In this cause, the court, on appellants Civ. R. 60(B)(1), (4) and (5) motion, heard testimony and received evidence that appellant was sterile at the time of conception, that he was incarcerated at the time of conception, and that scientific blood testing established that he was not the father of the child. Further, the court received testimony from the mother that appellant was not the father.
In spite of the great pressure on the court to make somebody beside the state pay for the unfortunate child, the trial court granted appellants Civ. R. 60 (B) motion and vacated the previous finding of paternity. In this holding of the trial court and the majority in affirming that decision, I agree.
However, I must ask, how can the same motion be allowed on the basis of newly discovered evidence as to paternity and be denied as to Civ. R. 60(B)(4), which requires a showing that it is no longer equitable that the judgment should have prospective application and was filed at a reasonable time but more than one year after the judgment?
Both facets of appellants motion are based upon newly discovered evidence, and if one is timely filed under GTEAutomatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146,1 O.O.3d 86, 351 N.E.2d 113, why not the other?
Once again, the facts will not support the fiction. I must continue to resist making the Civil Rules the "obligor" for child support, and therefore, I dissent. *Page 147