Carson v. Carson , 62 Ohio App. 3d 670 ( 1989 )

I am unconvinced by the majority decision and must accordingly dissent. In my view, the only procedural avenue open to appellee was Civ.R. 60(B). Appellee's motion ostensibly sought a modification of the dissolution decree itself, a reduction in child support, and a reduction in child support arrearage. In his memorandum in support of his motion, appellant claims that he was defrauded into entering the marriage, the separation agreement and the resulting dissolution. Simply stated, appellee was attempting to raise fraud under a motion without designating it as a Civ.R. 60(B) motion.

Civ.R. 60(B) provides for the following:

"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 has been satisfied, released or discharged, or a prior judgment upon which it is 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 this subdivision (B) does not affect the finality of a judgment or suspend its operation.

"The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules."

A domestic relations court has continuing jurisdiction to modify a dissolution decree with respect to matters of custody, visitation and child support. R.C. 3105.65(B). Civ.R. 75(I) states that "[t]he continuing jurisdiction of a court shall be invoked by motion filed in the original action * * *." Civ.R. 75(I) is used to seek a change in a domestic relations order on the ground that circumstances have changed since the original order was entered. McKinnon v. McKinnon (1983), 9 Ohio App.3d 220, 9 OBR 370, 459 N.E.2d 590. On the other hand, Civ.R. 60(B) involves a procedure for granting relief from a judgment not otherwise modifiable. Id. Thus, the choice depends on the particular reasons for the motion. Where a change of circumstances justifies a different result, the court may modify a decree when its continuing jurisdiction is properly invoked under Civ.R. 75(I). A Civ.R. 60(B) motion would be used in the event of inadvertence, mistake, newly discovered evidence, fraud or neglect which existed at the time of the original judgment.

In the case at bar, the allegation of fraud in the inducement of marriage does not indicate that circumstances have changed since the dissolution. The fraud, if such was present, existed at the time of the original dissolution and would warrant relief from that part of the decree which establishes appellee as Travis Carson's father.

Civ.R. 60(B) does not speak to the amendment of a final judgment, but to the vacation of that judgment. Civ.R. 60(B) originates from the court's inherent right to review its own decisions. See Demianczuk v.Demianczuk (1984), 20 Ohio App.3d 244, 20 OBR 305,485 N.E.2d 785; Sperry v. Hlutke (1984), 19 Ohio App.3d 156, 19 OBR 246,483 N.E.2d 870. In reviewing a change of custody motion, the Montgomery County Court of Appeals stated the following in the first paragraph of the syllabus in Tatom v. Tatom (1984),19 Ohio App.3d 198, 19 OBR 306, 482 N.E.2d 1339:

"Relief from judgment pursuant to Civ.R. 60(B) may apply to the custody part of a divorce decree if the custody part of the original decree is found to have been obtained by fraud or any other recognizable circumstance set forth in Civ.R. 60(B)(1) through (5). However, the relief granted is not a change of custody, but the setting aside of the original custody award on the basis that the award was defective at its inception."

The separation agreement incorporated into the decree of dissolution stated that Travis Carson was born as issue of the parties' marriage. Appellee moved to modify the support provisions of the dissolution decree when, in actuality, he was seeking to vacate that portion of the decree which states that Travis Carson was the issue of the marriage. Appellee sought to vacate the parent-child relationship established by the decree. As in the Tatom case, the relief granted below was not a modification of support but the setting aside of the finding of paternity in the original decree on the basis that such finding was defective at its inception. The trial court could not relieve appellee of his support obligations unless it vacated the underlying parent-child relationship between appellee and Travis Carson.

Appellee's motion was unquestionably predicated upon his claim that he had been defrauded into believing that he was the natural father of Travis Carson. I am convinced that such constitutes a claim for relief from judgment under Civ.R. 60(B)(3) and that such motion was required to be filed not more than one year after the judgment was entered. It is simply too late for appellee to challenge the paternity question. Having failed to timely file the motion, appellee was not entitled to the relief granted.

Even assuming that the motion was timely filed, appellee still was not entitled to the requested relief because he failed to establish fraud by the requisite standard of proof. Evidence of fraud must be made by clear and convincing evidence in order to justify the vacation of a judgment. See Wilson v. Wilson (1968), 14 Ohio App.2d 148, 43 O.O.2d 340, 237 N.E.2d 421. Clear and convincing evidence requires proof which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 18 OBR 419, 481 N.E.2d 613. The statement of evidence submitted under App.R. 9(C) indicates that prior to the marriage appellee had been informed that the child was not his. Appellee even told one witness prior to the marriage that he knew he was not the child's father. The record indicates that the evidence was less than clear and convincing and does not support the trial court's finding that fraud had been perpetrated upon appellee to force him into the marriage.

In conclusion, I find that appellee did not file his motion within the time required by Civ.R. 60(B) and that the record fails to support a finding of fraud by clear and convincing evidence. The trial court had absolutely no authority to determine the paternity issue at this late date and its decision should be reversed. For these reasons, I respectfully dissent.