Auck v. Stump

2024 Ohio 2220

• Court: Ohio Court of Appeals
• Decided: June 10, 2024
• Docket: 3-23-45
• Status: Published

Opinion

[Cite as Auck v. Stump, 2024-Ohio-2220.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

PATTY AUCK, CASE NO. 3-23-45 PLAINTIFF-APPELLEE,

v.

MARK E. STUMP, OPINION

DEFENDANT-APPELLANT.

Appeal from Crawford County Common Pleas Court Domestic Relations Trial Court No. 88-DR-0068

Judgment Reversed and Cause Remanded

Date of Decision: June 10, 2024

APPEARANCES:

Samuel H. Shamansky for Appellant

Thomas L. Cole for Appellee Case No. 3-23-45

WALDICK, J.

{¶1} Defendant-appellant, Mark Stump (“Stump”), brings this appeal from

the October 31, 2023 judgment of the Crawford County Common Pleas Court,

Domestic Relations Division. On appeal, Stump argues that the trial court erred by

granting summary judgment to plaintiff-appellee, Patty Auck (“Auck”), and that the

trial court erred by dismissing Stump’s Civ.R. 60(B) motion without a hearing. For

the reasons that follow we reverse the judgment of the trial court.

Background

{¶2} In 1980, Stump and Auck were married. In 1983, Auck gave birth to a

daughter, Jennifer. By all accounts, Stump believed that he was Jennifer’s biological

father through her emancipation and beyond. The parties had no other children.

{¶3} Stump and Auck divorced in 1988. As part of the divorce, Stump

acknowledged that Jennifer was his child and Stump was ordered to pay Auck

weekly child support. Stump paid child support for Jennifer until she was

emancipated in 2002.

{¶4} According to Stump, on December 24, 2018, a man named Patrick

contacted Jennifer and indicated that he was her biological father. Jennifer informed

Stump a few days later. In early January of 2019, DNA results confirmed that

Patrick was Jennifer’s biological father.

-2- Case No. 3-23-45

{¶5} Over four years later, on June 14, 2023, Stump filed a “Motion for

Relief from Paternity, Request for Genetic Testing, and Request for Recovery of

Child Support Payments.” He argued that pursuant to R.C. 3119.961, et seq. and/or

Civ.R. 60(B), the 1988 divorce action should be reopened because Auck committed

fraud both against Stump and against the trial court. He sought the return of the

roughly $41,000 in child support he paid.

{¶6} On July 10, 2023, Auck filed a Motion for Summary Judgment, arguing,

inter alia, that that relief under R.C. 3119.961 was not available for previously paid

child support pursuant to, inter alia, Van Hoose v. Brown, 3d Dist. Hardin No. 6-

04-02, 2004-Ohio-4701, and that relief under Civ.R. 60(B)(3) was not available

because under Civ.R. 60(B)(3) fraud had to be established within one year of the

prior order.

{¶7} On August 7, 2023, Stump filed a response to Auck’s motion, arguing

that summary judgment was not permissible when addressing Civ.R. 60(B) motions.

However, Stump argued that in the event the trial court considered the summary

judgment motion, the trial court should consider relief under Civ.R. 60(B)(5), which

permits a petitioner to obtain relief so long as the motion was filed within a

reasonable time. Stump argued that the timing of the motion was reasonable given

how long it took for Jennifer’s biological father to be revealed.

{¶8} On October 31, 2023, the trial court filed a judgment entry determining

that “far all reasons stated in [Auck’s] Motion for Summary Judgment and

-3- Case No. 3-23-45

Memorandum * * * [Auck] is entitled to a DISMISSAL of the case.” Auck was thus

granted summary judgment. It is from this judgment that Stump appeals, asserting

the following assignments of error for our review.

First Assignment of Error

The trial court erred as a matter of law by granting a motion for summary judgment with respect to a motion for relief brought under Civ.R. 60(B).

Second Assignment of Error

The trial court abused its discretion by dismissing Appellant’s motion for relief, which was supported by sufficient allegations set forth in an affidavit, with prejudice before conducting an evidentiary hearing.

{¶9} Due to the nature of the disposition, we elect to address the assignments

of error out of the order in which they were raised.

{¶10} In his second assignment of error, Stump argues that the trial court

abused its discretion by dismissing his motion for relief without a hearing.

{¶11} Before we reach the merits of Stump’s argument, we must first address

the difficulty of reviewing a trial court’s entry granting summary judgment “for all

the reasons” stated in respondent’s motion without any further analysis by the trial

court. “[T]he trial court’s act of entering summary judgment by adopting the

appellees’ entire summary judgment filings is not particularly helpful. But it also

-4- Case No. 3-23-45

does not constitute per se reversible error.” Rhododendron Holdings, LLC v. Harris,

2021-Ohio-147, ¶ 24 (2d Dist.).

{¶12} In Rhododendron Holdings, the Second District Court of Appeals held

that it was not improper to grant summary judgment for the reasons stated in

Appellee’s motion when there was at least some minimal analysis by the trial court

sufficient to facilitate appellate review. Id. at ¶25. But that minimal analysis is not

present here, so Rhododendron Holdings is distinguishable.

{¶13} Nevertheless, the trial court directed us to Auck’s motion for summary

judgment, so we will review it. Auck’s motion for summary judgment contained an

attached affidavit, a 7-page memorandum in support, and multiple exhibits. The

memorandum in support attacked numerous issues raised by Stump and made

arguments in the alternative. Without more specificity by the trial court we are only

left to assume that the trial court agreed with every word written by Auck. However,

Auck’s motion never addressed Stump’s argument that summary judgment was not

an appropriate vehicle to dispose of a Civ.R. 60(B) claim. Given that it seems this

is a matter of first impression, it is a glaring omission by Auck and the trial court.

This is particularly problematic because the standard for reviewing a motion for

summary judgment is entirely different than the standard for reviewing the denial

of a Civ.R. 60(B) motion.

-5- Case No. 3-23-45

{¶14} Additionally, we note that the judgment entry contains further

irregularities. After the language “IT IS SO ORDERED,” there is a line for the trial

judge’s signature. However, below the line for the trial judge’s signature is a line

for a magistrate’s signature. It is not clear why the trial court’s magistrate signed the

judgment entry when there is no indication that the matter was ever referred to a

magistrate. Generally, a magistrate cannot issue final orders or judgments. Civ.R.

53(E); Crane v. Teague, 2005-Ohio-5782, ¶ 34 (2d Dist.). Compounding the

problem, below and to the left of the signature line for the magistrate is the word

“Approved” followed by a signature line for Auck’s attorney.

{¶15} Therefore, given the irregularities and the lack of clarity in the record,

we are compelled to reverse the matter for the trial court to address the issues, make

any appropriate findings, and explain its reasoning so that we may conduct a review.

Therefore, Stump’s second assignment of error is sustained. Accordingly, we

reverse the award of summary judgment, and remand for further proceedings

consistent with this opinion.

{¶16} As we have reversed the summary judgment award, the first

assignment of error is rendered moot.

-6- Case No. 3-23-45

Conclusion

{¶17} Having found error prejudicial to Stump, the second assignment of

error is sustained and the judgment of the Crawford County Common Pleas Court

is reversed.

Judgment reversed and cause remanded.

ZIMMERMAN, and MILLER, J.J., concur.

-7-