McKinzie v. Fry , 2022 Ohio 2292 ( 2022 )

[Cite as McKinzie v. Fry, 2022-Ohio-2292.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Ronald W. McKinzie, II Court of Appeals No. L-21-1188
Appellant Trial Court No. AD 21283174
v.
Rebecca Fry DECISION AND JUDGMENT
Appellee Decided: June 30, 2022
*****
Ronald W. McKinzie, II, Pro se.
Alan J. Lehenbauer, for appellee.
*****
MAYLE, J.
{¶ 1} Plaintiff-appellant, Ronald W. McKinzie, II, appeals the September 9, 2021
judgment of the Lucas County Court of Common Pleas, Juvenile Division, denying his
motion to set aside magistrate’s interim order, and granting the motion for relief from
judgment of paternity, filed by defendant-appellee, Rebecca Fry. For the following
reasons, we affirm the trial court judgment.
I. Background
{¶ 2} Rebecca Fry is the biological mother of L.L.M., born in January of 2020.
Ronald McKinzie is identified on the child’s birth certificate as L.L.M.’s father. On
February 4, 2020, Fry and McKinzie also signed an Acknowledgment of Paternity
Affidavit, again identifying McKinzie as the natural father of the child.
{¶ 3} On February 17, 2021, McKinzie filed a complaint for the allocation of
parental rights and responsibilities, requesting that he be designated the child’s residential
parent and legal custodian. In an order journalized on April 15, 2021, the magistrate
awarded temporary legal custody to McKinzie and suspended Fry’s parenting time.
{¶ 4} On May 14, 2021, Fry filed a motion for relief from paternity judgment
under R.C. 3119.961 and requested genetic tests. She asserted that McKinzie is not the
biological father of L.L.M. She recognized that under R.C. 3111.25, an acknowledgment
of paternity becomes final and enforceable when the acknowledgment has been entered
into the birth registry and the period for rescission has passed. She also recognized that
under R.C. 3111.27, the rescission period is 60 days, and under R.C. 3111.28, the period
for bringing an action to rescind an acknowledgment of paternity based on fraud, duress,
or material mistake of fact is one year. Fry conceded that she did not seek to rescind the
acknowledgment of paternity within the 60-day or one-year periods, however, she
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claimed that she could seek relief from the final acknowledgment of paternity in a court
action under R.C. 3119.96 through 3119.967, and specifically R.C. 3119.962. R.C.
3119.962(A)(1) provides that “[u]pon the filing of a motion for relief under section [R.C.]
3119.961 , a court shall grant relief from a final judgment, court order, or administrative
determination or order that determines that a person * * * is the father of a child * * * if
all of the following apply”:
(a) The court receives genetic test results from a genetic test
administered no more than six months prior to the filing of the motion for
relief that finds that there is a zero per cent probability that the person * * *
is the father of the child.
(b) The person * * * has not adopted the child.
(c) The child was not conceived as a result of artificial insemination
in compliance with sections 3111.88 to 3111.96 of the Revised Code.
{¶ 5} McKinzie opposed Fry’s motion. He contended that R.C. 3119.962 allows
only persons found to be the “father of a child” to challenge a final judgment, court order,
or administrative determination or order that determines that a person is the father of a
child. He insisted that the statute “is not a mechanism for biological mothers to belatedly
attack a judgment which may be based on an error that she may have induced * * * or for
which she is actively responsible” due to deceit. McKinzie further maintained that under
R.C. 3119.962(B), if a person knows that he is not the natural father of a child but
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nonetheless signs an acknowledgment of paternity that becomes final, a court shall not
grant relief from a paternity judgment. He contended that any error as to paternity was
invited by Fry.
{¶ 6} Fry reiterated her claim that her motion was authorized under R.C. 3119.96
et seq. She explained that she was claiming that McKinzie inappropriately pressured her
to sign the acknowledgment of paternity. She maintained that even if her action was not
authorized under R.C. 3119.961 and 3119.962, it was nevertheless timely under R.C.
3111.28 because (1) McKinzie’s filing of his complaint tolled the statute of limitations
for Fry’s rescission action, and (2) the Ohio Supreme Court’s March 27, 2020 Covid-19
tolling order (03/27/2020 Administrative Actions, 2020-Ohio-1166) and the tolling order
set forth in Am. Sub. H.B. 197 (collectively, “the emergency tolling orders”) operated to
toll the one-year limitations period and extend the time within which she could seek to
rescind the acknowledgment of paternity on the basis of duress.1 Alternatively, Fry asked
the court to treat her motion as a request for relief from judgment under Civ.R. 60(B)(5).
She also argued that R.C. 3119.961 violates the equal protection clause because it grants
to unwed fathers an additional means by which to avoid a final and enforceable
determination of paternity not provided to unwed mothers.
1
The Ohio Supreme Court’s March 27, 2020 Covid-19 tolling order tolled the time
requirements established by Supreme Court-promulgated rules, while Am. Sub. H.B. 197
tolled statutory requirements.
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{¶ 7} The magistrate was persuaded by Fry’s claim that the emergency tolling
orders tolled the period within which she was required to bring an action to rescind the
acknowledgment of paternity. In an order dated June 8, 2021, the magistrate found that
the tolling period added an additional 143 days for Fry to seek a remedy, thus her motion
was timely under R.C. 3111.28. The magistrate also ordered genetic testing.
{¶ 8} McKinzie moved to set aside the magistrate’s order under Civ.R.
53(D)(2)(b). He argued that the magistrate misinterpreted and misapplied the emergency
tolling orders. He claimed that the orders tolled only the time requirements set to expire
during the emergency period between March 9, 2020, and July 30, 2020; time
requirements set to expire after the emergency period were not tolled. McKinzie insisted
that because the time period for bringing an action to rescind the acknowledgment of
paternity was not set to expire during the tolling period—rather, it would expire April 4,
2021 (one year after the acknowledgment became final)—the emergency tolling orders
did not apply to toll the limitations period.
{¶ 9} Fry amended her answer and counterclaims. She also filed a motion for
relief from paternity judgment under Civ.R. 60(B)(5). She argued that assuming the
acknowledgment of paternity was a final judgment, she should be relieved from that
judgment because (1) McKinzie is not the biological father of the child; (2) she signed
the acknowledgment involuntarily because McKinzie asserted inappropriate pressure; (3)
she has substantial grounds for relief because she is precluded from any other legal
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remedy because the one-year period for rescission under R.C. 3111.28 purportedly
expired on April 4, 2021, and R.C. 3119.961 and 3119.962 allow only putative fathers to
challenge a prior finding of paternity outside the parameters of Civ.R. 60(B); (4) at least
one court has held that R.C. 3119.961 presents a ground for relief that qualifies under the
catch-all provision of Civ.R. 60(B)(5); and (5) Fry filed her motion for relief from
paternity within a reasonable time—only five-and-a-half weeks after the one-year period
for rescission expired under R.C. 3111.28, while McKinzie’s action for parental rights
was still active and pending.
{¶ 10} McKinzie opposed Fry’s Civ.R. 60(B) motion and asked that it be stricken.
He argued that the court had not yet ruled that the acknowledgment of paternity was final,
therefore, the Civ.R. 60(B) motion is premature and seeks an advisory opinion.
{¶ 11} Genetic testing confirmed that McKinzie is not L.L.M.’s biological father.
The results of the genetic tests were filed in the juvenile court on August 19, 2021,
{¶ 12} On September 9, 2021, the trial court issued a judgment on McKinzie’s
motion to set aside the magistrate’s June 9, 2021 order and on Fry’s motion for relief
from paternity judgment under Civ.R. 60(B). The court agreed with McKinzie that the
magistrate incorrectly concluded that the emergency tolling orders extended the time
within which Fry could bring an action to rescind the acknowledgment of paternity under
R.C. 3111.28. The court also agreed that R.C. 3119.961 can be invoked only by the
acknowledged father of the child and not by the mother. Nevertheless, the trial court
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emphasized that it could not ignore the fact that McKinzie was determined not to be the
child’s biological father. It, therefore, held that that “in the interest of equity, with the
legitimate genetic test results in mind, and no other clear remedy available to [Fry],” it is
appropriate under Civ.R. 60(B) to relieve Fry of McKinzie’s binding paternity
acknowledgment. It granted Fry’s motion for relief from paternity judgment under
Civ.R. 60(B)(5), affirmed the genetic test results, and denied as moot McKinzie’s motion
to set aside the magistrate’s order.
{¶ 13} McKinzie appealed. He identifies the following error for our review:
The trial court abused its discretion by misinterpreting and
misapplying the Ohio Supreme Court’s Admin. Tolling Order by adding on
to the one-year time limit allowed under O.R.C. 3111.28 (which in the
instant matter expired on April 4, 2021) the total tolling period days to
arrive at a new limitation of action deadline exceeding past the emergency
period.
II. Law and Analysis
{¶ 14} McKinzie asserts one assignment of error, challenging only the purported
misinterpretation and misapplication of the Ohio Supreme Court’s March 27, 2020
Covid-19 tolling order and Am. Sub. H.B. 197. Fry responds that the trial court judgment
is not a final and appealable order, McKinzie lacks standing to appeal, and McKinzie
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challenges an error that did not occur. We begin by determining whether the trial court
judgment is a final, appealable order.
{¶ 15} Fry argues that the September 9, 2021 judgment is not a final order because
it decided only the issue of whether Fry was entitled to relief from the binding paternity
acknowledgment. She insists that it did not decide the issues raised in McKinzie’s
complaint for allocation of parental rights and responsibilities, therefore, the judgment
did not dispose of the whole case. Fry maintains that the trial court did not dispose of the
whole case until November 5, 2021, when it dismissed McKinzie’s complaint for lack of
standing.
{¶ 16} Under R.C. 2505.02(B)(3), “[a]n order is a final order that may be
reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n
order that vacates or sets aside a judgment or grants a new trial * * *.” Fry obtained
relief from the judgment of paternity via a Civ.R. 60(B) motion, which the trial court
granted. An order granting a Civ.R. 60(B) motion to set aside judgment is a final,
appealable order so long as the underlying judgment was final. Anderson v. Schar, 9th
Dist. Wayne No. 97CA0004, 1997 WL 823970, *1 (Dec. 31, 1997), citing S.Ohio Coal
Co. v. Kidney, 100 Ohio App.3d 661, 666, 654 N.E.2d 1017 (1995); Genchur v. Walker,
11th Dist. Trumbull No. 96-T-5612, 1997 WL 750827, *1 (Nov. 21, 1997). Here, Fry
sought relief under Civ.R. 60(B) because the underlying acknowledgment of paternity
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had become final on April 4, 2021. We conclude, therefore, that the trial court’s
September 9, 2021 judgment was final and appealable.
{¶ 17} Having said that, we agree with Fry that McKinzie challenges an error that
did not occur. Specifically, he claims that the trial court misinterpreted and misapplied
the emergency tolling orders by adding 143 days to the R.C. 3111.28 one-year limitations
period. In fact, the trial court did not find that the limitations period for bringing an
action under R.C. 3111.28 was tolled by the emergency tolling orders.
{¶ 18} The magistrate in his June 8, 2021 decision found that the limitations
period for bringing an action to rescind the acknowledgment of paternity had been tolled
for a period of 143 days, rendering Fry’s action timely under R.C. 3111.28. But the
magistrate’s decision was not a final order, and McKinzie moved to set it aside under
Civ.R. 53(D)(2)(b). Upon considering McKinzie’s motion, the trial court agreed with
McKinzie that the magistrate misapplied the emergency tolling orders when it found that
Fry’s action was timely under R.C. 3111.28. Citing Yost v. McNea, 6th Dist. Erie No. E-
20-014, 2021-Ohio-2145, ¶ 50, it explained that contrary to the magistrate’s decision, the
emergency tolling orders “toll[ed] only those time requirements that [we]re set to expire
during the emergency period.” The court found that “because the April 4, 2021 timing
deadline for [Fry] to bring an action to rescind the acknowledgment of paternity did not
fall within the emergency period,”—March 9, 2020, to July 30, 2020—Fry “had only
until [April 4, 2021] to bring the action, with no additional time added thereafter.”
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{¶ 19} Despite agreeing with McKinzie that the magistrate misapplied the
emergency tolling orders, the trial court vacated the paternity judgment under Civ.R.
60(B)(5). McKinzie did not raise the propriety of that decision on appeal, therefore, we
are unable to review it. Reviewing the error assigned by McKinzie, we conclude that the
trial court did not misinterpret or misapply the emergency tolling orders in its September
9, 2021 judgment.
{¶ 20} Accordingly, we find McKinzie’s sole assignment of error not well-taken.
III. Conclusion
{¶ 21} While the magistrate misapplied the Ohio Supreme Court’s March 27, 2020
Covid-19 tolling order and Am. Sub. H.B. 197 to extend the one-year period within
which Fry could bring an action to rescind the acknowledgment of paternity under R.C.
3111.28, the trial court did not. The trial court recognized the magistrate’s error when it
reviewed the magistrate’s decision, and instead relied on Civ.R. 60(B)(5) to vacate the
judgment of paternity. We, therefore, find McKinzie’s sole assignment of error not well-
taken.
{¶ 22} We affirm the September 9, 2021 judgment of the Lucas County Court of
Common Pleas, Juvenile Division. McKinzie is ordered to pay the costs of this appeal
under App.R. 24.
Judgment affirmed.
10.
Ronald W. McKinzie, II
v. Rebecca Fry
L-21-1188
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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