
    FREDERICK v. ALLTOP. 
    Court of Common Pleas of Ohio, Fayette County, Juvenile Division.
    No. 920004.
    Decided May 16, 1996.
    
      Jeffrey Jon Lyle, for plaintiff.
    
      Patricia D. Alltop, pro se.
    
   Nancy Drake Hammond, Judge.

This matter is before the court on the plaintiffs amended motion to terminate support, motion for genetic testing, and motion to dismiss complaint for paternity.

The complaint to establish a father-child relationship was filed by the plaintiff, Marvin R. Frederick, Jr., on January 9, 1992. He requested that he be adjudged the father of Katherine N. Frederick, born July 6, 1987 to Patricia D. Alltop. Although Mr. Frederick had never married Ms. Alltop, they had lived together. Mr. Frederick had signed Katherine’s birth certificate as her father. A judgment entry was filed stating that Mr. Frederick is the father of Katherine, and as to this issue, this entry is a final appealable order. No appeal was pursued. At a subsequent hearing on March 3, 1992, both Ms. Alltop and Mr. Frederick stated in court that Mr. Frederick was the father of Katherine. In May 1992, Mr. Frederick was ordered to pay support. Mr. Frederick was again before the court on January 11, 1994. The issue was support. Plaintiff Frederick made no claim that he was not the father of Katherine. On April 25, 1995, this plaintiff was again before the court. He made no claim of non-paternity. On August 24,1995, plaintiff filed a motion to terminate his support obligation and to have tests ordered to see whether he is the father. No hearing was set at that time because on September 5, 1995, plaintiff telephoned the court, saying he was obtaining a new lawyer. On January 17, 1996, paragraph two of the entry states that the motion for Human Leukocyte Antigen (“HLA”) testing be continued and undertaken by plaintiffs new lawyer. In January 1996, new motions were filed by plaintiff that are the subject of this decision.

On March 11, 1996, the court heard the motion to grant HLA testing for paternity. The motion was filed with plaintiffs affidavit. He averred that although he lived with the defendant mother, Ms. Alltop, two years before Katherine’s birth and three years thereafter and that he was at the hospital when she was born and he signed the birth certificate, he is not the father. He further averred that he is currently married and he and his wife have been unable to have children, and that his doctor has told him it was highly unlikely that he could father a child. The accompanying affidavit of Dr. Lowery, D.O., also says it “appears highly unlikely he can be the father of a child.” At the hearing there was no evidence contradicting these affidavits. There was evidence that the plaintiff and Katherine, who is now close to nine years old, have always enjoyed a father-child relationship.

Plaintiff argues that based on Emery v. Emery (1995), 101 Ohio App.3d 559, 656 N.E.2d 5, the court’s jurisdiction be invoked, and that his motions be granted.

In Emery, the father made his Civ.R. 75(1) motion sixteen years later and had only his assertion he was not the father. The original case was a divorce complaint filed by the mother. The father-defendant-movant did not contest his paternity of the child at the divorce. The court held that “[ajppellant must bear the burden of demonstrating a change in circumstances; he must come forward with some evidence that he is not Melanie’s father before he can invoke the trial court’s jurisdiction.” 101 Ohio App.3d at 561-562, 656 N.E.2d at 7. Mr. Frederick submits that Dr. Lowery’s statement constitutes such evidence. The dissent in Emery says that the majority decided that finality outweighs the truth.

On August 31, 1994, the Supreme Court of Ohio decided Strack v. Felton (1994), 70 Ohio St.3d 172, 637 N.E.2d 914. This case was also a divorce. The father filed a Civ.R. 60(B) motion for relief from the divorce judgment. His motion was filed nine years after the divorce judgment and five years after HLA testing became admissible. The HLA tests had been performed and conclusively determined the movant was not the father. The Civ.R. 60(B) motion was denied. There was a dissent.

In both these cases, the dissenting opinions discuss that the majority decisions favor finality while the dissents favor the truth.

An earlier case, Carson v. Carson (1989), 62 Ohio App.3d 670, 577 N.E.2d 391, was decided by the Twelfth District in 1989. It also arose from a failed marriage. In response to a motion to show cause for nonpayment of support, the father filed a motion to modify the decree of dissolution. His motion claimed fraudulent representation on the part of the mother. The court held jurisdiction was properly invoked under Civ.R. 75(1). HLA testing was ordered and the appellee was excluded as the father of the child. Any further support obligation was dismissed and the dissolution decree modified. In upholding the trial court’s decision, the majority held that the ascertainment of the truth was overriding; the appellant had fraudulently represented to appellee he was the father and thereby had induced him to assume the obligations of marriage and fatherhood.

Several factors distinguish these three cases from the one at bar. First, two were divorces and one was a dissolution, jointly filed. This case was initiated and brought by the father, Marvin R. Frederick, Jr.

Second, two fathers relied on Civ.R. 75(1). Civ.R. 75(1) applies to divorce, annulment, and legal separation actions, not to a paternity proceeding. One father relied on Civ.R. 60(B). That court held it does not apply. This court finds that it has jurisdiction to hear this question under R.C. 3111.16.

Third, the three cited cases originated in the domestic relations division of the common pleas court. This case arose in the juvenile division. In a domestic action brought in the juvenile division, the child is a necessary party pursuant to R.C. 3111.07. Consequently, the other decisions address the issues between the mother and father. The child receives the consequences of these decisions, be they good or bad for the child.

The juvenile court’s jurisdiction over this paternity action is set forth in R.C. 2151.23(B)(2), and R.C. 3111.06(A). This jurisdiction is to be exercised in accordance with R.C. 2151.01. That section tells the court that the juvenile court chapter “shall be liberally interpreted and construed so as to effectuate the following purposes: (A) to provide for the care, protection, and mental and physical development of children subject to Chapter 2151. of the Revised Code[.]”

This court is of the opinion that these differences compel a different result in the instant case. Approaching this strictly from the child’s perspective, and what is in Katherine’s best interest, this court makes the following findings:

1. The question of any decision made here rendering a child illegitimate, who was previously deemed the issue of a marriage, is moot. The action itself is one of parentage.

2. In the eyes of this eight-year-old girl, Marvin R. Frederick, Jr. is Daddy; at this stage of her life, this fact is both truth and finality for her. She has the right, as a party to this action, to bring her own motions questioning these facts, if at a later time she so chooses. There is no benefit to her to change her position as daughter of Mr. Frederick now.

What Mr. Frederick is actually asking this court to do is to dismiss his complaint four years after filing it and after having judgment in his favor rendered thereon. Civ.R. 41 does not contemplate the dismissal of an action by the court, at the request of a plaintiff, three years after the court rendered a final appealable order in his favor.

Short of dismissing this action, the plaintiff has asked for HLA blood testing. HLA blood testing was available and deemed admissible evidence before the plaintiff even filed his original complaint. He was represented by counsel and filed his complaint through his attorney. He did not request genetic testing when he could have properly done so, and such request would have been granted. See R.C. 3111.09(A). There is a First District Court of Appeals case allowing a paternity judgment to be set aside, Haney v. Feltner (July 3, 1984), Hamilton App. No. C-830715,1984 WL 6674, unreported. However, that matter involved a paternity order of 1980; the Civ.R. 60(B)(5) motion for relief was timely filed on July 13, 1983. HLA testing excluded the appellee as the father. HLA testing became admissible in Ohio in 1982.

As long as Mr. Frederick remains the father of Katherine, he has the obligation to assist in her support.

WHEREFORE, IT IS HEREBY ORDERED that plaintiffs motion to terminate support is overruled, plaintiffs motion for genetic paternity testing is overruled, and plaintiffs motion to dismiss his complaint for paternity is overruled.

Costs of $21.48 are assessed to the plaintiff, Mr. Frederick.

Judgment accordingly. 
      
      . R.C. 3111.16. Continuing Jurisdiction. "The court has continuing jurisdiction to modify or revoke a judgment or order issued under sections 3111.01 to 3111.19 of the Revised Code to provide for future education and support and a judgment or order issued with respect to matters listed in divisions (C) and (D) of section 3111.13 and division (B) of section 3111.15 of the Revise Code, except that a court entering a judgment or order for the payment of a lump sum or the purchase of an annuity under division (D) of section 3111.13 of the Revised Code may specify that the judgment or order may not be modified or revoked.”
     
      
      . This case pre-dates the administrative determination of R.C. 3111.22, which became effective July 15, 1992.
     