[Cite as Weinstock v. Howard, 2012-Ohio-5160.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
ERIC E. WEINSTOCK JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-20 KARAH B. HOWARD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 2010 PA 000286
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 2, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
L. JACKSON HENNIGER BRIAN J. EASTMAN 150 N. Market St. 9292 Prestwick Green Drive Logan, Ohio 43138 Columbus, Ohio 43240 Fairfield County, Case No. 12-CA-20 2
Hoffman, J.
{¶1} Defendant-appellant Karah B. Howard (“Mother”) appeals the December
29, 2010 Judgment Entry entered by the Fairfield County Court of Common Pleas,
Domestic Relations Division, which overruled her Motion to Dismiss Complaint to
Establish Paternity filed by plaintiff-appellee Eric E. Weinstock (“Father”). Mother also
appeals the March 15, 2012 Agreed Judgment Entry entered by the same.
STATEMENT OF THE FACTS AND CASE
{¶2} Mother and Father are the biological parents of NJW (DOB 11/17/04).
Mother and Father have never been married.
{¶3} Mother and her former husband, John P. Howard, were divorced on May
27, 2004, via Decree of Dissolution of Marriage entered by the Franklin County Court of
Common Pleas, Domestic Division. Mother gave birth to NJW 174 days after the
Franklin County Court of Common Pleas issued the dissolution decree. The decree did
not indicate Mother was pregnant at the time of the dissolution. NJW’s birth certificate
does not set forth the name of the child’s father. Pursuant to R.C. 3111.03(A)(1),
Howard was presumed to be NJW’s natural father.
{¶4} On January 12, 2005, Mother filed an action to establish paternity in the
Delaware County Court of Common Pleas, Juvenile Division. Mother named Father
and Howard as defendants. The Delaware juvenile court dismissed the matter,
determining it did not have jurisdiction.
{¶5} Father filed a Complaint to Establish Paternity and Allocate Parental
Rights and Responsibilities on August 16, 2010. Father also requested an emergency
ex parte custody order which the trial court granted the same day. Mother filed a Fairfield County, Case No. 12-CA-20 3
Motion to Dismiss and a Motion to Return or Grant Temporary Custody on August 24,
2010. The trial court conducted a full hearing on the temporary custody order, which
commenced on August 27, 2010, carried over into September 3, 2010, and was
scheduled to conclude on January 10, 2011. Mother filed an amendment to the motion
to dismiss as well as a motion for temporary restraining order on September 3, 2010.
{¶6} Via Judgment Entry filed December 29, 2010, the trial court denied
Mother’s request for a temporary restraining order. The trial court appointed a guardian
ad litem for the child, who subsequently recommended Father be designated the legal
custodian of NJW. The parties engaged in extensive negotiations and ultimately
reached an agreement which they executed and submitted to the trial court. Via Agreed
Judgment Entry filed March 15, 2012, the trial court adopted the parties’ agreement as
order of the court.
{¶7} It is from the December 29, 2010 Judgment Entry and the March 15, 2012
Agreed Judgment Entry Mother appeals, raising as error:
{¶8} “I. THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE
BECAUSE ANOTHER COURT HAD ORIGINAL JURISDICTION OVER THE MATTER.
{¶9} “II. THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE
UNDER THE PRINCIPLE OF RES JUDICATA.
{¶10} “III. THE TRIAL COURT ERRED IN ACCEPTING THE INITIAL
PLEADINGS BECAUSE THE PLAINTIFF/APPELLEE FAILED TO PROVIDE AN
ACKNOWLEDGE OF PATERNITY OR OTHER ADMINISTRATIVE PARENTAGE
DETERMINATION.” Fairfield County, Case No. 12-CA-20 4
I
{¶11} In her first assignment of error, Mother challenges the trial court’s
jurisdiction to hear the instant action. Within this assignment of error, Mother also takes
issue with the trial court’s denial of her motion to dismiss Father’s Complaint as Father
failed to make Howard a party to the action.
{¶12} A parentage action under R.C. 3111.04(A) brought to establish the
existence of a father-and-child relationship must include as necessary parties:
“(A) The natural mother, each man presumed to be the father under
section 3111.03 of the Revised Code, and each man alleged to be the
natural father shall be made parties to the action brought pursuant to
sections 3111.01 to 3111.18 of the Revised Code or, if not subject to the
jurisdiction of the court, shall be given notice of the action pursuant to the
Rules of Civil Procedure and shall be given an opportunity to be heard.
The child support enforcement agency of the county in which the action is
brought also shall be given notice of the action pursuant to the Rules of
Civil Procedure and shall be given an opportunity to be heard. The court
may align the parties. The child shall be made a party to the action unless
a party shows good cause for not doing so. Separate counsel shall be
appointed for the child if the court finds that the child's interests conflict
with those of the mother.”
{¶13} R.C. 3111.07 (Emphasis added). Fairfield County, Case No. 12-CA-20 5
{¶14} The parties do not disagree, pursuant to R.C. 3111.03(A)(1), Howard is
presumed to be NJW’s natural father because the boy was born 174 days after the
Franklin County domestic relations court issued the dissolution decree.
{¶15} “A party's failure to join an interested and necessary party constitutes a
jurisdictional defect that precludes the court from rendering a judgment in the case. See
Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d
478, ¶ 99 (declaratory-judgment action).” State ex rel. Doe v. Capper, 132 Ohio St.3d
365, 2012 -Ohio- 2686.
{¶16} In the instant action, Father failed to name Howard, the presumed natural
father of NJW, and the minor child—interested and necessary parties pursuant to R.C.
3111.07(A)—as parties. Father also failed to show good cause why NJW should not be
joined as a party. The child was not served with a summons, did not appear, and was
not a party to the parentage action. Therefore, we find the trial court lacked jurisdiction
to proceed in the case.
{¶17} Appellant’s first assignment of error is sustained solely for the reason set
forth herein.
II, III
{¶18} In light of our disposition of Mother’s first assignment of error, we find any
discussion of the remaining assignments of error premature. Fairfield County, Case No. 12-CA-20 6
{¶19} The judgment of the Fairfield County Court of Common Pleas is reversed
and the matter remanded to that court for further proceedings.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________ HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Fairfield County, Case No. 12-CA-20 7
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
ERIC E. WEINSTOCK : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : KARAH B. HOWARD : : Defendant-Appellant : Case No.
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[Cite as Weinstock v. Howard, 2012-Ohio-5160.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
ERIC E. WEINSTOCK JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-20 KARAH B. HOWARD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 2010 PA 000286
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 2, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
L. JACKSON HENNIGER BRIAN J. EASTMAN 150 N. Market St. 9292 Prestwick Green Drive Logan, Ohio 43138 Columbus, Ohio 43240 Fairfield County, Case No. 12-CA-20 2
Hoffman, J.
{¶1} Defendant-appellant Karah B. Howard (“Mother”) appeals the December
29, 2010 Judgment Entry entered by the Fairfield County Court of Common Pleas,
Domestic Relations Division, which overruled her Motion to Dismiss Complaint to
Establish Paternity filed by plaintiff-appellee Eric E. Weinstock (“Father”). Mother also
appeals the March 15, 2012 Agreed Judgment Entry entered by the same.
STATEMENT OF THE FACTS AND CASE
{¶2} Mother and Father are the biological parents of NJW (DOB 11/17/04).
Mother and Father have never been married.
{¶3} Mother and her former husband, John P. Howard, were divorced on May
27, 2004, via Decree of Dissolution of Marriage entered by the Franklin County Court of
Common Pleas, Domestic Division. Mother gave birth to NJW 174 days after the
Franklin County Court of Common Pleas issued the dissolution decree. The decree did
not indicate Mother was pregnant at the time of the dissolution. NJW’s birth certificate
does not set forth the name of the child’s father. Pursuant to R.C. 3111.03(A)(1),
Howard was presumed to be NJW’s natural father.
{¶4} On January 12, 2005, Mother filed an action to establish paternity in the
Delaware County Court of Common Pleas, Juvenile Division. Mother named Father
and Howard as defendants. The Delaware juvenile court dismissed the matter,
determining it did not have jurisdiction.
{¶5} Father filed a Complaint to Establish Paternity and Allocate Parental
Rights and Responsibilities on August 16, 2010. Father also requested an emergency
ex parte custody order which the trial court granted the same day. Mother filed a Fairfield County, Case No. 12-CA-20 3
Motion to Dismiss and a Motion to Return or Grant Temporary Custody on August 24,
2010. The trial court conducted a full hearing on the temporary custody order, which
commenced on August 27, 2010, carried over into September 3, 2010, and was
scheduled to conclude on January 10, 2011. Mother filed an amendment to the motion
to dismiss as well as a motion for temporary restraining order on September 3, 2010.
{¶6} Via Judgment Entry filed December 29, 2010, the trial court denied
Mother’s request for a temporary restraining order. The trial court appointed a guardian
ad litem for the child, who subsequently recommended Father be designated the legal
custodian of NJW. The parties engaged in extensive negotiations and ultimately
reached an agreement which they executed and submitted to the trial court. Via Agreed
Judgment Entry filed March 15, 2012, the trial court adopted the parties’ agreement as
order of the court.
{¶7} It is from the December 29, 2010 Judgment Entry and the March 15, 2012
Agreed Judgment Entry Mother appeals, raising as error:
{¶8} “I. THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE
BECAUSE ANOTHER COURT HAD ORIGINAL JURISDICTION OVER THE MATTER.
{¶9} “II. THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE
UNDER THE PRINCIPLE OF RES JUDICATA.
{¶10} “III. THE TRIAL COURT ERRED IN ACCEPTING THE INITIAL
PLEADINGS BECAUSE THE PLAINTIFF/APPELLEE FAILED TO PROVIDE AN
ACKNOWLEDGE OF PATERNITY OR OTHER ADMINISTRATIVE PARENTAGE
DETERMINATION.” Fairfield County, Case No. 12-CA-20 4
I
{¶11} In her first assignment of error, Mother challenges the trial court’s
jurisdiction to hear the instant action. Within this assignment of error, Mother also takes
issue with the trial court’s denial of her motion to dismiss Father’s Complaint as Father
failed to make Howard a party to the action.
{¶12} A parentage action under R.C. 3111.04(A) brought to establish the
existence of a father-and-child relationship must include as necessary parties:
“(A) The natural mother, each man presumed to be the father under
section 3111.03 of the Revised Code, and each man alleged to be the
natural father shall be made parties to the action brought pursuant to
sections 3111.01 to 3111.18 of the Revised Code or, if not subject to the
jurisdiction of the court, shall be given notice of the action pursuant to the
Rules of Civil Procedure and shall be given an opportunity to be heard.
The child support enforcement agency of the county in which the action is
brought also shall be given notice of the action pursuant to the Rules of
Civil Procedure and shall be given an opportunity to be heard. The court
may align the parties. The child shall be made a party to the action unless
a party shows good cause for not doing so. Separate counsel shall be
appointed for the child if the court finds that the child's interests conflict
with those of the mother.”
{¶13} R.C. 3111.07 (Emphasis added). Fairfield County, Case No. 12-CA-20 5
{¶14} The parties do not disagree, pursuant to R.C. 3111.03(A)(1), Howard is
presumed to be NJW’s natural father because the boy was born 174 days after the
Franklin County domestic relations court issued the dissolution decree.
{¶15} “A party's failure to join an interested and necessary party constitutes a
jurisdictional defect that precludes the court from rendering a judgment in the case. See
Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d
478, ¶ 99 (declaratory-judgment action).” State ex rel. Doe v. Capper, 132 Ohio St.3d
365, 2012 -Ohio- 2686.
{¶16} In the instant action, Father failed to name Howard, the presumed natural
father of NJW, and the minor child—interested and necessary parties pursuant to R.C.
3111.07(A)—as parties. Father also failed to show good cause why NJW should not be
joined as a party. The child was not served with a summons, did not appear, and was
not a party to the parentage action. Therefore, we find the trial court lacked jurisdiction
to proceed in the case.
{¶17} Appellant’s first assignment of error is sustained solely for the reason set
forth herein.
II, III
{¶18} In light of our disposition of Mother’s first assignment of error, we find any
discussion of the remaining assignments of error premature. Fairfield County, Case No. 12-CA-20 6
{¶19} The judgment of the Fairfield County Court of Common Pleas is reversed
and the matter remanded to that court for further proceedings.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________ HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER Fairfield County, Case No. 12-CA-20 7
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
ERIC E. WEINSTOCK : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : KARAH B. HOWARD : : Defendant-Appellant : Case No. 12-CA-20
For the reason stated in our accompanying Opinion, the judgment of the Fairfield
County Court of Common Pleas is reversed and the case is remanded to that court for
further proceeding in accordance to our Opinion and the law. Costs to Appellee.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER