Dragon v. Dragon

[Cite as Dragon v. Dragon, 2016-Ohio-7304.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104019

KATHERINE DRAGON

PLAINTIFF

vs.

GERALD G. DRAGON
DEFENDANT-APPELLANT

JUDGMENT:
REVERSED AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-82-132150

BEFORE: S. Gallagher, J., Stewart, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: October 13, 2016
FOR APPELLANT

Gerald G. Dragon, pro se
19305 Apelt Drive
Cleveland, Ohio 44135

ATTORNEYS FOR APPELLEE

For Cuyahoga Job and Family Services
Office of Child Support Services

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joseph C. Young
Assistant Prosecuting Attorney
CJFS-OCSS
3955 Euclid Avenue
Cleveland, Ohio 44115

Also listed:

Nikki L. Henderson
3915 Crossing Creek Drive
Claremont, North Carolina 28610
SEAN C. GALLAGHER, J.:

{¶1} Gerald Dragon disagrees with the denial of his request under R.C. 3119.961

for relief from a 30-year-old paternity determination, in which he also sought a court

order to obtain genetic testing and relief from the ensuing child support order. Dragon

alleges that he discovered new information with respect to whether he fathered the three

children of his marriage. The trial court denied Dragon’s motion, holding that the

doctrine of res judicata precluded the court from offering Dragon any relief because he

failed to appeal the 1982 paternity determination. The trial court erred, and therefore, we

reverse and remand for further proceedings.

{¶2} Dragon was divorced from his now deceased wife in 1982, at which time

Dragon was obligated to pay child support. By 2007, the support arrearage had grown to

over $30,000 owed to the ex-wife, and around $750 owed to Cuyahoga County Child

Support Enforcement Agency (“CSEA”). The arrearage was reduced to judgment. In

late 2015, Dragon filed several motions for relief from the paternity and support orders,

based on his claim that he was not the father of two of his three children. In that series

of motions, Dragon also sought genetic testing.

{¶3} The issue before us is straightforward and limited in scope. The trial court

applied the doctrine of res judicata to preclude Dragon’s motion for relief from the

paternity determination and the support order, holding that Dragon could have appealed

the 1982 support order and also the 2007 order reducing the arrearage to judgment.
According to the trial court, because he could have filed appeals, he is now precluded

from seeking relief under R.C. 3119.961.

{¶4} This court has consistently recognized that R.C. 3119.96 et seq. provides a

“right to seek relief from judgment of paternity” without regard to a specific time

limitation. CSEA ex rel. E.T. v. H.S., 8th Dist. Cuyahoga No. 82820, 2004-Ohio-3120, ¶

8. “[U]nder R.C. 3119.963, the judge is authorized to order genetic testing [in certain

circumstances] and to enter judgment against any party who ‘willfully fails to submit’ to

genetic testing.” Id. In CSEA ex rel. E.T., the mother gave birth to a daughter in 1964

and obtained a paternity determination the following year based on the father’s admission,

obligating the father to pay child support. Id. at ¶ 3. In 2001, CSEA attempted to

liquidate the arrearage, and the father sought relief from the paternity and support

determination. Id. Despite the procedural history, it was concluded that the father could

seek relief from the paternity determination and support order under R.C. 3119.961. Id.;

see also In re H.M., 8th Dist. Cuyahoga No. 96470, 2011-Ohio-3697, ¶ 16 (father is free

to proceed under R.C. 3119.961 and seek relief because there is no time limit precluding a

motion filed under that statutory section). Importantly, the panel also noted that the

failure to specifically reference R.C. 3119.961 in the motion is not dispositive; a party

seeking relief under the statutory section is not required to expressly invoke the statutory

sections for its application. Id. at ¶ 9. The same result must follow in this case. The

doctrine of res judicata, in and of itself, does not preclude Dragon from filing a motion

for relief from a paternity determination or support order.
 {¶5} We acknowledge that res judicata may preclude a party from seeking relief

under R.C. 3119.961 a second time. See, e.g., In re L.S., 8th Dist. Cuyahoga No. 91598,

2009-Ohio-617, ¶ 14. In L.S., the father sought and was granted relief from the paternity

determination under R.C. 3119.96 et seq.; but the trial court nonetheless enforced the

arrearage, and father failed to appeal that decision. A second motion for relief from

paternity was filed, in order to challenge the arrearage. Id. Under that specific

circumstance, res judicata precluded the second filing because the father could have

appealed the trial court’s decision to enforce the arrearage after relief under R.C.

3119.961 was granted. Id. The second filing under R.C. 3119.96 et seq. was precluded

pursuant to the doctrine of res judicata. This is Dragon’s first attempt to seek relief

under R.C. 3119.96 et seq., and therefore L.S. is inapplicable.

{¶6} Appellee responds by characterizing Dragon’s motion for relief from

paternity as one that must fail on the merits and is guided by Civ.R. 60(B). Under R.C.

3119.961(A), Civ.R. 60(B) is expressly inapplicable to motions for relief from paternity

or a support order.

{¶7} Appellee also argues the trial court lacked jurisdiction because the court’s

continuing jurisdiction can only be invoked if a motion is served upon all parties under

Civ.R. 75(J). This argument ignores the fact that R.C. 3119.96 et seq. independently

imparts jurisdiction upon the trial court to resolve the motion filed by Dragon. There is

no service requirement within the statutory framework; jurisdiction is solely predicated on

filing a motion under R.C. 3119.961, and therefore, any reference to a trial court’s
continuing jurisdiction under Civ.R. 75(J) is misplaced. As a result, appellee has not

presented an argument supported by citations to the relevant authority as required by

App.R. 16(A)(7).

{¶8} As to the substantive arguments, appellee argues that R.C. 3111.05, which

provides that an action to determine paternity cannot be brought later than five years after

the child’s 18th birthday, precludes Dragon from filing the motion for relief for paternity.

We disagree. As this court unambiguously noted, a motion for relief from paternity

under R.C. 3119.96 et seq. is not an original action to determine paternity, and therefore,

R.C. 3111.05 is inapplicable to a motion filed under R.C. 3119.96 et seq. CSEA ex rel.

E.T., 8th Dist. Cuyahoga No. 82820, 2004-Ohio-3120, ¶ 8.

{¶9} Appellee lastly argues that under R.C. 3119.962, Dragon must first present

genetic testing before he can file a motion for relief from a paternity determination or

support order under R.C. 3119.961. Essentially, appellee equates the requirement that “a

court shall grant relief” if (1) it receives genetic testing, (2) the person has not adopted the

child, and (3) the child was not conceived as a result of artificial insemination, as a

jurisdictional roadblock to the filing of a petition under R.C. 3119.961. R.C. 3119.962,

however, does not create a jurisdictional limitation to filing a petition under R.C.

3119.961; it merely provides that a court may only grant relief if the court receives

genetic test results that are no more than six months old. See, e.g., Hardy v. Wilson, 9th

Dist. Lorain No. 05CA008815, 2006-Ohio-4532, ¶ 18 (petitioner’s genetic testing was

older than the six-month limit imposed under R.C. 3119.962 and thus relief was
precluded). R.C. 3119.962 is silent as to when the trial court must receive the genetic

test results. The petitioner is not required to have those results at the time the motion for

relief is filed, but genetic test results must be provided to the court before relief can be

granted.

{¶10} In CSEA ex rel. E.T., for example, the father filed a motion to dismiss

CSEA’s attempt to liquidate a child support arrearage, claiming he was not the father.

Id. at ¶ 4. In a supplement to that motion, the father claimed that both the mother and the

then 38-year-old child refused to submit to genetic testing. Id. The judgment entry

liquidating the arrearage was reversed and vacated because the trial court failed to

consider the father’s motion filed under R.C. 3119.96 et seq. and whether the mother’s

failure to submit to genetic testing was willful. Id. at ¶ 10. R.C. 3119.963(B)

contemplates a motion being filed without genetic testing and unambiguously sets out the

consequences for a party’s failure to willingly submit to the genetic testing. See id. at ¶ 8.

R.C. 3119.963(B) provides that the party willfully failing to submit to genetic testing

shall have the motion for relief from paternity determined against that party’s interest.

Id. It is therefore possible to file a successful motion under R.C. 3119.961 without

having first obtained the test results.

{¶11} If we accepted appellee’s argument that a petitioner must have genetic test

results in hand before filing a petition for relief under R.C. 3119.961 in order to invoke

the jurisdiction of the trial court, we would be (1) contradicting the panel’s conclusion in

CSEA ex rel. E.T., for which appellee has not presented any arguments in favor of
reconsidering precedent from this district; (2) disregarding the default clause under R.C.

3119.963(B); and (3) grafting language into R.C. 3119.962(A)(1)(a) to the effect of

requiring the trial court to receive the genetic test results by a date certain. In light of the

arguments presented, we decline to adopt appellee’s jurisdictional requirement.

{¶12} We note that R.C. 3119.963 and, for that matter, CSEA ex rel. E.T., only

reference the willful failure of the mother or father to submit the child to genetic testing;

neither contemplate the current situation in which emancipated children fail to submit to

testing or even one in which the failure to submit to testing is not willful. It is important

to note that R.C. 3119.963 does not indicate that a trial court may order genetic testing

when the parents are noncompliant. Instead, the statute provides that willfully failing to

submit to genetic testing shall result in the court finding in favor of the other party.

R.C. 3119.963(B). This suggests that there is no inherent authority to order a party to

submit to genetic testing. See, e.g., State ex rel. Rojas v. Guilfu, 8th Dist. Cuyahoga No.

84145, 2004-Ohio-6707, ¶ 16 (trial court did not err by refusing to order genetic tests

because appellant failed to establish that the nonmoving party willfully failed to submit to

genetic testing). R.C. 3119.963(A) is the only subdivision that expressly authorizes the

trial court to order genetic testing, but that authorization only pertains to instances in

which the genetic testing results submitted under R.C. 3119.962 are solely provided by

the moving party.

{¶13} We need not reach any conclusions with respect to those observations as

applied to the current case in which Dragon is seeking a court order to force the now
emancipated child to submit to genetic testing. The trial court has not applied the correct

standard in the first instance, so upon remand, the court shall consider Dragon’s motion

for relief from paternity or support order under the appropriate standards. Our decision

does not affect the trial court’s ability to render any decision with respect to Dragon’s

motion. We are simply reversing the denial of a motion that is solely predicated on an

inapplicable legal doctrine. The trial court is otherwise free to consider Dragon’s motion

for relief from a paternity determination or child support order anew, but under the

applicable statutory standards.

{¶14} We reverse the denial of Dragon’s motion and remand for further

proceedings consistent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court, domestic relations division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., DISSENTS WITH SEPARATE OPINION

FRANK D. CELEBREZZE, JR., J., DISSENTING:
 {¶15} I must respectfully dissent from the majority’s conclusion that the trial

court’s denial of Dragon’s motion for relief from a paternity determination must be

reversed.

{¶16} The trial court denied the motion without a hearing on res judicata grounds.

This was clearly error. Res judicata does not apply to this situation because R.C.

3119.961 et seq. clearly provides a means of relief. See R.C. 3119.967. However, the

trial court’s decision was the correct one for different reasons. Therefore, I would

affirm.

{¶17} R.C. 3119.962 has specific requirements for relief. A person filing a

motion to overturn a parenting determination must satisfy three elements:

(a) The court receives genetic test results from a genetic test administered
no more than six months prior to the filing of the motion for relief that finds
that there is a zero per cent probability that the person or male minor is the
father of the child.

(b) The person or male minor has not adopted the child.

(c) The child was not conceived as a result of artificial insemination in
compliance with sections 3111.88 to 3111.96 of the Revised Code.

{¶18} Here, the trial court was not presented with genetic test results

demonstrating that Dragon was not the father of any of the children.

{¶19} The Ninth District has found that the language of R.C. 3119.962 is plain and

unambiguous. Hardy v. Wilson, 9th Dist. Lorain No. 05CA008815, 2006-Ohio-4532, ¶

17. It held that R.C. 3119.961 and 3119.962 are “conjunctive in nature” and must be

read together. Id. It also held that any genetic test must have been administered prior to
a motion being filed and within six months of the filing of the motion. Id. at ¶ 21. In

that case, the testing was performed more than six months before the motion for relief

was filed and recertified after the motion was filed. Id. The Ninth District found such a

scenario did not meet the requirements set forth in the statute. Id.

{¶20} Here, Dragon has not presented the lower court with necessary genetic test

results. Therefore, Dragon is not entitled to any relief under the statute.

{¶21} Further, Dragon is not entitled to genetic testing. R.C. 3119.963(A) gives

the lower court the power to order testing, but only when genetic test results are submitted

to the court:

[I]f the genetic test results submitted pursuant to section 3119.962 of the
Revised Code in connection with the motion for relief are solely provided
by the moving party, the court, upon its own motion, may order and, upon
the motion of any party to the action, shall order the child’s mother, the
child, and the alleged father to submit to genetic tests. The clerk of the court
shall schedule the genetic testing no later than thirty days after the court
issues its order.

(Emphasis added.) Id.

{¶22} If the failure to submit test results is not a jurisdictional impediment as the

majority holds, the court, without tests submitted with the motion, still cannot grant the

relief Dragon seeks. This is because, without prior testing, the court cannot order testing.

R.C. 3119.963 is clear that a court’s ability to order testing is conditional: “[I]f the

genetic test results submitted * * * are solely provided by the moving party * * *” only

then can the court order testing. R.C. 3119.963(A). The statute presupposes test results

are submitted by the moving party. Without them, the court has no authority to order
testing because no other provision of the statutory scheme gives the court that power. A

motion under R.C. 3119.961 must be supported otherwise the motion turns into a fishing

expedition, which is not what the legislature intended.

{¶23} Further, even if the court’s jurisdiction was properly invoked and the court

could order genetic testing in certain cases, it cannot do so here. Dragon wishes to force

his children to submit to genetic testing. However, those children have long been

emancipated. They are not parties to the action. The lower court has no jurisdiction

over them. See State ex rel. Doe v. Capper, 132 Ohio St.3d 365, 2012-Ohio-2686, 972

N.E.2d 553, ¶ 13. The domestic relations court has no ability to force nonparties to

submit to genetic testing. Therefore, the lower court cannot grant the relief Dragon

seeks.

{¶24} There is a statutory presumption for willful interference with a court-ordered

test. R.C. 3119.963 offers a presumption that the movant is not the father when a party

who is the custodian or parent of a child willfully fails to submit a child to a genetic test.

R.C. 3119.963(B). This presumption, even if it could apply where no test results were

previously submitted, is not applicable here. Dragon’s ex-wife cannot willfully interfere

with genetic testing because she is deceased. There is no provision in the statute

allowing the court to direct nonparties, the emancipated children, to undergo genetic

testing, and no presumption favorable to Dragon if they refuse.

{¶25} This distinguishes CSEA ex rel. E.T. v. H.S., 8th Dist. Cuyahoga No. 82820,

2004-Ohio-3120, from the present case. The majority points to the holding in CSEA ex
rel. E.T. that R.C. 3119.963 provides the court with authority to order genetic testing.

However, that panel of this court never addressed the actual language of the statute, it

merely stated that “R.C. 3119.96 et seq. provides a right to seek relief from a judgment of

paternity without a specific time limit. Moreover, under R.C. 3119.963, the judge is

authorized to order genetic testing and to enter judgment against any party who ‘willfully

fails to submit’ to genetic testing.” Id. at ¶ 8. There is nothing in this opinion that

addresses the prerequisites for testing or relief. CSEA ex rel. E.T. is not helpful.

{¶26} Finally, Dragon did not serve a necessary party with his motion. In a more

typical case, when a reputed father seeks relief from a paternity determination or support

order, the mother of the child is a necessary party because adjudication of the motion

substantially affects her rights and she may transfer venue or assert defenses to the action

that are built into the statutory scheme. Civ.R. 19; R.C. 3119.961(B); R.C. 3119.962(B).

Dragon failed to serve his ex-wife’s estate with his R.C. 3119.961 motion. The majority

rejects the argument advanced by CJFS-OCSS that Civ.R. 75(J) applies and Dragon was

required to serve his motion on his ex-wife’s estate. The majority correctly concludes

that Civ.R. 75(J) does not apply here because R.C. 3119.961 et seq. is itself a source of

jurisdiction. However, a motion for relief from paternity must still be served on all

parties consistent with Civ.R. 5. Civ.R. 7(B). That was not done here.

{¶27} Ohio courts have strictly enforced Civ.R. 5. Nosal v. Szabo, 8th Dist.

Cuyahoga Nos. 83974 and 83975, 2004-Ohio-4076, ¶ 21; Manor Care Healthcare Corp.

v. Cook, 8th Dist. Cuyahoga No. 64003, 1993 Ohio App. LEXIS 18 (Jan. 7, 1993); PHH
Mtge. Corp. v. Albus, 7th Dist. Monroe No. 09 MO 9, 2011-Ohio-3370, ¶ 12. Further, “a

party’s failure to join an interested and necessary party constitutes a jurisdictional defect

that precludes the court from rendering a judgment in the case.” State ex rel. N.G. v.

Cuyahoga Cty. Court of Common Pleas, Slip Opinion No. 2016-Ohio-1519, ¶ 27, citing

State ex rel. Doe, 132 Ohio St.3d 365, 2012-Ohio-2686, 972 N.E.2d 553, at ¶ 15, citing

Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d

478, ¶ 99. While this line of cases originated with declaratory judgments, it has been

extended to other areas. See Homeowners Assn. at Arrowhead Bay v. Fidoe, 7th Dist.

Mahoning No. 12 MA 136, 2014-Ohio-1469, ¶ 19. Dragon did not attempt to serve his

ex-wife’s estate with his motion. The action could not have been fairly decided without

service to her estate and an opportunity to be heard. Dragon’s attempt to have his motion

heard ex parte should not be countenanced.

{¶28} For these reasons, I would affirm the dismissal of Dragon’s motion, rather

than remand this case to the trial court. The majority seems to acknowledge that the trial

court will simply deny the motion because Dragon cannot be afforded relief under the

statutory scheme. This litigation could and should end here.