State Ex Rel. Wilkerson v. Truss

Per Curiam. Plaintiff-appellant state of Ohio Child Support Enforcement Agency (“CSEA”) appeals from 'an order of the juvenile court ordering a second genetic test of defendant-appellee, William Truss. We dismiss for lack of a final appealable order. CSEA filed the complaint in the case at bar on behalf of mother Anna Wilkerson 1 and child Latoya Hatcher against defendant, seeking (1) to determine that defendant was the child’s father, (2) to recover birthing expenses and obtain past, current, and future support, (3) to obtain reimbursement to CSEA for assistance provided to the child, and (4) other relief. Defendant was appointed counsel. *635 This is the second action filed by CSEA to determine the paternity of this child. The complaint in the case at bar asserted that the alleged father in the prior case was not in fact the child’s father, but that defendant was the father. During the course of the proceedings, the juvenile court granted CSEA’s motion for genetic testing of the parties. The results appeared positive. The juvenile court later found that defendant did not rebut by clear and convincing evidence the presumption that he was the father. In its order determining defendant to be the father of the child, the juvenile court specifically retained jurisdiction and continued the proceedings “for disposition on the issues of Past Care and Future Medical.” The juvenile court also ordered defendant to pay the $289.49 genetic test expense as court costs. The juvenile court thereafter determined the amount due for past care, but again retained jurisdiction and continued “this cause for disposition of Future Medical and Current Support.” Defendant retained substitute counsel and requested a continuance. Defendant thereafter filed a “motion for relief from judgment and for new genetic test.” The motion stated, inter alia, that defendant was 77 years of age and infertile, never had children in his two prior marriages, and never had sexual relations with Wilkerson, and that she reported someone other than he was in fact the child’s father. The motion requested further genetic testing be performed under controlled circumstances. The judge, who presided over the original hearing, ultimately ordered further genetic testing at state’s expense. The juvenile court did not, however, grant relief from its prior order determining paternity or adjudicate the pending support issues. CSEA appeals, challenging the juvenile court’s order granting a second genetic test. 2 Defendant has filed no brief. Prior to considering the merits of this appeal, however, this court must determine whether it has jurisdiction. Appellate jurisdiction is expressly limited to review of “final orders.” Section 3(B)(2), Article IV of the Ohio Constitution; R.C. 2505.03. Because we find that the juvenile court’s order granting further genetic testing does not constitute a final order, we lack jurisdiction and dismiss this appeal. R.C. 2505.02; Civ.R. 54(B). See, e.g., Smith v. Tackett (Nov. 18, 1996), Butler App. No. CA96-05-097, unreported, 1996 WL 666731. It is well established that in actions to determine paternity and support as in the case at bar, the juvenile court’s judgment is not final until paternity and all support issues raised have been fully adjudicated. See, e.g., Nwabara v. Willacy (June 13, 1996), Cuyahoga App. No. 69786, unreported, at 1-2, 1996 WL 325318, *636 appeal dismissed (1996), 77 Ohio St.3d 1487, 673 N.E.2d 146; Nwabara v. Willacy (May 6, 1994), Cuyahoga App. No. 65450, unreported, at 3-5, 1994 WL 189141, appeal dismissed (1994), 70 Ohio St.3d 1465, 640 N.E.2d 527; Marsh v. Clay (July 20, 1995), Cuyahoga App. No. 67854, unreported, at 2-3, 1995 WL 428569; State ex rel. Dixon v. Clark Cty. Court of Common Pleas, Juv. Div. (1995), 103 Ohio App.3d 523, 527-528, 660 N.E.2d 486, 488-490. The record in the case at bar reveals that the juvenile court has never issued a final appealable order. The juvenile court’s order determining paternity but retaining jurisdiction to determine pending support issues was neither final nor appealable. Id. Defendant’s “motion for relief from judgment” was mis-captioned because the motion did not seek relief from a final judgment. See, e.g., Jarrett v. Dayton Osteopathic Hosp., Inc. (1985), 20 Ohio St.3d 77, 78, 20 OBR 407, 407-408, 486 N.E.2d 99, 100. The juvenile court did not grant defendant’s “motion for relief from judgment,” but, even if it had, an order granting relief from a partial judgment does not constitute a final appealable order. Id. The record in the case at bar reveals that the juvenile court merely granted further genetic testing prior to the entry of any final judgment in the case. It is well established, however, that orders requiring a party to submit to genetic testing in a paternity action do not constitute final appealable orders. Exhaustive research has not revealed any authority to the contrary, that is, that such orders constitute “final orders” under any category defined by R.C. 2505.02, either as it existed when the order was entered on June 29, 1998 in the case at bar or as the statute was subsequently amended effective July 22, 1998. Courts have specifically held, for example, that orders granting genetic testing do not “determine the action,” McCarty v. Kimmel (1989), 62 Ohio App.3d 775, 777-778, 577 N.E.2d 665, 666-667; do not affect a substantial right, Crean v. Britton (Jan. 10, 1981), Washington App. No. 80X17, unreported, 1981 WL 5940, and do not vacate or set aside a judgment to qualify as final orders under R.C. 2505.02. Smith v. Tackett, supra. The amendments to the current version of R.C. 2505.02 repeat verbatim these provisions of former R.C. 2505.02. Current R.C. 2505.02(B)(4) adds a new category of final orders, but it is not clear that orders granting genetic testing involve a “provisional remedy.” Even if they did, however, such orders do not qualify under the statute as final orders because the appealing party would be afforded a meaningful and effective remedy by appeal following final judgment in the action. R.C. 2505.02(B)(4)(b). The dissent contends that the genetic test order constitutes a final appealable order because it is an “order that affects a substantial right made in a special proceeding.” This argument is unpersuasive for two reasons. The Ohio Supreme Court expressly held, contrary to the dissent’s argument, that ordering a public agency to advance funds, which are later taxable as costs, does not affect a *637 “substantial right” of the agency. See Smith v. Chester Twp. Bd. of Trustees (1979), 60 Ohio St.2d 13, 14 O.O.3d 162, 396 N.E.2d 743. Moreover, Crean expressly rejected the dissent’s argument in this precise context by holding that a genetic test order does not affect a “substantial right.” The amendments to R.C. 2505.02 do not change this conclusion because subsection (B)(2), cited by the dissent, repeats verbatim the identical terms of the second clause of former R.C. 2505.02 applied in Crean. The trial court in the case at bar specifically retained jurisdiction, and many unadjudicated issues remain pending. Apparently, the trial court, which heard the evidence, had some indication that the original test results were unreliable and declined to enter final judgment because of these doubts. We should not interfere with its pursuit of the truth or administration of justice in this case. If followed, the dissent’s argument to the contrary would result in transforming all genetic testing orders into final appealable orders and in disrupting the orderly progress of each case. It should be noted, contrary to the dissent’s argument, that there is no indication the additional genetic tests ordered by the trial court duplicated any of the tests the trial court already ordered defendant to pay for as costs. Moreover, the trial court remains free to tax these additional costs to defendant. Even if the trial court’s order granting additional genetic tests were an abuse of discretion as the dissent suggests, it is well established that an abuse of discretion does not, by itself, render final and immediately appealable otherwise interlocutory orders. Klein v. Bendix-Westinghouse (1968), 13 Ohio St.2d 85, 42 O.O.2d 283, 234 N.E.2d 587, syllabus. Accordingly, the appeal is hereby dismissed for lack of jurisdiction. Judgment accordingly. Karpinski, P.J., and Kilbane, J., concur. Michael J. Corrigan, J., dissents. Footnotes [1] The mother is sometimes referred to in the record as "Ann Wilkerson." [2] CSEA’s sole assignment of error is set forth in the Appendix.