Kerilyn Davis Aka Kerilyn Seifert v. Nicholas A. Nikitin

Decision Date05 January 1994
Docket Number94-LW-4445,16327
PartiesKERILYN DAVIS aka KERILYN SEIFERT, et al., Appellees v. NICHOLAS A. NIKITIN, Appellant CA
CourtUnited States Court of Appeals (Ohio)

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:



Appellant, Nicholas Nikitin, appeals from the trial court's order denying both his motion for genetic testing and his motion to vacate the judgment determining paternity. We affirm.

On June 17, 1986, appellee, Kerilyn Davis, filed a complaint to establish that appellant was the father of her son. Appellant responded by requesting a blood test. On October 28, 1986, a pretrial hearing was held before a referee. Although we have no transcript of that hearing, according to the findings of the referee, appellant waived his right to genetic testing and to a trial, and admitted paternity. Based upon these findings, the referee concluded that a father-child relationship existed between appellant and appellee's son. The trial court adopted the findings and recommendations of the referee on January 29, 1987. Appellant did not appeal from that order.

On March 8, 1993, appellant moved the court for relief from the judgment and for an order for generic testing. A hearing was held before a referee, after which the referee recommended that appellant's motions be denied. Appellant filed sections to the referee's report and a hearing was held before the court. The trial court denied both of appellant's motions. Appellant appeals and raises two assignments of error.

Assignment of Error II

"The trial court erred when it denied defendant's motion for relief from judgment."

We will address appellant's assignments of error in a logical, rather than chronological, order.

Appellant argues that the trial court erred in denying his motion for relief from judgment pursuant to Civ.R. 60(B)(5). Civ.R. 60(B) provides in part:

"*** On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:


"(5) any other reason justifying relief from the judgment. ***."

In order to prevail upon a Civ.R 60(B) motion, a party must demonstrate 1) a meritorious claim, 2) entitlement to relief under one of the grounds of the rule, and 3) the timeliness of the motion. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 150. Wthout addressing the first requirement, we are not persuaded that appellant has met either the second or third parts of this test.

Appellant argues that he was "effectively indigent at the time of the hearing in 1986 [and] not intellectually independent or competent enough to face the State as an adversary." Essentially he argues that he was indigent at the time of the hearing and thus entitled to counsel, and further that his waiver of genetic testing was invalid because it was neither knowing or voluntary.

Appellant, however, has not provided us with a transcript of the hearing at which he waived genetic testing and admitted parentage. Therefore, we must presume the regularity of that proceeding, and have no basis upon which to determine either that he was indigent or that the admission of paternity was anything other than property and validly made. See Volodkevich v. Volodkevich (1988), 48 Ohio App.3d 313, 314.

Appellant also argues that the 60(B) motion should have been granted because RC. 3111.08 has recently been modified to mandate genetic testing when requested by the putative father. Under the version of the statute in effect at the Under of appellant's hearing, such testing was discretionary. RC. 3111.08 now uses the term "shall" instead of "may".

"*** If the person against whom the action is brought does not admit the existence or nonexistence of the father and child relationship, the court, upon its own motion, may order, and, upon the motion of any party to the action, shall order genetic tests to be taken in accordance with section 3111 .09 of the Revised Code. ***." (Emphasis added.)

Appellant argues that this change should be retroactively applied to his case. Regardless of which version of the statute is applied, however, by it specific terms, the relevant portion of the statute is applicable only if "the person *** does not admit the existence *** of the father-child relationship." Because appellant admitted paternity and waived genetic testing that section is inapplicable to his case. see McCarty v. Kimmel (1989), 62 Ohio App.3d 775, 779.

We also reject the following argument presented by appellant:

"The issue here is that the

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