Emery v. Emery

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Koehler, Judge,

concurring in part and dissenting in part.

Appellee herein invoked the trial court’s continuing jurisdiction by filing a motion in contempt for appellant’s failure to pay child support for sixteen or more years.

The record herein does not disclose the basis for allowing the accumulation of a child support arrearage over such period. One could speculate that appellee proposed to maintain the status quo until such time as a child support agency initiated collection activity which might ultimately inure to appellee’s favor. There is no light shed on this question.

Appellant’s Civ.R. 75(5) motion is to modify the terms of the support order. As the majority finds the issue of paternity may be a basis to invoke the continuing jurisdiction of the trial, the issue raised could be a material circumstance which would allow appellant to be relieved of the support obligation.

I therefore concur with the majority in determining that the issue of paternity calls for a change of circumstance which triggered the trial court’s continuing jurisdiction. Further, the majority holds that such change of circumstance may invoke the continuing jurisdiction of the court even if the obligor no longer seeks to set aside the original decree finding paternity under Civ.R. 60(B). To this point, I concur.

However, the majority’s holding limiting

Carson

requires my dissent. While the issue of paternity may cross the threshold of alleging a material change of circumstances, the majority indicates there must be something more than a bald assertion by appellant that he is not the father of the child he was ordered to support.

While finding that something more is required by appellant, it then forecloses appellant from establishing by scientific test that he is not the natural father. I believe the rationale of the majority is flawed.

Whether the issue of paternity is raised forthwith or sixteen years later, it is in the best interest of the child involved to determine by modern testing procedures whether his legal father is in fact his biological father. The dissent in

Carson, supra,

and the decision of the Supreme Court in

Pelton, supra,

considered the issue on the basis of a Civ.R. 60(B) motion, which is not relevant when its issue is raised on the basis of Civ.R. 75(1).

I further disagree with the majority’s rollback of the

Carson

decision as it relates to accumulated arrearages. If applicable to this cause, and, in the event the record establishes that appellant was not the father of the unsupported child, he would still be responsible for $29,000 of support arrearages for a child for which he should have had no obligation to support.

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While tilting with the windmill of truth versus finality, the majority decides finality outweighs the truth. It is my belief that the truth is of greater importance than finality. On this issue, I support the position of Justice Pfeifer in his dissent in

Pelton

insofar as he opines that “[t]here is no reason for this court to indulge in a legal fiction which forces the parties involved to continue living a he. [The appellant] should not be refunded any of the payments he made, but should not be forced to continue to pay support where he has no biological or physiological connection with the child.”

Id.,

70 Ohio St.3d at 176, 637 N.E.2d at 917.

It is therefore my conclusion that raising the issue of paternity in a child support issue is a material circumstance which meets the threshold issue, invokes the trial court’s continuing jurisdiction, and allows for discovery including HLA testing. If the evidence supports the claim of nonpaternity, the obligor’s duty to support must be terminated and arrearages on the support account may be determined to be zero.

This child’s knowledge as to her biological parents is too significant to her health and well-being to be adversely affected by a legal fiction. I therefore concur in part and dissent in part.