STRACK, APPELLANT, v. PELTON, F.K.A. STRACK, APPELLEE.
No. 93-1070
SUPREME COURT OF OHIO
August 31, 1994
70 Ohio St.3d 172 | 1994-Ohio-107
Submitted May 25, 1994. Appeal from the Court of Appeals for Ashtabula County, No. 92-A-1751.
{¶ 1} On October 19, 1977, appellant, David A. Strack, filed a complaint for a divorce from his wife, appellee, Donna M. Strack (now Peltоn). David alleged in the complaint that no children were born as issue of the marriage. Donna alleged in her answer that she was pregnant with a child of the marriage. Blood-grouрing tests were conducted on the parties and revealed that David could not be excluded as father of the child in question.
{¶ 2} In June 1978, the trial court entered its judgment granting the partiеs a divorce. This divorce decree stated that one child had been born as issue of the marriage and ordered David to pay $40 per week in child support until the child reached the age of eighteen.
{¶ 3} In October 1987, nine years after the judgment of divorce, appellant filed a motion for a human leukocyte antigen (“HLA“) genetic test to determine conclusively his paternity of the child in question. The results of the HLA test excluded appellant as the father of the child.
{¶ 4} On January 22, 1990, David filed a motion pursuant to
{¶ 5} David testified at a hearing on the motion that the parties had not engaged in sexual intеrcourse at all during the 1977 calendar year. Donna admitted that towards the end of April 1977, while she was intoxicated, she had a sexual “incident” (but not intercourse) with an unknown man named “Jim.” The child in question was born nine months later on January 18, 1978. The trial court overruled David‘s motion, and the court of appeals affirmed.
{¶ 6} The cause is now before this court pursuant to an allowance of a motion to certify the record.
Bobulsky & Grdina and Samuel L. Altier, for appellant.
Robert S. Wynn, for appellee.
MOYER, C.J.
{¶ 7} This case presents the question whether a motion for relief from judgment pursuant to
{¶ 8}
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertencе, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(B) ; (3) fraud (whether hеretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is satisfied, released or discharged, or a prior judgmеnt upon which it has been based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from judgment. The motion shall be madewithin a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proсeeding was entered or taken. A motion under subdivision (B) does not affect the finality of a judgment or suspend its operation.”
{¶ 9} In order for a party to prevail on a motion for relief from judgment under
“(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) , (2), or (3), not more than one year after the judgment, order or proceeding was entered or taken.” GTE Automatic Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus.
{¶ 10} These requirements are independent and in the conjunctive; thus the test is not fulfilled if any one of the requirements is not met. Id. at 151, 1 O.O.3d at 88, 351 N.E.2d at 116. The standard by which we review a decision on a
{¶ 11} Appellant alleges his claim is meritorious because the results оf an HLA blood test disqualify him as the father of the child in question. The test results are admissible to determine paternity pursuant to
{¶ 12} Second, appellant argues he is entitled to relief under one of the provisions of
{¶ 13} Appellant asserts that his claim falls under
{¶ 14}
{¶ 15} The third prong of the
{¶ 16} Even if we were to apply
{¶ 17} We arе not unaware that our decision in effect declares as static a state of facts that reliable scientific evidence contradicts. Nonetheless, there arе compelling reasons that support such a decision. A claim under
{¶ 18} For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur.
PFEIFER, J., dissents.
PFEIFER, J., dissenting.
{¶ 19}
{¶ 20} The charaсter of the judgment against Strack is specifically addressed in
{¶ 21} Since
{¶ 22} In the present case, however, the lack of a relationship between Strack and the child is evidence thаt Strack did file his motion within a reasonable time. Strack has not seen the child, who is now sixteen years old, for twelve years. He has grown up without Strack‘s support and guidance. In faсt, the child already has a father figure with whom he and his mother live, who presumably provides what the family needs. In short, Strack serves no function to the child, and their legal separation would do no emotional harm to the child.
{¶ 23} There is no reason for this court to indulge in a legal fiction which forces the parties involved to continue living a lie. Strack should not bе refunded any of the payments he made prior to the filing of his motion, but he should not be forced to continue to pay child support where he has no biological or psychological connection with the child. Certainly,