{¶ 3} On October 24, 1989, CSEA filed a complaint in the Lorain County Court of Common Pleas, Juvenile Division on behalf of Plaintiff-Appellant Yolanda Hardy, seeking: 1) the establishment of paternity regarding the minor child, PAH; 2) a child support order against Defendant-Appellee Columbus Wilson for support of PAH; and 3) reimbursement for any public assistance received by Hardy, the mother of PAH. CSEA became a party to the action by virtue of Hardy assigning to it her right to child support. On November 28, 1989 the Lorain Juvenile Court Clerk's office received the green certified mail card bearing Appellee's signature, indicating that he had received service. However, Appellee took no action in the matter.
{¶ 4} On February 16, 1990, CSEA filed a motion for default judgment. On April 14, 1990, Appellee was named the biological father of PAH, was ordered to pay child support in the amount of $35 per week, and was ordered to reimburse the Ohio Department of Jobs and Family Services the amount of $3,831.58, at a rate of $5 per week, for birth expenses. On December 28, 2004 Appellee filed a motion for relief from judgment and "other equitable relief."
{¶ 5} Appellee's motion was based on Civ.R. 60(B), R.C.
{¶ 6} On September 26, 2005, the trial court granted Appellee's motion. The judgment relieved Appellee from the prior paternity determination and extinguished his child support obligation, including any arrearages.
{¶ 7} CSEA has timely appealed asserting two assignments of error.
{¶ 8} In its first assignment of error, CSEA has argued that trial court lacked jurisdiction to determine Appellee's motion for relief from judgment and other equitable relief. Specifically, CSEA has argued that Appellee's motion was essentially a motion to modify child support and that he was required to serve CSEA with the motion under the Civil and Juvenile Rules of Procedure. As CSEA was a party to the action and not served, the failure to do so left the trial court with no jurisdiction to entertain the motion.
{¶ 9} A complete review of the record indicates that CSEA did not raise the jurisdictional issue in the trial court below. The record is clear that CSEA filed a brief in opposition to Appellee's motion and that they did not assert jurisdiction as an issue therein. Instead, CSEA's brief focused on: 1) Appellee's failure to comply with R.C.
{¶ 10} This Court has held that "[i]ssues that were not raised to the trial court may not be considered for the first time on appeal." Rozhon v. Rozhon, 9th Dist. No. 05CA0075-M,
{¶ 11} Accordingly, CSEA's first assignment of error lacks merit.
{¶ 12} In its second assignment of error, CSEA has argued that the trial court abused its discretion when it granted Appellee's motion for relief from judgment and other equitable relief. Specifically, CSEA has argued that the paternity test on which Appellee's Civ.R. 60(B) motion was based was invalid as it did not conform to the statutory timetable for such tests. We agree.
{¶ 13} This Court reviews the grant or denial of a Civ.R. 60(B) motion for relief from judgment under an abuse of discretion standard. Turowski v. Apple Vacations, Inc., 9th Dist. No. 21074,
{¶ 14} Appellee based his motion for relief from judgment in part on R.C.
"Notwithstanding the provisions to the contrary in Civil Rule 60(B) and in accordance with this section, a person may file a motion for relief from a final judgment, court order, or administrative determination or order that determines that the person * * * is the father of a child or from a child support order under which the person * * * is the obligor. Except as otherwise provided in this section, the person shall file the motion in the division of the court of common pleas of the county in which the original judgment, court order, or child support order was made or issued or in the division of the court of common pleas of the county that has jurisdiction involving the administrative determination or order."
Further, R.C.
"(A)(1) Upon the filing of a motion for relief under section
"(a) The court receives genetic test results from a genetic test administered no more than six months prior to the filing ofthe motion for relief that finds that there is a zero per cent probability that the person or male minor is the father of the child." (Emphasis added).
{¶ 15} Accordingly, in the instant matter, Appellee was only entitled to relief from the parentage determination and child support order if he provided the trial court with a genetic test that conclusively excluded him as the biological father of PAH. Further, the statute requires that the genetic test to have been administered no more than six months prior to the filing of the motion for relief.
{¶ 16} When called on to interpret a statute, the following maxim controls:
"[T]he intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact." State v. Hairston (1998),
Thus, barring some ambiguity in the plain language of the statute, we must apply the meaning of the statute as written.State v. Rousseau,
{¶ 17} This Court concludes that the language of R.C.
{¶ 18} In the present case, Appellee's exculpatory DNA test was administered on August 8, 2002, and the report was generated on August 13, 2002. Appellee filed his motion for relief from judgment on December 28, 2004, over two years later. On June 10, 2005, Appellee filed a brief in support of his motion and included as exhibits a "recertified" copy of the DNA test1 and an affidavit from the laboratory director of DNA Diagnostics Center, Michael L. Baird, attesting to the validity of the report. It is clear that the DNA test relied upon by Appellee was non-compliant with the statutory timeframe mandated by R.C.
{¶ 19} The trial court granted Appellee's motion for relief from judgment despite this discrepancy, finding that the recertified DNA test report and Baird's affidavit brought Appellee in compliance with R.C.
{¶ 20} First, there is no authority to support this exception to the statutory rule. The statute is specific that the test must have been administered no more than six months prior to the filing of the motion. Although Appellee "recertified" the original test, there can be no doubt that the test was still "administered" on August 8, 2002. Further, there is nothing in the statute to suggest that curing the non-compliant DNA test was an option envisioned by the legislature. Accordingly, the trial court arbitrarily created an exception in this specific case and consequently abused its discretion.
{¶ 21} Second, assuming arguendo that the recertification of the DNA test was acceptable, the test still fell outside the statutory timeframe allowed by R.C.
{¶ 22} Accordingly, CSEA's second assignment of error has merit.
Judgment reversed and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
Moore, J. Boyle, J. concur.