State Ex Rel. Wilkerson v. Truss

For the following reasons, I respectfully dissent from the decision of the majority which concluded that the judgment of the trial court allowing appellee, William Truss, a second genetic test at state's expense for the purpose of establishing paternity does not constitute a final appealable order. As previously set forth, on May 6, 1996, appellant filed a paternity action in the Cuyahoga County Juvenile Court seeking to establish a parent-child relationship between appellee and the minor child of Anna Wilkerson. A pretrial hearing was scheduled for July 8, 1996 at which appellee appeared and was represented by court-appointed counsel. *Page 638 At that time, the trial court, at appellee's request, ordered the parties to submit to state funded genetic testing to determine the parentage of the minor child. On August 21, 1996, the results of the genetic tests were filed with the trial court. The results indicated that appellee could not be excluded and there was a probability of paternity of 99.79% creating a presumption of paternity under Ohio law. See R.C. 3111.03(5).

On February 7, 1997, the trial court determined that appellee had failed to rebut the presumption of paternity by clear and convincing evidence that he was Latoya Hatcher's biological father. A corresponding support order was entered and the trial court granted judgment on Past Care (Public Assistance Reimbursement) due the Ohio Department of Human Services. The matter was continued on the issue of Past Care due Anna Wilkerson.

On May 19, 1998, the trial court granted appellee leave to file a motion to vacate the prior finding of a parent-child relationship. A motion for relief from judgment and for a new genetic test was then filed on June 29, 1998 in which appellee, a 77-year old man, alleged that he was sterile. Appellee did not present any scientific evidence, but argued that he was unable to father any other children during two previous marriages. Appellee also alleged that Ms. Wilkerson had admitted to unidentified third persons that someone other than appellee was the father. After a hearing on the motion, the trial court ordered that a second genetic test be performed at state's expense.

Appellant maintains that a second genetic test at the state's expense is improper since it creates an unwanted precedent of allowing a litigant who is unhappy with the results of a genetic test, which indicates a 99% plus probability of paternity, to have a second test at state's expense. It is appellant's position that such a precedent would have the effect of creating an undue financial burden on the state's limited financial resources in this area and, more importantly, hinder judicial economy by preventing the necessary degree of finality to paternity actions. Appellant also argues that the trial court's decision contradicts Loc.R. 11 of the Court of Common Pleas of Cuyahoga County, Juvenile Division, which states:

When the first Genetic Test or Tests exclude the accused as being the father of the child in question and the mother of the child desires a test by another serologist, the costs of such second test shall be paid by the mother. The mother must file a Motion, accompanied by the required costs, for the second test within thirty (30) days after she has been notified of the exclusion.

In this instance, appellant maintains that, even though the rule in question is directed to mothers who desire a second genetic test, it can clearly be applied to purported fathers as well. Lastly, appellant argues that the Civ.R. 60(B) motion *Page 639 for relief from judgment was not filed in a timely fashion since it was filed more than one year after the judgment in question.

At first blush, it appears that the majority's recitation of the law in this area as it relates to final appealable orders in paternity actions is correct. While I acknowledge the conclusion of the majority, I respectfully submit that R.C. 2505.02, which became effective July 22, 1998, allows for appeal in such a situation as the one presented in the case herein. Specifically, R.C. 2505.02(B)(2) provides:

(B) An order is a final order and may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

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(2) An order that effects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

Clearly, a paternity action is a special proceeding for the purposes of R.C. 2505.02. See Mullins v. Roe(May 15, 1998), Scioto App. No. 97CA2518, unreported; State v. Ward (Nov. 18, 1998), Lawrence App. No. 95CA40, unreported. Furthermore, I believe that, in this instance, the additional paternity test in question affects a substantial right pursuant to the amended statute and appellate review under such circumstances should be available. This is particularly true in light of the fact that the trial court record presents no substantive evidentiary reason for conducting a second genetic test. Had appellee presented more than his own somewhat conclusory statements in support of his motion, I believe the trial court may have been justified in ordering a second test. However, this is not the situation presented herein.

For the foregoing reasons, I respectfully dissent from the decision of the majority as I believe R.C. 2505.02, as amended on July 22, 1998, allows for appellate review in this situation.

APPENDIX

The trial court erred in ordering a second genertic test to be conducted at state expense after previously establishing paternity based upon the results of genetic testing which showed a probability of paternity in excess of 99%.
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