential application of Civ.R. 60(B) to the parties’ dispute.
B. Procedure for Challenging a Paternity Determination
{¶ 15} Although not directly pertinent to this matter, R.C. 3119.961(A) provides a
mechanism under which—“[n]otwithstanding the provisions to the contrary in Civil Rule
60(B)”—a (male) person may seek relief from a final judgment, court order, or
administrative determination or order (including an acknowledgment of paternity that has
become final) determining that he is the father of a child. Under R.C. 3119.962(A)(1), a
court shall grant relief from a final judgment, court order, or administrative determination
or order that determines that a person is the father of a child if “(a) [t]he court receives
genetic test results from a genetic test administered no more than six months prior to the
filing of the motion for relief that finds that there is a zero per cent probability that the
person or male minor is the father of the child; (b) [t]he person or male minor has not
adopted the child; and (c) [t]he child was not conceived as a result of artificial
insemination ….”
{¶ 16} If the person did not know that he was not the natural father of a child, a
court may not deny relief solely because (a) the person was required by a child support
order to support the child; (b) the person validly signed the child’s birth certificate as an
informant under former R.C. 3705.09; (c) the person was named in an acknowledgment
of paternity under former R.C. 2105.18; (d) the person was named in an acknowledgment
of paternity of the child that has become final under R.C. 2151.232, 3111.25, or
9.
3111.821 or former R.C. 3111.211 or 5101.314; (e) the person was presumed to be the
natural father of the child under R.C. 3111.03; (f) the person was presumed to be the
natural father of the child under former R.C. 3111.03(A)(3) or (5); (g) the person was
determined to be the father of the child in a parentage action under R.C. Chapter 3111; or
(h) the person otherwise admitted or acknowledged himself to be the child’s natural
father. R.C. 3119.962(A)(2)(a) to (h).
{¶ 17} Finally, a court may not grant relief from a final judgment, court order, or
administrative determination or order that determines that a person is the father of a child
if it determines, by a preponderance of the evidence, that the person knew that he was not
the natural father of the child before (1) any act listed in R.C. 3119.962 (A)(2)(a) to (d)
and (A)(2)(f) occurred; (2) the person was presumed to be the natural father of the child
under any of the circumstances listed in R.C. 3111.03(A)(1) to (3); or (3) the person
otherwise admitted or acknowledged himself to be the child’s father. R.C.
3119.962(B)(1) to (3).
{¶ 18} By its own terms, only a person who has been determined to be a father
may utilize the procedure set forth in R.C. 3119.96 et seq. See Demore v. Demore, 11th
Dist. Lake No. 2007-L-164, 2008-Ohio-1328, ¶ 20 (“[B]y its very language, R.C.
3119.961(A) only allows putative fathers—males, adult or minor—to challenge a prior
finding of paternity outside the parameters of Civ.R. 60(B).”).
10.
C. The Civ.R. 60(B) Motion
{¶ 19} After filing objections to the magistrate’s decision, but before the trial court
ruled on them, mother filed a motion for relief from judgment under Civ.R. 60(B). The
trial court overruled mother’s objections and adopted the magistrate’s decision, but
ordered that the case remain open so that it could rule on mother’s motion.
{¶ 20} Under Civ.R. 60(B), “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 …, misrepresentation or other misconduct of an adverse
party; (4) the judgment has been satisfied, released or discharged, or a prior judgment
upon which it is 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 the judgment.” A motion under Civ.R. 60(B) must be made 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.”
{¶ 21} The Supreme Court of Ohio has held that to prevail on a motion for relief
from judgment under Civ.R. 60(B), the moving party must demonstrate: “(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),
11.
(2) or (3), not more than one year after the judgment, order or proceeding was entered or
taken. GTE Automatic Electric, Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146,
351
N.E.2d 113 (1976), paragraph two of the syllabus.
{¶ 22} It is not entirely clear from her motion which provisions of Civ.R. 60(B)
mother relied on in seeking to vacate the judgment of paternity. Mother’s brief in support
of her motion was not neatly organized to correspond to any single provision, so we will
just briefly summarize the substance of her arguments.
{¶ 23} First, mother argued that while Article I, Section 16 of the Ohio
Constitution provides that “all courts shall be open, and every person … shall have
remedy by due course of law …,” the only opportunity that the child had here to
contest father’s paternity judgment was Civ.R. 60(B). She complained that “legal
fathers” have more avenues available to them than mothers, children, and natural fathers.
{¶ 24} Second, mother argued that a Civ.R. 60(B) motion should be granted when
a person mistakenly believes he is the child’s legal father, but genetic testing proves that
he is not. She insisted that it is in the child’s best interest that his biological father be
granted rights to rear the child. She contended that by failing to recognize a parent-child
relationship between a child and biological father, the child may be deprived of familial
bonds, cultural heritage, knowledge of family medical history, inheritance and
survivorship rights, religious attachments, language, family traditions, and biological
father’s special skills, education, and history. Mother maintained that E.B. had no
established relationship with father and no bonding had occurred between them—
12.
assertions that would later be proven false at the evidentiary hearing—and father has not
supported child.
{¶ 25} Third, mother argued, in essence, that father is not a good father and
biological father is a good father. She claimed that father had not supported, taken care
of, nurtured, or actively reared the child. She insisted that biological father is willing to
and has done these things. Mother maintained that “equity and good conscience”
required that the child be relieved “from any judgment that forces a relationship with”
father.
{¶ 26} Fourth, mother argued that “prospective application of [the] final judgment
raises things to an absurdity.” She maintained that father wants to be recognized as
E.B.’s legal father for “less than honorable reasons.” Mother emphasized that while there
had been no support order set, father could have voluntarily supported E.B., but has not.
She insisted that if the judgment is vacated, biological father stands ready, able, and
willing to support E.B.
{¶ 27} Fifth, mother argued that Civ.R. 60(B)(5) would allow the court to strike a
balance between “the sanctity of final judgments and the need for ongoing or executory
equitable remedies.” She insisted that vacating the judgment would not work a hardship
against any person “or create any significant problem with regard to the administration of
justice.” Mother claimed there was “no downside” to vacating the judgment and no
prejudice to father because father “has done absolutely nothing to help, assist or care for
the child since birth,” whereas relief from the prospective application of the judgment
13.
would create statutory duties for biological father that he is willing to honor and would
give him the right to participate in E.B.’s life.
{¶ 28} Finally, mother argued that the statutory scheme in Ohio’s Parentage Act is
unconstitutional because it violates child and biological father’s rights to due process and
equal protection under the law. She questioned why legal fathers should have access to
the courts to seek relief from a judgment of paternity, but no one else. Mother insisted
that R.C. 3111.04 permitted the child to pursue an action here, and by holding that R.C.
3111.04 is not available after paternity is established otherwise, Ohio courts violate the
rights of the child, biological father, and mother.
{¶ 29} Father responded that E.B. was not a party to the acknowledgment of
paternity, therefore, he lacks standing to alter the judgment or interfere with its
prospective effects. Moreover, father argued, if he was going to challenge the
acknowledgment, E.B. was required to do so within 60 days of its execution or, if he
could show fraud, duress, or a material mistake of fact, within one year; res judicata now
bars relitigation. Father claimed that mother was attempting to use Civ.R. 60(B) as a
substitute for appeal. He maintained that mother failed to follow the proper procedures
for challenging the constitutionality of the Ohio Parentage Act. Finally, father alleged
that mother was the actual party here whose objective was simply “to trade fathers.”
{¶ 30} The magistrate conducted an evidentiary hearing on May 9, 2022. Mother
and father both testified that they believed that he was the child’s biological father. They
executed an acknowledgment of paternity because father was not at the hospital during
14.
the hours when the employee responsible for filing birth certificates worked. Mother
claimed that she was afraid and cried on the way to the health department, however,
father disputed this. Mother claimed that father drank too much and did not help with
childcare. Both mother and father agreed that their relationship was “toxic.”
{¶ 31} Mother testified that she lived with father from April of 2019 until
February of 2020, when she and her three children moved out of father’s home. When
mother and her children lived with father, he did not charge her rent, but she paid for
cable, internet, and food. Father maintained health insurance for E.B. until January of
2021, when he learned that T.M. was E.B.’s biological father.; not knowing the law, he
did not believe that he would continue to be recognized as E.B.’s legal father. Mother
claimed that father sporadically provided financial assistance after mother moved out, but
provided practically no assistance after learning that he was not the biological father.
Father took the child tax credit for E.B. and did not share it with mother.
{¶ 32} Mother acknowledged that father was emotional when mother moved out
because he went from seeing E.B. all the time to not seeing him at all. She testified that
from the time she moved out in February of 2020, until January of 2021, father exercised
parenting time with the child. Father’s parents also love and visited with the child.
When with mother, E.B. calls T.M. “daddy” and calls R.B. “his Ryan.” When E.B. is
with R.B., he calls him dad. Father loves E.B. and does not want to walk away from him
despite the fact that they are not biologically related. Nevertheless, mother believes that
it is in E.B.’s best interest to remove father from E.B.’s life.
15.
{¶ 33} In April of 2021, mother texted father and told him that at the advice of her
attorney, he could not spend time with E.B. In September of 2021, the parties
compromised to permit E.B. time with father and this was reflected in a court order.
Father testified that when he picked E.B. up for the first time in September of 2021, E.B.
jumped into his arms and screamed “daddy.” Mother stopped abiding by the court order
in February of 2022.
{¶ 34} Mother explained that she first discovered that R.B. may not be E.B.’s
biological father when T.M. reached out to her concerning his resemblance to the child.
She had had nonconsensual sex with T.M. in September of 2018. She had heard that he
was “sterile” and she never told father about the incident because she was afraid. Genetic
testing in January of 2021, confirmed that T.M. is the biological father. Mother and T.M.
testified that T.M. has provided love, care, and financial support for mother, E.B., and
mother’s other children. Although they are not in a relationship and mother now lives
with another man, mother and biological father conceived a second child together, born
approximately two-and-a-half years after E.B. Biological father visits practically daily
and his family sees E.B. too. He has $150 per week directly deposited into mother’s
bank account and frequently buys other things for E.B. and mother’s other children.
Mother and biological father’s second child has a genetic illness, and they fear that E.B.
may also have inherited the illness.
{¶ 35} The magistrate reiterated that R.B. is E.B.’s legal father based on the
finality of the acknowledgment of paternity. She explained that once final and
16.
enforceable, an acknowledgment of paternity cannot be rebutted, even by the results of
genetic testing. The magistrate interpreted mother’s brief as an attempt to vacate the
acknowledgment of paternity rather than an attempt to vacate the court’s August 31, 2021
judgment confirming the enforceable finding of paternity.
{¶ 36} The magistrate rejected father’s position that E.B. lacked standing to
challenge the acknowledgment of paternity under Civ.R. 60(B). She found that as to the
request for relief itself, the child had a meritorious claim because the genetic test
established to a 99.99 percent certainty that T.M. is his biological father. The magistrate
went on to examine mother’s Civ.R. 60(B) motion under every possible ground—i.e.,
subsections (1) through (5).
{¶ 37} The magistrate found that the acknowledgment of paternity became final
and enforceable on September 30, 2020—one year after it was executed—therefore, a
Civ.R. 60(B) motion under (1), (2), or (3), would be timely if filed before September 29,
2021. She concluded that the motion was timely because it was filed August 25, 2021.
{¶ 38} Under Civ.R. 60(B)(1)—mistake, inadvertence, surprise or excusable
neglect—the magistrate identified that the mistake alleged here is that mother and father
executed the acknowledgment of paternity mistakenly believing that father was E.B.’s
biological father. The magistrate characterized the acknowledgment of paternity as a
consent judgment to which the parties voluntarily agreed. She observed that to attack a
consent judgment, the movant must show why he or she was justified in failing to avoid
the mistake or inadvertence—carelessness is insufficient.
17.
{¶ 39} The magistrate recognized that mother claimed that father forced her to
sign the acknowledgment, but the magistrate did not find this testimony credible,
particularly because the acknowledgment had been signed in the presence of a notary,
who would have been prohibited under R.C. 147.141(14) from notarizing it if it appeared
that the signer was coerced or unduly influenced. Moreover, the magistrate questioned
why mother would have been unwilling to sign the acknowledgment if, as she testified,
she believed R.B. was E.B.’s biological father.
{¶ 40} The magistrate emphasized that mother was in a position to know that there
were two potential fathers of her child because she engaged in sexual relations with both
men. She did not believe mother’s testimony that she thought that T.M. was infertile and,
therefore, that it was impossible that he could be the father. She pointed out that under
Ohio law, “a person who has sexual intercourse with another is effectively on notice that
person may be a parent with certain rights.” The magistrate imputed mother’s knowledge
to E.B. She emphasized that mother could have sought genetic testing before executing
the acknowledgment of paternity or before the one-year rescission deadline. In sum, she
concluded that mother was not justified in failing to avoid the mistake here, thus she was
not entitled to relief under Civ.R. 60(B)(1).
{¶ 41} Under Civ.R. 60(B)(2)—newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial—the magistrate
acknowledged that genetic test results demonstrated that T.M. is E.B.’s biological father.
But she cited Strack v. Pelton, 70 Ohio St.3d 172,
637 N.E.2d 914 (1994), for the
18.
proposition that “for purposes of Civ.R. 60(B)(2), results of a paternity test, not obtained
and thus not provided until after the adjudication of the existence of a parent-and-child
relationship, are not ‘newly discovered evidence.’” (The magistrate attributed this quote
to the wrong case. It actually appears in Cuyahoga Support Enf’t Agency v. Guthrie,
84
Ohio St.3d 437, 442,
705 N.E.2d 318 (1999).) The magistrate stated that the Strack court
had characterized this evidence as “late-discovered evidence” rather than “newly-
discovered evidence” because paternity tests could have been obtained before a paternity
judgment. (Again, the magistrate incorrectly attributed this quote to Strack. The term
“late-discovered evidence” was actually used in this court’s decision in Poskarbiewicz v.
Poskarbiewicz, 6th Dist. Lucas No. L-01-1305,
2002 WL 445058, * 2 (Mar. 22, 2002).)
The magistrate emphasized that mother had access to genetic testing before the
acknowledgment of paternity became final and enforceable. She concluded that relief
was not available under Civ.R. 60(B)(2).
{¶ 42} Under Civ.R. 60(B)(3)—fraud …, misrepresentation or other misconduct
of an adverse party—the magistrate found that there had been no allegations that any
party engaged in fraudulent behavior; they genuinely believed that R.B. was the child’s
biological father.
{¶ 43} Under Civ.R. 60(B)(4)—it is no longer equitable that the judgment should
have prospective application—the magistrate cited Guthrie, where the Ohio Supreme
Court held that (B)(4) “was not meant to offer a party a means to negate a prior finding
that the party could have reasonably prevented.” Id. at 443. The magistrate explained
19.
that in Guthrie, the court recognized that relief from a paternity judgment was not
available under this subsection where a party was aware of the parentage proceedings and
made a voluntary, deliberate choice not to seek genetic testing until after a finding of
parentage. To hold otherwise, the court explained, would encourage litigants to litigate
carelessly, judgment winners would be unable to rely on their victories, and judicial
economy would be subverted, opening the “proverbial floodgates, causing Ohio’s courts
to drown in a sea of duplicative, never-ending litigation.” Id. The magistrate rejected the
argument that the child himself could not have prevented the original acknowledgment of
paternity, explaining that he could have—through his guardian or representative—moved
to rescind the acknowledgment before it became final. The magistrate noted that this
court had applied Guthrie in Poskarbiewicz, 6th Dist. Lucas No. L-01-1305, 2002-Ohio-
3666, involving a support order premised on late-discovered evidence, and reached the
same conclusion as Guthrie.
{¶ 44} Under Civ.R. 60(B)(5)—any other reason justifying relief from the
judgment—the magistrate cautioned that this provision has been narrowly defined and
should form the basis for granting relief from judgment only in extraordinary
circumstances. She emphasized that in Poskarbiewicz, this court observed that (B)(5) is
not available to challenge a judgment based on late-discovered genetic test results. She
also cited Atchison v. Atchison, 4th Dist. Scioto No. 00CA2727, 2001 WL 812804 (June
29, 2001), where the Fourth District applied Guthrie in concluding that (B)(5) does not
apply where a more specific provision of Civ.R. 60(B) applies—in this case (B)(2). The
20.
magistrate concluded that because paternity testing was available before the
acknowledgment of paternity became final and enforceable, (B)(2) could not form the
basis for vacating the judgment, nor would the less specific provision, (B)(5), allow a
second bite at the apple.
{¶ 45} The magistrate acknowledged that the Fifth District in West v. Reichman,
5th Dist. Tuscarawas No. 2019 AP 10 0044, 2020-Ohio-1226, and the Eighth District in
Mitchell v. Mitchell¸ 8th Dist. Cuyahoga No. 50889,
1987 WL 6545 (Feb. 12, 1987),
relied on Civ.R. 60(B)(5) to provide relief from a paternity judgment, but she afforded
those cases no weight because West failed to cite Guthrie, and Mitchell was decided
before Guthrie.
{¶ 46} The magistrate addressed—and rejected—other arguments raised by
mother. She found that (1) R.C. 3119.961 et seq. is inapplicable here because father has
not tried to invoke any rights under this statute; (2) the Ohio Supreme Court in State ex
rel. Loyd v. Lovelady, 108 Ohio St.3d 86,
2006-Ohio-161,
840 N.E.2d 1062, has already
ruled that R.C. 3119.961 et seq. is constitutional; (3) the child had the same right to seek
rescission as anyone else under R.C. 3111.27 and 3111.28, but failed to avail himself of
that procedure; (4) R.C. 3111.01 et seq. provides all parties access to the courts—mother,
E.B., and biological father simply failed to avail themselves of those rights in a timely
manner; (5) although the circumstances are difficult, there are compelling reasons for
declining to disrupt the finality of an acknowledgment of paternity, even where it has
been shown that another man is the child’s biological father; (6) factors that mother
21.
claims are counter to E.B.’s best interests are largely able to be overcome (e.g., the
passing down of cultural and religious heritage, family traditions, medical history,
inheritance); (7) the evidence at the hearing demonstrated that father is not a stranger to
E.B.—the child and father have a bond, father exercised parenting time on a regular
basis, father provided financial support the first nine months of E.B.’s life, the child loves
father, and terminating this relationship would not be in the child’s best interest; (8)
mother has not followed the procedures for challenging the constitutionality of Ohio’s
Paternity Act; (9) mother, child, and biological father were not denied due process or
equal protection—they simply chose not to pursue the remedies available to them in a
timely fashion; and (10) R.C. 3111.04 precludes disturbing a determination of paternity
by a parentage action.
{¶ 47} The magistrate determined that a guardian ad litem should be appointed in
this case and did so in a separate entry after filing its decision on mother’s Civ.R. 60(B)
motion. As such, at the time she rendered her decision, the magistrate did not have
available any recommendations from a disinterested third party purporting to represent
solely the child’s best interest.
{¶ 48} Mother filed objections to the magistrate’s decision, which the trial court
overruled in a detailed judgment entry. Without reciting the objections or describing in
detail all the arguments in support and in opposition to those objections, we briefly
summarize the findings of the court relevant to those objections:
22.
(1) Under Guthrie, genetic tests are not “newly-discovered evidence” because they
could have been obtained by due diligence by mother or anyone acting as
E.B.’s legal guardian or custodian;
(2) Mother failed to provide sufficient evidence of fraud or other grounds
sufficient for relief under Civ.R. 60(B)(3);
(3) Civ.R. 60(B)(4) is not available because mother had an opportunity to foresee
or control the circumstances and reasonably prevent the underlying paternity
finding;
(4) Guthrie is not limited to support-related matters;
(5) Mother knew there was at least a possibility that T.M. was E.B.’s father, yet
made the voluntary decision not to rescind the acknowledgment of paternity;
(6) A paternity finding arising from an acknowledgment of paternity, which has
not been rescinded or vacated, is a valid final order;
(7) E.B., through his guardian or legal representative, could have taken steps to
rescind the acknowledgment of paternity;
(8) Ohio parentage law has been evolving, and the legislature and courts are
responding to this evolution, albeit not as quickly as a party may wish;
(9) The court is not authorized to dismantle key provisions of Ohio parentage
laws;
23.
(10) R.C. 3119.961 and 3119.962 are solely for the benefit of fathers—those
statutes remain valid and have been deemed constitutional on other grounds by
the Ohio Supreme Court;
(11) Mother’s constitutional challenges are not procedurally proper—they
should have been raised in the complaint and served on the attorney general;
(12) The court disagrees that the statutes and case law place procedure over the
child’s best interests;
(13) E.B. deserves finality as to his parentage—mother’s efforts to vacate the
established paternity finding is inconsistent with E.B.’s best interest;
(14) Father has an established parent-child relationship with E.B.. has had
ongoing contact with him throughout his life, lived with him from April 2019
to February 2020, and exercised parenting time with him mid-week and
weekends after mother and child moved out;
(15) Father’s parents have developed a relationship with the child;
(16) A guardian ad litem has been appointed to protect E.B.’s interests as
opposed to the interests of the adults in this matter—his welfare has not been
overlooked; and
(17) The unique facts of this case provide the child with the opportunity to have
multiple adults involved in his life and the parties should seize this opportunity
and resolve the ongoing matter.
The trial court adopted the decision of the magistrate.
24.
D. The Assignments of Error
{¶ 49} Having explained this background, we now address mother’s assignments
of error. But first, we must determine the date on which the acknowledgment of paternity
became final and enforceable. This is important because Civ.R. 60(B)(1), (2), and (3),
require that a motion for relief from judgment be filed within one year of the judgment at
issue.
{¶ 50} Here, the judgment at issue is the acknowledgment of paternity. The trial
court assumed that the acknowledgment became final on September 30, 2020—one year
after it was executed—therefore, a Civ.R. 60(B) motion under (1), (2), or (3), would be
timely if filed before September 29, 2021. It concluded that the motion was timely
because it was filed August 25, 2021. We find, however, that the acknowledgment
became final on November 29, 2019—60 days after it was executed. We reach this
conclusion based on the language of R.C. 3111.25: “An acknowledgment of paternity is
final and enforceable without ratification by a court when the acknowledgment has been
filed with the office of child support, the information on the acknowledgment has been
entered in the birth registry, and the acknowledgment has not been rescinded and is not
subject to possible recission” under R.C. 3111.27. R.C. 3111.27 permits rescission only
within 60 days. Accordingly, the acknowledgment of paternity became final on
November 29, 2019. See In re P.L., 8th Dist. Cuyahoga No. 108312, 2019-Ohio-4681, ¶
3, 91 (explaining that acknowledgment of paternity became final and enforceable on July
14, 2008, where it was executed May 14, 2008).
25.
{¶ 51} Because the acknowledgment became final and enforceable on November
29, 2019, mother’s complaint was not filed until February 10, 2021, and her Civ.R. 60(B)
motion was not filed until August 25, 2021—more than a year after the judgment—relief
under Civ.R. 60(B)(1) to (3) is not available to mother. Evidently realizing this, mother’s
assignments of error are not premised on those provisions of the rule. Thus, despite the
magistrate’s incorrect calculation of the date the acknowledgment became final, and
despite her analysis of Civ.R. 60(B)(1), (2), or (3), mother limits her Civ.R. 60(B)
arguments to provisions (4) and (5), and so will we.
{¶ 52} We review a trial court judgment denying a motion for relief from
judgment under an abuse of discretion standard. Kerger & Hartman, LLC v. Ajami, 6th
Dist. Lucas No. L-16-1135, 2017-Ohio-7352, ¶ 13. An abuse of discretion connotes that
the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
1. Applicability of Civ.R. 60(B)(4) or (5)
{¶ 53} In her first assignment of error, mother argues that the trial court
incorrectly relied on Guthrie, 84 Ohio St.3d 437, 442,
705 N.E.2d 318, and
Poskarbiewicz, 6th Dist. Lucas No. L-01-1305,
2002-Ohio-3666, in denying relief under
Civ.R. 60(B)(4) or (5) on the basis that the more specific provision of Civ.R. 60(B)(2)
applies. Mother claims that in determining that Civ.R. 60(B)(5) is inapplicable here, the
trial court failed to recognize that Guthrie and Poskarbiewicz were, by their own
language, limited to child support orders and are not applicable to actions challenging
26.
paternity filed by or on behalf of the child. Mother also complains that genetic tests are,
but should not be, treated differently depending on the litigant; Civ.R. 60(B)(2) forces a
deadline on mother and child but not on legal fathers. And she insists that because
Guthrie holds that genetic tests are not “new evidence,” Civ.R. 60(B)(4) provides a
mechanism for vacating a paternity judgment on the basis of genetic tests establishing
non-paternity.
{¶ 54} In Guthrie, the Cuyahoga Support Enforcement Agency conducted an
administrative hearing in 1994 to determine whether there existed a parent-child
relationship between Guthrie and the child, born four years earlier. Guthrie failed to
appear, so the determination of parentage was denied. Soon after denying the
administrative action, CSEA filed a parentage action in the juvenile court. The agency
sought reimbursement for the expenses of birth and other public assistance and requested
child support. Despite notice to Guthrie, he again failed to appear. The magistrate
determined that Guthrie was the child’s father and ordered him to pay child support.
{¶ 55} Six months later, Guthrie was informed that he owed arrearages of $960.
The notice informed him that he could challenge the arrearage by contacting CSEA by
November 30, 1995. Two weeks before that deadline, Guthrie sought a delay and
requested counsel. The matter was set for hearing; this time mother failed to appear.
Guthrie requested genetic testing, which the magistrate granted. The tests showed a zero
percent chance that Guthrie was the father. The court found that he was not the child’s
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father, granted judgment in his favor, and “vacated and set aside” the magistrate’s
previous decision. The court of appeals affirmed.
{¶ 56} The Eighth District Court of Appeals certified the following question to the
Ohio Supreme Court: “When a motion for relief from a judgment of paternity is based on
the results of genetic testing, can such motion be brought under Civ.R. 60(B)(4), which
provides for relief when the continued application of the judgment would be inequitable
or must the motion be reviewed under Civ.R. 60(B)(2), which provides for relief based
upon newly discovered evidence?” Id. at 20. The court of appeals had held that the
juvenile court’s order vacating the initial determination of parentage and interim order of
support was authorized under Civ.R. 60(B)(4). CSEA contended that relief from a prior
determination of parentage premised upon later genetic testing can be authorized under
Civ.R. 60(B)(2), but not (B)(4). The Ohio Supreme Court concluded that neither Civ.R.
60(B)(2) nor (4) controlled the outcome of the case.
{¶ 57} The court acknowledged its decision in Strack, 70 Ohio St.3d 172,
637
N.E.2d 914, where it held that a motion to set aside provisions of a divorce decree
relating to paternity, which is premised on the results of genetic tests, must be evaluated
as newly-discovered evidence under Civ.R. 60(B)(2)—not the less specific catch-all of
Civ.R. 60(B)(4) or Civ.R. 60(B)(5). As such, the court found, the motion had to be filed
within one year of the judgment. Strack filed his motion nine years after the initial
paternity determination and three years after genetic testing was deemed admissible
evidence. The court explained that “[t]he time limits of Civ.R. 60(B) refer to the
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judgment from which relief is sought, not to the time of discovery of the new evidence.”
Id. at 175. Moreover, it continued, “even if [it] were to apply Civ.R. 60(B) loosely and
allow extra time not provided for by the rule, [it] would have to look to the time when the
evidence became admissible to determine paternity[.]”
Id. That time had also passed.
{¶ 58} The Strack court recognized that its decision “declare[d] as static a state of
facts that reliable scientific evidence contradict[ed].” Id. Nevertheless, balancing the
competing principles of “finality and perfection,” it determined that “[f]inality is
particularly compelling in a case involving determinations of parentage, visitation and
support of a minor child.”
Id.
{¶ 59} Turning back to Guthrie, CSEA argued that Strack was dispositive of the
question before the court. It asserted that the genetic test results demonstrating that
Guthrie was not the child’s father constituted “newly discovered evidence” under Civ.R.
60(B)(2). And because Guthrie requested genetic testing more than one year after the
initial determination of paternity, his request was untimely.
{¶ 60} The Ohio Supreme Court found Strack distinguishable, however. It
explained that it did not state in Strack,“nor did [it] intend to establish an absolute rule
that Civ.R. 60(B)(2) was to have universal application in every situation where later tests
are submitted to challenge a previous determination of paternity.” Guthrie at 442. It
cautioned that to do so “would leave little room for a court to consider all the interests
involved in these types of cases, including the welfare of the minor child, and to balance
all of the equities.” Id. It further reasoned that Strack involved “genetic testing whose
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technology was not available at the time of the initial determination of paternity”—that’s
why it constituted newly-discovered evidence. But genetic testing was available to
Guthrie and was not newly-discovered evidence “because it could have been discovered
by due diligence in time to move for a new trial.” Id., quoting Cuyahoga Child Support
Enf't Agency v. Guthrie, 8th Dist. Cuyahoga No. 72216, 1997 WL 607530, *2 (Oct. 2,
1997). The Ohio Supreme Court also pointed out that in Strack, the father actually filed a
Civ.R. 60(B) motion; Guthrie did not, therefore, “the court did not make a Civ.R. 60(B)
ruling.” Id. at 442.
{¶ 61} In sum, the Ohio Supreme Court held in Guthrie that “for purposes of
Civ.R. 60(B)(2), results of a paternity test, not obtained and thus not provided until after
an adjudication of the existence of a parent-and-child relationship, are not ‘newly
discovered evidence.’” Id. at 437. But it also rejected the Eighth District’s conclusion
that Civ.R. 60(B)(4) could provide relief under the circumstances. It explained that the
“no longer equitable” clause of Civ.R. 60(B)(4) “was designed to provide relief to those
who have been prospectively subjected to circumstances which they had no opportunity
to foresee or control”—it “was not meant to offer a party a means to negate a prior
finding that the party could have reasonably prevented.” (Emphasis added.) Id. at 443,
quoting Knapp v. Knapp, 24 Ohio St.3d 141,
493 N.E.2d 1353 (1986), paragraph one of
the syllabus. Because Guthrie did not appear at trial despite being aware of the parentage
proceedings against him and was aware that genetic testing could have been performed,
the court found that “he made a voluntary, deliberate choice not to seek genetic testing
30.
until after a finding of parentage and until after he was notified of a support arrearage”
and was not entitled to relief under Civ.R. 60(B)(4).
Id.
{¶ 62} The court did find in Guthrie, however, that the juvenile court had
continuing jurisdiction under R.C. 3111.16 “to modify or revoke a judgment or order
issued under sections 3111.01 to 3111.19 of the Revised Code to provide for future
education and support and a judgment or order issued with respect to matters listed in
divisions (C) and (D) of section 3111.13 and division (B) of section 3111.15 of the
Revised Code ….” (Emphasis in original.) Id., quoting R.C. 3111.16. As such, the
Ohio Supreme Court affirmed the lower court’s decision to vacate the prior finding of
paternity on the basis that “the subsequent finding of nonpaternity constituted a change in
circumstances that warranted relief from the initial finding of parentage.” Id. at 444. But
because Guthrie deliberately disregarded initial parentage proceedings, thereby causing a
delay of the finding of nonpaternity, it declined to relieve him of the responsibility of
paying arrearages.
{¶ 63} We later applied Guthrie in Poskarbiewicz, 6th Dist. Lucas No. L-01-1305,
2002-Ohio-3666. There, father moved under Civ.R. 60(B)(5) to set aside his child
support obligations. The trial court granted his motion, and father appealed.
{¶ 64} In Poskarbiewicz, mother and father married in 1975, but were together for
less than seven months. In 1976, during their divorce proceedings, mother gave birth to
child. Father denied that he was the child’s father, but the domestic relations court found
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that he did not present sufficient evidence to rebut the presumption that he was the father
of the child born during the marriage. Father was ordered to pay child support.
{¶ 65} In 1994, just before the child turned 18, father again contested paternity.
The court rejected his claim on the basis of res judicata. He owed arrearages at that time.
In 1999, Lucas County Child Support Enforcement Agency stepped up efforts to collect
arrearages incurred before 1994. The same year, father and the now 23-year-old child
submitted to genetic testing. This testing revealed that there was a zero percent chance
that he was the father. He moved to terminate child support and eliminate arrearages.
{¶ 66} The magistrate interpreted father’s motion as a motion for relief from
judgment under Civ.R. 60(B). She found that the genetic test results constituted newly-
discovered evidence and evaluated the motion under Civ.R. 60(B)(2). She denied
father’s motion as untimely. Father objected. The trial court reversed and granted
father’s motion under Civ.R. 60(B)(5). Mother appealed.
{¶ 67} Mother argued, among other things, that the court erred in failing to reject
father’s motion under Strack. We acknowledged that Strack and Guthrie “make clear
that Civ.R. 60(B)(2) and (4) are not available to support orders in relief from a judgment
premised on late discovered evidence.” Id. at * 2. We further explained that “Civ.R.
60(B)(5) applies only when one of the other Civ.R 60(B) categories does not apply.” Id.
Because the more-specific category of (B)(2) applied, we concluded that the trial court
erred in granting relief under Civ.R. 60(B)(5). We observed, however, that relief may be
available to father under the (then) newly-codified R.C. 3119.961 and 3119.962, pursuant
32.
to which the legislature expressly made relief retroactive. We remanded the matter to the
trial court for consideration of those statutes.
{¶ 68} Mother argues that Guthrie and Poskarbiewicz were, by their own
language, limited to child support orders and are not applicable to actions challenging
paternity filed by or on behalf of the child. She complains that Civ.R. 60(B)(2) forces a
deadline on mother and child but not on legal fathers, thus genetic tests are improperly
treated differently depending on the litigant. And she insists that under Guthrie, genetic
tests are not “new evidence” for purposes of Civ.R. 60(B)(2), therefore, no more specific
provision applies and relief may be granted under Civ.R. 60(B)(4) or (5). Mother’s first
assignment of error requires us to answer three questions:
(1) Are the holdings in Guthrie and Poskarbiewicz limited to child-support orders?
(2) Post-Guthrie, must genetic tests be considered under Civ.R. 60(B)(2)?
(3) If mother is correct that post-Guthrie, genetic tests are not “new evidence,”
may relief be granted under Civ.R. 60(B)(4) or (5)?
Mother’s first assignment of error also raises a fourth issue—whether genetic tests are
improperly treated differently depending on the litigant—but that issue is more
appropriately organized under her second assignment of error.
{¶ 69} To answer the first question, we do not agree with mother that Guthrie and
Poskarbiewicz were limited to child-support orders. Guthrie, in particular, is silent and
does not suggest any intent by the Ohio Supreme Court to limit its holding to support
orders.
33.
{¶ 70} As to the second question, we agree with mother that post-Guthrie, genetic
tests are not “new evidence,” thus Civ.R. 60(B)(2) does not apply. The Fourth District in
Dunkle v. Dunkle, 135 Ohio App.3d 669, 678-79,
735 N.E.2d 469 (4th Dist.1999)
considered this issue and reached the same conclusion. It emphasized that in Guthrie,
genetic testing was available to father at the time of the initial finding of parentage, the
results could have been discovered by due diligence in time to move for a new trial,
therefore, the evidence was not “new evidence” under Civ.R. 60(B)(2). The Dunkle court
held that the trial court erred when it relied upon Civ.R. 60(B)(2) to deny father relief
from judgment. We agree with the Dunkle court’s conclusion. Guthrie holds that Civ.R.
60(B)(2) does not apply to genetic tests available at the time of the initial finding of
paternity.
{¶ 71} Having concluded that Ohio Supreme Court case law renders Civ.R.
60(B)(2) inapplicable, we turn to the third question—whether relief from judgment is
possible under Civ.R. 60(B)(4) or (5). The trial court found that it was not because the
more specific provision of (B)(2) applied. Since it does not, we consider the applicability
of Civ.R. 60(B)(4) and (5).
{¶ 72} In Guthrie, the Ohio Supreme Court acknowledged the potential
applicability of Civ.R. 60(B)(4) as a basis to seek relief from a judgment of paternity.
But it explained that “it is no longer equitable” provision in Civ.R. 60(B)(4) “‘was
designed to provide relief to those who have been prospectively subjected to
circumstances which they had no opportunity to foresee or control’”—it “was not meant
34.
to offer a party a means to negate a prior finding that the party could have reasonably
prevented.” (Emphasis in original.) Guthrie at 443, quoting Knapp, 24 Ohio St.3d 141,
493 N.E.2d 1353, at paragraph one of the syllabus.
{¶ 73} The Dunkle court elaborated on this discussion of Civ.R. 60(B)(4),
particularly in the context of determining whether a movant filed his or his motion within
a reasonable time, as required for both (B)(4) and (5). The court suggested that the best
interests of the child should affect a trial court’s determination of whether Civ.R. 60(B)
motion was filed within reasonable time. Id. at 381, citing Stevens v. Stevens,
Montgomery App. Nos. 11958, 12060, unreported, 1990 WL 116157 (Aug. 1, 1990)
(Fain, J., concurring). It explained that “[w]hether a Civ.R. 60(B)(4) motion is timely
depends in part on the nature of the relationship between the obligor and the child”—i.e.,
whether or not the father and child have a meaningful relationship and whether the child
has come to rely upon the father for emotional and financial support. But we are
particularly guided by the Guthrie court’s emphasis on the party’s ability to foresee or
control the circumstances and whether the party could have reasonably prevented the
judgment at issue.
In most of the Ohio case law on this subject, the action is filed by a man who has
learned that he is not the biological father of a child he has supported. Many of those
cases predate October 27, 2000—the effective date of R.C. 3113.2111 (later renumbered
as R.C. 3119.961 and 3119.962). But two Ohio cases involving mothers who sought
relief from judgment are helpful to our analysis.
35.
{¶ 74} In Loveridge v. Loveridge, 3d Dist. Hancock No. 5-10-37, 2011-Ohio-
2611, for example, a mother sought relief under Civ.R. 60(B)(4) from a final judgment of
paternity when the child was 16 years old. The court found that Civ.R. 60(B)(4) was not
available to mother because she failed to make the motion within a reasonable time. In
reaching this conclusion, it observed that given the nature of the situation, mother
“alone” had been in the best position to know whether father was the child’s biological
father. (Emphasis in original.) Id. at ¶ 16.
{¶ 75} Similarly, in Atchison, 4th Dist. Scioto No. 00CA2727, 2001 WL 812804,
mother sought relief under Civ.R. 60(B)(1), (4), and (5) from a judgment that found her
child to be born of issue of mother’s marriage to father. In affirming the denial of
mother’s motion, the court emphasized that mother knew before the lower court
judgment that she had had sex with another man who could be the child’s father and
made the voluntary, deliberate choice not to raise the issue earlier. It held that she was
not entitled to relief under (B)(1), (4), or (5).
{¶ 76} Here, mother knew that she had had sex with two men. The magistrate
specifically did not find credible mother’s testimony that she believed that biological
father was sterile. Therefore, mother knew there were two men who could potentially
have fathered E.B. She had the opportunity to foresee or control the circumstances here
and could have reasonably prevented the acknowledgment of paternity from becoming
final by ensuring the identity of the father before it was executed, seeking to rescind it
within 60 days of its execution, or attempting to rescind it within one year after becoming
36.
final. Her failure to do so bars mother from being granted relief under (B)(4). And
because it was mother who failed to reasonably prevent (or timely rescind) the judgment
from which she seeks relief, we—like the Atchison court—find that relief for mother is
not available under (B)(5).
{¶ 77} The problem with the present case, however, is that mother brought this
action on behalf of E.B. The trial court, without citation, found that mother’s knowledge
must be imputed to E.B. for purposes of (B)(4). We disagree. Ohio courts have found
that “where a mother enters into agreement not to establish paternity with an alleged
father pursuant to R.C. 3111.19, the child is not bound by the agreement and may
subsequently bring a paternity action against the alleged father.” Fitzpatrick v.
Fitzpatrick, 126 Ohio App.3d 476, 482,
710 N.E.2d 778 (12th Dist.1998). Moreover,
“privity generally does not arise from the mere relationship of parent and child, especially
when the interests of the parent and child are clearly different.”
Id. at 483. See also
Snider v. Lillie,
131 Ohio App.3d 444, 447,
722 N.E.2d 1036 (1st Dist.1997) (explaining
that the right of a child to bring an action to establish paternity is separate and distinct
from his or her mother’s, “and a mother who agrees not to establish paternity cannot bind
the child”). We believe it follows then that in circumstances such as those at issue in this
case, a child will generally not be deemed to possess the same knowledge as his or her
parents concerning the uncertainty of paternity. And more importantly, we believe that
where it is possible—perhaps even likely—that a mother’s interest in setting aside a
paternity judgment conflicts with a child’s interest, a guardian ad litem must be appointed
37.
for the child. Fortunately, the record here reflects that a guardian ad litem was appointed
after the hearing conducted before the magistrate. However, because there was no
guardian ad litem appointed before the hearing, there was no testimony and no
recommendations made by a guardian ad litem in connection with the Civ.R. 60(B)
motion.
{¶ 78} In Broxterman v. Broxterman, 101 Ohio App.3d 661,
656 N.E.2d 394 (1st
Dist.1995), the First District acknowledged that a child’s interest in disestablishing
paternity may diverge from those of his parent or guardian. It held that in such cases, a
guardian ad litem must be appointed.
{¶ 79} In Broxterman, mother and father’s divorce decree determined that the
child was born of issue of his parents’ marriage. Mother’s parents eventually were
granted permanent custody of the child. They filed a post-decree motion requesting a
blood test to determine parentage; this motion was supported by an affidavit from mother
averring that father was not the child’s biological father. The trial court dismissed the
action on the basis of res judicata and the custodians’ lack of standing. On appeal, the
First District court observed that it was unclear whether the custodians’ brought the
action only on their own behalf or whether they brought it on behalf of the child too. The
court addressed the appeal both ways.
{¶ 80} The court began by finding that the custodians had stepped into the shoes
of mother, who was originally granted custody and who was bound by the finding of
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paternity in the divorce decree. It held, therefore, that they were in privity with mother
and barred by res judicata from relitigating this issue on their own behalf.
{¶ 81} But as to the child, the court began by observing that it is “generally held
that the relationship of a parent and child does not automatically create privity[.]” Id. at
664. It commented that the child’s interests “ would seemingly coincide with those of his
mother in the divorce action in part, namely on the issue of support, but may diverge on
other issues, such as his right to know the identity of his biological father and his
potential rights of inheritance from his biological father.”
Id. Given the potential conflict
of interests, the court held that the child was not in privity with his parents in the divorce
action and was not barred by res judicata from bringing a paternity action on his own
behalf.
{¶ 82} The court then turned to the issue of standing, which it characterized as
presenting two issues: (1) the custodians’ legal capacity to bring this action on the
child’s behalf, and, if such capacity exists (2) the court’s role in deciding whether they
are doing so in the child’s best interest. The court emphasized that “the paramount
concern of the trial court must be the best interest of the child to ensure that the child is
not being used as a pawn to further separate adult agendas.” Id. at 665.
{¶ 83} Father argued that even if a paternity action was allowed, it could be
brought only by a guardian ad litem. The court disagreed, observing that under R.C.
3111.04, an action may be brought by “the child or the child’s personal representative.”
Additionally, it pointed out, Civ.R. 17(B) permits “a representative such as a guardian or
39.
other like fiduciary” to bring suit on a minor’s behalf. It held, therefore, that the child’s
legal custodians had legal standing to bring an action on his behalf.
{¶ 84} The father further argued, however, that in bringing this action, the
custodians were acting only in their own self-interest—not the child’s—and were seeking
to undermine his relationship with his son. The court observed that “[t]hese accusations
raise[d] certain overriding, fundamental concerns that [could not] be ignored and must be
addressed in the broader context of Ohio’s parentage laws codified in R.C. Chapter
3111.” Id.
{¶ 85} The court acknowledged that in adopting a form of the Uniform Parentage
Act, the state has recognized the importance of a child knowing the identity of his or her
biological father. But, it emphasized, “there are other interests involved” that may differ
in the context of a divorce versus a paternity action involving unmarried parents. Id.
Financial support of the child is one such interest.
{¶ 86} The court recognized that there are also social issues at play and questions
that may arise from the possibility of stripping father of paternity over the child. Some of
those issues involve whether the child desires to continue to consider father as his father;
whether the child is too young to understand the importance of the decision; whether the
custodians are acting out of spite; and whether father has been emotionally and
financially committed to the child. The court acknowledged that establishing and
maintaining the parent-child relationship “‘is a particularly intricate, sensitive, and
emotional process with which courts should be reluctant to interfere.’” Id. at 666,
40.
quoting In re Galbraith,
32 Ohio St.3d 127 131,
512 N.E.2d 956 (1987). Citing Justice
Herbert Brown’s concurrence in Hulett v. Hulett,
45 Ohio St.3d 288, 295,
544 N.E.2d
257 (1989) (Brown, J., concurring), the court observed that “‘[a] father-child relationship
encompasses more (and greater) consideration[s] than a determination of whose genes the
child carries. Sociological and psychological components should be considered.’”
Id.
See also Leguillon v. Leguillon,
124 Ohio App.3d 757, 769,
707 N.E.2d 571 (12th
Dist.1998) (“[T]he Ohio Supreme Court has, for better or worse, rejected an
interpretation of parentage that would place the genetic relationship of the parties above
all other considerations.”).
{¶ 87} Observing that the Ohio Parentage Act seeks to promote the child’s best
interests and emphasizing that the child’s best interest must be given primary
consideration, the court explained that while a child’s custodian may have the legal right
to bring a paternity action on his behalf, such an action, in fact, may not be in the child’s
best interest, “either economically, emotionally, or temporally.” Broxterman at 667. To
protect against a custodian bringing an action that is potentially not in the child’s best
interest, the court concluded that “‘the right of an adult to bring a post-decree paternity
action on a child’s behalf is not an absolute, unfettered right.”
Id. “Rather,” it
determined, “the right of adults to bring such an action on the child’s behalf is subject to
the overriding test of the best interest of the child.”
Id.
{¶ 88} The court held that “after a decree of divorce or dissolution has been
entered which includes an adjudication or agreement as to parentage and parental rights
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and obligations, a post-decree paternity action cannot be brought on a child’s behalf
absent an express determination by the court that such an action is in the best interest of
the child.” Id. Importantly, it found, “[t]o aid in making such a determination, the court
should consider the appointment of a guardian ad litem.”
Id. It suggested that the trial
court may also wish to appoint separate counsel for the child. The court remanded the
matter to the trial court to determine whether a paternity action was in the child’s best
interest and instructed the court to consider (1) the relationship between father and child;
(2) whether the biological father may be joined as a party; (3) whether the biological
father has any interest in the child; (4) the question of support for the child; (5) the
motives of the custodians for bringing the action; (6) the child’s views; and (6) any other
facts bearing on the child’s best interest.
{¶ 89} Although the procedural posture of the present case differs from
Broxterman, 101 Ohio App.3d 661,
656 N.E.2d 394, the concerns at issue are identical.
Of paramount concern is E.B.’s best interest. Related to that concern is the extent to
which mother’s interest in seeking to vacate the acknowledgment of paternity conflicts
with E.B.’s best interest. Clearly, mother wishes to sever ties with father. But even she
conceded that father and child love one another, father regularly exercised visitation until
mother interfered, and father and child have a bond. And while we conclude in this
decision that post-Guthrie, Civ.R. 60(B)(4) and (5) are potentially available to the child
as a mechanism to set aside the acknowledgment of paternity, it is essential that the court
ensure that “the child is not being used as a pawn to further separate adult agendas.”
42.
{¶ 90} We, therefore, hold, like Broxterman, that this matter must be remanded to
the trial court. The trial court has already appointed a guardian ad litem in this matter in
response to newly-filed pleadings in the case. The guardian ad litem shall make a
recommendation and, after considering this recommendation, the court shall make an
express determination whether pursuing the Civ.R. 60(B) motion is in E.B.’s best
interest. If it is not, the motion shall be dismissed. If it is, the motion may go forward,
with independent counsel for the child, and the trial court may proceed to consider
whether the acknowledgment of paternity should be set aside under Civ.R. 60(B)(4) or
(5). See also Leguillon, 124 Ohio App.3d at 767,
707 N.E.2d 571 (explaining that
although res judicata may bar father from challenging parental relationship established by
divorce decree, child may still bring challenge, but appointment of guardian ad litem
should be considered to determine if challenge is in child’s best interest).
{¶ 91} Accordingly, we find mother’s first assignment of error well-taken.
2. Due Process and Equal Protection
{¶ 92} In her second assignment of error, mother reiterates that under Guthrie,
genetic tests are not “newly-discovered evidence.” She asks that this court “harmonize”
any confusion and clarify that Guthrie permits consideration of genetic testing under
Civ.R. 60(B)(4) and (5). She maintains that because the legislature (in R.C. 3119.961
and 3119.962) treats later-determined genetic tests as determinative for a father, it must
also do so for the child. Mother emphasizes that these statutes place no time restrictions
on the father. She insists that it violates due process and equal protection to treat
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identical evidence differently based on the litigant. And while mother acknowledges that
she could have pursued genetic tests, her failure to do so should not be imputed to the
child.
{¶ 93} As thoroughly explained in resolving mother’s first assignment of error, we
agree with mother that under Guthrie, the results of the genetic tests are not “newly-
discovered” evidence and (B)(4) or (5) potentially provide the child a basis for relief from
judgment. This conclusion obviates the need for us to specifically address mother’s
second assignment of error—including her constitutional challenges.
{¶ 94} Accordingly, we dismiss mother’s second assignment of error.
3. Allegations of an Interdistrict Conflict
{¶ 95} In her third assignment of error, mother argues that the law of paternity has
changed over the last 20 years and emphasizes that Guthrie and Poskarbiewicz were
decided before R.C. 3119.961 and 3119.962 were enacted. Mother argues that in West v.
Reichman, 5th Dist. Tuscarawas No. 2019 AP 10 0044, 2020-Ohio-1226, the court
utilized Civ.R. 60(B)(5) in vacating a paternity finding, as did the court in Dunkle v.
Dunkle,
135 Ohio App.3d 669,
735 N.E.2d 469. She submits that “[p]aternity should not
be a variable depending upon where the child resides at the time the determination is
sought.”
{¶ 96} As thoroughly explained in resolving mother’s first assignment of error, we
agree with mother that under Guthrie, Civ.R. 60(B)(4) and (5) are potentially-available
44.
remedies depending on the circumstances of the case. This conclusion obviates the need
for us to specifically address mother’s third assignment of error.
{¶ 97} Accordingly, we dismiss mother’s third assignment of error.
4. Policy Considerations Dictating a Different
Interpretation of Civ.R. 60(B)
{¶ 98} In her fourth assignment of error, mother argues that because Civ.R.
60(B)(1) to (3) are unavailable, relief should be granted under (4) or (5). She reiterates
that the child should not be penalized for mother’s failure to take action within a year of
the paternity judgment. Mother maintains that this is especially so given that “R.C.
3119.961 and 3119.962 grant a ‘father’ an unlimited right to challenge paternity at any
time before the child attains the age of 23.”
{¶ 99} As thoroughly explained in resolving mother’s first assignment of error, we
agree with mother that under Guthrie, Civ.R. 60(B)(4) and (5) are potentially-available
remedies depending on the circumstances of the case. This conclusion obviates the need
for us to specifically address mother’s fourth assignment of error.
{¶ 100} Accordingly, we dismiss mother’s fourth assignment of error.
III. Conclusion
{¶ 101} We find mother’s first assignment of error well-taken. We agree with
mother that post-Guthrie, for purposes of a motion to set aside a judgment of paternity,
results of genetic testing are not “newly-discovered” evidence, therefore, Civ.R. 60(B)(2)
does not apply. While Civ.R. 60(B)(4) or (5) may be available in some cases, it is not
45.
available to mother here because she knew that she had had sex with two different men,
either of whom could have been the child’s father. As such, she could have reasonably
prevented the judgment that she now seeks to vacate. However, because the motion was
purportedly filed by the child, to whom mother’s knowledge is not fairly imputed, child
may be able to prevail on such a motion. But before the motion may proceed, the trial
court must consider the recommendation of the guardian ad litem (who was appointed
after the hearing on the Civ.R. 60(B) motion in response to newly-filed pleadings in the
case) and determine whether it is in the child’s best interest to seek to set aside the
acknowledgment of paternity. If it is not, the motion shall be dismissed. If it is, the
motion may go forward, with independent counsel for the child, and the trial court may
proceed to consider whether the acknowledgment of paternity should be set aside under
Civ.R. 60(B)(4) or (5).
{¶ 102} Our conclusion with respect to the first assignment of error obviates the
need for us to consider mother’s second, third, and fourth assignments of error, and we
dismiss those assignments.
{¶ 103} We reverse the August 23, 2022 judgment of the Wood County Court of
Common Pleas, Juvenile Division, and remand this matter for further proceedings as
described in this conclusion. Mother and father are ordered to share the costs of this
appeal under App.R. 24.
Judgment reversed
and remanded.
46.
In re E.B.
C.A. No. WD-22-060
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Myron C. Duhart, P.J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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