Strack v. Pelton - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Strack, Appellant, v. Pelton, f.k.a. Strack, Appellee.
[Cite as Strack v. Pelton (1994), Ohio St.3d .]
Civil procedure -- Motion for relief from judgment pursuant to
Civ.R. 60(B) is not timely when filed more than one year
after judgment, and more than one year after the new
evidence upon which it is based became admissible.
(No. 93-1070 -- Submitted May 25, 1994 -- Decided August
31, 1994.)
Appeal from the Court of Appeals for Ashtabula County, No.
92-A-1751.
On October 19, 1977, appellant, David A. Strack, filed a
complaint for a divorce from his wife, appellee, Donna M.
Strack (now Pelton). David alleged in the complaint that no
children were born as issue of the marriage. Donna alleged in
her answer that she was pregnant with a child of the marriage.
Blood-grouping tests were conducted on the parties and revealed
that David could not be excluded as father of the child in
question.
In June 1978, the trial court entered its judgment
granting the parties a divorce. This divorce decree stated
that one child had been born as issue of the marriage and
ordered David to pay $40 per week in child support until the
child reached the age of eighteen.
In October 1987, nine years after the judgment of divorce,
appellant filed a motion for a human leukocyte antigen ("HLA")
genetic test to determine conclusively his paternity of the
child in question. The results of the HLA test excluded
appellant as the father of the child.
On January 22, 1990, David filed a motion pursuant to
Civ.R. 60(B) for relief from certain aspects of the divorce
decree as it related to paternity and child support of the
parties' child.
David testified at a hearing on the motion that the
parties had not engaged in sexual intercourse at all during the
1977 calendar year. Donna admitted that towards the end of
April 1977, while she was intoxicated, she had a sexual
"incident" (but not intercourse) with an unknown man named
"Jim." The child in question was born nine months later on

January 18, 1978. The trial court overruled David's motion,
and the court of appeals affirmed.
The cause is now before this court pursuant to an
allowance of a motion to certify the record.

Bobulsky & Grdina and Samuel L. Altier, for appellant.
Robert S. Wynn, for appellee.

Moyer, C.J. This case presents the question whether a
motion for relief from judgment pursuant to Civ.R. 60(B) is
timely when filed more than one year after judgment, and more
than one year after the new evidence upon which it is based
became admissible. For the following reasons, we hold that it
is not.
Civ.R. 60(B) provides in part:
"On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final
judgment, order or proceeding for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(B);
(3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse
party; (4) the judgment is satisfied, released or discharged,
or a prior judgment upon which it has been based has been
reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application; or (5)
any other reason justifying relief from judgment. The motion
shall be made within a reasonable time, and for reasons (1),
(2) and (3) not more than one year after the judgment, order or
proceeding was entered or taken. A motion under subdivision
(B) does not affect the finality of a judgment or suspend its
operation."
In order for a party to prevail on a motion for relief
from judgment under Civ.R. 60(B), the movant must demonstrate
the following:
"(1) the party has a meritorious defense or claim to
present if relief is granted; (2) the party is entitled to
relief under one of the grounds stated in Civ.R. 60(B)(1)
through (5); and (3) the motion is made within a reasonable
time, and, where the grounds of relief are Civ.R. 60(B)(1),
(2), or (3), not more than one year after the judgment, order
or proceeding was entered or taken." GTE Automatic Elec. v.
ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86,
351 N.E.2d 113, paragraph two of the syllabus.
These requirements are independent and in the conjunctive;
thus the test is not fulfilled if any one of the requirements
is not met. Id. at 151, 1 O.O.3d at 88, 351 N.E.2d at 116.
The standard by which we review a decision on a Civ.R. 60(B)
motion is abuse of discretion. See Rose Chevrolet, Inc. v.
Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564, 566.
Appellant alleges his claim is meritorious because the
results of an HLA blood test disqualify him as the father of
the child in question. The test results are admissible to
determine paternity pursuant to R.C. 3111.09 and 3111.10.
Thus, Strack argues, he may have a "meritorious claim" for the
purpose of Civ.R. 60(B) analysis.

Second, appellant argues he is entitled to relief under
one of the provisions of Civ.R. 60(B)(1) through (5) because he
has come forward with new evidence, a proper ground under
Civ.R. 60(B)(2).
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, 5 OBR 120, 122, 448 N.E.2d 1365,
1367. 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. 60(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. Strack bears some responsibility to assert timely
his new evidence. The law cannot assume lack of knowledge of
the admissibility of HLA test results. We decline the
invitation to alter the clear meaning of Civ.R. 60(B).
Even if we were to apply Civ.R. 60(B) loosely and allow
extra time not provided for by the rule, we would have to look
to the time when the evidence became admissible to determine
paternity, in this case 1982. Because Strack asserts that he
has contested paternity of the minor child from before the time
of the divorce decree, we may impute to him the knowledge of
the newly developed technology to support his claim. For these
reasons, we concur with the trial court's determination that
Strack did not file his Civ.R. 60(B) motion in a timely manner.
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, 24 OBR 362, 364, 493 N.E.2d 1353, 1356,
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.
For the foregoing reasons, we affirm the judgment of the
court of appeals.
Judgment affirmed.
A.W. Sweeney, Douglas, Wright, Resnick and F.E. Sweeney,
JJ., concur.
Pfeifer, J., dissents.
Pfeifer, J., dissenting. Civ. R. 60(B)(4) is the
applicable provision in this case. The judgment against Strack
in 1978 placed a continuing obligation upon him, an obligation
that it is inequitable, even ridiculous, to continue to apply,
given that the facts upon which it was based have been
unmistakably disproved.
The character of the judgment against Strack is
specifically addressed in Civ. R. 60(B)(4), in that it has
continuing, prospective application. The judgment in this case
need not be retroactively undone -- but its prospective,
inequitable application can be stopped easily.
Since Civ. R. 60(B)(4) is the applicable provision, a
motion thereunder must be made "within a reasonable time." In
paternity cases, the extent of the relationship between the
wrongly identified "father" and the child will be the key
factor in the determination. If the child has come to rely
upon the "father" for both financial and emotional support, the
reasonable time period has expired.
In the present case, however, the lack of a relationship
between Strack and the child is evidence that Strack did file
his motion within a reasonable time. Strack has not seen the
child, who is now sixteen years old, for twelve years. He has
grown up without Strack's support and guidance. In fact, the
child already has a father figure with whom he and his mother
live, who presumably provides what the family needs. In short,
Strack serves no function to the child, and their legal
separation would do no emotional harm to the child.
There is no reason for this court to indulge in a legal
fiction which forces the parties involved to continue living a
lie. Strack should not be refunded any of the payments he made
prior to the filing of his motion, but he should not be forced
to continue to pay child support where he has no biological or
psychological connection with the child. Certainly, Rule
60(B)(4) provides the means to correct a continuing mistake.