Keeney v. Lawson, C-830922

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: DOAN; PALMER, P.J., and KLUSMEIER
• Citation: 484 N.E.2d 745,19 Ohio App.3d 318
• Parties: , 19 O.B.R. 491 KEENEY, Appellee, v. LAWSON, Appellant.
• Docket Number: No. C-830922,C-830922
• Decision Date: 21 November 1984

Page 318

19 Ohio App.3d 318 484 N.E.2d 745, 19 O.B.R. 491 KEENEY, Appellee,
v.
LAWSON, Appellant. No. C-830922. Court of Appeals of Ohio, First District, Hamilton County. November 21, 1984. Syllabus by the Court

The rules requiring the state to provide appointed counsel (State, ex rel. Cody, v. Toner [1983], 8 Ohio St.3d 22, 456 N.E.2d 813) and blood grouping tests (Anderson v. Jacobs [1981], 68 Ohio St.2d 67, 428 N.E.2d 419 [22 O.O.3d 268] ) to indigent defendants who face the state as an adversary in paternity proceedings are to be applied retroactively. Thus, where a defendant files a motion for relief from judgment pursuant to Civ.R. 60(B), the lack of appointed counsel and the absence of blood grouping tests may be asserted in the Civ.R. 60(B) proceeding.

Mary J. Stafford, Cincinnati, for appellee.

Wilbert B. Markovits, Cincinnati, for appellant.

DOAN, Judge.

This timely appeal follows the trial court's overruling of appellant's Civ.R. 60(B) motion for relief from a judgment of paternity.

The record reveals that plaintiff-appellee, Marjorie Keeney, gave birth to a child, Tamara Keeney, May 14, 1979. Appellee was required by the Hamilton County Welfare Department to identify the father of her child and to commence paternity proceedings in order to remain eligible for Aid to Families with Dependent Children. Appellee was also required to assign her interest in support payments to the welfare department, which has represented appellee throughout these proceedings. The welfare department filed a complaint on behalf of appellee, against appellant, February 9, 1981. It is undisputed that appellant appeared throughout the proceedings unrepresented by counsel.

Appellant initially entered a plea of not guilty to the charge of paternity. A blood grouping test was requested by appellant and was scheduled; however, appellant canceled the blood test. Appellant claimed that he could not afford the blood test as he had been forced to

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spend the money he had put aside for the blood test on hospital bills incurred by his common-law wife in giving birth to appellant's son. Subsequently, appellant signed an entry admitting that he was the father of appellee's child. Appellant thereafter began to make support payments.

On October 28, 1983, appellant filed a Civ.R. 60(B) motion for relief from judgment. In his memorandum in support of this motion, appellant argued that he was entitled to relief from the judgment of paternity because he was indigent at the time of the paternity proceedings and therefore he was constitutionally entitled to appointed counsel and a blood grouping test supplied[484 N.E.2d 747] by the state. Appellant further argues that his guilty plea was not knowingly and voluntarily entered as appellant was under the impression that since he could not afford a blood grouping test he had to sign the entry admitting paternity or go to jail. Appellant pointed out that he has only completed formal education through the fourth grade, has an I.Q. of 70, is borderline mentally retarded and can not read. In addition, appellant contended that he believed he was signing an entry that would identify him as the father for the birth certificate only and that he did not understand the support obligation he was incurring. Appellant also argued that he was entitled to relief from judgment because newly discovered evidence showed that appellee admitted she was not sure who was the father, but that the child resembled Gil Huntley, the man with whom appellee had been living at the time of conception. ¹ There was also evidence that Huntley had admitted that the child was his.

Appellant's Civ.R. 60(B) motion was heard November 14, 1983. The trial court refused to hear any evidence regarding appellant's lack of representation by counsel and the lack of a knowing and voluntary guilty plea, stating that these issues were "moot." Further, on the issue of appellant's blood grouping test, the court heard only the following testimony:

"The Defendant: Well, I would like to get the blood test, yes.

"The Court: Why don't you get one?

"The Defendant: I can't afford it. I don't have a job.

"The Court: If that's the matter then you're stuck with it. But there's nothing that prevents you from getting one."

After hearing the testimony on the "newly discovered evidence" only, the trial court overruled appellant's motion.

We will initially deal with appellant's fourth assignment of error which alleges:

"The trial court erred to the prejudice of defendant-appellant in denying his motion for relief from judgment, without first holding an adequate evidentiary hearing, where the motion and partial testimony contained allegations of operative facts warranting relief under Civ.R. 60(B)."

To prevail on a motion for relief from judgment, a movant must demonstrate: (1) that he has a defense or claim to present if relief is granted; (2) that he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) that the motion is made within a reasonable time. GTE Automatic Electric v. Arc Industries (1976), 47 Ohio St.2d 146, 150, 351 N.E.2d 113 [1 O.O.3d 86]. Our discussion of appellant's first, second and third assignments of error will demonstrate that appellant has a number of defenses to raise if Civ.R. 60(B) relief is granted. It will also be demonstrated that appellant may be entitled to relief under Civ.R. 60(B)(5),

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which provides for relief from judgment for "any other reason justifying relief from the [operation of the] judgment," as the judgment may have been obtained in violation of appellant's rights under the United States and Ohio Constitutions. As far as the third factor, we find that appellant's motion was made within a reasonable time in light of the circumstances present in the case sub judice.

For the reasons set forth in our following disposition of appellant's first, second and third assignments of error, we find that the trial court abused its discretion in limiting the evidence presented at the hearing of appellant's Civ.R. 60(B) motion to the alleged "newly discovered evidence." As shown by our following disposition of assignments of error one, two and three, appellant asserted in his motion factual grounds for relief under Civ.R. 60(B)(5). The trial court abused its discretion in refusing to hear testimony...