State ex rel. Fowler v. SmithState ex rel. Fowler v. Smith
Appellees filed a motion to dismiss, which was subsequently converted by the court of appeals to a motion for summary judgment. Appellant filed a memorandum in opposition to appellees’ motion as well as a cross-motion for summary judgment. The evidence submitted under
On February 15, 1985, Bobbie Phelps and her child, Arthello Smith (born April 5, 1968), filed a paternity complaint in the Cuyahoga County Court of Common Pleas, Juvenile Division. The complaint alleged that appellant was the father of the child and prayed for an adjudication of the parent-child relationship, child support, etc. The juvenile court granted the motion of the Cuyahoga County Department of Human Services to intervene as an additional plaintiff in the action. The county prosecutor‘s office represented all of the plaintiffs in the paternity proceeding. Prior to a trial scheduled for December 12, 1991, the parties reached an agreement whereby the plaintiffs would dismiss the case in return for appellant‘s payment of $5,000. Judge Smith, however, refused to continue the trial in order to effectuate the agreed dismissal, and he proceeded to hear the merits of the paternity action. Appellant‘s counsel forwarded a check in the amount of $5,000 to the assistant prosecutor and Bobbie Phelps, which was endorsed by them.
On January 16, 1992, the parties filed a stipulation for dismissal, which provided that the paternity complaint was dismissed “pursuant to Civil Rule 41(A)(2).” By entry filed March 24, 1992, Judge Smith declined to recognize the stipulated dismissal because (1) the court had heard evidence and made its oral adjudication, and (2) the dismissal was not in the best interest of the child. On April 10, 1992, Judge Smith filed an entry which adjudicated appellant to be the father of the child and continued the issue of his amount of liability for “past care.” Appellant‘s counsel subsequently advised Judge Smith that the stipulated dismissal was
On November 23, 1992, the court of appeals issued an opinion and journal entry which granted appellees’ motion for summary judgment and overruled appellant‘s cross-motion for summary judgment. State ex rel. Fowler v. Smith (Nov. 23, 1992), Cuyahoga App. No. 63728, unreported. The court of appeals determined that (1) a writ of prohibition could not issue since
This cause is before the court upon an appeal as of right.
Lester S. Potash, for appellant.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Patrick J. Murphy, Assistant Prosecuting Attorney, for appellees.
Per Curiam. Appellant‘s first proposition of law asserts that the parties to a parentage action may stipulate the dismissal of the litigation pursuant to
To obtain a writ of prohibition, relator must prove (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying a writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 336-337, 617 N.E.2d 1120, 1123, at fn. 2. When a court patently and unambiguously lacks jurisdiction to consider a matter, a writ of prohibition will issue to prevent assumption of jurisdiction regardless of whether the lower court has ruled on the question of its jurisdiction. State ex rel. Rice v. McGrath (1991), 62 Ohio St.3d 70, 71, 577 N.E.2d 1100, 1101.
Appellant claims that the January 16, 1992 dismissal, which predated the journalization of the adjudication of paternity, was properly filed pursuant to
“(1) By plaintiff; by stipulation. * * * [A]n action may be dismissed by the plaintiff without order of the court (a) by filing a notice of dismissal at any time before the commencement of trial * * * or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice * * *.
“(2) By order of court. Except as provided in subsection (1)
an action shall not be dismissed at the plaintiff‘s instance except upon order of the court and upon such terms and conditions as the court deems proper.”
Appellant initially claims that the stipulated dismissal was pursuant to
However, the juvenile court has never entered a final order in the paternity action - - apparently the issue of past child support remains pending - - and
Parentage actions are “governed by the Rules of Civil Procedure unless a different procedure is specifically provided by”
“After an action has been brought and before judgment, the alleged father and mother may, subject to approval of the court, compromise the action by an agreement in which the parent and child relationship is not determined but in which a specific economic obligation is undertaken by the alleged parent in favor of the child. In reviewing the obligation undertaken by the alleged parent, the court shall consider the interest of the child, the factors set forth in division (E) of section 3113 of the Revised Code [now
R.C. 3113.215(B)(3) ], and the probability of establishingthe existence of a parent and child relationship in a trial.” (Emphasis added.) Am. Sub. H.B. No. 245, 139 Ohio Laws, Part I, 2170, 2190.
Appellant relies on James v. Elward (Jan. 22, 1991), Ross App. No. 1630, unreported, in support of his contention that
Accordingly, since
Appellant‘s third proposition of law asserts that where the trial court, without jurisdiction or authority to do so, enters orders affecting former litigants’ rights, a writ of mandamus will issue to the clerk of court to strike or remove such orders from the court records. This relates to appellant‘s mandamus claim against Judge Harris in his capacity as ex officio clerk of the juvenile division. However, as appellant admits in his brief on appeal, if he is not entitled to a writ of prohibition against Judge Smith, he is not entitled to a writ of mandamus against Judge Harris. Therefore, because the court of appeals correctly denied the prohibition claim, the court also correctly denied appellant‘s mandamus action against Judge Harris. Finally, although appellant‘s complaint below included a mandamus claim against the county prosecutor, he fails to assert in his propositions of law that the court of appeals erred in denying that claim.
Accordingly, for the foregoing reasons, the judgment of the court of appeals denying appellant‘s complaint for writs of prohibition and mandamus is affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.