In re S.K.L.

• Decision Date: 05 May 2016
• Docket Number: No. 102136.,102136.
• Parties: In re S.K.L., a Minor Child. [Appeal By D.F.].
• Court: Ohio Court of Appeals

64 N.E.3d 413

In re S.K.L., a Minor Child.

[Appeal By D.F.].

No. 102136.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 5, 2016.

Jay F. Crook, John W. Shryock, Shryock, Crook & Associates, L.L.P., Wickliffe, OH, for Appellant D.F.

Pamela D. Kurt, Kurt Law Office L.L.C., Ashtabula, OH, for Appellee T.F.

Steven E. Wolkin, Cleveland, OH, for Appellee S.W.L.

Before: The En Banc Court.

SEAN C. GALLAGHER, J.

{¶ 1} Pursuant to App.R. 26, Loc. App.R. 26, and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court determined that a conflict existed between the original panel's decision in In re S.K.L., 2015-Ohio-2860, 39 N.E.3d 825 (8th Dist.), and the decisions in Gatt v. Gedeon, 20 Ohio App.3d 285, 485 N.E.2d 1059 (8th Dist.1984), and State ex rel. Smith v. Smith, 110 Ohio App.3d 336, 674 N.E.2d 398 (8th Dist.1996), on the question whether the legislature's grant of original jurisdiction to the domestic relations courts to determine parentage divests the juvenile court of its jurisdiction to determine the same. To secure and maintain uniformity of decisions within the district, we vacate the original panel's decision, reverse the decision of the trial court, and remand for further proceedings.

{¶ 2} Neither party has cited any need to revisit the facts as set forth in the original panel decision. T.F. and S.W.L. were married on December 30, 1995. Two children, K.M.L. and S.K.L., were born during their marriage. K.M.L. was born on May 6, 2001, and S.K.L. was born on June 17, 2005. S.W.L. was identified as the father of both children on their birth certificates.

{¶ 3} In July 2007, T.F. filed for divorce in the Cuyahoga County Common Pleas Court Domestic Relations Division. A judgment of divorce was entered on September 27, 2007. The judgment entry of divorce included a finding that K.M.L. and S.K.L. were born as issue of the marriage, identified S.W.L. as the father of the two children, and incorporated the separation agreement that had been agreed to by the parties. Since the children were born, T.F. and S.W.L. raised the two children as their own both during the marriage and pursuant to the terms of the shared parenting plan following their divorce.

{¶ 4} After her divorce from S.W.L., T.F. married D.F. Although D.F. arguably knew or should have known since 2004 or 2005 that S.K.L. could have been his biological child (because of his extramarital sexual relationship with T.F. at or around the time S.K.L. was conceived), he took no action to determine whether he was, in fact, S.K.L.'s biological father or to assert any parental claim with respect to S.K.L. until she was more than six years old.

{¶ 5} It was T.F. who first raised the issue of S.K.L.'s paternity with the domestic relations court in December 2011, four years after her divorce from S.W.L. T.F. filed a series of motions in the domestic relations court seeking to modify the allocation of parental rights and responsibilities, parenting time, and the shared parenting plan set forth in the divorce decree based on the allegation that S.W.L. was not S.K.L.'s biological father. T.F. argued that genetic testing performed in September 2011 indicated that D.F. was S.K.L.'s probable biological father and that this "change in circumstances" warranted modification of the parties' rights as set forth in the divorce decree. T.F. also sought to modify the child support order, seeking an increase in support from S.W.L. for the care of the children. S.W.L. moved to dismiss these motions, arguing that there had been no change in circumstances and that the issue of the children's paternity had been established in the divorce decree and could not be relitigated. The domestic relations court ordered that the genetic test results be sealed until further order of the court. On October 1, 2012, T.F. filed a motion to add D.F. as a third-party defendant.

{¶ 6} On April 24, 2013, the magistrate dismissed T.F.'s motions to modify allocation of parental rights and responsibilities, parenting time, and the shared parenting plan—the motions that had been predicated on the claim that D.F. was S.K.L.'s biological father—and ordered that the motion to modify child support be referred to a support magistrate. The magistrate concluded that "the paternity of the parties' minor children ha[d] been established in their divorce decree and is res judicata" and that T.F., therefore, "cannot raise the issue of paternity as a change of circumstances." The magistrate also denied T.F.'s motion to add D.F. as a new party defendant. T.F. filed objections to the magistrate's decision. On June 27, 2013, the trial court overruled her objections and adopted the magistrate's decision without modification. T.F. did not appeal the trial court's decision.

{¶ 7} While these motions were pending in the domestic relations court, D.F. commenced proceedings in the juvenile court. In August 2012, D.F. filed a verified application to determine custody (Cuyahoga C.P. Juv.No. CU 12113563), identifying himself as the "father" and one of the "parents" of S.K.L. (making no reference to S.K.L.'s legal father, S.W.L.) and inaccurately attesting that S.K.L. had lived only with T.F. or with himself and T.F. from 2006 to present. That same day, D.F. also filed a complaint to establish paternity and for allocation of parental rights and responsibilities in the juvenile court (Cuyahoga C.P. Juv.No. PR 12713562), alleging that he was the biological father of S.K.L. based on the results of the genetic testing performed in September 2011 and requesting (1) that "any presumption of parentage subscribed [sic] to [S.W.L.] be rebutted," (2) that he "be recognized as Father to [S.K.L.]" and (3) that he be granted custody of S.K.L. S.W.L. filed an answer to the complaint denying the allegations related to D.F.'s claims of paternity and asserting various affirmative defenses. Concluding that "not all proper parties to this action were joined and served" in accordance with R.C. 3111.07, the magistrate ordered D.F. to file an amended complaint that complied with R.C. 3111.07 and to serve all proper parties within 30 days or the case would be dismissed for want of prosecution. On January 25, 2013, D.F.'s complaint in Case No. PR 12713562 was dismissed without prejudice pursuant to Civ.R. 41(A). Shortly thereafter, D.F.'s application for custody in Case No. CU 12113563 was likewise dismissed.

{¶ 8} Having been stymied by any attempt to intercede in the domestic relations action and upon the dismissal (without prejudice) of his action in the juvenile court on technical grounds, D.F. filed the current action to establish paternity in the juvenile court. D.F. averred that he and T.F. had an extramarital relationship during T.F.'s marriage to S.W.L., that S.K.L. was conceived as a result of that relationship, and that he is the biological father of S.K.L. Also attached to the complaint was a "brief in support" along with copies of S.K.L.'s birth certificate, the divorce decree, the results of the genetic testing, the April 23, 2013 magistrate's decision, and a Uniform Child Custody Jurisdiction Enforcement Act affidavit. S.W.L., "ex-husband/father," and T.F., "ex-wife/mother," were named as defendants in the action. S.W.L. filed an answer denying the allegations related to D.F.'s claims of paternity and asserting various affirmative defenses, including lack of subject matter jurisdiction, laches, the failure to join indispensable parties, and that the prior determination of S.K.L.'s paternity in the divorce decree was final as to both T.F. and D.F. S.W.L. also filed a counterclaim for declaratory judgment, seeking a dismissal of the complaint to establish paternity and a declaration that (1) R.C. 3111.04(A) was unconstitutional as applied to S.W.L.; (2) the court lacked jurisdiction to hear the action; and (3) D.F. could not bring an action to establish the paternity of S.K.L. because she had been previously found to be issue of a valid marriage. S.W.L. also filed motions to realign the parties (i.e., to have T.F. identified as a plaintiff rather than a defendant), to allow K.M.L. to intervene in the action, for the appointment of counsel and a guardian ad litem for K.M.L., for the appointment of a guardian ad litem for S.K.L., and to seal the results of the genetic testing. D.F. filed briefs opposing these motions, as well as a brief opposing S.W.L.'s "motions for declaratory judgment."

{¶ 9} At a pretrial conference held on March 13, 2014, the juvenile court ordered the parties to submit briefs on various legal issues relating to the court's jurisdiction, T.F.'s and D.F.'s standing to challenge the paternity of S.K.L., the constitutionality of R.C. Chapters 2151 and 3111 as applied to the case, the applicability of the estoppel affirmative defense, and the admissibility of the genetic testing results. The parties timely submitted briefs (D.F. and T.F. submitted a joint brief) on these issues as ordered by the court. S.W.L. thereafter filed a motion to dismiss the complaint to establish paternity, or in the alternative, requesting that the court not consider T.F. and D.F.'s brief on the legal issues on the grounds that (1) D.F. and T.F. had failed to serve the Ohio Attorney General with a copy of their brief, and (2) T.F. had failed to file an answer, which S.W.L. argued precluded her from filing any briefs in the case.

{¶ 10} On September 25, 2014, following its consideration of the pleadings, motions, and briefs submitted by the parties, the juvenile court entered a judgment entry in which it granted S.W.L.'s motions to realign the parties and to dismiss the complaint, concluding (1) that the juvenile court lacked subject matter jurisdiction over the parentage issue, and (2) that D.F. and T.F. were barred from bringing a parentage action based on the doctrine of laches. The juvenile court held that pursuant to R.C. 3111.16 and 3111.381(E), the domestic relations court "has jurisdiction and continues...