[Cite as Genhart v. David, 2011-Ohio-6732.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SHANNON GENHART ) CASE NO. 10 MA 144 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) JOHN C. DAVID ) ) DEFENDANT-APPELLEE )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Juvenile Division, of Mahoning County, Ohio Case No. 05 JI 721
JUDGMENT: Vacated. April 20, 2010 Order Reinstated.
APPEARANCES:
For Plaintiff-Appellant: Atty. Charles E. Dunlap 3855 Starr’s Centre Drive, Suite A Canfield, Ohio 44406
For Defendant-Appellee: Atty. Susan Gaetano Maruca Atty. Christopher A. Maruca The Maruca Law Firm, LLC 201 East Commerce Street Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 22, 2011 [Cite as Genhart v. David, 2011-Ohio-6732.] WAITE, P.J.
{¶1} Plaintiff-Appellant, Shannon Genhart, and Defendant-Appellee, John C.
David, were never married. They initially resolved the care and parenting
arrangements for their minor son (“D.D.”) in a 2006 paternity suit. The shared
parenting agreement that concluded the parentage suit was not accompanied by any
court order or decree concerning custody. Under Ohio law, by statute, unwed
mothers have sole custody of their offspring unless and until a valid court order or
decree awards custody to another party or to the state. In late 2008 a dispute arose
concerning Appellant’s proposed relocation and a change in school district for D.D.
Although Appellant later revised her relocation plans, she still sought to change
school districts. Initially the trial court ordered the change. Appellee filed a motion to
reconsider, arguing that the trial court had mistakenly assumed Appellant was the
residential parent for school purposes. The trial court converted Appellee’s motion to
a 60(B) motion for relief from judgment and reversed its decision to allow the change
in school district. The trial court’s actions constituted an abuse of discretion and were
contrary to law. For these reasons, the trial court’s July 27, 2010 ruling is vacated
and the April 20, 2010 judgment entry is reinstated.
FACTUAL AND PROCEDURAL HISTORY
{¶2} The matter of the care and support of D.D., born August 17, 2002,
came before the Mahoning County Juvenile Court on petition from the Mahoning
County Child Support Enforcement Agency (“MCSEA”). MCSEA sought
acknowledgement of its administrative paternity finding, pursuant to R.C. 3111.02(B).
The juvenile court acknowledged the administrative finding, and in 2006 the court -2-
concluded the paternity suit by adopting a magistrate’s decision which incorporated
the shared parenting agreement jointly submitted by the parties. Neither the 2006
shared parenting agreement, nor the court order adopting that agreement,
designated a residential parent. The 2006 agreement provided that D.D. would
spend four consecutive days of each week with his mother and three consecutive
days of each week with his father. At the time both parties lived in Austintown. The
Austintown school system was generally designated for D.D.’s education and a child
support payment of $0.00 was included in the agreed parenting plan. Appellee was
required to carry D.D. on his health insurance.
{¶3} Although the 2006 agreement did not designate a residential or a
custodial parent, or specify the location of either parent’s residence, it required: “[i]f
the Residential Parent intends to move to a residence other than the residence
specified in the Decree of this Court, the Residential Parent shall file a Notice of
Intent to Relocate with the Court that issued the Decree.” (3/1/06 Shared Parenting
Plan.) When Appellee was permanently laid off and no longer able to provide health
coverage for D.D., the parties agreed, without court intervention or formal alteration
of the shared parenting plan, that Appellant would pay to have D.D. added to her
coverage until Appellee was again employed with benefits. Similarly, when D.D.
reached school age the parties decided, without intervention, that Appellant was the
residential parent for school purposes and that her address determined D.D. would
attend Woodside Elementary. By December 28, 2008, Appellant was considering
relocating to Pennsylvania and filed a notice of intent with the court. -3-
{¶4} In January of 2009, although the parties had agreed that Appellant
would place D.D. on her insurance at Appellee’s costs, Appellee failed to pay his
portion of the health care expenses or reimburse Appellant for the expense of adding
D.D. Thus, in addition to her notice of intent to relocate, Appellant filed a contempt
motion seeking payment of the healthcare expenses. Appellant also sought
reallocation of the dependant tax exemption for the period of Appellee’s
unemployment. On January 16, 2009, Appellee filed a cross-motion seeking the
termination of the shared parenting agreement and a temporary reallocation of
custody of D.D. during the action. Appellant responded that she was the primary
caregiver and that a change in custody would not be in D.D.’s best interests. A
guardian ad litem was appointed for D.D., the motion for temporary custody was
denied and Appellant was enjoined from moving to Pennsylvania during the
pendency of the proceedings. In June of 2009 Appellee filed a motion to modify,
rather than set aside, the shared parenting plan. He sought in the motion to be
named residential parent for school purposes. Both parties submitted new proposed
shared parenting agreements and the matter was set for hearing on the revisions to
the parenting agreement concerning the summer parenting schedule and D.D.’s
schooling. On September 21, 2009 the magistrate journalized the hearing
proceedings: Appellant withdrew her motion to relocate and cross-motion for custody,
Appellee withdrew his motion to terminate and his motion for custody and these were
all dismissed by the magistrate. -4-
{¶5} Appellant and Appellee agreed to continue (with modifications) the
shared parenting plan rather than make changes in custody, and stipulated to
testimony from the guardian ad litem concerning a place being held for D.D. at
Woodside Elementary School in Austintown while modifications to the parenting plan
were litigated. The matter was scheduled for trial on the issues regarding schooling
and the shared parenting schedule. Trial was held in September of 2009; on
December 29, 2009, following trial, the magistrate ordered Appellee to submit a
revised shared parenting agreement designating Appellee the residential parent for
school purposes, and including the revisions to the parenting schedule the parties
had agreed to in August of 2009. On February 18, 2010, the magistrate issued a
decision adopting a new shared parenting agreement. The new plan alternated D.D.
between his parents on a week-to-week basis, rather than the four day/three day split
of the original agreement, designated Appellee as the residential parent for school
purposes, allocated the dependant tax exemption to Appellee exclusively (previously
the exemption had alternated), and noted that a new motion for support was
scheduled for hearing in front of a different magistrate. Appellant filed timely
objections. On April 20, 2010 the court adopted in part and modified in part the
magistrate’s recommendations. The court ordered that D.D. should complete the
school year in Austintown and should then be enrolled in the school district Appellant
had moved to beginning with the next school year, and remain in that district
thereafter. -5-
{¶6} Appellee filed a motion to reconsider on April 30, 2010, suggesting that
the trial court had erred in assuming that Appellant was the residential parent for
school purposes based on the shared parenting agreement. The trial court
scheduled a hearing on the motion to reconsider and decided to consider this motion
as if it was a motion to vacate. The trial court then granted Appellee’s motion to
vacate, and adopted the magistrate’s decision in its entirety; reversing the decision to
allow D.D. to attend school in the district near his mother’s new home. The court
instead ordered D.D. to continue attending the Austintown school near his mother’s
former address and gave Appellee, solely, the dependant child tax exemption.
Appellant filed this timely appeal on August 30, 2010.
Assignment of Error No. 1
{¶7} “Whether the trial court’s April 20, 2010 judgment entry is a final
appealable order.”
Assignment of Error No. 2
{¶8} “Ohio Civ. R. 60 (B) cannot be used as a substitute for a direct appeal,
and even if the Defendant- Appellee’s motion was properly before the court, the
Defendant-Appellee’s motion failed to comply with Ohio Civ. R. 60 (B).”
Assignment of Error No. 3
{¶9} “The Ohio Rules of Civil Procedure do not provide for a motion to
reconsider, and the court lacks jurisdiction to entertain such a motion.”
{¶10} Appellant’s three assignments of error address the same operative
facts and hence, will be considered together. Appellant alleges that the April 20, -6-
2010 judgment entry was a final appealable order and Appellee concedes as much.
Although Appellee does concede that the April 20, 2010 judgment entry was a final
appealable order, Appellee claims that because neither party filed an appeal, no
harm resulted from the court’s May 18, 2010 decision to construe Appellee’s motion
for reconsideration as a motion for relief from judgment, set the matter for hearing
and alter its April 20, 2010 judgment entry.
{¶11} Despite the parties’ concession, on July 27, 2010, after a hearing on
Appellee’s motion, the trial court determined that the April entry was not a final
appealable order, “since the matter is one that can be re-litigated based upon a
change of circumstances.” Having found that the prior order was not final, the court
nevertheless construed Appellee’s motion to reconsider as a Civ.R. 60(B) motion for
relief from judgment. The court made its determination under Civ.R. 60(B)(1)
regarding “mistake, inadvertence surprise, or excusable neglect.” The trial court
vacated its April 20, 2010, judgment entry and adopted the February 18, 2010,
magistrate’s decision in its entirety. The July of 2010 ruling seems to indicate that it
was the court’s own “mistake” in assuming the mother was residential parent for
school purposes, as suggested by Appellee, that provided the grounds for relief.
{¶12} A trial court may, at its discretion, entertain a motion to reconsider an
interlocutory order. Jefferson Cty. Child Support Enforcement Agency v. Pickett
(Sept. 21, 2000), 7th Dist. No. 99 JE 5, *2. “Although a motion to reconsider a final
order is a nullity, one can see reconsideration of an interlocutory order.” Id. A trial
court may also, if it chooses, construe a motion for reconsideration as a motion for -7-
relief from judgment, if that motion otherwise satisfies the requirements of Civ.R.
60(B). Ray v. Dickinson, 7th Dist. No. 03 BE 29, 2004-Ohio-3632, ¶15 and GTE
Automatic Elec., Inc. v. Arc Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86,
351 N.E.2d 113, paragraph two of the syllabus. However, such construction is
generally viewed with disfavor. “Once again, this court as well as the lower courts
are left in a procedural quagmire of trying to elevate a motion for reconsideration after
a final judgment to the status of a motion for a new trial or as a motion for a directed
verdict or the like. * * * This is a costly procedure, both financially and in manual
labor, which, as in the present cause, results in a procedural morass which clouds
the merits. Complications * * * can and should be avoided.” Pitts v. Dept. of Transp.
(1981), 67 Ohio St.2d 378, 381, 423 N.E. 2d 1105. “We conclude that the trial
courts, already overburdened, cannot be responsible for reviewing every motion in
order to determine whether the contents of the motion should be interpreted and
applied in a different, and perhaps more appropriate, manner than the form or
caption of the motion indicates. Such an activity would engage the trial courts in the
impossible task of trying to second-guess the strategy and intentions of the parties at
any point in the litigation process.” Miamisburg Motel v. Huntington Natl. Bank
(1993), 88 Ohio App.3d 117, 129, 623 N.E.2d 163. Even the trial court’s broad
discretion cannot alter the fact that a motion to reconsider a final order is a nullity.
Jefferson Cty. at *2. Similarly, “ ‘[a] ruling upon a motion for reconsideration made
after final judgment is a nullity.’ ” McAuley v. Smith (1999), 133 Ohio App.3d 685,
689, 729 N.E.2d 792. Nor can a trial court consider a Civ.R. 60(B) motion for relief -8-
from judgment unless the party is seeking relief from a final appealable order.
Jefferson Cty. at *3.
{¶13} The threshold question is whether, as the parties agree, the trial court’s
April 20, 2010 order is final and appealable. Civil Rule 54 and R.C. 2505.02 govern
the jurisdiction of this Court over final orders of the lower courts. Under Civ.R. 54,
there is no restriction on appeals from decisions in special matters that affect the
substantial rights of the parties as provided by R.C. 2505.02. See also, In re Murray
(1990), 52 Ohio St.3d 155, 556 N.E.2d 1169; Voss v. Voss (1989), 62 Ohio App.3d
200, 203, 574 N.E.2d 1175. A paternity suit is a special proceeding. State ex rel
Fowler v. Smith (1994), 68 Ohio St.3d 357, 360, 626 N.E. 2d 950 (“[p]roceedings in
the juvenile division, including parentage actions, are special statutory proceedings
pursuant to Civ.R. 1(C)(7).”) Parents have substantial rights in the custody and care
of their children. R.C. 2505.02; In re Adams, ¶43-44, see also In re Murray at 157,
“The United States Supreme Court has stated that the right to raise one’s children is
an ‘essential’ and ‘basic civil right.’ * * * Parents have a ‘fundamental liberty interest’
in the care, custody, and management of the child.” (Internal citations omitted).
Initially, in a parentage suit, a court order establishing parentage and a duty of
support, but failing to specify the terms of that support, is not a final appealable order
until the amount and the nature of support is established. State ex rel. Wilkerson v.
Truss (1999), 133 Ohio App.3d 633, 635, 729 N.E.2d 459, see also Garvin v. Garvin
4th Dist. No. 02 CA 23, 2004-Ohio-3626. Once the amount and nature of support is
established, all subsequent orders that affect the substantial rights of the parties are -9-
final, appealable orders. Parenting, companionship, support, and visitation issues
may be revisited at any time due to a change in circumstances, or in the best interest
of the child pursuant to the controlling statute. Thus, where a judgment entry or order
is made in a juvenile proceeding that conclusively affects parenting rights, the order
is final and appealable. The fact that the court retains some measure of jurisdiction,
as prescribed by statute, does not alter the appealable character of final entries and
orders made during the subject child’s minority.
{¶14} In the matter at bar, the paternity suit and resulting visitation and/or
parenting rights were resolved in 2006 when the court, having determined paternity,
adopted the parties’ parenting agreement. The subsequent motions to modify and
enforce the agreement are allowed by statute. Modifications that alter custody
specifically require the court to find that there has been a change in circumstances,
and these modifications must be based on the best interests of the child. R.C.
3109.04(E)(1)(a). All other modifications must meet the best interest standard. R.C.
3109.04(E)(2); Fisher v. Hasenjager (2007), 116 Ohio St.3d 53, 2007-Ohio-5589, 876
N.E.2d 546. When a court rules on modifications of the agreement or order that
resolved the initial suit, such decisions are rulings in special proceedings that alter
the substantive rights of the parties. Hence, the juvenile court’s April 20, 2010,
judgment entry adopting in part and rejecting in part the magistrate’s decision on the
proposed amendments to the parenting agreement was a ruling in a special
proceeding that had a conclusive effect on the substantial rights of the parties. The
April 20, 2010 entry was a final, appealable order. -10-
{¶15} Because we have determined that the trial court’s April 20, 2010
judgment entry was a final appealable order, we turn to Appellee’s motion for
reconsideration. A motion for reconsideration of a final appealable order is a nullity,
but may be construed as a motion for relief from judgment if it satisfies the
requirements of Civ.R. 60(B). In GTE Automatic Electric v. ARC Industries (1976),
47 Ohio St.2d 146, 351 N.E.2d 113, the Ohio Supreme Court held:
{¶16} “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.” Id. at paragraph two
of the syllabus.
{¶17} The court in GTE Automatic stated that the three requirements “are
independent and in the conjunctive, not the disjunctive.” Id. at 151. According to the
rule in GTE Automatic, Appellee must both place his motion under one of the
applicable grounds identified by the rule and show that he has a meritorious claim to
present if victorious. The record reflects that he does not. His claim, that the court
was mistaken in assuming that Appellant was the residential parent for school
purposes pursuant to the 2006 agreement when it reached its decision, is inaccurate.
While the 2006 agreement is silent as to which parent is D.D.’s residential and
custodial parent, Appellant is apparently unaware that where a court does not make -11-
a different determination pursuant to statute, the mother is the residential and
custodial parent by operation of law. This means that Appellant was, in fact, D.D.’s
residential parent for school purposes and the trial court could not have been
mistaken in so assuming. Furthermore, as we have previously explained in
Hankinson v. Hankinson, 7th Dist. No. 3 MA 7, 2004-Ohio-2480, and in Gron v. Gron,
7th Dist. No. 07 JE 49, 2008-Ohio-5054, the mistake contemplated by Civ.R. 60(B)(1)
is some mistake on the part of the parties, not a mistake of fact or law by the court.
Hankinson at ¶20-26; Gron at ¶27-28. Mistakes of fact or law may constitute
grounds for an appeal, but a motion for relief from judgment may never substitute for
an appeal. The record reflects no grounds that merit relief under 60(B). Appellee’s
motion for reconsideration seeks exactly what it presents, it asks the court to
reconsider the factors the court weighed when deciding whether or not to allow the
designated school district to be changed. A “mistake” by the court, which does not
appear in this record, is not grounds for relief under 60(B)(1). The motion fails to
satisfy the GTE test.
{¶18} When an unmarried woman gives birth to a child, she “is the sole
residential parent and legal custodian of the child until a court of competent
jurisdiction issues an order designating another person as the residential parent and
legal custodian.” R.C. 3109.042. If the father of the child born to an unmarried
woman acknowledges paternity, and that acknowledgment has become final
according to statute, the father may seek reasonable parenting time with the child in
a court of competent jurisdiction. R.C. 3111.26. The determination of reasonable -12-
parenting rights or other rights sought by the father who has acknowledged paternity
is made pursuant to sections (D), (C), (K) and (L) of R.C. 3109.051. R.C. 3109.12.
{¶19} In the alternative, the parties to a parentage suit may reach an
agreement allocating rights and responsibilities. The confusion of the parties and,
perhaps, the court with regard to the applicability of our decision in Campana v.
Campana, 7th Dist. No. 08 MA 88, 2009-Ohio-796, as well as the nature of their
parenting agreement, and the applicable standard for changing the terms of their
agreement, stems from the fact that unlike the parties in Campana, the parties in this
instance were never married. Married couples by statutory default have equal
parenting and custody rights over the issue of the marriage, even when they are
separated. R.C. 3109.03. In contrast, by statute, unwed mothers have sole custody
over their children. R.C. 3109.042. For parents who were or are married, shared
parenting under the code replaces joint custody, and is a continuation of the
separate-but-equal-parenting rights that are the product of marriage. The code does
not appear to contemplate a similar arrangement for parties that never were married,
see, e.g. R.C. 3109.04(A) “[i]n any divorce, legal separation, or annulment
proceeding and in any proceeding pertaining to the allocation of parental rights and
responsibilities for the care of a child, * * * the court shall allocate the parental rights
and responsibilities for the care of the minor children of the marriage.” See also, R.C.
3109.04 (D)(1)(d) “[a]ny final shared parenting decree shall be issued at the same
time as and shall be appended to the final decree of dissolution, divorce, annulment,
or legal separation arising out of the action out of which the question of the allocation -13-
of parental rights and responsibilities for the care of the children arose.” Where the
parties have never married, there is no statutory equivalent. Instead, the code
allocates all parenting rights to the unmarried mother, and provides that the father,
whose paternity has been established by law or whose acknowledgment of the child
has become final, may petition for parenting time, companionship or visitation rights.
R.C. 3109.12(A). Once paternity is established by law, a natural father may seek
custody of his acknowledged child, and at that time the trial court may consider both
the unmarried mother and the father equally. Nevertheless, absent a specific court
order to the contrary, the unmarried mother is the default legal custodian and
residential parent of the child for all purposes. R.C. 3109.042.
{¶20} Despite the disconnect between the shared parenting provisions and
the statutory defaults for children born out of wedlock, never-wed parents may enter
into an arrangement titled “shared parenting agreement,” and those agreements are
generally adopted by family and juvenile courts throughout the state. The title of the
agreement between the parties, however, does not alter the fact that absent an
explicit order to the contrary, Appellant remains the sole residential and custodial
parent, by statute. R.C. 3109.04, .042, .12; R.C. 3111.13(C). A court order that
gives the father of a child born to an unmarried woman parenting time, but fails to
designate a residential parent, or custodial parent, does not disturb the mother’s
statutory rights. R.C. 3109.042.
{¶21} The trial court’s attempt to designate Appellee’s motion for
reconsideration into a Civ.R. 60(B) motion to vacate is unmerited by the facts in the -14-
record and is contrary to law. The trial court’s July 27, 2010 ruling amounts to an
abuse of discretion and is vacated. The trial court’s April 20, 2010, order is
reinstated.
CONCLUSION
{¶22} The trial court’s April 20, 2010 order was a final, appealable order,
Appellee’s motion to reconsider was a nullity, as was the trial court’s order construing
Appellee’s motion as a motion to vacate and granting a motion to vacate when no
appropriate factors exist. The trial court’s July 27, 2010 order is hereby vacated and
the April 20, 2010 judgment is reinstated. Any future proceeding is to be made in
accordance with the Ohio Supreme Court’s decision in Fisher v. Hasenjager and R.C.
3109.12, .04, .041, and .042, where applicable.
Donofrio, J., concurs.
DeGenaro, J., concurs.