Kellie L. Brookbank, Administratrix of the Estate of Thomas K. Walker v. Eugene P. Gray, 94-LW-1689
| Decision Date | 27 July 1994 |
| Docket Number | 94-LW-1689,C-930312 |
| Parties | KELLIE L. BROOKBANK, Administratrix of the Estate of Thomas K. Walker, Deceased, Plaintiff-Appellant, v. EUGENE P. GRAY, Defendant-Appellee. APPEAL |
| Court | Ohio Court of Appeals |
Civil Appeal From Hamilton County Court of Common Pleas
Drew Ward, Graf & Coogan Co., L.P.A., and Richard G. Ward, Esq. No. 0037613, 2400 Central Trust Tower, Five West Fourth Street, Cincinnati, Ohio 45202, for Plaintiff-Appellant,
McCaslin Imbus & McCaslin, John J. Finnigan, Jr., Esq., No. 0010689, and Matthew R. Skinner, Esq., No. 0055287, 1200 Gwynne Building, 602 Main Street, Cincinnati, Ohio 45202, for Defendant-Appellee.
Thomas K. Walker was killed when a motorcycle he was riding collided with a car driven by Eugene Gray. Kellie Brookbank ("Brookbank"), appellant, duly appointed administratrix of Walker's estate, filed a wrongful-death action against Gray. Brookbank sought recovery for herself as Walker's surviving common-law wife, and James Tyler Brookbank ("James"), her minor child who she claimed was the decedent's illegitimate son. In addition, she sought recovery for Walker's mother and two adult sisters.
In response to her complaint, Gray filed a motion for sum-mary judgment challenging the right of Brookbank and James to recover damages. The trial court granted Gray's motion. Regarding Brookbank, it held that she could not recover because, based on the evidence presented, reasonable minds could only conclude that Brookbank was not Walker's common-law wife. That portion of the order was not appealed. With respect to James, the court held that he was not legally entitled to recover damages because paternity had not been established during Walker's lifetime.
At the time this appeal was filed, there had been no adjudi-cation on the merits of the underlying wrongful-death claim, which still remains as to Walker's mother and sisters. The court did, however, enter a Civ.R. 54(B) certification on James's claim. Because this interlocutory question could have a profound impact on the damages that may be awarded if Brookbank prevails, we accept jurisdiction on the authority of Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352, 617 N.E.2d 1136.[1]
In granting Gray's motion for summary judgment against James, the trial court relied on the reasoning in Hunter-Martin v. Winchester Transp., Inc. (1991), 71 Ohio App.3d 273, 593 N.E.2d 383. The Hunter-Martin court held that an illegitimate child cannot inherit from its father or recover in a wrongful-death action for the death of its father unless paternity is established before death. Id. at 275, 593 N.E.2d at 385. In her single assignment of error, appellant argues that the holding of Hunter-Martin is incorrect, and, therefore, that the trial court erred when it entered summary judgment against James. For the reasons that follow, we agree.
Because Brookbank brought this claim for James under the wrongful-death statute, she must prove that Walker is the father of James. R.C. 2125.02(A)(1).[2] Both sides in this case agree that, in Ohio, there are many ways to establish paternity. The father may formally acknowledge the child in probate court, marry the mother and acknowledge the child, designate the child as an heir at law, adopt the child, or provide for the child in his will. White v. Randolph (1979), 59 Ohio St.2d 6, 391 N.E.2d 333, 334, R.C. 2105.15 and 2105.18.
The parties also agree that the Ohio Parentage Act, passed in 1982 and codified in R.C. Chapter 3111, provided new ways for paternity to be established. As the act was originally written, a man was presumed to be the father when the child was born: (1) during or shortly after marriage; (2) during or shortly after an invalid marriage; or (3) before marriage, if the man acknowledged or consented to paternity, supported the child, or signed the birth certificate. R.C. 3111.03(A). Subsequently, the act was amended to include presumptions raised by court acknowledgement of paternity and genetic testing. Am.Sub.S.B. No. 10, 144 Ohio Laws 154; Am.Sub.S.B. No. 3, 143 Ohio Laws 155. In addition to these presumptions, under the act, evidence of paternity may include: (1) evidence of sexual intercourse between the mother and alleged father; (2) expert opinion on statistical probability; (3) genetic tests; (4) medical evidence; (5) and any other relevant form of proof. R.C. 3111.10. For the first time, the child was given the right to initiate a paternity action. R.C. 3111.04(A).
The parties disagree, however, on whether paternity must be established for a wrongful-death action before the death of the putative father.[3] The trial court's determination--that paternity must be established before death--is contrary to R.C. 3111.06(A). The Ohio Parentage Act expressly holds that a paternity action can be brought in the juvenile court after "the alleged father is deceased."[4] R.C. 3111.06(A); see, also, In re Estate of Hicks (1993), 90 Ohio App.3d 483, 487, 629 N.E.2d 1086, 1088-89; Palaisia v. Amick (Dec. 21, 1990), Crawford App. No. 3-89-15, unreported.
Our determination that a parentage action may be brought after the death of the putative father does not end our inquiry. We still must determine whether the issue of parentage was properly raised as part of a wrongful-death action filed in the common pleas court, rather than in the juvenile court.
The court of common pleas, general division, has original jurisdiction over all civil cases. R.C. 2305.01. Therefore, unless the General Assembly has given another court exclusive subject-matter jurisdiction over a civil matter, the common pleas court has the power to hear the case. Seventh Urban, Inc. v. University Circle Property Dev., Inc. (1981), 67 Ohio St.2d 19, 23-24, 423 N.E.2d 1070, 1074; State ex rel. Mastracci v. Rose (1947), 79 Ohio App. 556, 72 N.E.2d 582. For example, the legislature granted original jurisdiction to municipal courts to hear actions in forcible entry and detainer. R.C. 1901.18. It did not, however, grant the municipal court exclusive original jurisdiction for those actions. Therefore, because the common pleas court has original jurisdiction over all civil matters and entry-and-detainer is a civil matter, the common pleas court and municipal court have concurrent original jurisdiction to hear that type of case. Seventh Urban at 24, 423 N.E.2d at 1074.
The jurisdictional issue in this case is directly analogous to the one in Seventh Urban. The legislature has given juvenile court exclusive original jurisdiction over certain specified matters related to children. R.C. 2151.23(A); see also, State v. Wilson (May 11, 1994), Hamilton App. No. C-930429, unreported. The juvenile court does not, however, have exclusive jurisdiction of parentage actions brought under R.C. Chapter 3111; it merely has original jurisdiction. R.C. 2151.23(B)(2) and 3111.06. Because the general division of common pleas court has jurisdiction over all civil matters and parentage is a civil matter, the common pleas court has concurrent jurisdiction with the juvenile court to determine whether Walker is the father of James.[5] Standifer v. Arwood (1984), 17 Ohio App.3d 241, 244, 479 N.E.2d 304, 308, cited with approval in In Re Custody of Davis (1987), 41 Ohio App.3d 81, 534 N.E.2d 945; Ellis v. Cole (Mar. 15, 1991), Allen App. No. 1-89-86, unreported; and Hallock v. Hallock (Mar. 9, 1990), Fulton App. No. 89FU000009, unreported. Normally, actions that involve only parentage claims will be filed in juvenile court. Baldwin's Ohio Domestic Relations Law (1992) 52, ...
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