2022 Ohio 2292
Ohio Ct. App.2022Background
- Child L.L.M. born Jan. 2020; Rebecca Fry is the mother; Ronald McKinzie is listed on the birth certificate and both signed an Acknowledgment of Paternity (AOP) in Feb. 2020.
- McKinzie filed for allocation of parental rights in Feb. 2021; magistrate temporarily awarded him legal custody and suspended Fry’s parenting time.
- Fry moved for relief from the paternity judgment (R.C. 3119.961 et seq.) and genetic testing, claiming McKinzie was not the biological father and asserting tolling of the one-year rescission period.
- The magistrate found the COVID-19 and legislative tolling orders extended Fry’s rescission deadline and ordered genetic testing; tests later showed 0% probability that McKinzie was the child’s father.
- The trial court disagreed that the emergency tolling orders extended the R.C. 3111.28 one‑year rescission period, but nonetheless granted Fry relief from the AOP under Civ.R. 60(B)(5) based on equity and the genetic results.
- McKinzie appealed solely arguing the trial court misapplied the tolling orders by effectively adding 143 days to the one‑year limitation; the Sixth District affirmed.
Issues
| Issue | Plaintiff's Argument (McKinzie) | Defendant's Argument (Fry) | Held |
|---|---|---|---|
| Whether the Ohio Supreme Court COVID‑19 tolling order and Am. Sub. H.B. 197 extended the one‑year rescission period (R.C. 3111.28) by 143 days | Trial court misapplied tolling and impermissibly added 143 days to the one‑year deadline | Tolling (and other tolling theories) made her rescission/attack timely | Trial court correctly found the tolling orders do not extend a deadline that did not fall within the emergency period; no misapplication by trial court on this point |
| Whether R.C. 3119.961–3119.962 relief is available to a mother seeking to overturn a paternity determination | Statute limited to persons determined to be the father; not a vehicle for the mother | Fry argued she could use R.C. 3119.96 et seq. to seek relief | Court agreed R.C. 3119.961 is invoked by an acknowledged/putative father, not the mother |
| Whether the Sept. 9, 2021 order (granting Civ.R. 60(B) relief) was final and appealable | (Fry contended it was not final) | (McKinzie proceeded to appeal) | The order was final and appealable because it vacated a final underlying paternity acknowledgment |
| Whether Civ.R. 60(B)(5) relief to vacate the AOP was permissible under the circumstances | Motion for relief was premature/advisory and should be stricken | Equity and genetic tests justified relief under Civ.R. 60(B)(5) and no adequate alternative remedy existed | Trial court granted Civ.R. 60(B)(5) relief; the appellate court affirmed the judgment overall but did not review the Civ.R. 60(B) merits because McKinzie did not properly raise that challenge on appeal |
Key Cases Cited
- S. Ohio Coal Co. v. Kidney, 100 Ohio App.3d 661, 654 N.E.2d 1017 (Ohio Ct. App. 1995) (an order granting Civ.R. 60(B) relief to set aside a judgment is final and appealable when the underlying judgment was final)