COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71858 IRENE BRUCE, ET AL. : JOURNAL ENTRY : AND Plaintiffs-appellees: OPINION : -vs- : : WILLIE THURMON, ET AL. : : Defendants-appellants: DATE OF ANNOUNCEMENT OF DECISION: MAY 21, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Juvenile Division Case No. 9370338 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: For Defendants-appellants: TIMOTHY G. SPACKMAN, ESQ. JEAN MURRELL CAPERS, ESQ. ASST. COUNTY PROSECUTOR 5000 Euclid Avenue, Suite 211 1910 Carnegie Avenue, 2nd Floor Cleveland, Ohio 44103 Cleveland, Ohio 44115 -2- DYKE, P.J.: Appellant, Willie Thurmon, is appealing the orders of the Cuyahoga County Court of Common Pleas, Juvenile Division, determin- ing that he is the father of the minor child Joseph Gholsten Jr., and ordering appellant to pay child support, birthing expenses and past due care. For the following reasons, we affirm. Appellee, State of Ohio Cuyahoga Support Enforcement Agency (CSEA), filed the complaint for paternity against appellant on May 18, 1993. Attached to the complaint is a CSEA order dismissing the administrative parentage proceeding before the CSEA, and making no determination as to parentage. An amended complaint was filed, stating that the child was born during the marriage of the mother-relator, Irene Bruce, to Joseph Gholston, Sr. Appellant was served with the complaint and amended complaint. On February 23, 1994, a hearing was held before the referee on the CSEA's motion for genetic testing. Appellant was informed of his right to counsel, and waived this right. The motion for genetic testing was granted. The blood test, filed April 14, 1994, stated that there was a 99.77% probability that appellant was the child's father. The case came on for trial. Appellant was granted a continu- ance to obtain counsel, and did obtain counsel. At the September 20, 1995 trial, appellant moved for a con- tinuance of trial because Joseph Gholston could not be located for the genetic test. The motion for continuance was denied. -3- In its journal entry dated October 16, 1995, the court found that appellant was the father. After a dispositional hearing was held, an entry was jour- nalized on November 14, 1995, stating as follows: The parties were granted a continuance to reach a settlement agreement as to sup- port, past care and medical expenses. Custody was not disputed and the mother was granted permanent custody. Appellant was ordered to be responsible for medical expenses in the interim. On November 22, 1996, the trial court entered its final order, ordering appellant to pay birthing expenses, past due care and court costs. The child was receiving $450 monthly Social Security benefit arising out of appellant's retirement. This Social Security payment exceeded the child support guidelines and was found to be adequate child support. Child support worksheets were attached to this journal entry. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN OVERRULING THE MOTION OF DEFEN- DANT WILLIE THURMON TO DENY JURISDICTION OF THE PERSON OF SAID DEFENDANT, ACQUIRED OUT OF RELATION OF CUYAHOGA SUP- PORT ENFORCEMENT AGENCY WITH PLAINTIFF IRENE BRUCE, ON WELFARE FROM THE STATE DEPARTMENT OF PUBLIC WELFARE FOR SUPPORT OF HER MINOR SON, PLAINTIFF JOSEPH GHOLSTON, JR., SAID ACTION BEGUN UNDER CHAPTER 5101:1-31 AND OHIO REVISED CODE SECTION 3111.22, BOTH AUTHORITIES AS THEY RELATE TO PATERNITY, BEING UNCONSTITUTIONAL. The juvenile court had original jurisdiction in this case. See R.C. 3111.06. Appellant argues that the CSEA lacks standing. CSEA may bring a paternity action if the child's mother is a recipient of public -4- assistance as defined by R.C. 2301.351. R.C. 3111.04, See generally CSEA v. Lozada (1995), 102 Ohio App.3d 442, State ex rel. Lamier v. Lamier (1995), 105 Ohio App.3d 797. In this case, the mother was receiving public assistance. R.C. 3111.22(A)(1) provides that no person may bring an action under section 3111.04 before requesting an administrative deter- mination of the existence or nonexistence of a parent-child rela- tionship from the CSEA. The exhibit attached to the complaint demonstrates that an administrative determination was requested. Appellant asserts that the record does not show that the administrative determination was requested by the mother. Appel- lant did not raise this argument at the trial level, so it is waived. Additionally, R.C. 3111.04(D) provides that a mother who is the recipient of public assistance shall request an administra- tive determination of paternity before the mother/recipient com- mences an action. This section does not require that the mother must request an administrative determination before the CSEA files suit. State ex rel. Gillion v. Reese (1994), 97 Ohio App.3d 315 is distinguishable, because it is based on State ex. rel. Athens Cty. Dept. of Human Serv. V. Wolf (1991), 77 Ohio App.3d 619, which was based on the statute as previously written. See Lozada, supra. Appellant contends that the administrative proceedings of the CSEA are in violation of appellant's due process rights. No deter- mination of paternity was made by the CSEA in this case. No rights of the appellant were affected or abridged by any administrative -5- proceedings. Appellant's due process rights were not violated by any administrative proceedings. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: DEFENDANT THURMON'S RIGHTS TO A FAIR TRIAL WERE PRE- JUDICED BECAUSE OF THE FACIAL IRREGULARITIES DEMONSTRATED IN THE APPEARANCE DOCKET ENTRIES OF (1) INACCURACY: LACK OF WRITTEN EXPLANATION OF ABBREVIATIONS: ACCOUNTABILITY BY INDIVIDUALS MAKING THE ENTRIES: LAPSE OF TIME BETWEEN THE RENDERING OF THE DECISION BY THE TRIAL COURT AND THE JOURNAL ENTRY BEING FILED AND THE FAILURE TO MAKE A DETERMINATION OF THE PARENT CHILD RELATIONSHIP WITHIN ONE HUNDRED TWENTY DAYS AFTER THE ACTION WAS BROUGHT IN JUVENILE COURT. R.C. 3111.12(F) provides that the parent-child relationship shall be determined within 120 days of the filing of the action. The 120-day time requirement is merely directory and not jurisdictional. See Lawrence County CSEA ex rel. Redmen v. Ward (Nov. 16, 1996), Lawrence App. No. 95CA40, unreported. A statute imposing a time limit for performing an official duty will be construed as directory, unless the object or purpose of the statute discernable from the language employed indicates otherwise. State ex rel Jones v. Farrar (1946), 146 Ohio St. 467, State ex rel. Streetsboro City School Dist. Bd. of Edn. (1989), 46 Ohio St.3d 55, 63. There is nothing in R.C. 3111.12(F) which expressly mandates that the court loses jurisdiction if the parentage determination is not made in the time specified. Appellant was not prejudiced by abbreviations in the record, when he could look up the journal entry for an explanation, if needed. -6- Appellant claims that the referees made orders without proper review by the judge. We see no error in this regard. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE COURT ERRED TO THE PREJUDICE OF DEFENDANT WILLIE THURMON WHEN IT FAILED TO RESPOND TO THE REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW, TIMELY REQUESTED, AND FILED DECEMBER 14, 1995. Civ.R. 52 requires that the request for findings of fact and conclusion of law be made before the entry of judgment or not later than seven days after the party filing the request has been given notice of the court's announcement of its decision. The appellant's request for findings of fact and conclusions of law was filed December 14, 1995. The request stated that the appellant received notice of the journal entry dated November 14, 1995 on December 11, 1995. Appellant does not contest the issues that were decided in the November 14 journal entry, namely child custody, the child's name and interim medical payments. Any failure by the trial court to issue findings of fact and conclusions of law was harmless error. Civ.R. 61. Appellant's brief reveals that he really wanted findings of fact as to the determination of paternity, journalized on October 16, 1995. Appellant did not make a timely request for findings of fact and conclusions of law as to the October 16 journal entry. Additionally, the trial judge stated his findings of fact and conclusion of law on the record at the paternity hearing. Accordingly, this assignment of error is overruled. -7- IV. Appellant' fourth assignment of error states: THE FINDINGS OF THE PARENT CHILD RELATIONSHIP AS TO DEFENDANT WILLIE THURMON IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW. A judgment supported by some competent, credible evidence on each of the essential elements of the plaintiff's claim will not be reversed as against the weight of the evidence. See C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. If a child is born during the marriage, there is a presumption that the husband is the father of the child. R.C. 3111.03(A)(1). There is also a presumption that if a man signs the birth certifi- cate, he is the father. R.C. 3113.03(A)(4). These presumptions can only be rebutted by clear and convincing evidence. R.C. 3111.03(B), Hulett v. Hulett (1989), 45 Ohio St.3d 288. Genetic tests excluding the father as the husband and indicating a 95% or greater probability that another man is the father, are sufficient to rebut the presumption. Id. There is also a presumption that a man is the father if a genetic test ordered by the court indicates a 95% or greater probability of paternity. R.C. 3111.03(A)(6), Filkins v. Cales (1993), 86 Ohio App.3d 61. When two or more conflicting presump- tions arise under R.C. 3111.03, the trial court should determine which is controlling, based upon logic and policy considerations. Evicks v. Evicks (1992), 79 Ohio App.3d 657, R.C. 3111.03(B), Hensley v. Stocker (Oct. 5, 1994), Hamilton App. No. C-930502, unreported. -8- The evidence was as follows: Irene Bruce, the child's mother, testified that she had sexual intercourse with appellant in December of 1987, and she conceived the child in December of 1987. Bruce had sexual intercourse with Joseph Gholston, Sr. in January, 1988. The child was born in September, 1988. Joseph Gholsten, Sr. signed the birth certificate. Irene Bruce further testified that she filed for divorce from Joseph Gholsten. Gholsten paid temporary child support for Joseph, Jr. The Domestic Relations Court ordered genetic testing. The test revealed that Gholsten was not the father, and the child support order was terminated. The genetic test was proffered but not admitted into evidence. A certified copy of the divorce decree stated that there were no children born as issue of the marriage. Certified copies of the agreed judgment entry to submit to genetic testing and the order terminating child support were submitted into evidence. Pat Brezine of CSEA testified as to the blood test ordered in this paternity action. Brezine stated that the proper procedures for drawing blood were followed. The blood was drawn in Cleveland, and mailed to the Gene Screen laboratory in Dayton for testing. Robert Gutendorf, Associate laboratory Director, testified that he is custodian of record for Gene Screen Lab. The records indicate that the blood samples for this case were received in tact. Gutendorf explained the testing procedures. Gutendorf was involved in the interpretation of the test, which showed a 99.77% probability that appellant was the father. -9- Willie Thurmon testified that the only time he had sex with Irene Bruce was in 1972. There was clear and convincing evidence to rebut the presump- tion that Joseph Gholsten, Sr. was the father. After receiving the results of a genetic test, the Domestic Relations court determined that Gholsten was not the father. A test ordered by the Juvenile Division indicated a 99.77% probability that appellant was the father. Even if this evidence was not clear and convincing, it pro- vided a sufficient basis from which the court could decide that the presumption that appellant was the father would prevail. R.C. 3111.03(B), Evicks, supra. For a case with similar facts, see Hensley, supra. The trial court's decision was not against the weight of the evidence. Appellant asserts the order of support did not comply with R.C. 3113.215, because the child support worksheets were not attached. See Marker v. Grimm (1992), 65 Ohio St.3d 139. The worksheets were attached. Furthermore, the court did not make a child support order, because the child was receiving the social security benefit. Accordingly, this assignment of error is overruled. V. Appellant's fifth assignment of error states: PLAIN ERROR WAS COMMITTED IN THE ADMISSION OF AN ALLEGED GENETICS TEST OF DEFENDANT WILLIE THURMON, JOSEPH GHOLSTON, JR., AND IRENE BRUCE, MOTHER OF JOSEPH RAYMOND GHOLSTON, JR., A MINOR AND OTHER EXHIBITS OBJECTED TO BY COUNSEL FOR DEFENDANT WILLIE THURMON AND ADMITTED FOR THE RECORD. -10- Appellant asserts that the genetic test was not admissible because appellant's attorney was not served with a copy of the blood test. R.C. 3111.09(B)(3) provides that the court must mail a copy of the results of the genetic testing to the attorney of record, or if there is no attorney of record, to the party. At the hearing on the motion for genetic testing, appellant waived his right to counsel. When the results of the genetic test were filed, appellant was not represented by counsel. The court was only required to mail a copy to appellant. The document showing the results of the genetic test was authenticated by Gutendorf's testimony. Evid.R. 901. The document was also self-authenticating under Evid.R. 902(8). Additionally, the foundation and authentication of the tests were sufficient under Camden v. Miller (1986), 34 Ohio App.3d 86. Gutendorf stated his qualifications on the record, and his testimony was properly admitted under Evid.R. 702, 703, 704 and 705. R.C. 2317.36 provides that when a group of persons made a report or finding, that only one of the persons making such report or finding needs to testify. R.C. 2317.36 does not require that the person testifying signed the report, or actually performed the test, so long as he participated in making the report or finding. Gutendorf's testimony did not contravene R.C. 2317.36. The divorce documents were certified copies, and properly admitted under Civ.R. 44. Appellant asserts the trial court erred in denying his request for a continuance to require Gholsten to submit to a genetic test. -11- On March 9, 1995, the trial court granted appellant's request for DNA testing, requiring such tests be performed by April 10, 1995. Appellant was granted a thirty-day extension. On September 13, 1995, appellant moved for a continuance, because he was unable to locate Joseph Gholsten. Appellant had just learned from appel- lant's divorce attorney that Gholsten's last known whereabouts were as an employee of RTA. The court denied the motion, stating it had given appellant sufficient time to have the tests performed. Trial courts have broad discretion to decide whether to grant a continuance. State v. Unger (1981), 67 Ohio St.2d 65, NIAM Investigations, Inc. v. Gilbert (1989), 64 Ohio App.3d 125. Civ.R. 26(C) gives the trial court broad authority to regulate discovery. Drawl v. Cleveland Orthopedic Ctr. (1995), 107 Ohio App.3d 272, 277. Absent an abuse of the trial court's discretion in the matter, an appellate court will not overturn a trial court's ruling. In Re Estate of Popp (1994), 94 Ohio App.3d 640. In this case, the trial court did not abuse its discretion in finding that appellant had sufficient time to obtain the genetic test. The trial court did not err in denying the motion for con- tinuance. Accordingly, this assignment of error is overruled. We must also address appellees' motion to strike five volumes of transcript, motion number 89511. Appellees assert that the record does not reflect that the reporter was assigned by the trial court, as required by App.R. 9(B) and Loc.R. 4(A) of the Eighth -12- District Court of Appeals. The record does not show that the stenographer was hired by appellant, as asserted by appellees. App.R. 9 and Loc.R. 4 will not be construed in a hyper- technical manner. See State ex. rel. Mentor Lagoons v. Strader (1982), 1 Ohio St.3d 1, 2, Farmers Banking Co. V. Hinkle (1976), 46 Ohio St.2d 374, 377. If the transcriber certifies the transcript as correct, this is sufficient to satisfy the requirements of App.R. 9(B), in the absence of questionable context properly raised under App.R. 9(E). Farmers Banking, supra, Shaker Heights v. Marcus (Feb. 4, 1993), Cuyahoga App. No. 61801, unreported. We find the transcripts were not insufficient for failure to reflect that the reporter was appointed by the court. See Shaker Heights, supra. Appellees assert that appellants did not file all of the transcripts from the proceedings below, and did not notify appel- lees that a partial transcript would be used. See App.R. 9(B). R. 9(B) requires that when manifest weight is argued, appellant shall include a transcript of all relevant evidence. Appellants filed all transcripts relevant to the issue of whether the paternity determination was against the weight of evidence. Appellees were not prejudiced by appellants failure to notify appellees that a partial record was filed. The transcripts do not comply with the requirements of App.R. 9(B)(5), (6) and (7). The transcripts contained no index to witnesses, and the exhibits were not marked and included with the transcript. This non-compliance with the Appellate Rules was harm- -13- less, because as we determined above, the trial court's ruling was not against the manifest weight of the evidence. When possible, a reviewing court should base its decision on the merits. State ex rel. Montgomery v. R & D Chemical Co. (1995), 72 Ohio St.3d 202. Accordingly, appellees' motion to strike five volumes of transcript is denied. The decision of the trial court is affirmed. -14- It is ordered that appellees recover of appellants their 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 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. TIMOTHY E. MCMONAGLE, J., AND SWEENEY, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(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 for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .