Carson v. Carson, CA88-06-008

Decision Date01 May 1989
Docket NumberNo. CA88-06-008,CA88-06-008
Citation577 N.E.2d 391,62 Ohio App.3d 670
PartiesCARSON, Appellant, v. CARSON, Appellee. *
CourtOhio Court of Appeals

Thomas F. Grennan, Georgetown, for appellant.

Timothy B. Carson, pro se.

YOUNG, Judge.

Petitioner-appellant, Tamela Carson, and petitioner-appellee, Timothy B. Carson, were married on December 13, 1975. At the time of the marriage, appellant was pregnant with her first child, Travis Carson, born June 2, 1976. A second child, Tracey Carson, was born June 3, 1977. On October 24, 1980, the Brown County Court of Common Pleas dissolved the marriage pursuant to the petition of the parties and adopted their separation agreement, which provided, inter alia, that appellee pay $50 per week for the support of the two minor children deemed to be issue of the marriage.

On January 16, 1985, appellant brought a show cause motion alleging non-payment of support. Appellee responded on April 8, 1985 by filing a motion to modify the decree of dissolution and to reduce the child support order and arrearages. Appellee claimed that appellant had fraudulently represented to him prior to their marriage that he was the father of Travis and that he did not discover this fraud until after the dissolution. The trial court overruled appellant's motion to dismiss and ordered the parties to submit to blood grouping tests for the purpose of establishing the probability of paternity. Human Leukocyte Antigen ("HLA") tests were performed and appellee was excluded as the father of Travis. The trial court then dissolved the original order of support in regard to Travis, reduced the arrearage to zero, and absolved appellee of further responsibility for the support of Travis. Appellant then perfected the instant appeal and set forth two assignments of error:

"Assignment of Error No. 1:

"The Court below errored [sic ] to the prejudice of the Appellant by overruling Appellant's motion to dismiss, where Appellee's 60(B) motion was more than three years out of time."

"Assignment of Error No. 2:

"The Court committed prejudicial error by granting the Appellee's motion, where the law at the time of the entry of the decree of dissolution of marriage presented an irrebuttable presumption that children born during the coverture of a marriage are the children of the husband."

In her first assignment of error, appellant contends that the trial court erred in failing to dismiss appellee's motion to modify as untimely. Appellant's argument is based upon a presumption that appellee's motion was filed pursuant to Civ.R. 60(B). 1 We find appellant's reliance upon Civ.R. 60(B) to be misplaced.

As a general rule, Civ.R. 60(B) provides the exclusive means by which a party may obtain relief from a judgment. Sperry v. Hlutke (1984), 19 Ohio App.3d 156, 19 OBR 246, 483 N.E.2d 870; Cale Products, Inc. v. Orrville Bronze & Alum. Co. (1982), 8 Ohio App.3d 375, 8 OBR 489, 457 N.E.2d 854. However, where a trial court has issued a decree of divorce or dissolution which provides for the custody and support of minor children of the parties, the court retains continuing jurisdiction with respect to the support of such children and may modify the support provisions as changed circumstances may require. Peters v. Peters (1968), 14 Ohio St.2d 268, 43 O.O.2d 441, 237 N.E.2d 902; Cooper v. Cooper (1983), 10 Ohio App.3d 143, 10 OBR 194, 460 N.E.2d 1137. The court's continuing jurisdiction is invoked by motion in the original action and service of process as provided in Civ.R. 4 through Civ. R. 4.6. Civ.R. 75(I); Hansen v. Hansen (1985), 21 Ohio App.3d 216, 21 OBR 231, 486 N.E.2d 1252.

In the case at bar, appellee's motion to modify the original support order did not delineate the procedural grounds upon which it was based and appellee did not file a brief on appeal. In the court below, however, appellee argued, in a memorandum contra to appellant's motion to dismiss, that the motion to modify was filed pursuant to Civ.R. 75(I) and not Civ.R. 60(B). It appears from the record that the trial court also treated appellee's motion as invoking its continuing jurisdiction. Therefore, we will address the propriety of the trial court's ruling from this perspective.

In order to properly invoke the court's continuing jurisdiction under Civ.R. 75(I), service must be made in accordance with Civ.R. 4 through Civ.R. 4.6. Civ.R. 4 requires service upon the defending party. In the present case, appellee did not serve appellant with the motion to modify, but provided notice by mail to the attorney for appellant. Such notice fails to satisfy the requirements of Civ.R. 75(I). Hansen, supra. At no time, however, did appellant object to the court's jurisdiction because of lack of service. Furthermore, the record discloses that appellant herself invoked the court's continuing jurisdiction with respect to support by filing a show cause motion. Accordingly, we find that appellant waived any objection to the court's exercise of continuing jurisdiction. Cooper, supra.

In order to justify the modification of an existing support order, the moving party must demonstrate a substantial change of circumstances which "render[s] unreasonable an order which once was reasonable." Bright v. Collins (1982), 2 Ohio App.3d 421, 425, 2 OBR 514, 518, 442 N.E.2d 822, 828. The change of circumstances advanced by appellee is his discovery after the decree of dissolution that he was not the natural father of Travis as represented by appellant at the inception of the marriage. Appellant argues in her second assignment of error, however, that appellee cannot raise the issue of paternity because the law existing at the time of the decree created a conclusive presumption that children born during the marriage are the children of the husband.

In support of her argument, appellant relies upon Miller v. Anderson (1885), 43 Ohio St. 473, 3 N.E. 605, and Hall v. Rosen (1977), 50 Ohio St.2d 135, 4 O.O.3d 336, 363 N.E.2d 725. In both of these cases, the Ohio Supreme Court held that a man who knowingly marries a pregnant woman is deemed to have contractually consented to stand in loco parentis to the child and to being the father of the child. Hall, supra, syllabus. The decisions in Miller and Hall, however, were expressly overruled in Johnson v. Adams (1985), 18 Ohio St.3d 48, 18 OBR 83, 479 N.E.2d 866, where the Supreme Court held that "[a] man who marries a woman while she is pregnant is presumed to be the natural father of any child born from such pregnancy. This presumption of paternity can be rebutted by clear and convincing evidence." Id. at paragraph two of the syllabus.

Appellant argues that the rebuttable presumption set forth in Johnson, supra, cannot be applied retrospectively to the case at bar and that Miller and Hall are controlling. 2 In light of the unique circumstances of this case, we find it unnecessary to address the retrospectivity of Johnson, supra. 3 The outcome is the same regardless of whether we apply Johnson or the Miller and Hall line of authority.

Miller and Hall created a conclusive presumption of paternity when a man married a pregnant woman. However, subsequent cases interpreting Miller and Hall modified this rule and created a rebuttable presumption where there was fraud in the inception of the marriage. Belk v. Belk (1968), 13 Ohio App.2d 212, 42 O.O.2d 376, 235 N.E.2d 530; Burse v. Burse (1976), 48 Ohio App.2d 244, 2 O.O.3d 197, 356 N.E.2d 755. Therefore, even under the law prior to Johnson, appellee could rebut the presumption of paternity by presenting clear and convincing evidence of fraud and nonpaternity.

The trial court found that the actions of appellant caused appellee to believe that he was the father of the child appellant was carrying at the time of the marriage and that appellee did not discover the misrepresentation until after the dissolution. Thus, the showing of fraud required by Belk, supra, and Burse, supra, was made. The results of the HLA testing also provide clear and convincing evidence that appellee is not the father of Travis. This evidence certainly constitutes a change of circumstances which justifies a modification of the original support order.

We note appellant's concern that an affirmance would have the effect of making Travis Carson an illegitimate child. We share this concern and recognize the general policy of the law in favor of legitimacy. See Brooks v. Fair (1988), 40 Ohio App.3d 202, 207, 532 N.E.2d 208, 212; Comer v. Comer (1962), 119 Ohio App. 529, 533, 28 O.O.2d 142, 144, 200 N.E.2d 656, 658, affirmed (1963), 175 Ohio St. 313, 25 O.O.2d 182, 194 N.E.2d 572. In the case at bar, however, an overriding policy objective comes into play: ascertainment of the truth. See Garrett v. Garrett (1977), 54 Ohio App.2d 25, 33, 8 O.O.3d 41, 46, 374 N.E.2d 654, 661. The trial court concluded that appellant had fraudulently represented to appellee that he was the father of Travis and thereby induced him to assume the obligations of marriage and fatherhood. When the truth of Travis' parentage was ascertained, the court refused to perpetuate the fraud initiated by appellant and relieved appellee of his obligation to support Travis. Under the circumstances, we cannot say that the trial court abused its discretion. Accordingly, appellant's first and second assignments of error are overruled.

Judgment affirmed.

HENDRICKSON, J., concurs separately.

JONES, P.J., dissents.

HENDRICKSON, Judge, concurring separately.

In concurring with the majority, I recognize a distinction between the case sub judice and Ketzel v. Ketzel (May 1, 1989), Warren App. No. CA88-08-062, unreported, 1989 WL 42998, in that in the case sub judice, appellee by motion demanded the relief which the trial court granted. He failed, however, to serve the notice of his motion in the manner specified by Civ.R. 75(I), but appellant failed to object to the manner of service. Thus, since service can be waived and...

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