GREY J.
This is an appeal from a judgment of the Juvenile Division of the Gallia County Common Pleas Court dismissing a Complaint to Establish the Father-Child Relationship filed by Sheri Hamilton against Michael Lloyd Burke. We reverse.
On November 18, 1988 Sheri and Leland Hamilton were granted a divorce by Gallia County Common Pleas Court. In the November 18, 1988 entry, the trial court adopted the report and recommendations of the referee. The entry included findings that Brandi and Dustin Hamilton, dob March 4,1985, were born during the marriage, that Leland Hamilton had a vasectomy in 1982, and that during a period of separation between Leland and Sheri Hamilton, Sheri Hamilton had sexual relations with another man. Also included in the entry was a finding by the referee that there was clear and convincing evidence to rebut the statutory presumption that Leland Hamilton was the father of Brandi and Dustin Hamilton.
On December 15, 1988, the Gallia County Prosecutor's Office filed a Complaint to Establish the Father-Child Relationship on behalf of Sheri Hamilton against Michael Lloyd Burke in the Juvenile Division of the Gallia County Common Pleas Court.
On January 19,1988 Burke filed an answer and a motion to dismiss the paternity complaint asserting that legal paternity had been presumptively established.
The matter came on for hearing on February 23, 1989. Counsel for the parties stipulated that Sheri Hamilton was married to Leland Hamilton at the time of both the conception and birth of the children, and that Leland Hamilton had a vasectomy prior to the conception of the children. The trial court dismissed the complaint holding that the presumption of legitimacy stated in R.C. 3111.03(AX1) was not overcome.
[176]*176Hamilton appeals and assigns the following error:
"The court erred in dismissing the complaint to establish the father-child relationship based upon the presumptions stated in R.C. 3111.03(AX1) as there was sufficient evidence through the stipulations presented for the court to overrule the motion to dismiss and order blood testing to determine paternity."
R.C. 3111.03(AX1) provides:
"(A) A man is presumed to be the natural father of a child under any of the following circumstances:
(A) The man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement."
We must now examine this presumption as it is applied to the matter before this court. We note that the trial court erroneously combined the facts of Mrs. Hamilton's divorce with her suit against Burke, thus, misapplying the R.C. 3111.03(AX1) presumption.
Before us are two separate and distinct applications of that presumption. We turn first to the divorce between the Hamiltons. Although neither the referee's recommendations nor the divorce decree is part of the record on appeal, we note from the stipulations of the parties during the hearing below that the R.C. 3111.03 presumption had been raised as a matter of law during the Hamilton’s divorce proceedings when the referee attempted to determine if Leland Hamilton would be required to pay child support for Brandi and Dustin. The presumption found in R.C. 3111.03 was created by the legislature for the benefit and protection of the children of the marriage from the stigma of illegitimacy. In the Hamilton's divorce proceedings, the presumption that Leland Hamilton was the natural father of Brandi and Dustin existed as matter of law when the parties filed for divorce.
The presumption created by this statue is not irrebuttable. The presumption of paternity may be rebutted by clear and convincing evidence. Hulett v. Hulett (1989), 45 Ohio St. 3d 288; Johnson v. Adams (1985), 18 Ohio St. 3d 48. Again, although not in the record before this court, it is apparent from the paternity action filed by Hamilton against Burke, that the court in the divorce proceedings found that Leland Hamilton had rebutted that presumption of paternity by clear and convincing evidence.
We now turn to the matter presently before this court. In his defense, Burke raised the R.C. 3111.03 presumption and argued that despite the stipulations made by the parties, the presumption that Leland Hamilton was the natural father of Brandi and Dustin had not been overcome in the divorce case. The trial court in this case agreed. In reaching its decision the trial court relied heavily on Walkup v. Walkup (1986), 31 Ohio App. 3d 248. In Walkup, the Twelfth District Court of Appeals held the mere fact that a husband has a vasectomy is insufficient to overcome the presumption created by R.C. 3111.03. Walkup is distinguishable from the case here in that in Walkup the presumption was raised during a divorce proceeding. Further, in that case, Mr. Walkup did not present sufficient evidence to support his assertion that the children born as issue of the marriage were not his.
Again, we must look to the purpose of R.C. 3111.03. In a divorce proceeding it is used as a shield for the benefit of the innocent children of the marriage. The legislature did not intend the statue to be used as a sword to defeat the primary purpose of R.C. 3111.03. For an erstwhile putative father to raise the presumption of paternity created by R.C. 3111.03 in his defense flies in the face of the protective nature of that statute. Had the divorce court determined Leland Hamilton to be the father of Brandi and Dustin, Burke certainly would have used that decision as defensive shield against Sheri Hamilton's paternity complaint. The statute was not created to be used in paternity proceedings as protection for putative fathers but rather in divorce proceedings to protect the legitimacy of the issue of the marriage.
The Gallia County of Common Pleas held that Leland Hamilton was not the natural father of Brandi and Dustin Hamilton thus cloaking them with the stigma of illegitimacy. The trial court below erred in permitting Burke to use that same statute to protect himself at the expense of Brandi and Dustin Hamilton. If the divorce decree is a bar to an action against this putative father it is a bar to any action [177]*177against any putative father. In this case we have the anomalous result where the divorce court has held that the husband is not the father, but that decision is a bar to an action proving who the real father is, and thus that these children have no father at all.
We note that although the court below found that the R.C. 3111.03 presumption had not been properly rebutted during the Hamilton's divorce, we believe that the issue of Leland Hamilton's presumed paternity had been decided previously by the Gallia County Court of Common Pleas as a portion of the Hamilton's divorce decree. That court's decision was res judicata on the issue of Leland Hamilton's presumed paternity. However, the res judicata effect of that decision does not apply to the facts here. In order for a previous judgment to be res judicata upon another matter, there first must be an identity of issues. Here, there is no such identity. In the divorce, the issue was whether Leland Hamilton was the natural father of Brandi and Dustin. Below, the issue was whether Burke was the natural father of those children.
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GREY J.
This is an appeal from a judgment of the Juvenile Division of the Gallia County Common Pleas Court dismissing a Complaint to Establish the Father-Child Relationship filed by Sheri Hamilton against Michael Lloyd Burke. We reverse.
On November 18, 1988 Sheri and Leland Hamilton were granted a divorce by Gallia County Common Pleas Court. In the November 18, 1988 entry, the trial court adopted the report and recommendations of the referee. The entry included findings that Brandi and Dustin Hamilton, dob March 4,1985, were born during the marriage, that Leland Hamilton had a vasectomy in 1982, and that during a period of separation between Leland and Sheri Hamilton, Sheri Hamilton had sexual relations with another man. Also included in the entry was a finding by the referee that there was clear and convincing evidence to rebut the statutory presumption that Leland Hamilton was the father of Brandi and Dustin Hamilton.
On December 15, 1988, the Gallia County Prosecutor's Office filed a Complaint to Establish the Father-Child Relationship on behalf of Sheri Hamilton against Michael Lloyd Burke in the Juvenile Division of the Gallia County Common Pleas Court.
On January 19,1988 Burke filed an answer and a motion to dismiss the paternity complaint asserting that legal paternity had been presumptively established.
The matter came on for hearing on February 23, 1989. Counsel for the parties stipulated that Sheri Hamilton was married to Leland Hamilton at the time of both the conception and birth of the children, and that Leland Hamilton had a vasectomy prior to the conception of the children. The trial court dismissed the complaint holding that the presumption of legitimacy stated in R.C. 3111.03(AX1) was not overcome.
[176]*176Hamilton appeals and assigns the following error:
"The court erred in dismissing the complaint to establish the father-child relationship based upon the presumptions stated in R.C. 3111.03(AX1) as there was sufficient evidence through the stipulations presented for the court to overrule the motion to dismiss and order blood testing to determine paternity."
R.C. 3111.03(AX1) provides:
"(A) A man is presumed to be the natural father of a child under any of the following circumstances:
(A) The man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement."
We must now examine this presumption as it is applied to the matter before this court. We note that the trial court erroneously combined the facts of Mrs. Hamilton's divorce with her suit against Burke, thus, misapplying the R.C. 3111.03(AX1) presumption.
Before us are two separate and distinct applications of that presumption. We turn first to the divorce between the Hamiltons. Although neither the referee's recommendations nor the divorce decree is part of the record on appeal, we note from the stipulations of the parties during the hearing below that the R.C. 3111.03 presumption had been raised as a matter of law during the Hamilton’s divorce proceedings when the referee attempted to determine if Leland Hamilton would be required to pay child support for Brandi and Dustin. The presumption found in R.C. 3111.03 was created by the legislature for the benefit and protection of the children of the marriage from the stigma of illegitimacy. In the Hamilton's divorce proceedings, the presumption that Leland Hamilton was the natural father of Brandi and Dustin existed as matter of law when the parties filed for divorce.
The presumption created by this statue is not irrebuttable. The presumption of paternity may be rebutted by clear and convincing evidence. Hulett v. Hulett (1989), 45 Ohio St. 3d 288; Johnson v. Adams (1985), 18 Ohio St. 3d 48. Again, although not in the record before this court, it is apparent from the paternity action filed by Hamilton against Burke, that the court in the divorce proceedings found that Leland Hamilton had rebutted that presumption of paternity by clear and convincing evidence.
We now turn to the matter presently before this court. In his defense, Burke raised the R.C. 3111.03 presumption and argued that despite the stipulations made by the parties, the presumption that Leland Hamilton was the natural father of Brandi and Dustin had not been overcome in the divorce case. The trial court in this case agreed. In reaching its decision the trial court relied heavily on Walkup v. Walkup (1986), 31 Ohio App. 3d 248. In Walkup, the Twelfth District Court of Appeals held the mere fact that a husband has a vasectomy is insufficient to overcome the presumption created by R.C. 3111.03. Walkup is distinguishable from the case here in that in Walkup the presumption was raised during a divorce proceeding. Further, in that case, Mr. Walkup did not present sufficient evidence to support his assertion that the children born as issue of the marriage were not his.
Again, we must look to the purpose of R.C. 3111.03. In a divorce proceeding it is used as a shield for the benefit of the innocent children of the marriage. The legislature did not intend the statue to be used as a sword to defeat the primary purpose of R.C. 3111.03. For an erstwhile putative father to raise the presumption of paternity created by R.C. 3111.03 in his defense flies in the face of the protective nature of that statute. Had the divorce court determined Leland Hamilton to be the father of Brandi and Dustin, Burke certainly would have used that decision as defensive shield against Sheri Hamilton's paternity complaint. The statute was not created to be used in paternity proceedings as protection for putative fathers but rather in divorce proceedings to protect the legitimacy of the issue of the marriage.
The Gallia County of Common Pleas held that Leland Hamilton was not the natural father of Brandi and Dustin Hamilton thus cloaking them with the stigma of illegitimacy. The trial court below erred in permitting Burke to use that same statute to protect himself at the expense of Brandi and Dustin Hamilton. If the divorce decree is a bar to an action against this putative father it is a bar to any action [177]*177against any putative father. In this case we have the anomalous result where the divorce court has held that the husband is not the father, but that decision is a bar to an action proving who the real father is, and thus that these children have no father at all.
We note that although the court below found that the R.C. 3111.03 presumption had not been properly rebutted during the Hamilton's divorce, we believe that the issue of Leland Hamilton's presumed paternity had been decided previously by the Gallia County Court of Common Pleas as a portion of the Hamilton's divorce decree. That court's decision was res judicata on the issue of Leland Hamilton's presumed paternity. However, the res judicata effect of that decision does not apply to the facts here. In order for a previous judgment to be res judicata upon another matter, there first must be an identity of issues. Here, there is no such identity. In the divorce, the issue was whether Leland Hamilton was the natural father of Brandi and Dustin. Below, the issue was whether Burke was the natural father of those children. Thus, there is not the requisite identity of issues to make the divorce court's decision res judicata on the issue of the paternity of Brandi and Dustin.
Such is a question of fact to be decided at an evidentiary hearing before the trial court where the results of the blood tests to be performed on Burke will be submitted. The trial court erred by dismissing this matter without allowing such evidence to be presented.
We note, procedurally, the trial court dismissed the matter below in what this court can only assume was a Civ. R. 12(BX6) dismissal. This was also error since a 12(BX16) dismissal is only valid if the complaint, on its face, does not state any set of facts, which if proven, would entitle the plaintiff to the relief requested. Here, the trial court did not dismiss the matter on the face of the pleadings but rather held a hearing, heard evidence and then made its decision. To dismiss the matter under such circumstances was clearly erroneous. Assuming arguendo that the trial court had in reality converted Burke's Motion to Dismiss into one for Summary Judgment, we again find that the trial court erred. As previously stated, there is a question of fact as to the issue of the Burke'spresumedpaternity. Thus, the granting of summary judgment would also have been improper in this case.
Since the trial court erred both substantively and procedurally in dismissing Hamilton's complaint we find her assignment of error to be well taken and thus sustain it.
The judgment of the trial court is reversed, cause remanded for proceedings consistent with this opinion.
It is ordered that (appellant-appellee) recover of (appellant-appellee) her costs herein taxed.
The Court there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Juvenile Division of the Gallia County Common Pleas Court to carry this judgment into execution.
Any Stay previously granted by this Court is hereby terminated as of the date of filing of this Entry.
JUDGMENT REVERSED, CAUSE REMANDED
HARSHA, J. Concurs in Judgment Only
STEPHENSON, J. Concurs with Attached Concurring Opinion