Concurring
I concur in the judgment only for the following reasons. The record reflects appellant filed a parentage act complaint averring appellee to be the father of the children in question. Appellee filed an answer denying paternity and further averring that the time of conception and birth of the children appellant was married to Leland Hamilton. At the time of filing his answer, appellee filed a motion to dismiss the complaint, which reads as follows:
"Now comes the Defendant, Michael LLoyd Burke, by and through his Counsel, David T. Evans, and moves the Court for an Order dismissing this cause for the reason that the Plaintiff-Mother was married to Leland Hamilton at the time of conception and birth of these children and that legal paternity has, thereby, been presumptively established."
The court scheduled a hearing on the motion at which the parties stipulated (1) that as set forth in the pleadings, appellant was married to Leland Hamilton at time of conception and birth, and (2) Leland Hamilton had undergone a vasectomy prior to conception of the children. No other evidence was introduced. Specifically, none of the proceedings in appellant's divorce action were presented. *178The court sustained the motion to dismiss apparently for the reason that the presumption of legitimacy was not overcome.
The initial focus must be upon the nature of the hearing to dismiss. It could not properly be considered a Civ. R. 12(BX6) motion since it must be filed before a responsive pleading was made. Neither can the motion be viewed as one for summary judgment since all summary material must, pursuant to Civ. R. 56(C), be filed prior to the hearing date. Consequently, the motion must be viewed as one for judgment on the pleadings pursuant to Civ. R. 12(C).
In determining a Civ. R. 12(C) motion, a court is confined to the allegations of the pleadings with all reasonable inferences drawn in favor of the non-moving party. Only when the pleadings disclose there is no disputed material issue of fact and the moving party is entitled to judgment as a matter of law may judgment on the pleadings be granted. McCormac, Ohio Civil Rules Practice (1987 Supp.), Sec. 6.31.
Manifestly, upon the pleadings before the court, appellee was not entitled to judgment as a matter of law. R.C. 3111.03 creates a presumption of paternity that the husband is the father of a child born during marriage. However, this presumption may be rebutted by clear and convincing evidence. Since the presumption is not conclusive, a factual question thus exists as to whether or not appellant can overcome the presumption at trial.
I emphatically dissent from that portion of the majority opinion which appears to hold that appellee is not entitled to use the presumption in his defense at trial. Indeed, Vol. 3, The Standard Ohio Jury Instruction, Sec. 348.03(A), specifically provides for utilization of such defense by a third party.
Upon remand, this court should proceed with the pre-trial hearing as required by R.C. 3111.11.