Lead Opinion
This сase presents the question whether a motion for relief from judgment pursuant to Civ.R. 60(B) is timely when filed more than one year after judgment, and more than one yеar after the new evidence upon which it is based became admissible. For the following reasons, we hold that it is not.
Civ.R. 60(B) provides in part:
“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, inаdvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time tо move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adversе party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is 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 bе
In order for a party to prevail on a motion for relief from judgment under Civ.R. 60(B), the movant must demonstrate the following:
“(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 are Civ.R. 60(B)(1), (2), or (3), not more than onе year after the judgment, order or proceeding was entered or taken.” GTE Automatic Elec. v. ARC Industries, Inc. (1976),
These requirements are independent and in the conjunctive; thus the test is nоt fulfilled if any one of the requirements is not met. Id. at 151,
Appellant alleges his claim is meritorious because the results of an HLA blood test disqualify him as the father of the child in question. The test results are admissible to determine paternity pursuant to R.C. 3111.09 and 3111.10. Thus, Strack argues, he may have a “meritorious claim” for the purpose of Civ.R. 60(B) analysis.
Second, appellant argues he is entitled to relief under one of the provisions of Civ.R. 60(B)(1) through (5) because he has come forward with new evidence, a proper ground under Civ.R. 60(B)(2).
Appellant asserts that his claim falls under Civ.R. 60(B)(4) and (5), and not the more specific provision that deals with newly discovered evidence. We disagree. The basis of Strack’s motion is tеst results that were not available at the time of the divorce decree. The results are evidence; they are newly discovered. A straightforward and logical reading of Civ.R. 60(B)(2) dictates that it applies.
Civ.R. 60(B)(5) applies only when a more specific provision does not apply. Caruso-Ciresi, Inc. v. Lohman (1983),
Even if we were to apply Civ.R. 60(B) loosely and allow extra time not provided for by the rule, we would have to look to the time when the evidenсe became admissible to determine paternity, in this case 1982. Because Strack asserts that he has contested paternity of the minor child from before the time of the divorce decree, we may impute to him the knowledge of the newly developed technology to support his claim. For these reasons, we concur with the trial court’s determination that Strack did not file his Civ.R. 60(B) motion in a timely manner.
We are not unaware that our decision in effect declares as static a state of facts that reliable scientific evidence contradicts. Nonetheless, there are compelling reasons that support such a decision. A claim under Civ.R. 60(B) requires the court to carefully consider the two conflicting principles of finality and рerfection. In Knapp v. Knapp (1986),
For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
Dissenting Opinion
dissenting. Civ.R. 60(B)(4) is the applicable provision in this case. The judgment against Strack in 1978 placed a continuing obligation upon him, an
The character of the judgment against Strack is specifically addressed in Civ.R. 60(B)(4), in that it has continuing, prospective application. Thе judgment in this case need not be retroactively undone — but its prospective, inequitable application can be stopped easily.
Since Civ.R. 60(B)(4) is the applicable provision, a motion thereunder must be made “within a reasonable time.” In paternity cases, the extent of the relationshiр between the wrongly identified “father” and the child will be the key factor in the determination. If the child has come to rely upon the “father” for both financiаl and emotional support, the reasonable time period has expired.
In the present case, however, the lack of a relationship between Strack and the child is evidence that Strack did file his motion within a reasonable time. Strack has not seen the child, who is now sixteen years old, fоr twelve years. He has grown up without Strack’s support and guidance. In fact, 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.
There is nо reason for this court to indulge in a legal fiction which forces the parties involved to continue living a lie. Strack should not be 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, Rule 60(B)(4) provides the means to correct a continuing mistake.