Gosink v. Hamm

*496 Hildebrandt, Judge. Appellant Julie Gosink raises one assignment of error in her timely appeal, asserting that the trial court abused its discretion in granting appellee Bruce Hamm’s Civ.R. 60(B) motion concerning the paternity of her son. The record demonstrates that in 1992 appellee appeared before the court, admitted paternity of the child, and waived his right to counsel and genetic tests. In 1995 appellee filed a Civ.R. 60(B) motion requesting genetic testing to determine whether he was the biological father of appellant’s child. The trial court ordered the testing, granted appellee’s motion, and set aside his support obligation when the test results excluded appellee as the child’s father. In its entry the trial court specifically stated: “Under Civil Rule 60(B) this relief may be granted where ‘it is no longer equitable that the judgment should have prospective application.’ ” This language clearly indicates that the trial court granted appellee’s motion pursuant to Civ.R. 60(B)(4). Appellee’s Civ.R. 60(B) motion, however, cannot be brought under this less specific provision of Civ.R. 60(B) where a more specific provision applies. See Caruso-Ciresi, Inc. v. Lohman (1988), 5 Ohio St.3d 64, 66, 5 OBR 120, 121-122, 448 N.E.2d 1365, 1367. Pursuant to Strack v. Pelton (1994), 70 Ohio St.3d 172, 637 N.E.2d 914, appellee’s motion falls more appropriately under Civ.R. 60(B)(2), as his motion is obviously premised on the results of the genetic tests, i.e., evidence newly discovered. Thus, because appellee failed to file his motion for relief within the one-year time limit required for newly discovered evidence, he cannot prevail on his motion. See GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113. Although this decision causes us concern and is illogical in light of the scientific determination that appellee is not the biological father, we are compelled to follow the doctrine of stare decisis and must reverse the trial court’s judgment on the authority of Strack v. Pelton, supra. Therefore, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion and law, including the issue of child support. Judgment reversed and cause remanded. *497 Marianna Brown Bettman, P.J., concurs. Sundermann, J., dissents.