LaBonte v. LaBonte

• Decision Date: 20 December 1988
• Docket Number: 415,Nos. 408,s. 408
• Citation: 61 Ohio App.3d 209,572 N.E.2d 704
• Parties: LaBONTE, Appellant and Appellee, v. LaBONTE, Appellee and Appellant. * (Two cases.)
• Court: Ohio Court of Appeals

Page 209

61 Ohio App.3d 209

572 N.E.2d 704

LaBONTE, Appellant and Appellee, v. LaBONTE, Appellee and Appellant. ^* (Two cases.)

Nos. 408, 415.

Court of Appeals of Ohio, Fourth District, Meigs County.

Decided Dec. 20, 1988.

Michael Mullen, Pomeroy, for Clell LaBonte, Sr.

Crow & Crow and Fred W. Crow III, Pomeroy, for Pauline Gay LaBonte (case No. 408).

Bernard V. Fultz, Pomeroy, for Pauline Gay LaBonte (case No. 415).

STEPHENSON, Judge.

This is a consolidated appeal from judgments entered by the Meigs County Court of Common Pleas, General Division, and the Meigs County Court of Common Pleas, Juvenile Division. The juvenile court, in case No. 408, granted the motion of Pauline Gay LaBonte, defendant below and appellee herein, to dismiss the complaint of Clell LaBonte, Sr., plaintiff below and appellant herein, seeking a determination of paternity pursuant to R.C. Chapter 3111, on the ground that the doctrine of res judicata barred such claim for relief. In case No. 415, the common pleas court granted the Civ.R. 60(B) motion for relief from judgment filed by Clell LaBonte, Sr., defendant below and appellee herein, and opposed by Pauline Gay LaBonte, plaintiff below and appellant herein.

In case No. 408, Clell LaBonte, Sr. assigns the following errors:

"I. The juvenile trial court erred in dismissing appellant's cause of action to determine paternity.

"II. Appellant was denied his right to due process afforded him by Article I § 16 of the Ohio Constitution, the 5th Amendment to the United States Constitution and the 14th Amendment to the United States Constitution by the filing of his paternity action pursuant to R.C. Chapter 3111 being subsequently dismissed by the trial court."

In case No. 415, Pauline Gay LaBonte assigns the following errors:

"1. Rule 60(B) is not a proper basis for relief in this cause.

"2. The Court erred in its finding that no judicial determination of any parentage and/or father and son relationships between Defendant, Clell LaBonte, Sr. and the minor child, Jean-Paul LaBonte, was made during the proceedings in question."

On January 8, 1987, Pauline Gay LaBonte filed a complaint in the General Division of the Meigs County Court of Common Pleas which averred that the parties herein previously entered into a common-law marriage in 1971 and from such union, they had two children, who were both adults at the time the complaint was filed. The complaint further averred that the parties entered into a second common-law marriage on January 1, 1974, and that such union resulted in the birth of Jean-Paul LaBonte, who was born on July 5, 1973. Pauline Gay LaBonte's complaint prayed for a divorce from Clell LaBonte, Sr. on the basis that he had been guilty of gross neglect of duty and extreme cruelty. On March 10, 1987, Clell LaBonte, Sr. filed a motion for leave to file an answer to the divorce complaint.

On March 11, 1987, a hearing was held on the divorce complaint at which the following pertinent events occurred. The trial court initially granted Clell LaBonte, Sr.'s motion for leave to file an answer to the divorce complaint. Subsequently, Clell LaBonte, Sr. testified that the child, Jean-Paul LaBonte, was not his; that he did not have a child as a result of the parties' second common-law marriage; that he had supported the child, including providing health and life insurance for the child; and that he had tried to raise the child as his own.

After a recess, the following exchange occurred:

"THE COURT: We are reconvening in the case of Pauline LaBonte versus Clell LaBonte. Both parties are present in Court, together with counsel.

"The Court has been informed that subsequent to the last recess, the parties have reached an amicable agreement converting this matter to an uncontested divorce and a property settlement has been reached.

"Do I understand correctly that we have reached a property settlement in this matter?

"MR. CROW: Yes, Your Honor.

"MR. MULLEN: Yes, Your Honor.

"THE COURT: And we also have an agreement relating to the child.

"MR. CROW: Yes, Your Honor.

"THE COURT: Perhaps if counsel for the Plaintiff would state for the record what the agreement is and counsel for the Defendant will have an opportunity to respond, make any changes that he feels necessary.

"Mr. Crow?

"MR. CROW: Okay. First of all, Your Honor, the Answer that has yet (pause) not been filed, will not be filed.

"THE COURT: Fine.

"MR. CROW: It will go as an uncontested divorce. The Plaintiff will be granted a divorce. She will be awarded custody of the parties' one minor child. Child support will be three hundred (300.00) per month until the child reaches the age of eighteen, or until the child graduates from high school, whichever is later.

"The Defendant will pay to the Plaintiff an additional one hundred dollars ($100.00) which will go to July 5th, 1991, which will be when the youngest child reaches the age of eighteen."

Clell LaBonte, Sr.'s counsel was later given an opportunity to respond. Neither counsel explicitly stated that the agreement reached off the record contained an express determination that Clell LaBonte, Sr. was the natural father of Jean-Paul LaBonte although Pauline Gay LaBonte's counsel referred to him as the "parties' one minor child."

On June 26, 1987, the trial court entered a judgment granting a divorce to Pauline Gay LaBonte and further providing, in pertinent part, as follows:

"Upon due consideration thereof, the court finds ... that the parties were married as alleged in the Complaint and the Court found one child was born, to-wit: Jean-Paul LaBonte, DOB July 5, 1973.

" * * *

"It is further ordered, adjudged and decreed that the care, custody, and control of the minor child be and is hereby awarded to the Plaintiff and the Defendant will have reasonable visitation rights with said child.

"It is further ordered, adjudged and decreed that the Defendant shall pay the sum of $300.00 per month, plus poundage, through the Meigs County Bureau of Support, Pomeroy, Ohio, as and for child support until said child, Jean-Paul LaBonte, graduates from high school or until July 5, 1991, whichever is later and shall maintain the present health insurance coverage for the minor child, Jean-Paul LaBonte, until such time as he no longer has an obligation of support for said child.

" * * * "It is further ordered, adjudged and decreed that the Defendant shall pay the insurance premiums on a life insurance policy on the minor child of the parties, Jean-Paul LaBonte, until said child reaches the age of eighteen (18) and it is ordered that the beneficiaries on said policy remain the same, to-wit: one-half of the proceeds to Plaintiff and one-half of the proceeds to the Defendant.

"It is further ordered, adjudged and decreed that the Defendant shall maintain and keep in full force and effect the life insurance policy or policies, under which he is presently insured. The Defendant is to execute and file with the insurance company appropriate Change of Beneficiary Forms designating Jean-Paul LaBonte as beneficiary or in the alternative the Plaintiff, Pauline Gay LaBonte, as beneficiary. Said policy or policies shall be kept in full force and effect until July 5, 1991."

The judgment entry was signed and approved by Pauline Gay LaBonte's counsel, but was not signed by Clell LaBonte, Sr.'s counsel. On July 13, 1987, Clell LaBonte, Sr. filed a complaint in the Juvenile Division of the Meigs County Court of Common Pleas which averred that Pauline Gay LaBonte was the natural mother of Jean-Paul LaBonte, whose date of birth was July 5, 1973; that Clell LaBonte, Sr. was not the natural biological father of the child; and that he was not married to Pauline Gay LaBonte when the child was either conceived or born. The complaint was filed pursuant to R.C. Chapter 3111 and prayed for, inter alia, a judgment disestablishing the existence of any and all father and child relationships between Clell LaBonte, Sr. and Jean-Paul LaBonte. On the same date, Clell LaBonte, Sr. filed a motion requesting genetic testing of the parties and the minor child.

On July 27, 1987, Pauline Gay LaBonte filed a motion to dismiss the complaint filed by Clell LaBonte, Sr. on the basis that the Meigs County Court of Common Pleas, General Division's June 26, 1987 divorce entry was res judicata as to the paternity issue. On November 16, 1987, the juvenile court entered judgment granting Pauline Gay LaBonte's motion and dismissed the R.C. Chapter 3111 complaint of Clell LaBonte, Sr.

On March 15, 1988, Clell LaBonte, Sr. filed a Civ.R. 60(B) motion in the general division of the common pleas court for relief from the June 26, 1987 divorce entry, asserting Civ.R. 60(B)(1), (3), and (5) as the applicable grounds. An affidavit of Clell LaBonte, Sr.'s counsel was attached to the Civ.R. 60(B) motion for relief from judgment which stated, in pertinent part, as follows.

During the March 11, 1987 divorce hearing, counsel for both parties requested a recess to determine what matters could be settled between the parties and stipulated to the court. During the recess, the parties and their counsel agreed that there would be no adjudication concerning a parent-child relationship between Clell LaBonte, Sr. and Jean-Paul LaBonte and that a paternity action would be filed by Clell LaBonte, Sr. to determine such issue. Following the recess, the court was informed that the parties were ready to stipulate certain facts and the court subsequently heard and accepted all stipulations.

There was no adjudication by the court as to the existence of any parent and child relationship between Clell LaBonte, Jr. and Jean-Paul LaBonte. The journal entry prepared by Pauline Gay LaBonte's counsel and filed on June 26, 1987 was inaccurate, did not reflect the decision of the court, and was filed without Clell LaBonte, Sr.'s counsel's approval when he was out of state. Clell LaBonte, Sr. and his attorney relied to their detriment upon their...