COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73233 IN RE: : ASHLEY D. HOLMAN, MINOR : : JOURNAL ENTRY [Appeal by Dwayne Ford] : : AND Appellant : : OPINION : : Date of Announcement of Decision: SEPTEMBER 3, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Probate Court Division Case No. 1026666 Judgment: Affirmed Date of Journalization: Appearances: For Appellant: ALMETA A. JOHNSON, ESQ. 13308 Euclid Avenue Suite 102 East Cleveland, Ohio 44112 For Appellee: SANDRA L. WALKER, Asst. Prosecuting Attorney P.O. Box 93923 Cleveland, Ohio 44101-5923 -2- JAMES M. PORTER, P.J.: Appellant Dwayne Ford appeals from the order of the Probate Court denying him relief from a judgment entered on November 25, 1988 which found him to be the father of Ashley D. Holman, a minor. Appellant contends that genetic testing conclusively established in 1995 that appellant was not the father of Ashley and he was entitled to Civ.R. 60(B) relief vacating the previous order establishing his parenthood and obligation to support the child. For the reasons hereinafter stated, we find the Probate Court did not abuse its discretion in denying relief and we affirm. The child, Ashley D. Holman, was born January 21, 1988 to Appellee Bernadette Holman. The Cuyahoga County Department of Human Services (Human Services) paid for the maternity/birthing expenses for the minor child and provided ADC benefits from January 1988 to June 1988. Appellee requested that the Cuyahoga County Child Support Enforcement Agency (CSEA) initiate proceedings to establish the parent/child relationship. On April 28, 1988, CSEA, represented by the County Prosecutor's Office, filed a complaint in Juvenile Court to establish the parent/child relationship. On July 26 and July 28, 1988, appellant Dwayne Ford filed answers denying that he was the father of the child. On August 18, 1988, both parties were given until September 19, 1988 to file a motion for genetic testing. However, instead, appellant Ford and appellee Holman appeared in the Probate Court with the completed application to legitimize Ashley on November 25, 1988. -3- The parties thereafter failed to prosecute the complaint to establish the parent/child relationship in Juvenile Court. Therefore, the case was dismissed without prejudice for lack of jurisdiction/res judicata on July 14, 1989. During the first quarter of 1990, appellee Holman went to CSEA for an action to be filed on her behalf to establish child support for her minor child. The application for support was referred to the Prosecutor's Office to be filed in the Juvenile Court on April 20, 1990. On August 7, 1990, the Juvenile Court heard the matter concerning the application for support and custody which was filed by CSEA. On August 22, 1990, the referee recommended that appellant Ford's motion for genetic testing be denied, since his support obligation arose from his own acknowledgment and entry in the Probate Court on November 25, 1988. On August 31, 1990, the trial court confirmed, approved and adopted said report and issued an order compelling appellant Ford to pay child support to the mother in the sum of $388.00 per month for the support of Ashley. Appellant paid through CSEA consistently via a wage order. The court further ordered that appellee Holman retain custody of the minor child. Appellant Ford failed to appeal the decision of the trial court, although he was represented by counsel during these matters. On June 21, 1995, appellant filed a motion to vacate the legitimization, or alternatively, motion to conduct genetic testing. Appellant and appellee consented to genetic testing prior -4- to the Probate Court ruling on the motion. Appellee was not represented by counsel at the time and believed that the court had ordered her to submit to the genetic testing, not realizing that the court had not ruled on the motion. Appellant Ford and appellee Holman are currently single. On October 6, 1995, CSEA filed a motion to intervene and a motion to dismiss, which appellant opposed. On February 14, 1996, the Magistrate issued a report and decision in which it granted CSEA's motion to intervene and motion for appointment of guardian ad litem for Ashley. Appellant filed objections to the Magistrate's decision. The objections were set for hearing before Judge John E. Corrigan on March 15, 1996. On March 19, 1996, Judge John E. Corrigan granted CSEA's motion to intervene, but denied its motion for appointment of guardian ad litem. On September 16, 1996 and October 22, 1996, the court heard evidence on the merits of the case. Appellant was excluded as the biological father of Ashley pursuant to expert testimony by Robert W. Gutendorf in reliance on the genetic testing. On March 7, 1997, the Magistrate issued a report and decision denying appellant's motion to vacate the legitimization. On March 24, 1997, appellant filed objections to the Magistrate's decision. The objections were heard on April 24, 1997 before Judge John E. Corrigan. On August 29, 1997, the Probate Court issued an order denying the appellant's motion to vacate on -5- the grounds that his motion was not timely brought under Civ.R. 60(B). This timely appeal ensued. We will address appellant's assignments of error in the order asserted and together where it is appropriate for discussion. I. OHIO REVISED CODE, SECTION 2105.18 DEPRIVED MOVANT DWAYNE FORD OF DUE PROCESS OF LAW IN VIOLATION OF THE U.S. CONST. AMEND. XIV. Appellant contends for the first time on appeal that R.C. 2105.18 deprived him of due process as the form he completed and signed pursuant to R.C. 2105.18 did not advise him of his right to a hearing and legal counsel and did not advise him that he had a limited time in which to change his mind about his acknowledgment of paternity. This assignment of error has no merit. Appellant signed the application in November of 1988 and did not contest that his due process rights were violated until he filed this appeal almost nine years later. His silence for all these years waived any due process argument he had. Failure to raise an apparent constitutional claim at the appropriate time constitutes a waiver of that argument on appeal. Abraham v. National City Bank (1990), 50 Ohio St.3d 175, 176, Fn. 1; State v. Awan(1986), 22 Ohio St.3d. 120, 122; City of Cleveland v. Stratton (Jan. 30, 1997), Cuyahoga App. No. 70249, unreported at 3. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED IN RULING THAT THE MOTION TO VACATE THE LEGITIMATION ORDER HAD NOT BEEN FILED WITHIN A REASONABLE TIME PURSUANT TO OHIO CIVIL RULE 60(B)(4). III. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM JUDGMENT PURSUANT TO OHIO CIVIL RULE 60 (B)(4). -6- IV. THE TRIAL COURT ABUSED IT'S [SIC] DISCRETION IN ITS REFUSAL TO REGARD THE GENETIC TESTS RESULTS AS CONTROLLING THE OUTCOME. Assignments of Error II, III and IV will be addressed together as they all concern the trial court's denial of the appellant's motion to vacate the legitimization order. These assignments of error have no merit. Appellant first contends that the trial court erred in finding his motion to vacate was untimely pursuant to Civ.R. 60(B)(2), newly discovered evidence which has a one year time limit for bringing a motion to vacate. Appellant claims his motion to vacate was not filed based on the genetic test results and points out that at the time he filed his motion he did not even have the results of the genetic testing. Instead, he argues that the motion was based on Civ.R. 60(B)(5), which states as a ground for vacating a judgment as any other reasons justifying relief from the judgment. Appellant argues that he did not understand the implications of what he was doing when he signed the application to legitimize Ashley and that the only reason he signed the application was due to outside pressure. Even if appellant did file his motion to vacate based on this argument, we find his motion to still be untimely. Pursuant to Civ.R. 60(B)(5), a motion to vacate must be brought within a reasonable time which may be more or less than a year. Mount Olive Baptist Church v. Pipkins Paints and Home Improvement Center, Inc. (1979), 64 Ohio App.2d 285, 288. What constitutes a reasonable time is for the court to decide. In re -7- Watson (1983), 13 Ohio App.3d 344, 347; Rindfleisch v. AFT, Inc. (Oct. 30, 1997), Cuyahoga App. No. 71820, unreported at 6. We find that appellant's waiting over seven years to file a motion to vacate on such grounds to be unreasonable. Surely, he realized the implications of his actions sooner than seven years, as he was ordered to pay child support for Ashley in 1990. He also admitted at the hearing that he doubted his paternity from the beginning but was sick of arguing with the appellee. Instead of moving to vacate his acknowledgment to paternity, however, he chose to proceed to act as Ashley's father, paying child support for five years. Furthermore, his argument that he did not understand the effect of signing the application is not very credible given the application clearly states that: Believing that it is for the best interests of said child, I hereby respectfully request the Court to enter a finding on its journal establishing the relationship herein above set forth so that such child shall hereafter be known as my child as though born to me in wedlock. Although appellant first argues he did not file his motion based on the genetic testing, he goes on to argue that due to the fact the results of the genetic testing eliminated him as Ashley's father, the judgment should be vacated pursuant to Civ.R. 60(B)(4) which states that it *** is no longer equitable that the judgment should have prospective application. However, the Ohio Supreme Court in Strack v. Pelton (1994), 70 Ohio St.3d 172 addressed this issue finding that Civ.R. 60(B)(4) and (5) only apply where a more specific provision does not apply. Id. at 174. The Court went on -8- to find that Civ.R. 60(B)(2) specifically addressed newly discovered evidence which would apply to the results of genetic testing and which limited the time to file a motion to vacate to one year. The Court specifically held: Appellant asserts that his claim falls under Civ.R. 60(B)(4) and (5), and not the more specific provision that deals with newly discovered evidence. We disagree. The basis of Strack's motion is test results that were not available at the time of the divorce decree. The results are evidence; they are newly discovered. A straightforward and logical reading of Civ.R. 60(B)(2) dictates that it applies. Civ. R. 60(B)(5) applies only when a more specific provision does not apply. Caruso- Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 66. Here Civ. R. 60(B)(2) specifically addresses newly discovered evidence; thus, there is no reason to invoke the less specific catchall provision, Civ.R. 60(B)(5). The claim under Civ.R. (B)(4) fails for similar reasons. We hold, therefore, that Civ.R. 60(B)(2) is the provision of the rule that applies to Strack's claim. The third prong of the Civ. R. 60(B) test is that the motion must be made within a reasonable time, and where the grounds for relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after judgment. See GTE, supra. Strack filed his Civ.R. 60(B) motion in 1987 approximately nine years after the judgment of divorce and five years after the results of genetic testing became admissible in this state. R.C. 3111.09 and 3111.10. This filing delay falls far outside the one year time limitation imposed by Civ.R. 60(B)(2). The fact that Strack filed his motion shortly after he received the results of the genetic testing is not legally relevant. The time limits of Civ.R. 60(B) refer to the judgment from which relief is sought, and not to the time of discovery of the new evidence. The Supreme Court justified this harsh result, stating: -9- 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, this court declared, [f]inality 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. This Court in In re Adkins (1996), 109 Ohio App.3d 518, reluctantly followed Strack in finding that the trial court erred in granting the father's motion to vacate the declaration of paternity based on the results of genetic testing. This Court found that the time to file such a motion was one year pursuant to Civ.R. 60(B)(2). Likewise, we are also bound to follow the Supreme Court's decision regarding this matter. Although the appellant cites this Court's decision in CSEA v. Guthrie (Oct. 2, 1997), Cuyahoga App. No. 72216, unreported in support of his argument for vacation, we find Guthrie to be distinguishable. In Guthrie, Guthrie was found to be the father by the Juvenile Court since he failed to answer or appear for the hearing regarding the parentage action. Once he was ordered to pay child support, Guthrie obtained an attorney and requested genetic testing. The testing excluded Guthrie and the Juvenile Court thereafter vacated the judgment finding the appellant to be the -10- father. As can be seen from these facts, Guthrie immediately contested the trial court's finding he was the parent once he was apprized of the finding pursuant to the child support enforcement action. According to the record in the case herein, the appellant doubted he was the father from the beginning and was given two opportunities to have genetic testing which he failed to take advantage of. Instead, he waited over seven years to try to vacate the paternity finding. In such a circumstance, we cannot say equitable principles should apply to relieve him of his voluntary choice to be named as Ashley's father. Based on the untimeliness of the appellant's motion to vacate, we find the trial court did not abuse its discretion in denying the appellant's motion. Assignments of Error II, III and IV are overruled. V. THE TRIAL COURT ERRED IN ALLOWING THE CUYAHOGA SUPPORT ENFORCEMENT AGENCY TO INTERVENE. Appellant argues the trial court erred in permitting the CSEA to intervene in the motion to vacate proceedings. This assignment of error has no merit. This Court in CSEA v. Lozada (1995), 102 Ohio App.3d 442, 451 held that the CSEA, pursuant to R.C. 3111.20, is a proper party in cases where the child is legitimated in probate court. In fact, R.C. 2105.18, which governs the legitimization of a child in probate court, states that along with the natural mother and father and legal guardian of a child, the child support enforcement agency *** may file an acknowledgment of paternity in probate court -11- ***. In fact, R.C. 5101.31 which establishes the child support enforcement agency, states that the CSEA shall be responsible for: the location of absent parents, the establishment of parentage, the establishment and modification of child support orders and medical support orders, the enforcement of support orders, and the collection of support obligations. Based on these two statutes, the CSEA has a right to intervene pursuant to Civ.R. 24(A) which states that a party should be permitted to intervene (1) when a statute of this state confers an unconditionalright to intervene. It is reasonable that the CSEA be permitted to intervene in such an action as the CSEA is in charge of establishing parentage and child support orders and the overseeing of the payment of the support orders. If the motion to vacate the legitimization is granted, then the child support is directly affected as the appellant would no longer be responsible for the support obligation. We also find the CSEA is a proper party with an interest in the disposition of the action pursuant to Civ.R. 24(A)(1). Assignment of Error V is overruled. VI. THE TRIAL COURT ERRED IN FAILING TO GRANT THE MOTION TO VACATE THE LEGITIMATION ORDER FOR THE REASON THAT SAID ORDER IS VOID AB INITIO AS THE PROBATE COURT WAS WITHOUT JURISDICTION. The appellant contends for the first time on appeal that the Probate Court's order legitimizing Ashley is void ab initio since the parentage action was commenced in Juvenile Court before the application for legitimization was filed. This assignment of error has no merit. -12- The Juvenile and Probate Courts have concurrent jurisdiction over parentage actions. R.C. 3111.02; In re Adoption of Hudnell (1996), 113 Ohio App.3d 296, 300; In re Mantia-Allen (1996), 108 Ohio App.3d 302,303; In re Custody of Davis (1987) 41 Ohio App.3d 81, 83-84. When the action was filed in Juvenile Court on appellee's behalf by CSEA to establish parentage so that child support could be collected, the proceedings were adversarial as the appellant denied he was Ashley's father. Thereafter, the appellant, for some reason, no longer denied his paternity and the parties, by their own volition, appeared before the Probate Court to file a consensual application for legitimization. In such a case, where the parties confer jurisdiction on a court with concurrent jurisdiction, we cannot find that the court had no jurisdiction.This is especially so when neither party objects to the jurisdiction until almost ten years later. Assignment of Error VI has no merit. Thus, we find no error or abuse of discretion in the Probate Court's order refusing to vacate appellant Ford's paternity status. Judgment affirmed. -13- It is ordered that appellee recover of appellant its 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 Court of Common Pleas Probate Court Division 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. O'DONNELL, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER 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 .