Kay B. v. Timothy C.

Melvin L. Resnick, Presiding Judge. This case is before the court on appeal from a judgment of the Wood County Court of Common Pleas, Juvenile Division, which denied appellant’s motion for *600 relief from judgment made pursuant to Civ.R. 60(B). Appellant, Timothy C., appeals that judgment and sets forth the following assignment of error: “It constituted error to deny the motion to vacate without conducting an evidentiary hearing.” On April 16,1981, appellee, Kay T., filed a complaint in which she asserted that appellant was the natural father of her daughter Melissa, born June 23, 1980. In August 1981, a judgment entry reflecting the agreement of the parties was entered. According to the judgment, appellant admitted in open court that he was the natural father of Melissa and agreed to pay $20 per week in child support. Appellee agreed to allow appellant a right of reasonable visitation with Melissa. In the ensuing years, the amount of appellant’s child support obligation was modified in accordance with the child support guidelines. In addition, several show cause motions were filed by the Wood County Bureau of Child Support. The most recent show cause motion alleged that appellant was in arrears in the amount of approximately $3,700. On September 28, 1994, appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B). According to appellant’s affidavit filed in support of the motion, he recently learned that appellee told other persons that he was not Melissa’s father. Appellant’s motion was expressly based on a request to vacate the August 1981 judgment “due to newly discovered evidence.” Appellant also filed a motion in which he requested that, in order to determine paternity, all parties be required to submit to genetic blood tests. On October 12, 1994, the trial court denied appellant’s motion to vacate. The court did, however, grant appellant’s motion for genetic blood tests. The results of those tests revealed a zero percent chance that appellant was Melissa’s father. On February 3, 1995, appellant filed another motion for relief from judgment, contending that the results of the genetic blood tests excluded him from being the father of Melissa and requesting a lump sum judgment in the amount of child support paid to date. A certified copy of the genetic blood test results was attached to the motion. Appellee filed a motion for summary judgment in which she argued that appellant’s claim was barred by the doctrine of res judicata. She maintained that the issue of paternity was determined, by agreement of the parties and as incorporated in a court order, in 1981. Therefore, appellant could not seek to relitigate this issue. On April 28,1995, a hearing was held before a magistrate, on a motion for show cause filed by appellee and on appellant’s Civ.R. 60(B) motion. In his findings of *601 fact and conclusions of law, the magistrate determined that a collateral attack, such as a Civ.R. 60(B) motion, on a judgment of paternity is an exception to the doctrine of res judicata. The magistrate recommended that appellant receive a hearing on his motion. After appellee filed objections to the magistrate’s report and recommendations, a hearing was held before the trial court. It appears from appellee’s objections that she did not question the timeliness or the merits of appellant’s February 3, 1995 motion for relief from judgment. However, no transcript of the hearing on the objections was ordered for the purpose of this appeal. On November 30, 1995, the trial court denied appellant’s Civ.R. 60(B) motion “for the reason that a Civil R. 60(B) Motion needs to be brought within one year of judgment, and for the reason that this Court previously denied said motion.” Appellant asserts, in his sole assignment of error, that the trial court was required to hold a hearing on his motion. Initially, appellant argues that the trial court erred in finding that a Civ.R. 60(B) motion must be brought within one year after judgment under all circumstances. He further contends that the trial court erred in finding that its denial of the September 28, 1994 Civ.R. 60(B)(2) motion constituted a bar to a successive Civ.R. 60(B) motion. Civ.R. 60 provides, in pertinent part: “(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence -which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.” The rule states that a motion for relief from judgment must be filed within a reasonable time after judgment is entered. For motions brought pursuant to Civ.R. 60(B)(1), (2) or (3), the time period is limited to one year after judgment; Civ.R. 60(B)(4) and (5) motions are not limited by a specific period of time. *602 The question of whether a motion for relief from judgment should be granted is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637 N.E.2d 914, 915-916; Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122, 1123-1124. The phrase “abuse of discretion” implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court in reaching its judgment. Cerney v. Norfolk & W. Ry. Co. (1995), 104 Ohio App.3d 482, 491, 662 N.E.2d 827, 832-833; Quebodeaux v. Quebodeaux (1995) , 102 Ohio App.3d 502, 505, 657 N.E.2d 539, 541. When applying this standard of review, we may not freely substitute our judgment for that of the lower court. In re Jane Doe I (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181, 1183-1185. When a motion for relief from judgment and supporting affidavit contain allegations of operative fact which would warrant relief, a trial court abuses its discretion in failing to hold an evidentiary hearing. Kay v. Glassman (1996) , 76 Ohio St.3d 18, 19, 665 N.E.2d 1102, 1104. Finally, a successive motion for relief from judgment is not barred by the doctrine of res judicata if the subsequent motion is based on different facts, asserts different grounds for relief, or it is not certain the issue raised in the subsequent motion could have been raised in the prior motion. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 236-237, 642 N.E.2d 48, 54-55. See, also, Cerney v. Norfolk & W. Ry. Co., 104 Ohio App.3d at 494, 662 N.E.2d at 834-835. A reading of the trial court’s judgment in the instant case discloses that the court viewed appellant’s February 3, 1995 motion for relief from judgment as being based on the same grounds as his September 28, 1994 motion to vacate, which was expressly based on newly discovered evidence and was, therefore, made pursuant to Civ.R. 60(B)(2). If this is true, not only was the trial court correct in finding that the second motion was barred by the doctrine of res judicata, but also properly found that appellant’s motion was untimely. If so, the juvenile court did not abuse its discretion in failing to hold a hearing on appellant’s February 3, 1995 motion. Appellant’s first motion was specifically based on Civ.R. 60(B)(2), the ground of newly discovered evidence. His second motion is based solely upon the results of a human leukocyte antigen (“HLA”) genetic blood test that ehminated appellant as the father of Melissa. In Strack v. Pelton, 70 Ohio St.3d at 174, 637 N.E.2d at 915-916, the Ohio Supreme Court held that a Civ.R. 60(B) motion based on the results of an HLA genetic test fell under . Civ.R. 60(B)(2), newly discovered evidence. Therefore, in the instant case, the ground for both Civ.R. 60(B) motions was identical and the court did not err in finding, in essence, that *603 its denial of the first motion precluded a consideration of appellant’s second motion for relief from judgment. Moreover, assuming appellant’s second Civ.R. 60(B) motion was not barred, the juvenile court did not err in finding that this second motion was not timely filed. The time limitation on the filing of a Civ.R. 60(B)(2) motion is one year after the entry of final judgment. In Strack, the Ohio Supreme Court refused to allow an expansive reading of this requirement in a parentage action. Rather, the Strack court held: “We are not unaware that our decision in effect declares as static a state of facts that reliable scientific evidence contradicts. Nonetheless, there are compelling reasons that support such a decision. A claim under Civ.R. 60(B) requires the court to carefully consider the two conflicting principles of finality and perfection. In Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144-145, 24 OBR 362, 364, 493 N.E.2d 1353, 1356, this court declared, ‘[fjinality requires that there be some end to every lawsuit, thus producing certainty in the law and public confidence in the system’s ability to resolve disputes. Perfection requires that every case be litigated until a perfect result is achieved. For obvious reasons, courts have typically placed finality above perfection in the hierarchy of values.’ Finality is particularly compelling in a case involving determinations of parentage, visitation and support of a minor child.” Id. at 175, 637 N.E.2d at 916. In the present case, and as previously stated, appellant’s February 3, 1995 motion is predicated solely on the results of HLA tests, newly discovered evidence. Therefore, we are compelled, albeit reluctantly, to follow the doctrine of stare decisis and find that, under Strack, 1 appellant’s Civ.R. 60(B)(2) motion is untimely. Accord In re Adkins (1996), 109 Ohio App.3d 518, 672 N.E.2d 715; Gosink v. Hamm (1996), 111 Ohio App.3d 495, 676 N.E.2d 604; Boyd v. Sanders (Apr. 10, 1996), Hamilton App. No. C-950355, unreported, 1996 WL 164104. See, also, the following cases applying the principle enunciated in Strack to a Civ.R. 60(B)(3) motion (fraud inter partes) to vacate a paternity judgment: Still v. Still (June 25, 1996), Gallia App. No. 95CA15, unreported, 1996 WL 362259; Kleemeyer v. Hummel (May 6, 1996), Brown App. No. CA95-10-017, unreported, 1996 WL 227381; Lewis v. Blair (1996), 110 Ohio App.3d 342, 674 N.E.2d 402. See, also, Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15, 5 OBR 73, 76, 448 N.E.2d 809, 811-812 (inter partes fraud left to a Civ.R. 60[B][3] motion or independent action). Accordingly, the trial court did not abuse its discretion in denying appellant’s motion for relief from judgment without a hearing. Appellant’s sole assignment of error is found not well taken. *604 The judgment of the Wood County Common Pleas court, Juvenile Division, is affirmed. Appellant is ordered to pay the costs, as defined in App.R. 24, of this appeal. Judgment affirmed. Knepper, J., concurs. Peter M. Handwork, J., dissents. Footnotes [1] The cases cited by appellant in his brief as support for his position were decided prior to Strack.