COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69723 : ORIGINAL ACTION STATE OF OHIO, EX REL. : AUBREY WILLACY : : JOURNAL ENTRY Relator : : and v. : : OPINION BURKE E. SMITH, VISITING JUDGE, : ET AL. : : Respondents : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 20, 1996 CHARACTER OF PROCEEDING: WRIT OF PROHIBITION AND MANDAMUS JUDGMENT: Motion No. 69242 for Summary Judgment is granted. Writ denied. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Relator: For Respondents: TIMOTHY A. MARCOVY, ESQ. STEPHANIE TUBBS JONES, ESQ. WILLACY & LOPRESTI Cuyahoga County Prosecutor 700 Western Reserve Bldg. 1468 West 9th Street JEFFREY I. SHERWIN, ESQ. Cleveland, Ohio 44113 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, P.J.: Relator avers that he is the defendant in Nwabara v. Willacy, Juvenile Court Case No. 9270452--an action for paternity determination, past due care, current support, future support and other relief. Relator also avers that respondents--a judge sitting by assignment as a juvenile court judge and the juvenile court-- are totally and utterly lacking of jurisdiction over the subject matter presented and asserted in Case No. 9270452 by reason of the prior filing of and proceedings in a separate case, encaptioned "Chisara S. Nwabara, plaintiff, v. Walter L. Hugley, Jr., defendant", and bearing Case No. D-193763 upon the docket of the Domestic Relations Division of the Court of Common Pleas, Cuyahoga County, Ohio ***. Complaint, par. 6. Relator requests that this court issue a writ of prohibition preventing respondents from proceeding in Case No. 9270452 and a writ of mandamus commanding respondents to issue orders which would restore to relator all sums which respondents have "unlawfully extracted from relator ***." Complaint, ad damnum clause. Relator has filed a motion for default judgment (Motion No. 68577) and a motion for judgment (Motion No. 69147), each of which has been denied by separate entry. Respondents filed a motion to dismiss (Motion No. 69242), which was converted to a motion for summary judgment in Entry No. 69476. Relator has opposed respondents' motion for summary judgment. For the reasons stated below, we grant the respondents' motion for summary judgment. - 3 - Relief in prohibition is available only in limited circumstances. "The conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy in the ordinary course of the law." State, ex rel. McKee, v. Cooper (1974), 40 Ohio St. 2d 65, paragraph one of the syllabus. Bobb v. Marchant (1984), 14 Ohio St. 3d 1, 3, 14 OBR 1, 469 N.E. 2d 847. Under some circumstances, however, a party relator in an action in prohibition need not meet all three of these criteria. Ordinarily, all three prerequisites must be present before a claim in prohibition has been stated. State, ex rel. Dayton, v. Kerns (1977), 49 Ohio St.2d 295, 297 3 O.O. 3d 441, 443, 361 N.E.2d 247, 249. However, we have held that "[i]f an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court." State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326, 329, 59 O.O. 2d 387, 388, 285 N.E.2d 22, 24; Johnson, v. Perry County Court (1986), 25 Ohio St.3d 53, 58, 25 OBR 77, 81, 495 N.E.2d 16, 21. But before we will exercise our jurisdiction to issue the writ in such instance, there must be a patent and unambigous [sic] lack of jurisdiction of the inferior court which clearly places the dispute outside the court's authority. State, ex rel. Smith, v. Court (1982), 70 Ohio St.2d, 213, 215-216, 24 O.O. 3d 320, 321, 436 N.E.2d 1005, 1007, citing State, ex rel. Gilla, v. Fellerhoff (1975), 44 Ohio St.2d 86, 88, 73 O.O. 2d 328, 329, 338 N.E.2d 522, 523. Thus, where this showing has not been made, the availability of an adequate remedy in the ordinary course of law precludes the issuance of the writ of prohibition. Tilford v. Crush (1988), 39 Ohio St.3d 174, 176, 529 N.E.2d 1245. - 4 - Relator contends that respondents patently and unambiguously lack jurisdiction over Case No. 9270452--the action for paternity determination. Relator notes that R.C. 2151.23(B) provides, in part: The juvenile court has original jurisdiction under the Revised Code: * * * (2) To determine the paternity of any child alleged to have been born out of wedlock pursuant to sections 3111.01 to 3111.19 of the Revised Code ***. (Emphasis added.) The parties do not dispute, however, that the record in Case No. D-193763 reflects that the mother was pregnant with the child at the time of the entry of the decree of divorce. Although the record in Case No. D-193763 reflects that the defendant-husband is not the father of the unborn child, relator insists that--under R.C. 3111.03(A)(1)--the mother's now ex- husband is presumed to be the father. The relevant sections of R.C. 3111.03(A) follow: A man is presumed to be the natural father of a child under any of the following circumstances: (1) The man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement. In light of the original jurisdiction in juvenile court under R.C. 2151.23(B) "[t]o determine the paternity of any child alleged to have been born out of wedlock," relator argues that respondents lack jurisdiction over Case No. 9270452 because R.C. 3111.03(A)(1) creates a presumption that the child was born during the mother's marriage. - 5 - Relator has not, however, provided this court with any controlling authority holding that respondents lack jurisdiction. An analysis of this problem is presented in Hamilton v. Burke (Feb. 7, 1990), Gallia App. No. 89 CA 6, unreported, in which the Fourth Appellate District recognized it was error for a juvenile court to dismiss a paternity action on the basis that the mother's ex-husband was presumed to be the father under R.C. 3111.03(A)(1). In Hamilton, the decree of divorce incorporated a finding that there was clear and convincing evidence to rebut the statutory presumption that the husband was the father of twins born during the marriage. Again, we must look to the purpose of R.C. 3111.03. In a divorce proceeding it is used as a shield for the benefit of the innocent children of the marriage. The legislature did not intend the statute to be used as a sword to defeat the primary purpose of R.C. 3111.03. For an erstwhile putative father to raise the presumption of paternity created by R.C. 3111.03 in his defense flies in the face of the protective nature of that statute. *** The statute was not created to be used in paternity proceedings as protection for putative fathers but rather in divorce proceedings to protect the legitimacy of the issue of the marriage. *** If the divorce decree is a bar to an action against this putative father it is a bar to any action against any putative father. In this case we have the anomalous result where the divorce court has held that the husband is not the father, but that decision is a bar to an action proving who the real father is, and thus that these children have no father at all. We note that although the [juvenile] court below found that the R.C. 3111.03 presumption had not been properly rebutted during the *** divorce, we believe that the issue of [the ex-husband's] presumed paternity had been decided previously [in the divorce proceedings]. That court's decision was res judicata on the issue of [the ex-husband's] presumed paternity. However, the res judicata effect of that decision does not apply to the facts here. In order for a previous judgment to be res judicata upon another matter, there - 6 - first must be an identity of issues. Here, there is no such identity. (Emphasis added.) Hamilton, supra. See also Kuba v. Compola (Aug. 17, 1995), Cuyahoga App. No. 67657, unreported, at 3-4. Persuaded by the reasoning in Hamilton, we conclude that respondents are not "patently and unambiguously" without jurisdiction to hear Case No. 9270452. Relator's complaint also fails because he has an adequate remedy at law by way of appeal. As this court has said, "unless a lower court unambiguously lacks jurisdiction to proceed, a court having general jurisdiction of the subject matter has the authority to determine its own jurisdiction and an adequate remedy at law via appeal exists to challenge any adverse decision." Badger v. Flanagan (1995), 100 Ohio App.3d 173, 176, 652 N.E.2d 258. Relator has appealed the judgment of respondents that he is the father of the child and that he is required to pay child support. See Nwabara v. Willacy, Cuyahoga App. No. 69786. We note specifically *** that nothing in this opinion is intended to decide the merits of relator's challenges to the jurisdiction of respondent. Rather, *** the court in the exercise of its appellate jurisdiction will *** have an opportunity to consider relator's arguments and decide these questions on the merits. State ex rel. Rochelle v. Flanagan (May 24, 1993), Cuyahoga App. No. 65003, unreported, at 8. This court will consider the propriety of respondents' exercise of jurisdiction when the appeal is separately reviewed on its merits. - 7 - Likewise, we must deny relator's request that this court issue a writ of mandamus commanding respondents to issue orders which would restore to relator all sums which respondents have "unlawfully extracted from relator ***." Complaint, ad damnum clause. Relator has not established that he has a clear legal right to relief nor has he set forth any clear legal duty on the part of respondent. Additionally, as noted above, he has an adequate remedy by way of appeal. This court having converted respondents' motion to dismiss (Motion No. 69242) into a motion for summary judgment in Entry No. 69476, accordingly, respondents' motion for summary judgment is granted. Relator to pay costs. Writ denied. LEO M. SPELLACY, C.J., and PORTER, J., CONCUR. .