Keeney v. Lawson, C-830922

Decision Date21 November 1984
Docket NumberNo. C-830922,C-830922
Citation484 N.E.2d 745,19 Ohio App.3d 318
CourtOhio Court of Appeals
Parties, 19 O.B.R. 491 KEENEY, Appellee, v. LAWSON, Appellant.

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 ) 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 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 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 . 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) 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 regarding these grounds for relief. Appellant's fourth assignment of error is well-taken.

We will deal with appellant's first and second assignments of error together. Appellant's first and second assignments of error allege that the trial court abused its discretion in overruling appellant's Civ.R. 60(B) motion for relief from judgment where the judgment was obtained in violation of appellant's constitutional rights to counsel and to a blood grouping test. Appellant claims that he was unable to obtain either counsel or a blood grouping test due to his indigency at the time of the original paternity proceedings.

In State, ex rel. Cody, v. Toner (1983), 8 Ohio St.3d 22, 456 N.E.2d 813, syllabus, certiorari denied (1984), 80 L.Ed.2d 461, the Supreme Court of Ohio stated:

"The denial of court-appointed counsel for an indigent paternity defendant who faces the state as an adversary, when the complainant-mother and her child are recipients of public assistance, violates the due process guarantees of the Ohio and United States Constitutions."

In addition, the Ohio Supreme Court held, in Anderson v. Jacobs (1981), 68 Ohio St.2d 67, 428 N.E.2d 419 , syllabus:

"The denial of blood grouping tests to an indigent paternity defendant, who is unable to prepay for such tests, and who faces the state as an adversary when the complainant-mother and her child are recipients of public assistance, violates the due process guarantee of the Fourteenth Amendment to the United States Constitution. * * * "

It is clear that an indigent defendant who faces the state as an adversary in a paternity proceeding is entitled to both counsel and blood grouping tests provided by the state. The question we must decide is whether the holdings of State ex rel. Cody, v. Toner, and Anderson v. Jacobs, supra, are to be applied retroactively to a paternity proceeding which occurred in 1981.

While Ohio paternity proceedings are characterized as "civil," it has been recognized that such proceedings are more properly characterized as "quasi-criminal." See Little v. Streater (1981), 452 U.S. 1, 10, 101 S.Ct. 2202, 2207, 68 L.Ed.2d 627. See, also, State, ex rel. Gill v. Volz (1951), 156 Ohio St. 60, 100 N.E.2d 203 ; Walker v. Stokes (1977), 54 Ohio App.2d 119, 126, 375 N.E.2d 1258 ; Walker v. Stokes (1975), 45 Ohio App.2d 275, 278, 344 N.E.2d 159 . The United States Supreme Court set forth the criteria which are to be employed to determine whether a new constitutional rule is to be applied retroactively in criminal proceedings in Stovall v. Denno (1967), 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199. Retroactivity is to be determined by examining (1) the purpose to be served by the new judicial rule, (2) the extent of reliance on the old rule and (3) the effect of retroactive application of the new rule on the administration of justice.

"Where the major purpose of [a] new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances." (Footnote omitted.) Williams v. United States (1971), 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388.

The Supreme Court of Ohio recognized in State, ex rel. Cody, v. Toner, supra, that the right to counsel is critical in paternity proceedings in which a defendant faces the state...

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4 cases
  • Carroll v. Moore
    • United States
    • Nebraska Supreme Court
    • May 20, 1988
    ...a formidable task if he should be required to defend himself. 8 Ohio St.3d at 23, 456 N.E.2d at 814-15. See, also, Keeney v. Lawson, 19 Ohio App.3d 318, 484 N.E.2d 745 (1984), where the court found an indigent paternity defendant constitutionally entitled to state-funded blood testing and c......
  • Michael Reed v. Wanda Reed
    • United States
    • Ohio Court of Appeals
    • January 27, 1987
    ... ... Snapper Power Equip., Inc. (1986), 21 Ohio St.3d 58 ... (concurring opinion); Keeney v Lawson (1984), 19 ... Ohio App.3d 318 ... It is ... arguable herein ... ...
  • Kerilyn Davis Aka Kerilyn Seifert v. Nicholas A. Nikitin
    • United States
    • Ohio Court of Appeals
    • January 5, 1994
    ...filed two years after the original judgment determining paternity was entered, was granted. In denying appellant's motion and distinguishing Keeney, the trial court emphasized that appellant waited six before filing his motion for relief. While Civ.R 60(B) does not impose a specific time fr......
  • Margaret S. Griffey
    • United States
    • Ohio Court of Appeals
    • October 3, 1986
    ...presented at a hearing of a Civ.R. 60(B) motion." In support of this proposition, he cites Keeney v. Lawson (1984), 19 Ohio App.3d 318. In Kenney, the trial court the evidence at the hearing to "newly discovered evidence." The Court of Appeals held that the trial court abused its discretion......

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