I respectfully dissent from the majority's judgment in this appeal. Not only do I find the facts in this case distinguishable from those in Strack v. Pelton (1994), 70 Ohio St. 3d 172, 637 N.E.2d 914, but also I believe the majority's judgment contravenes the intent and/or purpose of Civ.R. 60.
In Strack the couple was divorced in 1978. Although the father had argued that he was not the biological father of the child, the divorce decree ordered the father to pay child support. Id. at 173, 637 N.E.2d at 915. In 1987, the father filed a motion for genetic testing. The results of the test excluded the father as the biological father. On January 22, 1990, the father filed a Civ.R. 60(B) motion regarding the issue of child support.
Since the father had been contesting paternity since before the time of the divorce decree, the court imputed knowledge of the newly developed technology supporting his claim to 1982 (when genetic testing became admissible to determine paternity).Id. at 175, 637 N.E.2d at 916. Since the father filed his motion in 1987, the motion was untimely.
In this case the trial court noted that the dissolution decree held that no children were born as issue to the marriage. Importantly, the appellee was not ordered to pay child support at the time of the divorce. Thus, unlike the facts in Strack, appellee did not know that paternity was an issue until he was served with the petition for child support on November 11, 1994. Appellee then filed his motion to vacate on February 28, 1995.
It is well established that Civ.R. 60(B) is a remedial rule and should be construed liberally. See Colley v. Bazell (1980),64 Ohio St. 2d 243, 18 O.O.3d 442, 416 N.E.2d 605; In reDissolution of Marriage of Watson (1983), 13 Ohio App. 3d 344, 13 OBR 424, 469 N.E.2d 876. Moreover, the Ohio Supreme Court has maintained that the purpose of Civ.R. 60 is to afford "relief in the interest of justice." Blasco v. Mislik (1982), 69 Ohio St. 2d 684,688, 23 O.O.3d 551, 553, *Page 523 433 N.E.2d 612, 615; Moore v. Emmanuel Family Training Ctr. (1985),18 Ohio St. 3d 64, 18 OBR 96, 479 N.E.2d 879.
In the case sub judice, I do not believe that requiring child support payments from a man who is proven not to be the father of the child is in the best interest of justice. Nor do I think the majority's judgment will enhance public confidence in the judicial system. Rather, the majority's judgment ignores the fact that appellee did not know, and had no reason to believe, that paternity was an issue until he was served with a petition for child support. Accordingly the majority renders a decision I believe to be unjust.
Considering the underlying purpose of Civ.R. 60, the unique facts and circumstances surrounding this case and the fact that the trial court specifically stated that the divorce decree held that no children were born as issue of marriage, I cannot find that the trial court abused its discretion in granting appellee's motion to vacate. For these reasons I respectfully dissent.