[Cite as Morris v. Mottern, 2015-Ohio-4523.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
DOUGLAS C. MORRIS C.A. No. 14CA0043-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE SHELBY L. MOTTERN COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 11 PA 0125
DECISION AND JOURNAL ENTRY
Dated: November 2, 2015
CARR, Judge.
{¶1} Appellant, Shelby Mottern, appeals from a judgment of the Medina County Court
of Common Pleas, Domestic Relations Division, that established a parent-child relationship
between her minor child and his alleged father, Douglas Morris, and allocated parental rights and
responsibilities between Ms. Mottern and Mr. Morris. Because the Medina County court lacked
statutory authority to exercise its jurisdiction in this case, this Court reverses and remands.
I.
{¶2} Ms. Mottern is the mother of B.M., born during September 2005, while Ms.
Mottern was involved in a non-marital, romantic relationship with Mr. Morris. According to the
allegations of Mr. Morris’s complaint, he and Ms. Mottern resided together with B.M. in
Pennsylvania and then Portage County, Ohio, for the first two and one-half years of the child’s
life before Mr. Morris relocated to Medina County and Ms. Mottern remained in Portage County.
Notably, Mr. Morris and Ms. Mottern apparently never executed an acknowledgement that Mr. 2
Morris was the legal parent of B.M., nor did they otherwise obtain a legal determination that Mr.
Morris was the father of B.M. Instead, they simply agreed that Mr. Morris was B.M.’s father
and made informal arrangements about when each of them would spend time with B.M. and how
they would otherwise meet his basic needs. By the summer of 2011, B.M. was spending most of
his time in Medina County with daycare and preschool providers and at the home of Mr. Morris.
{¶3} On June 1, 2011, Mr. Morris filed a complaint in the Medina County Court of
Common Pleas, Domestic Relations Division, explaining that he was concerned about registering
B.M. for kindergarten. His complaint explicitly sought to legally establish his “paternity” of the
child and to establish or modify “residential parent and legal custodian” and “parenting time,
companionship or visitation.” Mother was served with a copy of the complaint on June 23,
2011.
{¶4} On July 15, 2011, Mother moved to dismiss the complaint in this case because
Mr. Morris had failed to comply with the statutory requirement that the matter be filed in the
county where the child resides. See R.C. 3111.381; 3109.12. Because she was the unmarried
mother of B.M. and there had been no order by “a court of competent jurisdiction * * *
designating another person as the residential parent and legal custodian[,]” she argued that she
was the child’s sole residential parent. R.C. 3109.042. Consequently, she asserted that the child
legally resided with her in Portage County and that only a Portage County administrative agency
or court had statutory authority to establish a parent and child relationship between Mr. Morris
and B.M. Shortly afterward, Ms. Mottern filed with the Portage County Child Support
Enforcement Agency to establish a parent and child relationship between Mr. Morris and B.M.
and to calculate child support. 3
{¶5} Mr. Morris opposed the motion to dismiss this action from the Medina County
Domestic Relations Court, asserting that B.M. resided in Medina County and set forth facts
about the child spending considerable time there attending daycare, preschool, and staying at his
home. Following a hearing before a magistrate, the magistrate agreed that B.M. resided in
Medina County because that is where he spent most of his time. Consequently, the magistrate
concluded that this case could proceed in Medina County and denied Ms. Mottern’s motion to
dismiss. The trial court adopted the magistrate’s decision the same day.
{¶6} Ms. Mottern filed timely objections to the magistrate’s decision, reiterating her
argument that, as a matter of law, B.M. legally resided with her in Portage County because she
was his sole residential parent. She argued that the parties’ agreement about paternity and that
B.M. would spend time with Mr. Morris and attend preschool and daycare in Medina County did
not legally establish B.M.’s residence in Medina County. She again emphasized that there had
been no court order to supersede her legal status as the sole residential parent of B.M.
{¶7} The trial court overruled Mother’s objections. Although Ms. Mottern attempted
to appeal from that order, this Court dismissed Morris v. Mottern, 9th Dist. Medina No.
12CA0037-M, for lack of a final, appealable order.
{¶8} Following another hearing, the magistrate decided that Mr. Morris had a parent
and child relationship with B.M. and that he should be designated the child’s primary residential
parent. The trial court adopted the magistrate’s decision. Mother raised objections to the
magistrate’s decision on the merits and also renewed her argument that the Medina County
Domestic Relations Court lacked statutory authority to exercise its jurisdiction over these
proceedings and should have granted her motion to dismiss. The trial court overruled all of
Mother’s objections. Regarding the court’s statutory authority to preside over this action, the 4
trial court agreed with the magistrate that the child’s legal residence was in Medina County at the
time Mr. Morris filed his complaint. Ms. Mottern appeals and raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY FAILING TO DISMISS [MR. MORRIS’S] MOTION FOR PATERNITY AND ALLOCATION OF HIS PARENTAL RIGHTS AND RESPONSIBILITIES FILED IN HIS COUNTY OF RESIDENCE, MEDINA COUNTY, OHIO, WHERE MOTHER IS THE SOLE RESIDENTIAL PARENT AND SOLE LEGAL CUSTODIAN OF THE MINOR CHILD UNDER R.C. [] 3109.042 AND SHE RESIDES IN PORTAGE COUNTY, OHIO[,] AND NO REQUEST FOR AN ADMINISTRATIVE DETERMINATION OF PATERNITY HAD BEEN MADE PRIOR TO FILING SAID ACTION.
{¶9} Ms. Mottern argues that the trial court lacked statutory authority to preside over
this action because B.M. legally resided with her, as the child’s sole residential parent, in Portage
County. Ms. Mottern has correctly argued throughout these proceedings that, despite any
informal agreement she had with Mr. Morris, the sole means for establishing a legal relationship
between a parent and child in Ohio is set forth in R.C. Chapter 3111.
{¶10} The legal parent and child relationship between Ms. Mottern and B.M. was
established by operation of law because she is his biological mother and gave birth to him. R.C.
3111.02(A). Because a man does not physically give birth to a child, establishing his legal status
as the child’s father is necessarily more complicated. Consequently, the Ohio General Assembly
has set forth in R.C. Chapter 3111 the specific means by which a man will be legally recognized
as the father of a child.
{¶11} Because Ms. Mottern and Mr. Morris were not married at or near the time of
B.M.’s birth, nor had they unsuccessfully attempted to marry, no presumption about Mr.
Morris’s paternity arose under R.C. 3111.03(A)(1) or (2). Nevertheless, Mr. Morris and Ms. 5
Mottern had the opportunity to execute an acknowledgement of paternity at the time of B.M.’s
birth in Pennsylvania or after the parties moved to Ohio, which would have been forwarded to
the appropriate administrative agency in either state and, after a period of time, would have
established a final administrative determination of Mr. Morris’s parent and child relationship
with B.M. See, e.g., R.C. 3111.03(B); R.C. 3111.23; R.C. 3111.25; 23 Pa.Con.Stat.Ann. 5103.
In Pennsylvania, as in Ohio, the hospital where B.M. was born had a statutory duty to discuss
this administrative process for establishing paternity with both unmarried parents, if possible,
and to facilitate the execution and administrative processing of that document. See 23
Pa.Con.Stat.Ann. 5103(c); R.C. 3727.17.
{¶12} For reasons not explained on the record, despite the relative ease with which the
parties could have executed an acknowledgement of Mr. Morris’s paternity of B.M. in
Pennsylvania or Ohio, which would have led to a final administrative determination of his parent
and child relationship with B.M., they did not do so. Instead, Mr. Morris attempted to bypass
that administrative determination by proceeding directly to the trial court.
{¶13} Although he was authorized by R.C. 3111.04 to bring an court action to establish
a parent and child relationship with B.M. because he was a man alleging himself to be the child’s
father, he was also required to comply with the requirements of R.C. 3111.381 because there had
been no prior administrative determination that he was B.M.’s father. R.C. 3111.381(A)
provides in relevant part:
Except as provided in divisions (B), (C), (D), and (E) of this section, no person may bring an action under sections 3111.01 to 3111.18 of the Revised Code unless the person has requested an administrative determination under section 3111.38 of the Revised Code of the existence or nonexistence of a parent and child relationship. 6
{¶14} In other words, the R.C. Chapter 3111 requires that unmarried parents establish
the father’s parent and child relationship through an administrative determination “except as
provided” in R.C. 3111.381(B),(C),(D), and (E). Those subsections set forth the sole means by
which the mother or purported father may bypass an administrative determination and file a
parentage action directly with the court (juvenile or domestic, depending on the county). See
R.C. Chapter 3111; R.C. 2301.03.
{¶15} Consequently, the only procedural means through which Mr. Morris was
authorized by statute to bypass an administrative determination and invoke a court’s jurisdiction
to determine that he had a parent and child relationship with B.M. was R.C. 3111.381(C), which
provides:
(C) An action to determine the existence or nonexistence of a parent and child relationship may be brought by the putative father * * * in the county in which the child resides, without requesting an administrative determination, if the putative father brings the action in order to request an order to determine the allocation of parental rights and responsibilities. * * * (Emphasis added.)
{¶16} The dispute under Ms. Mottern’s first assignment of error is where B.M. resided,
for purposes of R.C. 3111.381(C), at the time Mr. Morris filed this action. When interpreting the
meaning of “the county in which the child resides,” as that phrase is used in R.C. 3111.381, our
review is de novo because we interpret statutory language as a matter of law. Columbus City
School Dist. Bd. of Edn. v. Testa, 130 Ohio St.3d 344, 2011-Ohio-5534, ¶ 12.
{¶17} Throughout the trial court proceedings, Ms. Mottern argued that, by operation of
law, B.M. resided with her in Portage County. Mr. Morris responded that the evidence would
prove that B.M. had been residing with him in Medina County. After rejecting Ms. Mottern’s
argument that B.M.’s residence was determined as a matter of law, the magistrate, and later the
trial judge, considered evidence about where B.M. attended preschool and daycare and 7
physically spent most of his time and ultimately found that “the county in which the child
reside[d]” was Medina County. Consequently, the trial court concluded that this action was
properly filed in Medina County.
{¶18} We cannot agree with Mr. Morris that B.M.’s legal residence was established by
the mere fact that he spent a lot of time with him or others in Medina County because Mr. Morris
had not been legally recognized as B.M.’s father, nor did he have any legal parental rights or
responsibilities. On the other hand, Ms. Mottern’s legal rights and responsibilities as B.M.’s
mother were established by operation of law when she gave birth to him. R.C. 3109.042 then
provided that “[a]n unmarried female who gives birth to a child 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.”1 It is undisputed that, at the time
Mr. Morris filed this action, no court had ever designated anyone as B.M.’s residential parent.
{¶19} Although the term “residential parent” is not defined in R.C. Chapter 3109 or
3111, the residential parent is the parent who “is allocated the primary parental rights and
responsibilities for the care of a child[.]” Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-
5589, ¶ 23, citing R.C. 3109(A)(1). Based on the plain meaning of “residential,” the legal
designation of Ms. Mottern as “sole residential parent” means that she was the parent with whom
B.M. legally resided.
{¶20} Moreover, although a minor child’s legal “residence” is not defined in R.C.
Chapter 3111 or 3109, it is defined within other contexts of the Ohio Revised Code to be the
home of the parent(s) or other custodian or guardian with whom the child legally resides, as
1 This same language is now embodied in subsection (A) of the current version of R.C. 3109.042. 8
determined by court order or by operation of law. See, e.g., R.C. 2151.06 and R.C. 2151.362 (for
purposes of R.C. Chapter 2151); R.C. 3313.64 (child’s residence for educational purposes is the
home of his residential parent(s) or legal custodian). It is only reasonable to conclude that R.C.
3111.381 requires that the action be filed in the county where the child legally resides, not
another county where he might be located pursuant to an informal arrangement.
{¶21} Evidence that B.M. spent much of his time in Medina County should not have
been considered to determine where he resided for purposes of R.C. Chapter 3111. Ohio law
does not support the trial court’s conclusion that Mr. Morris, who had not yet acquired any legal
status as the father of B.M., had somehow become the child’s residential parent through the
parties’ informal arrangements, as those arrangements were not legally binding. The trial court
not only undermined Ms. Mottern’s legally-established rights and responsibilities as B.M.’s sole
residential parent, but also allowed Mr. Morris to circumvent the statutory procedure for
establishing a parent and child relationship and allocating parental rights and responsibilities.
See Myers v. Mantia, 2d Dist. Miami No. 93-CA-44, 1994 WL 277859, *3, fn.1 (June 22, 1994);
In re L.M., 2d Dist. Greene No. 2010-CA-76, 2011-Ohio-3285, ¶ 41.
{¶22} Although this case fell within the trial court’s subject-matter jurisdiction under
R.C. 2301.03(U), it did not fall within its authority to preside over this case under the explicit
requirement of R.C. 3111.381 that the action be filed in the child’s county of residence. The
term “jurisdiction” is “‘a word of many, too many, meanings.’” Pratts v. Hurley, 102 Ohio St.3d
81, 2004–Ohio–1980, ¶ 33, quoting United States v. Vanness, 85 F.3d 661, 663, fn. 2
(D.C.Cir.1996). In addition to subject-matter jurisdiction and personal jurisdiction, the Ohio
Supreme Court has also recognized what it characterized as a “third category of jurisdiction”:
The term ‘jurisdiction’ is also used when referring to a court's exercise of its jurisdiction over a particular case. See State v. Parker, 95 Ohio St.3d 524, 2002- 9
Ohio-2833, ¶ 20 (Cook, J., dissenting); State v. Swiger, 125 Ohio App.3d 456, 462 (9th Dist.1998). ‘The third category of jurisdiction [i.e., jurisdiction over the particular case] encompasses the trial court's authority to determine a specific case within that class of cases that is within its subject matter jurisdiction.’
Pratts at ¶ 12.
{¶23} Examples of the third category of jurisdiction have included requirements of
statutes or rules that impose constraints on the trial court’s authority to exercise its jurisdiction
over a specific case. Pratts and Swiger involved restrictions on the “jurisdiction” of a single trial
judge to determine guilt or impose sentence on a capital murder defendant under R.C. 2945.06
and R.C. 2931.03. Other cases in which courts have recognized this type of jurisdiction have
likewise involved constraints on the trial court’s authority imposed by specific statutes or rules.
See, e.g., In re L.S., 9th Dist. Summit No. 23523, 2007-Ohio-1583; State v. Franklin, 8th Dist.
Cuyahoga No. 81426, 2003-Ohio-2649; and GMAC, LLC. v. Greene, 10th Dist. Franklin No.
08AP-295, 2008-Ohio-4461. The requirement of R.C. 3111.381 that the action be filed in the
county of the child’s residence is another example of a statutory constraint on the court’s
authority to exercise its subject-matter jurisdiction.
{¶24} Although alleged errors in the trial court’s exercise of its jurisdiction may be
forfeited if not timely raised, Ms. Mottern preserved this error for appellate review. Through her
motion to dismiss, she argued that Mr. Morris filed this action in the wrong county. She also
raised this issue through her timely objections to the magistrate’s March and August 2012
decisions.
{¶25} Although the dissent relies on the Ohio Supreme Court’s recent decision in In re
Z.R., ___ Ohio St.3d ___, 2015-Ohio-3306, we do not agree that its interpretation of R.C.
2151.27(A)(1) applies to R.C. 3111.381. Other than each statute referring to the county (or
counties) in which a statutory action “may” be filed, there is no similarity between them. 10
Specifically, the Supreme Court’s reasoning in Z.R. hinged in part on the broad statutory
authority of juvenile courts to protect the best interests of children who have been alleged to be
abused, neglected, or dependent, as the State assumes the role of parens patrie in those cases. In
re Z.R. at ¶ 20-21.
{¶26} Moreover, the Court construed R.C. 2151.27 as a discretionary venue statute
because it provided that the complaint “may” be filed in the county where the child resided “or”
where the alleged dependency occurred, and, although subsection (F) authorized dismissal of the
complaint where an alleged unruly child completed a court diversion program, no other
subsection of R.C. 2151.27 mentioned dismissal. Id. at ¶ 22-23. The Court also focused on
Juv.R. 11(A), which explicitly grants the juvenile court discretion to determine whether to
transfer a case to the county of the child’s residence, but does not refer to dismissing the
complaint.2
{¶27} In sharp contrast to Z.R., this was not a case in which the state sought to invoke
the broad jurisdiction of the juvenile court to protect the welfare of an allegedly dependent
child.3 Instead, this was a parentage dispute between two private parties. Moreover, the
statutory law in both Ohio and Pennsylvania expresses an obvious intent that unmarried parents
promptly execute an acknowledgement of paternity, which must be facilitated by hospital
personnel at the time of the child’s birth, and will lead to a prompt and final administrative
determination of the child’s paternity. Because the parties were apparently living together at the
time of the child’s birth, it is unknown why they did not execute such an acknowledgement,
2 Similar provisions are set forth in R.C. 2151.271. 3 Although this case was filed in domestic relations court, in Medina County, as the dissent correctly notes, the juvenile court would have also had subject-matter jurisdiction. 11
which would have administratively established Mr. Morris’s paternity and allowed him to file
this action in Medina County. Instead, Mr. Morris chose not to use that procedure.
{¶28} Although the dissent asserts that this case is governed by the broad language of
R.C. 3111.06(A), R.C. 3111.381(A) supersedes that language, for it provides that:
Except as provided in divisions (B), (C), (D), and (E) of this section, no person may bring an action under sections 3111.01 to 3111.18 of the Revised Code unless the person has requested an administrative determination under section 3111.38 of the Revised Code of the existence or nonexistence of a parent and child relationship.
R.C. 3111.381 explicitly includes an action brought under R.C. 3111.06 and provides that “no
person may” bring that action unless the person has first sought an administrative determination
under R.C. 3111.38 “except as provided” under R.C. 3111.381(B),(C),(D), and (E).
{¶29} The language “no person may” has always been understood to mean that the
action is prohibited unless the stated terms are satisfied. See State v. Wellman, 37 Ohio St.2d
162 (1974), paragraph one of the syllabus; Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d
536, 2014-Ohio-2440, ¶ 30 (construing the “no person may” language as mandatory). Aside
from paternity determinations that might arise during a divorce or the probate of an alleged
father’s estate (subsections (D) and (E)), R.C. 3111.381(B) and (C) set forth the sole means by
which a mother or a purported father are authorized to bypass an administrative determination
and proceed directly to a court to establish a parent and child relationship. R.C. 3111.381(B) and
(C) specify that those actions are to be filed in the county of the child’s residence.
{¶30} Although subsections (B) and (C) provide that the mother or purported father
“may” file the actions in the county of the child’s residence, that is because they are authorized
but are not required to file a court action. Unlike the statute construed by the Supreme Court in
Z.R., R.C. 3111.381(B) and (C) do not connect the term “may” with the word “or” followed by 12
an alternate choice of county. See Z.R. at ¶ 22 (emphasizing the use of each term in quoting of
the provision). Under R.C. 3111.381(B) and (C), the authority to bypass an administrate
determination of paternity is confined to filing in the county where the child resides. We do not
agree with the dissent that this requirement is akin to an exhaustion of administrative remedies.
{¶31} Moreover, even if we could agree with the dissent that R.C. 3111.381 pertains to a
defense other than an exercise of jurisdiction, Ms. Mottern timely raised this defense in the trial
court. If dismissal was not warranted, the trial court should have transferred the case to Portage
County. Instead, the trial court concluded that Mr. Morris had filed in the correct county because
it incorrectly found that B.M. legally resided with him. The trial court’s justification for keeping
this case and deciding it on its merits was based on circular reasoning, for Mr. Morris had no
legal rights as B.M.’s father until the trial court later held that he did.
{¶32} We agree with the dissent that problems and inconvenience may arise under
numerous scenarios when unmarried parents wait months or years to establish a legal
relationship between the father and the child. It is also our concern for future cases that drives
the majority decision. If this Court were to authorize unmarried parents to bypass the specific
requirements of R.C. Chapter 3111, we would not only undermine the role of the legislature, but
might also encourage further disputes between the parties to custody litigation that already has
the potential to become contentious.
{¶33} This Court is obligated to rule on the merits of issues properly raised on appeal
and cannot ignore that the trial court committed reversible error by exercising its jurisdiction
over this case. The statutorily-mandated procedures of R.C. Chapter 3111 set forth the exclusive
means by which a father and child relationship can be established and reflect policy
considerations that balance the interests of both parents as well as the best interest of the child. 13
Although we are reluctant to upset an established custodial arrangement, this Court must
interpret the statutory language as a matter of law, not based on the unique facts of this case.
Mother’s first assignment of error is sustained.
REMAINING ASSIGNMENTS OF ERROR
{¶34} Ms. Mottern raises two additional assignments of error that pertain to the merits
of the trial court’s decisions. Because this Court has determined that the trial court had no
statutory authority to rule on the merits of Mr. Morris’s complaint, Ms. Mottern’s remaining
assignments of error have been rendered moot and will not be addressed. See App.R.
12(A)(1)(c).
III.
{¶35} Ms. Mottern’s first assignment of error is sustained and her remaining
assignments of error were not addressed because they have been rendered moot. The judgment
of the Medina County Court of Common Pleas, Domestic Relations Division, is reversed and
remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 14
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR FOR THE COURT
HENSAL, P. J. CONCURS.
SCHAFER, J. DISSENTING.
{¶36} Since I would overrule the first assignment of error and proceed to address the
remaining assignments, I must respectfully dissent. I disagree with the majority’s analysis for
three reasons. First, I would conclude that R.C. 2301.03(U) and 3111.06(A) vested the trial
court with jurisdiction to consider this matter. Second, unlike the majority, I do not believe that
R.C. 3111.381, when read in conjunction with several other statutory provisions, creates a
jurisdictional barrier. And, third, I am unable to agree with the majority’s approach in this
matter since I believe that it fails to account for the language of R.C. 3111.06(A) and R.C.
3111.381 and it produces absurd consequences that were unintended by the General Assembly.
A. The Trial Court Had Jurisdiction
{¶37} R.C. 2301.03(U) and 3111.06(A) are the relevant provisions that we must
consider when deciding whether the trial court had jurisdiction in this matter. R.C. 3111.06(A)
states that a paternity action “may be brought in the * * * other court with jurisdiction under 15
section 2101.022 or 2301.03 of the Revised Code of the county in which the child, the child’s
mother, or the alleged father resides[.]” (Emphasis added.) Relatedly, R.C. 2301.03(U)
explicitly gives the Medina County Court of Common Pleas, Domestic Relations Division,
jurisdiction over paternity and legal custody cases. Based on these provisions, the trial court
plainly had jurisdiction over this matter.
B. R.C. 3111.381 Does Not Implicate Jurisdiction
{¶38} I disagree with the majority looking past these provisions and relying on R.C.
3111.381 to determine that the trial court lacked jurisdiction over this particular case. In my
view, R.C. 3111.381 merely creates an exhaustion of administrative remedies requirement that
does not affect the trial court’s jurisdiction. I also believe that R.C. 3111.381’s only import
regarding judicial paternity actions is that it relates to venue, not jurisdiction.
1. R.C. 3111.381 Relates to an Administrative Exhaustion Requirement
{¶39} The proper way to view R.C. 3111.381 is that it creates an administrative
exhaustion requirement before bringing a judicial paternity action. R.C. 3111.381(A) defines the
general exhaustion requirement while subsections (B), (C), and (E) codify certain exceptions to
the exhaustion requirement. Since the statute only relates to the exhaustion of administrative
remedies before bringing a judicial action, it creates an affirmative defense and a party wishing
to assert it must specifically plead it. And, most critically, the failure of a party to comply with
the exhaustion requirement does not provide any hint of jurisdictional infirmity. E.g. Driscoll v.
Austintown Assocs., 42 Ohio St.2d 263, 276 (1975); see also E.P.A. v. EME Homer City
Generation, L.P., __ U.S. __, 134 S.Ct. 1584, 1602 (2014) (explaining that while an
administrative exhaustion requirement is mandatory, “[a] rule may be mandatory, yet not
jurisdictional” since “[i]t does not speak to a court’s authority, but only to a party’s procedural 16
obligations”). This recognition of the administrative exhaustion affirmative defense effectuates
R.C. Chapter 3111.’s preference for administrative paternity determinations and it does not
undermine the role of the General Assembly.
{¶40} I disagree with the majority’s statement that this defense was timely raised in the
trial court. Ms. Mottern’s filings in the trial court requested the dismissal of this action for lack
of jurisdiction and they never asserted an affirmative defense of failure to exhaust administrative
remedies. Additionally, Ms. Mottern did not file a motion relating to improper venue that
requested the transfer of her case to Portage County. Absent a proper motion, I do not see why
the trial court should have sua sponte transferred the case to Portage County, as suggested by the
majority.
2. R.C. 3111.381 Implicates Venue
{¶41} Moreover, R.C. 3111.381 implicates the issue of venue, not the jurisdiction of
trial courts. See Renacci v. Evans, 9th Dist. Medina No. 09CA0004-M, 2009-Ohio-5154, ¶ 6
(“[V]enue is defined as a particular locality where a suit should be heard, after jurisdiction is
established.”). The Supreme Court of Ohio recently addressed the interplay between venue and
jurisdiction, stating that it is “possible for the General Assembly to restrict any court’s
jurisdiction over a particular case based on a procedural requirement such as venue.” In re Z.R.,
__ Ohio St.3d __, 2015-Ohio-3306, ¶ 17. Nevertheless, the Court also recognized that it “is not
wont to construe procedural provisions as jurisdictional barriers unless they are ‘clearly
statutorily or constitutionally mandated.’” Id., quoting Nucorp, Inc. v. Montgomery Cty. Bd. of
Revision, 64 Ohio St.2d 20, 22 (1980).
{¶42} Due to the similarities between R.C. 2151.27(A)(1), the subject statute in Z.R.,
and R.C. 3111.381, I believe that the Court’s guidance from Z.R. is applicable here and insightful 17
to the issues presented. The crux of Ms. Mottern’s argument is that R.C. 3111.381(C) requires
this paternity action to be litigated in Portage County, where she resides. But, like R.C.
2151.27(A)(1), R.C. 3111.381(C) states that “[a]n action to determine the existence or
nonexistence of a parent and child relationship may be brought by the putative father of the child
in the appropriate division of the court of common pleas in the county in which the child
resides[.]” (Emphasis added.) Additionally, like the provisions of R.C. 2151.27, the provisions
of R.C. 3111.381 do not include any reference to trial courts dismissing paternity actions that are
not properly venued. In sum, drawing from Z.R., I believe that “the failure to couch the venue
provisions of [R.C. 3111.381(C)] in mandatory terms or to mention dismissal in that subsection
strongly indicates that venue is not a jurisdictional requirement in the context of a [judicial
paternity action].” Id. at ¶ 23.
{¶43} This conclusion is further bolstered when one considers the complexity of Ms.
Mottern’s reasoning for the purported lack of jurisdiction here. In order to reach her conclusion,
she first points to R.C. 3111.06, which authorizes judicial paternity actions. According to her,
though, that statute does not provide the full answer, so she then goes to R.C. 3111.381(A).
Since R.C. 3111.381(A) does not even refer to a court, Ms. Mottern points to subsection (C), but
this statute is not fully determinative of the issue, either. As a result, Ms. Mottern subsequently
points to R.C. 3109.042, which relates to the default rule for custody of children of unmarried
parents. And, when reading all four of these provisions from separate chapters of the Revised
Code together, Ms. Mottern finally concludes that jurisdiction in this matter is only proper in
Portage County. Such a logical maze is far from “clearly statutorily or constitutionally
mandated” and I do not believe that linking these provisions together creates a mandatory
jurisdictional barrier. 18
C. The Majority’s Approach Is Problematic
{¶44} I finally note that the majority’s approach in this matter fails to account for the
language of R.C. 3111.06(A) and R.C. 3111.381 and portends negative consequences for future
litigants. In particular, I would like to highlight two problems that arise from the majority’s
approach.
{¶45} The first problem is that the majority’s approach renders R.C. 3111.06(A)’s
authorization of a judicial paternity in the county where the alleged father resides meaningless,
which is a result surely not intended by the General Assembly. The majority opinion establishes
that for any court in Ohio to have proper jurisdiction over a judicial paternity action, an alleged
father must first go through the administrative paternity process or file a judicial action in the
county where the child’s unmarried mother resides. Pursuant to R.C. 3111.38, the alleged father
has to file an administrative request in the county where the child or child’s legal custodian
resides. The administrative paternity process will result in one of three possible orders: (1) a
finding of paternity; (2) a finding of non-paternity; or (3) an inconclusive finding. R.C. 3111.46,
3111.47. If the child support enforcement agency (“CSEA”) issues either of the first two orders
and the alleged father wants to object to it via a judicial action, R.C. 3111.49 requires him to file
the action “in the county in which the [CSEA] that employs the administrative officer who issued
the order is located.” Similarly, if the CSEA issues an inconclusive order, the Administrative
Code requires CSEA to file a judicial action in the county where it is located. See Ohio
Adm.Code 5101:12-40-17(C)(3).
{¶46} Thus, under the majority’s approach, an alleged father is left with no real choice.
If he decides to go through the administrative process, the end result will be that he must litigate
his judicial paternity action in the county where the child or the child’s legal custodian resides. 19
Meanwhile, if he bypasses the administrative process, the alleged father must file his judicial
action in the county where the child resides. I cannot agree with such an approach since it fails
to give effect to R.C. 3111.06(A)’s authorization of judicial paternity actions in the county where
the child, the child’s mother, or the alleged father resides.
{¶47} The second problem is that the majority’s approach fails to apply the long-
standing maxim that “words in a statute should be construed in their ordinary and natural
meaning * * * unless a different intention appears in the statute.” State ex rel. Gareau v.
Stillman, 18 Ohio St.2d 63, 64 (1969). The provisions of R.C. Chapter 3111. do not suggest that
the General Assembly intended to have R.C. 3109.042’s default custody rule apply to R.C.
3111.381(C), which provides the alleged father may file his action in the county where “the child
resides.” (Emphasis added.) It seems to me that had the General Assembly intended for R.C.
3109.042’s rule to apply in R.C. 3111.381(C), it would have stated that the putative father may
file his action in the county where “the legal custodian of the child resides.” This becomes
particularly clear when one considers the consequences that could flow from the majority’s
approach. For instance, say that alleged father lives in Medina County and mother lives in
Portage County. After giving birth, mother moves to Lucas County and is completely absent
from the child’s life while child resides with his maternal grandmother in Portage County
without a court order. Where is alleged father supposed to file his paternity action? Under the
majority’s view, the only county with proper jurisdiction is Lucas County, where the child has
never lived, since that is where the child’s legal custodian under R.C. 3109.042 lives. I cannot
go along with such an interpretation of R.C. 3111.381(C). 20
{¶48} In sum, I believe that the trial court had jurisdiction in this matter and that we
should overrule Ms. Mottern’s first assignment of error. Therefore, I respectfully dissent from
the majority’s conclusion to the contrary.
APPEARANCES:
PATRICIA F. LOWERY, Attorney at Law, for Appellant.
MORA LOWRY, Attorney at Law, for Appellee.