K.L. v. Petruziello ( 2022 )

[Cite as K.L. v. Petruziello, 2022-Ohio-992.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
K.L. C.A. No. 21CA011724
and
T.L. APPEAL FROM JUDGMENT
ENTERED IN THE
Appellees COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
v. CASE No. 19NU086082
ANTHONY PETRUZIELLO
Appellant
DECISION AND JOURNAL ENTRY
Dated: March 28, 2022
CARR, Presiding Judge.
{¶1} Appellant, Anthony Petruziello, appeals the judgment of the Lorain County Court
of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} K.L and T.L. were married in 2010. In 2019, K.L and T.L. filed a joint petition for
dissolution of marriage with a separation agreement and shared parenting plan. On July 11, 2019,
the trial court issued a judgment entry of dissolution and adopted the parties’ separation agreement
and shared parenting plan. The shared parenting plan set forth guidelines for the care of P.L., who
was born in 2008, and M.L., who was born in 2011.
{¶3} On July 9, 2020, Petruziello filed a motion to intervene, a motion to declare void
the marriage dissolution and shared parenting plan, a motion for relief from judgment, and a
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motion for companionship rights with P.L. Petruziello’s central contention in support of his claims
was that he was P.L.’s biological father and he was denied an opportunity to assert his rights when
the trial court adopted K.L. and T.L.’s shared parenting plan without allowing him to participate
in the proceedings. K.L. and T.L. filed a memorandum in opposition to the motions on the basis
the pertinent issues contained therein had been previously litigated in Cuyahoga County.
Petruziello filed a reply brief in support.
{¶4} Petruziello subsequently filed a motion to join P.L. as a new party and appoint a
guardian ad litem. K.L. and T.L. opposed this motion as well.
{¶5} After a status conference, the trial court issued a journal entry finding that
Petruziello’s motions for relief from judgment and to declare void the dissolution of marriage and
shared parenting plan presented threshold issues that needed to be resolved before the trial court
could consider Petruziello’s other motions. The trial court named Petruziello a party in the action
for the limited purpose of litigating his Civ.R. 60(B) motion and his motion to declare void the
marriage dissolution and shared parenting plan.
{¶6} In light of the COVID 19 pandemic, the parties appeared for a conference via Zoom
where they presented oral arguments. The trial court subsequently issued a journal entry denying
Petruziello’s motion for relief from judgment as well as his motion to declare void the marriage
dissolution and shared parenting plan.
{¶7} On appeal, Petruziello raises two assignments of error. This Court consolidates
Petruziello’s assignments of error to facilitate review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT DENIED PETRUZIELLO’S MOTION
FOR RELIEF FROM JUDGMENT AND MOTION TO DECLARE
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DISSOLUTION AND SHARED PARENTING PLAN VOID, WHERE
APPELLEES COMMITTED FRAUD BY INTENTIONALLY FAILING TO
ACCURATELY DISCLOSE ALL OF THE FACTS ABOUT THE MINOR
CHILD ON THE UCCJEA AFFIDAVITS WHICH THEY FILED WITH THIS
COURT IN CONNECTION WITH THEIR PETITION FOR DISSOLUTION OF
MARRIAGE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION WHEN IT RULED THAT RES JUDICATA BARRED
PETRUZIELLO [FROM RELIEF] FROM JUDGMENT TO SEEK
COMPANIONSHIP RIGHTS WITH P.L. PURSUANT TO [R.C.] 3109.051.
{¶8} In his first assignment of error, Petruziello contends that the trial court improperly
denied his motions for relief from judgment and to declare void the marriage dissolution and shared
parenting plan because K.L. and T.L. fraudulently withheld information about ongoing litigation
involving Petruziello in Cuyahoga County at the time they filed their petition for dissolution of
marriage. In his second assignment of error, Petruziello maintains that the trial court erred when
it applied the doctrine of res judicata.
{¶9} This Court reviews a trial court’s ruling on a motion for relief from judgment under
Civ.R. 60(B) for an abuse of discretion. Smith v. Smith, 9th Dist. Summit No. 28961, 2019-Ohio-
129, ¶ 6. An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶10} “To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate
that: (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.” Witherspoon
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v. Witherspoon, 9th Dist. Lorain No. 15CA010865, 2017-Ohio-4216, ¶ 11, quoting GTE Automatic
Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus.
{¶11} Civ.R. 60(B) states as follows:
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 the 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.
{¶12} Although Petruziello raised a number of arguments in support of his Civ.R. 60(B)
motion, his foremost contention was that he was entitled to relief from judgment pursuant to Civ.R.
60(B) because K.L and T.L. fraudulently concealed information about ongoing litigation regarding
P.L.’s parentage in Cuyahoga County.
{¶13} At the hearing on his motions, Petruziello stated that he filed his Civ.R. 60(B)
motion because K.L. and T.L committed an “absolute misrepresentation” when they did not
disclose that they were involved in litigation over the parentage of P.L. at the time they filed their
petition for dissolution of marriage. Petruziello suggested that in addition to not accurately filling
out the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) affidavits attached
to their petition, K.L. and T.L. filed their petition in Lorain County in an attempt to prevent
Petruziello from gaining knowledge of the proceedings. According to Petruziello, this resulted in
issues with subject matter jurisdiction and further prevented the trial court from possessing the
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facts necessary to make a best interest determination regarding P.L. Petruziello further stated as
follows:
Unfortunately, the United Parentage Act of Ohio, the UPA, doesn’t allow a
provision for a biological father who has been put out of the picture, either
intentionally or by inadvertence, it doesn’t allow him to rescind the
acknowledgment of paternity of another man. So Mr. Petruziello was attempting
to do that in Juvenile Court in Cuyahoga County, and that case was not over.
{¶14} Prior to permitting K.L. and T.L. to respond, the trial court inquired of Petruziello
regarding several issues. Petruziello admitted that K.L. and T.L. noted in their UCCJEA affidavits
that the Cuyahoga County Juvenile Court had issued a decision in 2019 finding that Petruziello
was statutorily barred from challenging K.L.’s acknowledgement of paternity as to P.L. While
Petruziello further conceded that the judgment was ultimately affirmed on appeal, he stressed that
K.L and T.L. neither disclosed that an appeal was pending in that case when they filed their petition
for marriage dissolution, nor gave him notice of the marriage dissolution proceeding. With respect
to jurisdiction, Petruziello suggested that K.L and T.L. could waive venue but he argued that their
factual misrepresentations divested the trial court of subject matter jurisdiction under Pasqualone
v. Pasqualone, 63 Ohio St.2d 96 (1980).
{¶15} In response, K.L. and T.L. argued that the language contained in their UCCJEA
affidavits was sufficient to put the trial court on notice of the proceedings in Cuyahoga County.
K.L. and T.L stressed that the Eighth District Court of Appeals had affirmed the trial court’s
judgment, meaning that Petruziello’s motion for relief from judgment was effectively a substitute
for an appeal regarding parentage issues. K.L. and T.L. suggested that it was misleading for
Petruziello to couch his request in terms of companionship rights, as opposed to parental rights,
because he never had a relationship with P.L. K.L and T.L. further noted that they filed their
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petition for marriage dissolution in Lorain County simply to protect their children’s privacy and
that Petruziello had failed to raise a credible challenge regarding venue or jurisdiction.
{¶16} In its order denying Petruziello’s motions, the trial court found that the Cuyahoga
County Juvenile Court issued a judgment entry in 2019 “holding that [K.L.] was the legal father
of the minor child, P.L., having established paternity by law and dismissing Mr. Petruziello’s
paternity action seeking to establish paternity of P.L.” The trial court noted that this judgment was
affirmed by the Eighth District on appeal in In re P.L., 8th Dist. Cuyahoga No. 108312, 2019-
Ohio-4681. In discussing the Eighth District’s decision, the trial court stated as follows:
“[The] acknowledgment of paternity became final and enforceable, and established
that [K.L.], who signed the acknowledgment of paternity, was the legal father of
[P.L.] and that Mr. Petruziello’s request to rescind the acknowledgment of paternity
and a declaration that he was the biological father of [P.L.] was neither
contemplated nor authorized under the current version of R.C. Chapter 3111.”
{¶17} While the trial court acknowledged the Supreme Court’s decision in Pasqualone
regarding subject matter jurisdiction, it noted that the high court had subsequently recognized in
In re Palmer, 12 Ohio St.3d 194, 197 (1984), that the best interests of the child was the paramount
concern and that a mechanistic interpretation of the disclosure statutes could undermine the best
interest determination. In regard to this case, the trial court determined that the UCCJEA affidavits
filed by K.L. and T.L. complied with R.C. 3127.23 because they placed the trial court on notice of
the parentage case in Cuyahoga County. The trial court further found that because Petruziello was
not P.L.’s legal parent, K.L. and T.L. were not obligated to give him notice of the marriage
dissolution proceedings in Lorain County. Furthermore, stressing that the acknowledgement of
paternity was executed on May 14, 2008, the trial court found that Petruziello had failed to identify
any law that would allow the court to rescind or nullify the acknowledgment of paternity. The
trial court observed that “[i]t is apparent to this [c]ourt that Mr. Petruziello is seeking the same
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relief he attempted to obtain in Cuyahoga County and the Eighth District Court of Appeals who
previously denied his request[]” and that vacating or declaring void the marriage dissolution and
shared parenting plan would effectively permit Petruziello to have “a second bite of the apple[.]”
Discussion
{¶18} On appeal, Petruziello contends that the trial court wrongly denied him relief from
judgment because he demonstrated fraud. Petruziello maintains that K.L. and T.L. violated R.C.
3127.23(A) by concealing the ongoing litigation in Cuyahoga County on the affidavits that they
filed with their petition for marriage dissolution.1 Petruziello points to the Supreme Court’s
decision in Pasqualone, 63 Ohio St.2d at 99, in support of the proposition that, under former R.C.
3109.27, it was at one time a mandatory jurisdictional requirement in an action for custody that a
parent disclose any knowledge of custody proceedings in a different jurisdiction. Although
Petruziello concedes that “the Pasqualone mandatory jurisdictional requirement has been relaxed,”
he argues that the concealment which occurred in this case rendered the trial court unable to
adjudicate the rights of the parties and make a valid best interest determination regarding P.L.
{¶19} Ohio’s UCCJEA is codified in R.C. Chapter 3127. R.C. 3127.23(A) requires
parties in a custody action to file an affidavit disclosing certain information, including:
(1) Whether the party has participated as a party, a witness, or in any other capacity
in any other proceeding concerning the allocation, between the parents of the same
child, of parental rights and responsibilities for the care of the child including any
designation of parenting time rights and the designation of the residential parent
and legal custodian of the child or that otherwise concerned the custody of or
visitation with the same child and, if so, the court, case number and the date of the
child custody determination, if any;
1
It is well settled that Civ.R. 60(B) may not be used as a substitute for appeal. See Cooley
v. Sherman, 9th Dist. Lorain No. 05CA008860, 2006-Ohio-6065, ¶ 12. We reach the merits of
Petruziello’s argument to the extent that he contends that the alleged concealment of the
proceedings in Cuyahoga County rendered trial court’s adoption of the shared parenting plan void
and that the trial court should have exercised its inherent authority to vacate that judgment.
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(2) Whether the party knows of any proceedings that could affect the current
proceeding, including proceedings for enforcement of child custody
determinations, proceedings relating to domestic violence or protection orders,
proceedings to adjudicate the child as an abused, neglected, or dependent child,
proceedings seeking termination of parental rights, and adoptions, and, if so, the
court, the case number, and the nature of the proceeding;
(3) Whether the party knows of any person who is not a party to the proceeding and
has physical custody of the child or claims to be a parent of the child who is
designated the residential parent and legal custodian of the child or to have
parenting time rights with respect to the child or to be a person other than a parent
of the child who has custody or visitation rights with respect to the child and, if so,
the names and addresses of those persons.
{¶20} “[I]t is noteworthy that the purpose of R.C. 3127.23(A)’s affidavit requirement is
to prevent multiple contradictory rulings from different courts/jurisdictions on the issue of
custody.” In re Dissolution of the Marriage of Smith & Smith, 11th Dist. Portage No. 2014-P-
0056, 2015-Ohio-5522, ¶ 21, citing In re S.K., 8th Dist. Cuyahoga No. 89068, 2008-Ohio-1256, ¶
2, fn. 1. “It is not intended to be used to vacate proceedings between two parties when there were
no existing matters relating to custody in a different jurisdiction.” In re Dissolution of the
Marriage of Smith and Smith at ¶ 21.
{¶21} In this case, Petruziello has not demonstrated that K.L. and T.L. failed to comply
with the disclosure requirements in R.C. 3127.23(A). When K.L. and T.L. filed their petition for
dissolution of marriage and shared parenting plan, both parties checked a box on their respective
UCCJEA affidavits indicating that they had “information concerning other civil cases that could
affect the current case[.]” K.L. and T.L. further averred that a complaint to establish a parent-child
relationship had been filed in the Cuyahoga County Juvenile Court and that a judgment entry was
issued on February 27, 2019. That judgment was eventually affirmed on appeal. See In re P.L.,
2019-Ohio-4681, at ¶ 1. While K.L. and T.L. did not mention an ongoing appeal, the information
they provided was sufficient to put the trial court on notice of the litigation in Cuyahoga County
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initiated by Petruziello. A more rigid application of R.C 3127.23(A) would frustrate the statute’s
underlying purpose. See generally In re Dissolution of the Marriage of Smith and Smith at ¶ 21.
Accordingly, we cannot say that the trial court abused its discretion in concluding that Petruziello
failed to establish fraud for the purposes of Civ.R. 60(B) with respect to the UCCJEA affidavits.
{¶22} Petruziello’s first assignment of error is overruled.
{¶23} In his second assignment of error, Petruziello claims that the trial court erred in
applying the doctrine of res judicata in this case because he was seeking companionship rights
pursuant to R.C. 3109.051 in this matter and that issue was not litigated in the Cuyahoga County
proceedings.
{¶24} As noted above, the trial court found that Petruziello was attempting to use his
Civ.R. 60(B) motion to relitigate issues that had been decided in Cuyahoga County. It is well
settled that a motion for relief from judgment filed pursuant to Civ.R. 60(B) is not a substitute for
an appeal. Thompson v. Summit Pain Specialists, Inc., 9th Dist. Summit Nos. 27635, 27638, 2016-
Ohio-7030, ¶ 16. “[E]rrors which could have been corrected by a timely appeal cannot be the
predicate for a Civ.R. 60(B) motion for relief from judgment.” Fowler v. Fowler, 9th Dist. Medina
No. 15CA0079-M, 2016-Ohio-5768, ¶ 15, quoting Kelm v. Kelm, 73 Ohio App.3d 395, 399 (10th
Dist.1992). Both in his motions and throughout the proceedings below, Petruziello asserted that
K.L. and T.L. had gone to great lengths to deny him the due process rights and parenting rights
that he was owed as P.L.’s biological father. Petruziello suggested on numerous occasions that
the alleged deception dated back to before P.L. was born. It is evident that Petruziello’s aim in
filing the motion for relief from judgment and motion to declare void the dissolution of marriage
and shared parenting plan was to circumvent the result of the proceedings in Cuyahoga County
where it was determined that he did not have a legal recourse to challenge the acknowledgment of
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paternity that was executed in 2008. As such, the trial court properly recognized that Petruziello
was attempting to use the mechanism in Civ.R. 60(B) as a substitute for appeal in the Cuyahoga
County proceedings.
{¶25} Petruziello’s second assignment of error is overruled.
III.
{¶26} Petruziello’s first and second assignments of error are overruled. The judgment of
the Lorain County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
CALLAHAN, J.
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SUTTON, J.
CONCUR.
APPEARANCES:
MARY C. SOTERA, Attorney at Law, for Appellant.
CARA SANTOSUOSSO and MARK S. BENNETT, Attorneys at Law, for Appellees.