In re Z.S. ( 2011 )

[Cite as In re Z.S., 2011-Ohio-3269.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96500
IN RE: Z.S.
A Minor Child
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. PR 10700292
BEFORE: Rocco, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 30, 2011
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ATTORNEY FOR APPELLANT
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Jeffrey F. Slavin
The Standard Building
Suite 1810
1370 Ontario Street
Cleveland, Ohio 44113
FOR APPELLEES
For Nyesha Bonner
Nyesha Bonner, Pro Se
793 E. 88th Street, Apt. B
Cleveland, Ohio 44108
For C.S.E.A.
William D. Mason
Cuyahoga County Prosecutor
BY: Aleksandra B. Stankovic
Assistant Prosecuting Attorney
Juvenile Division
1910 Carnegie Avenue, 2nd Floor
Cleveland, Ohio 44115
KENNETH A. ROCCO, J.:
{¶ 1} Plaintiff-appellant Nathaniel Simpson appeals from the order of
the Cuyahoga County Court of Common Pleas, Juvenile Division; the juvenile
court adopted a magistrate’s decision to dismiss Simpson’s amended
complaint “without prejudice.”
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{¶ 2} In filing his amended complaint, Simpson indicated he
anticipated that defendant-appellee the Cuyahoga County Department of
Children and Family Services (“the agency”) would issue an administrative
child support order against him, so he sought from the court pursuant to R.C.
3119.961 an order that would vacate his previous acknowledgment of his
paternity of “Z.”1
{¶ 3} Simpson argues in his sole assignment of error that the juvenile
court abused its discretion in dismissing his action. This court, however,
cannot address his argument and, as did the juvenile court, must dismiss this
case, because the order from which Simpson appeals is not a final order. A
brief review of the record illustrates this conclusion.
{¶ 4} Simpson filed his initial complaint in this case in the juvenile
court on January 13, 2010. Therein, he asserted that the child, Z, was born
on September 9, 2004. Simpson stated that he believed he was Z’s father, so
he “signed the * * * affidavit acknowledging paternity.”2
1It is this court’s policy to protect the privacy of minors; therefore, the child in
this opinion is referred to by his initial.
2Pursuant to R.C. 3111.25, an acknowledgment of paternity becomes final
and enforceable without ratification of the court when the acknowledgment has
been entered into the birth registry and the 60–day time period for rescission under
R.C. 3119.27 has passed. In re Guardianship of Elliott, Putnam App. No. 12-10-02,
2010-Ohio-5405.
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{¶ 5} Approximately seven months after Z’s birth, results from a
genetic test indicated Simpson could not be Z’s biological father. Simpson
admitted he took no action at that time. Thus, nearly five years after
becoming aware that he was not Z’s biological father, Simpson filed his initial
complaint in the juvenile court seeking to vacate his paternity
acknowledgment. Simpson indicated in his supporting brief that he had
become aware that the agency was intending to collect from him funds paid to
Z’s mother for Z’s welfare. Simpson filed his complaint pursuant to R.C.
3119.961.
{¶ 6} The following day, the magistrate assigned to the case issued an
initial decision; the magistrate determined Simpson’s complaint should be
dismissed without prejudice for Simpson’s failure to comply with the time
requirement set forth in R.C. 3119.962(A)(1)(a). That section indicates the
genetic test must be administered “no more than six months prior to the filing
of the motion” for relief from paternity.
{¶ 7} On February 2, 2010, before the juvenile court could take action
on the magistrate’s initial decision, Simpson filed an amended complaint.
He invoked the same statute and presented the same reasons, but included
motions for an order from the court to compel a new genetic test. Since
Simpson filed an amended complaint, he did not file objections to the
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magistrate’s decision.
{¶ 8} On March 4, 2010, the juvenile court entered judgment on the
magistrate’s initial decision, adopting it. Four days later, on March 8, 2010,
the magistrate considered Simpson’s amended complaint and issued a second
decision.
{¶ 9} In his second decision, the magistrate noted the juvenile court’s
judgment, noted that Simpson failed to file any objections to the initial
decision, and determined that Simpson’s amended complaint and motions did
not “correct the defects in the original Complaint/Motion pursuant to the
controlling statutes R.C. 3119.961 through 3119.967.” The magistrate
decided Simpson’s case should be dismissed because he failed to “properly
invoke the jurisdiction of this Court.”
{¶ 10} Simpson filed a timely objection to the magistrate’s second
decision. He argued that the juvenile court should assume jurisdiction over
the matter.
{¶ 11} On April 28, 2010, partly in response to Simpson’s objection to the
magistrate’s second decision, the juvenile court vacated its March 4, 2010
order of dismissal of Simpson’s case. The matter eventually proceeded to an
oral hearing before the magistrate in December 2010. The agency sent a
representative, although it had never responded to any of Simpson’s
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pleadings or motions. The mother did not appear.
{¶ 12} At the conclusion of the hearing, the magistrate decided
Simpson’s amended complaint “fail[ed] to state a sufficient claim upon which
this Court may grant relief in that the genetic test results * * * do not comply
with R.C. 3119.962(A)(1)(a),” since those results were issued on April 11,
2005. The magistrate also decided that the juvenile court lacked authority to
order the parties to submit to genetic testing under the circumstances of this
case, based upon this court’s decision in State ex rel. Rojas v. Guilfu,
Cuyahoga App. No. 84145, 2004-Ohio 6707.
{¶ 13} Simpson filed an “objection” to the magistrate’s decision.
Simpson argued the magistrate had misapplied the analysis set forth in Rojas
to the facts of this case, thus unfairly preventing him from obtaining relief.
In its first written “appearance” in the action, the agency filed a brief in
response; the agency argued the magistrate had properly applied the law to
the facts.
{¶ 14} On February 14, 2011, the juvenile court issued a judgment entry
“pursuant to Juv.R. 40(D)(4)(e) and Civ.R. 53(D)(4)(e).” Without specifically
mentioning Simpson’s objection, the court adopted the magistrate’s decision
with respect to the application of both R.C. 3119.962(A)(1)(a) and Rojas.
Thus, Simpson’s amended complaint was “dismissed without prejudice and all
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other Motions denied.”
{¶ 15} Simpson filed this appeal from that order. He presents one
assignment of error arguing the juvenile court abused its discretion in issuing
it; however, this court lacks jurisdiction to consider this appeal.
{¶ 16} “It is a basic principle of our system of appellate procedure that
only judgments and final orders are subject to review.” Humphrys v.
Putnam, (1961), 172 Ohio St. 456, 457, 178 N.E.2d 506, R.C. 2505.02.
{¶ 17} The agency contends in its appellate brief that, because the
juvenile court “failed to explicitly rule on all” of Simpson’s objections, its
judgment entry is not a final order. The agency cites an opinion from the
Ninth District, viz., In re: Strickler, Lorain App. No. 09CA009535,
2009-Ohio-4799.
{¶ 18} While it is true that a review of cases from the Ninth District
demonstrates that court demands specificity with respect to a trial court’s
rulings on each objection to a magistrate’s decision, this court is not required
to follow that district’s lead. See Rep.R. 4. Moreover, in light of the fact
that Simpson raised only one objection, together with the language used by
the juvenile court in its order, this court is not persuaded the juvenile court’s
order is not final on the ground the agency claims. See, e.g., H.L.S. Bonding
Co. v. Fox, Franklin App. No. 03AP-150, 2004-Ohio-547, ¶8; cf., In re: L.S.,
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Cuyahoga App. No. 91598, 2009-Ohio-617, ¶5-6.
{¶ 19} The more obvious issue of finality concerns the fact that the
juvenile court’s dismissal of Simpson’s action was “without prejudice.” Civ.R.
41(B)(3) states as follows:
{¶ 20} “(3) Adjudication on the merits; exception. A dismissal under
this subdivision and any dismissal not provided for in this rule, except as
provided in subsection (4) of this subdivision, operates as an adjudication
upon the merits unless the court, in its order for dismissal, otherwise
specifies.” (Emphasis added.)
{¶ 21} As this court observed in Hall v. Cleveland State Univ. (1998),
129 Ohio App.3d 767, 719 N.E.2d 54:
{¶ 22} “In a case in which Civ.R. 54(B) does not apply, an adjudication
that is not upon the merits, such as the one issued by the trial court in this
case, is neither a judgment nor a final order for purposes of R.C. 2505.02.
Civ.R. 54(A); R.C. 2505.03(A); Litton v. Joslin (1985), 22 Ohio App.3d 108, 22
OBR 296, 489 N.E.2d 304; see, also, Thomas v. Freeman (1997), 79 Ohio St.3d
221, 680 N.E.2d 997; cf. McCann v. Lakewood (1994), 95 Ohio App.3d 226,
642 N.E.2d 48; Hoffman v. Knaus (App.1952), 72 Ohio Law Abs. 389, 135
N.E.2d 700. Appellant’s action was dismissed without prejudice; therefore, he
may refile it * * * .”
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{¶ 23} Similarly, in this case, Simpson is not precluded from refiling his
complaint. “R.C. 3119.96 et seq. provides a right to seek relief from a
judgment of paternity without a specific time limit.” State ex rel. E.T. v.
H.S., Cuyahoga App. No. 82820, 2004-Ohio-2343, ¶8; In re L.S. Simpson,
however, must first seek to have the mother and Z “voluntarily submit to
testing” before attempting to invoke the juvenile court’s jurisdiction. Jones
v. Jones, Champaign App. No. 2008 CA 34, 2010-Ohio-744; Rojas.
{¶ 24} Since the juvenile court’s order was not final, this court lacks
jurisdiction and must dismiss Simpson’s appeal.
Appeal dismissed.
It is ordered that appellant pay the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
_________________________________
KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALAGHER, J., CONCUR
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