In re S.K.L.
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. PR 13706774
RELEASED AND JOURNALIZED: July 16, 2015
Jay F. Crook
John W. Shryock
Shryock, Crook & Associates, L.L.P.
30601 Euclid Avenue
Wickliffe, Ohio 44092
ATTORNEY FOR APPELLEE T.F.
Pamela D. Kurt
Kurt Law Office L.L.C.
30432 Euclid Avenue, Suite 101
Wickliffe, Ohio 44092
ATTORNEY FOR APPELLEE S.W.L.
Steven E. Wolkin
820 W. Superior Avenue, Suite 510
Cleveland, Ohio 44113
{¶1} Defendant-appellant D.F. appeals from a judgment of the Cuyahoga County Court of Common Pleas Juvenile Division (“juvenile court“) dismissing his complaint to establish paternity for lack of subject matter jurisdiction and based on the doctrine of laches. For the reasons that follow, we affirm the dismissal of his complaint on jurisdictional grounds.
Factual and Procedural Background
{¶2} T.F. and S.W.L. were married on December 30, 1995. Two children, K.M.L. and S.K.L., were born during their marriage. K.M.L. was born on May, 6, 2001, and S.K.L. was born on June 17, 2005. S.W.L. was identified as the father of both children on their birth certificates.
{¶3} In July 2007, T.F. filed for divorce in the Cuyahoga County Court of Common Pleas Domestic Relations Division (“domestic relations court“). A judgment of divorce was entered on September 27, 2007. The judgment entry of divorce included a finding that K.M.L. and S.K.L. were born as issue of the marriage, identified S.W.L. as the father of the two children and incorporated the separation agreement that had been agreed to by the parties. Under the separation agreement, T.F. and S.W.L. agreed to shared parenting of their two minor children, K.M.L. and S.K.L., and that each would be the residential parent and legal custodian of the children during that parent‘s parenting time with them. The parties further agreed that the child support obligation would be deviated to zero and that neither party would pay child support to the other (in light of the
{¶4} Since their birth, T.F. and S.W.L. raised the two children as their own both during the marriage and pursuant to the terms of the shared parenting plan following their divorce. After her divorce from S.W.L., T.F. married D.F.1
{¶5} Although D.F. arguably knew or should have known since 2004 or 2005 that S.K.L. could have been his biological child (based on his extramarital sexual relationship with T.F. at or around the time S.K.L. was conceived), he took no action to determine whether he was, in fact, S.K.L.‘s biological father or to assert any parental claim with respect to S.K.L. until she was more than six years old.
{¶6} It was T.F. who first raised the issue of S.K.L.‘s paternity with the court. In December 2011, four years after her divorce from S.W.L., T.F. filed a series of motions in the domestic relations court seeking to modify the allocation of parental rights and responsibilities, parenting time and the shared parenting plan set forth in the divorce decree based on the allegation that S.W.L. was not S.K.L.‘s biological father. T.F. argued that genetic testing performed in September 2011 indicated that D.F. was S.K.L.‘s
{¶7} On April 24, 2013, the magistrate dismissed T.F.‘s motions to modify allocation of parental rights and responsibilities, parenting time and the shared parenting plan — the motions that had been predicated on the claim that D.F. was S.K.L.‘s biological father — and ordered that the motion to modify child support be referred to a support magistrate. The magistrate concluded that “the paternity of the parties’ minor children ha[d] been established in their divorce decree and is res judicata” and that T.F., therefore, “cannot raise the issue of paternity as a change of circumstances.”3 The magistrate also denied T.F.‘s motion to add D.F. as a new party defendant. T.F. filed objections to the magistrate‘s decision. On June 27, 2013, the trial court overruled her
{¶8} While these motions were pending in the domestic relations court, D.F. commenced proceedings in the juvenile court. On August 17, 2012, D.F. filed a verified application to determine custody (Case No. CU 12113563) in the juvenile court identifying himself as the “father” and one of the “parents” of S.K.L. (making no reference to S.K.L.‘s legal father, S.W.L.) and inaccurately attesting that S.K.L. had lived only with T.F. or with himself and T.F. from 2006 to present. That same day, D.F. also filed a complaint to establish paternity and for allocation of parental rights and responsibilities in the juvenile court (Case No. PR 12713562), alleging that he was the biological father of S.K.L. based on the results of the genetic testing performed in September 2011 and requesting (1) that “any presumption of parentage subscribed [sic] to [S.W.L.] be rebutted,” (2) that he “be recognized as Father to [S.K.L.]” and (3) that he be granted custody of S.K.L. S.W.L. filed an answer to the complaint denying the allegations related to D.F.‘s claims of paternity and asserting various affirmative defenses. Concluding that “not all proper parties to this action were joined and served” in accordance with
{¶9} On May 10, 2013, D.F. filed the current action to establish paternity in the juvenile court, seeking to have himself “deem[ed] the natural biological father” of S.K.L. In an affidavit attached to his complaint, D.F. averred that he and T.F. had an extramarital relationship during T.F.‘s marriage to S.W.L., that S.K.L. was conceived as a result of that relationship and that he is the biological father of S.K.L. Also attached to the complaint was a “brief in support” along with copies of S.K.L.‘s birth certificate, the divorce decree, the results of the genetic testing, the April 23, 2013 magistrate‘s decision and a Uniform Child Custody Jurisdiction Enforcement Act affidavit. S.W.L., “ex-husband/father,” and T.F., “ex-wife/mother,” were named as defendants in the action. S.W.L. filed an answer denying the allegations related to D.F.‘s claims of paternity and asserting various affirmative defenses, including lack of subject matter jurisdiction, laches, the failure to join indispensable parties and that the prior determination of S.K.L.‘s paternity in the divorce decree was final as to both T.F. and D.F. S.W.L. also filed a counterclaim for declaratory judgment, seeking a dismissal of the complaint to establish paternity and a declaration that (1)
{¶10} At a pretrial conference held on March 13, 2014, the juvenile court ordered the parties to submit briefs on various legal issues relating to the court‘s jurisdiction, T.F. and D.F.‘s standing to challenge the paternity of S.K.L., the constitutionality of R.C. Chapters
{¶12} On September 25, 2014, following its consideration of the pleadings, motions and briefs submitted by the parties, the juvenile court entered a judgment entry in which it granted S.W.L.‘s motions to realign the parties and to dismiss the complaint, concluding (1) that the juvenile court lacked subject matter jurisdiction over the parentage issue and (2) that D.F. and T.F. were barred from bringing a parentage action based on the doctrine of laches. The juvenile court held that pursuant to
{¶13} With respect to the laches issue, the juvenile court concluded that although T.F. and D.F. knew, or had reason to know, as early as 2004 that S.K.L. might not be the biological child of S.W.L., they did nothing to assert any such claim until seven or eight
{¶14} D.F. appealed the juvenile court‘s dismissal of his complaint,6 assigning the following five assignments of error for review:
Assignment of Error No. 1: The trial court abused its discretion and erred as a matter of law in sustaining [appellee‘s] motion to dismiss appellant‘s complaint.
Assignment of Error No. 2: The trial court abused its discretion and erred as a matter of law in giving full faith and credit to a judgment entry of the domestic relations division as it effects this appellant who was not a party to that action.
Assignment of Error No. 3: The trial court abused its discretion and erred as a matter of law in finding that the judgment entry of the domestic relations division is determinative for all purposes including appellant‘s complaint.
Assignment of Error No. 4: The trial court abused its discretion and erred as a matter of law in finding that the juvenile division lacks subject matter jurisdiction over parenting issues brought by appellant as this court has continuing jurisdiction over parentage of the subject child.
Law and Analysis
{¶15} Appellant‘s first four assignments of error relate to the juvenile court‘s authority to hear D.F.‘s complaint to establish paternity. In his first assignment of error, D.F. argues that the trial court erred in dismissing his complaint because S.W.L.‘s motion to dismiss was based on only two issues: (1) D.F.‘s failure to serve the Ohio Attorney General and (2) T.F.‘s failure to answer the complaint. D.F. contends that because a notice of service was filed three days after S.W.L. filed his motion to dismiss, demonstrating that a copy of his brief had been served on the Ohio Attorney General, that issue was “presumably resolved.” He further contends that the fact that T.F. failed to answer the complaint “has no bearing upon [D.F.]” because “he had no duty to answer his complaint.” Although we agree that neither of the grounds asserted in S.W.L.‘s motion, in and of itself, warranted dismissal of D.F.‘s complaint, the juvenile court‘s dismissal in this case was not based solely on S.W.L.‘s motion to dismiss, but rather, its determination that it lacked subject matter jurisdiction over the parentage issue raised by D.F.‘s complaint — one of the affirmative defenses raised in S.W.L.‘s answer and one of the issues the juvenile court had expressly asked the parties to address in their briefs. Even where the parties have not raised the issue, a court may sua sponte raise the issue of subject matter jurisdiction at any stage in the proceedings and must dismiss a complaint if it determines that it lacks subject matter jurisdiction.
{¶16} The juvenile court determined that it could not consider D.F.‘s complaint because (1) it was required to give full faith and credit to the domestic relations court‘s parentage determination in the divorce decree under
{¶17} Pursuant to
{¶18} The “father and child relationship” means the “legal relationship” that exists between a child and his or her “natural father.”
{¶19} In his second and third assignments of error, D.F. argues that the juvenile court erred in concluding that
{¶20} The “full faith and credit” provision in
{¶21} Res judicata applies to parentage determinations contained in a divorce decree, including parentage determinations based on an agreement of the parties and binds the parties to that agreement. See, e.g., Van Dusen v. Van Dusen, 151 Ohio App.3d 494, 2003-Ohio-350, 784 N.E.2d 750, ¶ 20-22 (“We do not wish to encourage domestic relations courts and juvenile courts to force the active litigation of the biological parentage in every divorce or parentage action. However, the parentage of a child is adjudicated at the time a divorce occurs. Once that adjudication has occurred, the principles of res judicata apply.“); Atchison v. Atchison, 4th Dist. Scioto No. 00CA2727, 2001 Ohio App. LEXIS 3207, *21-23 (June 29, 2001) (res judicata applies to parentage determination in divorce decree); Cordle v. Cordle, 5th Dist. Fairfield No. 96CA0001, 1996 Ohio App. LEXIS 4469, *2-3 (Sept. 5, 1996) (“The doctrine of res judicata can be invoked to give conclusive effect to a determination of parentage contained in a divorce
{¶22} However, because a judgment has res judicata effect only as to the parties to the judgment and those in privity with them, res judicata does not bar a subsequent parentage action under R.C. Chapter
Subject Matter Jurisdiction
Standard of Review
{¶24} Subject matter jurisdiction is “a court‘s power to hear and decide cases.” Davis v. Heisler, 4th Dist. Hocking No. 09CA12, 2010-Ohio-98, ¶ 15, citing State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). We review a trial court‘s decision to dismiss a complaint for lack of subject matter jurisdiction under a de novo standard of review. Bank of Am. v. Macho, 8th Dist. Cuyahoga No. 96124, 2011-Ohio-5495, ¶ 7, citing Crestmont Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th Dist.2000). In order to dismiss a complaint for lack of subject matter jurisdiction, the court must determine whether the plaintiff “has alleged any cause of action that the court has authority to decide.” Rheinhold v. Reichek, 8th Dist. Cuyahoga No. 99973, 2014-Ohio-31, ¶ 7, citing Crestmont at 936. In making such a determination, the court is not limited to the
{¶25} Pursuant to
{¶26}
Except as otherwise provided in division (B) or (C) of section 3111.381 of the Revised Code, an action authorized under sections 3111.01 to 3111.18 of the Revised Code may be brought in the juvenile court or other court with jurisdiction under section 2101.022 or 2301.03 of the Revised Code of the county in which the child, the child‘s mother, or the alleged father resides or is found * * *. If an action for divorce, dissolution, or legal separation has been filed in a court of common pleas, that court of common pleas has original jurisdiction to determine if the parent and child relationship exists between one or both of the parties and any child alleged or presumed to be the child of one or both of the parties.
(Emphasis added.)
{¶27} This court has previously interpreted the final sentence of
{¶28} In none of these cases, however, did the court specifically address the continuing jurisdiction of the domestic relations court in a parentage action where a prior determination of paternity was made.
The court has continuing jurisdiction to modify or revoke a judgment or order issued under sections
3111.01 to3111.18 of the Revised Code toprovide for future education and support and a judgment or order issued with respect to matters listed in divisions (C) and (D) of section 3111.13 and division (B) of section3111.15 of the Revised Code, except that a court entering a judgment or order for the purchase of an annuity under division (D) of section3111.13 of the Revised Code7 may specify that the judgment or order may not be modified or revoked.
(Emphasis added.)
{¶29} In addition,
If an action for divorce, dissolution of marriage, or legal separation, or an action under section
2151.231 or2151.232 of the Revised Code requesting an order requiring the payment of child support and provision for the health care of a child, has been filed in a court of common pleas and a question as to the existence or nonexistence of a parent and child relationship arises, the court in which the original action was filed shall retain jurisdiction to determine the existence or nonexistence of the parent and child relationship without an administrative determination being requested from a child support enforcement agency.If a juvenile court or other court with jurisdiction under section
2101.022 or2301.03 of the Revised Code issues a support order under section2151.231 or2151.232 of the Revised Code relying on a presumption under section3111.03 of the Revised Code, the juvenile court or other court with jurisdiction that issued the support order shall retain jurisdiction if a question as to the existence of a parent and child relationship arises.
(Emphasis added.)
{¶30} The Ohio Supreme Court has interpreted
{¶31} In this case, D.F. seeks an order establishing himself as S.K.L.‘s natural biological father, an order that would — in effect, if not directly — disestablish S.W.L. as her father or conflict with the prior determination by the domestic relations court that S.W.L. is the legal father of S.K.L.8 Further, although the relief D.F. seeks in his complaint is limited to establishing his paternity of S.K.L., he has indicated that his purpose in seeking to establish his paternity of S.K.L. is to “exercise his rights of a biological father,” i.e., to seek a reallocation of the parties’ parental rights and responsibilities as to S.K.L.
{¶32}
{¶33} In Broxterman v. Broxterman, 101 Ohio App.3d 661, 656 N.E.2d 394 (1st Dist.1995), the First District held that the legal custodians of a minor child had the right to bring a paternity action in domestic relations court after parentage had been previously determined in a final decree of divorce. Id. at 663. The Broxtermans divorced in 1984. Id. at 662. The divorce decree included a finding by the court that Joshua Broxterman was born as issue of the marriage. Id. Custody of Joshua was originally awarded to his mother, Vicki Broxterman, and his father, Mark Broxterman, was ordered to pay child support and granted visitation rights. Id. In 1990, by agreement of the parties and with the approval of the court, permanent custody of Joshua was awarded to his maternal grandparents. Id. In 1992, the grandparents filed a post-decree motion in the domestic relations court for genetic testing to determine parentage, supported by an affidavit from Vicki Broxterman, that Mark Broxterman was not Joshua‘s biological father. Id. at 662-663. The trial court dismissed the action of the grounds that Joshua‘s parentage had
{¶34} In this case, as in Broxterman, although the final decree of divorce has been entered, the domestic relations court continues to address issues relating to the support of S.K.L. and allocation of parental rights and responsibilities relating to S.K.L. Compare Nwabara, 135 Ohio App.3d at 127, 733 N.E.2d 267 (domestic relations court never acquired primary jurisdiction over child‘s paternity where unborn child was not a party to divorce action and where divorce decree found husband was not the father of child and
{¶35} D.F. expressly acknowledged in his juvenile court filings that he would have been required to file his paternity action in the domestic relations court if he had sought to establish his paternity of S.K.L. before the final divorce decree had been entered. Where, as here, the domestic relations court made the initial parentage determination and retained jurisdiction over matters such as support and the allocation of parental rights and responsibilities relating to S.K.L., we see no reason to interpret Ohio‘s parentage statute as providing for a different result simply because D.F. chose to delay his paternity action until after the divorce decree was final.
{¶36} When dealing with matters involving children, we must always be guided by the mandate to act in the best interests of the child. There are few areas where matters of stability, consistency and uniformity are more important than the life of a child. Policy considerations thus weigh heavily in favor of our interpretation of Ohio‘s parentage statute as granting exclusive continuing jurisdiction to the domestic relations court over the paternity issue raised in this case. Requiring that D.F.‘s paternity action be heard by the domestic relations court that made the initial determination of S.K.L.‘s paternity
Laches
{¶37} In his fifth and final assignment of error, D.F. argues that the juvenile court erred in determining that his complaint was barred by the doctrine of laches.
{¶38} Laches is an equitable defense. It applies where a party fails “‘to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party.‘” Connin v. Bailey, 15 Ohio St.3d 34, 35, 472 N.E.2d 328 (1984), quoting Smith v. Smith, 107 Ohio App. 440, 443-444, 146 N.E.2d 454 (8th Dist.1957); see also Sobin v. Lim, 8th Dist. Cuyahoga No. 97952, 2012-Ohio-5544, ¶ 17 (“Laches is an equitable doctrine that bars the delayed assertion of claims when the delay has caused circumstances to change so much that it is no longer just to grant the plaintiff‘s claim.“).
{¶39} The party invoking the doctrine of laches must establish four elements by a preponderance of the evidence: (1) an unreasonable delay or lapse of time in asserting a right; (2) the absence of an excuse for the delay; (3) knowledge, actual or constructive, of the injury or wrong; and (4) prejudice to the other party. Sobin at ¶ 17; Portage Cty. Bd. of Comm. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 81.
{¶40} As to its application in parentage actions, laches may be available as a defense in a parentage action filed prior to the expiration of the statute of limitations11 if the defendant can show material prejudice as a result of the unreasonable and unexplained delay. Wright v. Oliver, 35 Ohio St.3d 10, 11-12, 517 N.E.2d 883 (1988); H.N.H. v. H.M.F., 8th Dist. Cuyahoga No. 84642 2005-Ohio-1869, ¶ 7 (“Laches may be an equitable defense to a paternity action, but only if it is shown that the person for whose benefit the doctrine will operate has been materially prejudiced by an unreasonable and unexplained delay of the person asserting the claim.“); Seegert v. Zietlow, 95 Ohio App.3d 451, 457, 642 N.E.2d 697 (8th Dist.1994). Delay in asserting the right alone is insufficient to establish laches. Connin, 15 Ohio St.3d at 35-36.
{¶41} The application of laches may very well be appropriate in this case if the facts are proven to be as alleged by the parties. S.W.L. has been the father S.K.L. has known her entire life, providing financial, psychological and emotional care and support to S.K.L. See, e.g., Riddle v. Riddle, 63 Ohio Misc.2d 43, 619 N.E.2d 1201 (C.P. 1992) (laches applied to estop plaintiff from using genetic testing to disestablish child‘s paternity with the defendant, his presumed father, where plaintiff allowed defendant to
{¶42} In this case, however, the juvenile court found that laches barred D.F.‘s paternity action after determining that it lacked subject matter jurisdiction over the parentage issue raised by the complaint. The juvenile court‘s finding that it lacked subject matter jurisdiction is inconsistent with its dismissal of the case on laches grounds. Because the juvenile court had determined that it lacked subject matter jurisdiction, it could not then also determine that D.F.‘s complaint was barred by laches.
{¶43} Furthermore, “‘[w]hat constitutes material prejudice is primarily a question of fact to be resolved through a consideration of the special circumstances of each case.‘” State ex rel. Doran v. Preble Cty. Bd. of Commrs., 12th Dist. Preble No. CA2012-11-015, 2013-Ohio-3579, ¶ 30, quoting Shockey v. Blackburn, 12th Dist. Warren No. CA98-07-085, 1999 Ohio App. LEXIS 2239, *10 (May 17, 1999).
{¶44} A “father” is more than biology. As one court has explained:
“First, the statutes with which we must work do not adequately identify the elements of fatherhood. A father-child relationship encompasses more (and greater) considerations than a determination of whose genes the child carries. Sociological and psychological components should be considered. * * * Second, there is a need to separate issues of paternity from issues of fatherhood. The present statutory scheme blurs these issues and lumps them into one pot.” [Hulett v. Hulett, 45 Ohio St. 3d 288, 295, 544 N.E.2d 257 (Brown, J. concurring).]
There are potentially conflicting goals within the various parentage provisions. One obvious goal is to accommodate genetic evidence to insure that a correct parentage determination is made from the outset. See e.g.,
R.C. 3113.09 . In fact, the duty to support children applies to “the biological or adoptive parent,”R.C. 3103.03(A) , and Ohio legislation gives precedence to genetic testing over any presumption of legitimacy. See Hulett at 292. On the other hand, the various parentage provisions encourage and accommodate the establishment of parent-child relationships regardless of whether a genetic relationship is conclusively established. See, e.g.,R.C. 2105.18 (probate court may establish a parent-child relationship through acknowledgment proceedings). The General Assembly has not specified that establishment of a genetic relationship is a prerequisite to establishment of a parent-child relationship.
Leguillon v. Leguillon, 124 Ohio App.3d 757, 766, 707 N.E.2d 571 (12th Dist.1998). Recognizing this fact, some courts have favored “finality” over “perfection” in matters involving determinations of parentage, custody, visitation and support of a minor child. See, e.g., Peake, 2000 Ohio App. LEXIS 3423 at *15-18; Strack v. Pelton, 70 Ohio St.3d 172, 175, 637 N.E.2d 914 (1994) (upholding a judgment of paternity despite the fact that
{¶45} Under the special circumstances of this case, whether material prejudice exists would necessarily involve consideration of the prejudice to S.W.L. that would result if he were to be now stripped of his paternity nearly ten years after the birth of S.K.L. and what is in S.K.L.‘s best interests. Such a determination is properly made after hearing evidence on the issue, not based on allegations in the pleadings and briefs submitted on jurisdictional issues — as the juvenile court did in this case.
{¶46} Accordingly, the juvenile court erred to the extent it dismissed D.F.‘s complaint on laches grounds. However, because the juvenile court properly determined that the domestic relations court had exclusive continuing jurisdiction over its
{¶47} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
__________________________________________
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
EILEEN T. GALLAGHER, J., CONCUR
Notes
- Does the putative father have standing to bring his complaint to establish parentage?
- In light of the domestic relations court having jurisdiction over the subject child and its prior findings and orders, what is the basis for this court‘s exercising jurisdiction in this matter?
- Are the provisions of O.R.C. Chapters 2151 and 3111 constitutional when applied to the facts of this case?
- Is the mother judicially estopped from supporting putative father‘s claim of parentage?
- Are the genetic test results admissible into evidence where the mother, having secured a prior judicial determination of parentage of the husband, has subsequently presented the child and herself voluntarily with the putative father for genetic testing?