COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72216 CUYAHOGA CHILD SUPPORT : ENFORCEMENT AGENCY : : ACCELERATED DOCKET PLAINTIFF-APPELLANT : : JOURNAL ENTRY vs. : : AND DENVER GUTHRIE : : OPINION DEFENDANT-APPELLEE : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: ____________________________ CHARACTER OF PROCEEDING: Civil appeal from Juvenile Division Common Pleas Court Case No. 9471017 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: ____________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: MICHAEL J. CORRIGAN, ESQ. PHILLIS TAYLOR, ESQ. Assistant County Prosecutor P. O. Box 602129 P. O. Box 93894 Cleveland, Ohio 44102 Cleveland, Ohio 44101-5894 PER CURIAM. The State of Ohio through its Cuyahoga County Child Support Enforcement Agency (CSEA), plaintiff-appellant, appeals a decision by the trial court that vacated a judgment finding Denver Guthrie, -2- defendant-appellee, to be the father of Jason Taylor. After a paternity test ruled Guthrie out as the father, the court on its own motion vacated the previous judgment. The state assigns the following errors for our review: I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANT'S MOTION FOR GENETIC TESTING AND VACATING THE PRIOR FINDING OF PATERNITY. II. THE TRIAL COURT ERRED IN CONSIDERING AND VACATING THE PRIOR FINDING OF PATERNITY WITHOUT THE FILING OF A PROPER MOTION. III. THE TRIAL COURT ERRED IN NOT GIVING THE CHILD SUPPORT ENFORCEMENT AGENCY AN OPPORTUNITY TO RESPOND BEFORE VACATING THE PLAINTIFF'S AND RELATOR'S RIGHT TO DUE PROCESS OF LAW. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On June 21, 1994, CSEA filed a complaint to establish Guthrie as the father of Jason who was born February 19, 1990 to Phylliss Taylor, who filed a Complaint to Establish Parent-Child Relationship and for Support against Denver Guthrie. The complaint alleged Guthrie was the father of Jason. A summons sent to Guthrie by certified mail was returned unclaimed. Thereafter, a summons was sent by regular mail. After Guthrie failed to answer or appear for pretrial hearing, the case proceeded to trial. Guthrie did not appear at the trial. On March 8, 1995, referee John Menzies, Jr. issued his report recommending that a parent-child relationship be established between Guthrie and the minor child, Jason Taylor. He also -3- recommended that Guthrie pay $40.00 per week plus a 2% fee as interim support. The trial court approved and adopted the referee's report on March 23, 1995. On September 27, 1995, CSEA contacted Guthrie by letter informing him that he owed past-due child support. Guthrie was advised that he could request an administrative review by contacting CSEA on or before November 30, 1995. In a handwritten note dated November 15, 1995, Guthrie asked CSEA to delay a November 27, 1995 hearing on the case to enable him to obtain an attorney. The trial court continued the hearing until January 10, 1996 and, upon a second request, the hearing was continued until May 17, 1996. At the hearing, Guthrie asked for genetic testing. The court granted his request pursuant to R.C. 3111.09(A) and ordered Phyliss Taylor and Jason Taylor to submit to genetic testing. Though Guthrie's DNA sample was collected on May 17, 1996, on two occasions, Phyliss Taylor failed to appear for testing. CSEA filed a motion to show cause against Taylor. A hearing on the motion was set for November 21, 1996. At the hearing, the court issued an order that Phyliss and Jason Taylor submit to genetic testing on December 9, 1996. The case was continued until March 11, 1997. In a report from GeneScreen labs dated December 24, 1996 and filed with the trial court on December 24, 1996, Guthrie was conclusively excluded as the biological father of Jason Taylor.1 1 The report listed a 0.00% probability of paternity. -4- In an order dated February 5, 1997, the trial court concluded that Guthrie was not the father of the minor child, Jason Taylor. The court also ordered that its February 17, 1995 order be vacated and set aside. This appeal followed. In its first assignment of error, CSEA argues the trial court erred by granting Guthrie's motion for genetic testing and vacating the prior finding of paternity. Citing Strack v. Pelton (1994), 70 Ohio St.3d 172, CSEA argues Guthrie's motion is governed by Civ.R. 60(B)(2) and had to have been filed within one year after the judgment was issued. We disagree. In Strack, the court reasoned that the paternity test results constituted newly discovered evidence because the technology for such testing was not available at the time of the initial judgment. In this case, the technology for paternity testing was in existence at the time of the initial paternity determination. Consequently, it does not meet the definition of newly discovered evidence because it could have been discovered by due diligence in time to move for a new trial. See Civ.R. 60(B)(2). It is the opinion of this court that the trial court's order vacating the prior paternity determination was authorized under Civ.R. 60(B)(4), which provides that a party may be relieved from judgment when it is no longer equitable that the judgment should have prospective application. In this case, paternity testing conclusively determined that Guthrie was not the father of Jason Taylor. Equity supports the trial judge's decision to relieve him of the duty of pay child support. -5- In order to qualify for relief from judgment, a motion under Civ.R. 60(B)(4) must be made within a reasonable time. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146. The record reveals that Guthrie's motion was filed just fourteen months after the initial paternity judgment. This qualifies as a reasonable time under GTE. Although in Strack, the Civ.R. 60(B) movant knew about the paternity allegations before judgment was entered, there is no evidence that Guthrie was aware of the paternity proceedings. Consequently, we conclude the trial court did not err in vacating the initial judgment of paternity. CSEA's first assignment of error is overruled. In its second assignment of error, CSEA argues the trial court erred in vacating the prior finding of paternity sua sponte. CSEA claims Civ. R. 60(B) specifically states relief from judgment must be made upon motion to the court. Therefore, CSEA argues the trial court should not have vacated the prior paternity judgment since Guthrie only requested a genetic test, not relief from judgment. Civil Rule 60(B) actually states a court may relieve a party from final judgment on motion AND UPON SUCH TERMS AS ARE JUST. (Emphasis added) We interpret this to mean that, in furtherance of justice, the trial court may grant relief from judgment sua sponte. The court in Sexton v. Sexton (1978), 60 Ohio App.2d 339, held the trial court has a sua sponte duty to vacate a judgment where no motion is filed, but where the facts require such action. The negative results from the genetic test, excluding Guthrie as the father, rendered the prior paternity judgment unjust. Hence, we -6- conclude the trial court's decision to vacate the judgment sua sponte was proper. The second assignment of error is overruled. In the third assignment of error CSEA argues the trial court erred in not giving it notice and an opportunity to be heard before vacating the prior judgment. Ordinarily, notice and opportunity to be heard must be given to the opposing party before a trial court can authorize a relief from judgment. Consolidated Rail Corp. V. Forest Cartage Co. (1990), 68 Ohio App.3d 333 at 338, quoting Rice v. Bethel Assoc., Inc. (1987), 35 Ohio App.3d 133. However, due to the unique factual situation of this case, a hearing was unnecessary. The result of the genetic test showed there was a 0.00% chance of paternity. Faced with such test results, the trial court had no choice but to conclude Guthrie was not the father of Jason Taylor. See R.C. 3111.09. A hearing would not have altered the outcome. Since the outcome would have been the same, CSEA's rights were not prejudicially affected. An error in a proceeding which does not affect the substantial rights of a party must be disregarded as harmless error. Cunningham v. Goodyear Tire & Rubber Co. (1995), 104 Ohio App.3d 385. It follows that the trial court's error in not giving CSEA notice and an opportunity to be heard was harmless in this situation. The third assignment of error is overruled. Judgment affirmed. -7- It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Juvenile Division of Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ______________________________ JAMES D. SWEENEY, CHIEF JUSTICE ______________________________ PATRICIA ANN BLACKMON, JUDGE ______________________________ LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period .