[Cite as In re P.L.H., 2018-Ohio-3853.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

IN THE MATTER OF: : 

 P.L.H. : CASE NO. CA2018-01-009 

 : O P I N I O N 

 9/24/2018 

 : 

 : 

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

JUVENILE DIVISION 

Case No. JS2017-0509 

Stagnaro Hannigan Koop Co., LPA, Michaela M. Stagnaro, 30 Garfield Place, Suite 760, 

Cincinnati, Ohio 45202, for appellant, C.W. 

Ginn Law Office, LLC, Barbara Thornell Ginn, 8595 Beechmont Avenue, Suite 103, 

Cincinnati, Ohio 45255, for appellee, S.C. 

 PIPER, J.

{¶ 1} Plaintiff-appellant, the putative father of P.L.H. ("Father"), appeals from the 

decision of the Butler County Court of Common Pleas, Juvenile Division, dismissing his 

parentage complaint, custody motion, and request for relief pursuant to Civ.R. 60(B). 

{¶ 2} Defendant-appellee, ("Mother"), and Father have never been married to one 

another. P.L.H. was conceived in Louisiana and Mother gave birth to the child on November 

3, 2015 in Butler County, Ohio. Mother resided in Florida during a portion of the pregnancy 
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and currently resides there, while Father presently resides in Michigan. The day after giving 

birth to P.L.H., Mother filed an application in the Butler County Probate Court to place P.L.H. 

for adoption with K.H. and P.H. ("adoptive parents") in Tennessee. On Nov. 6, 2015, the 

probate court approved the placement application. P.L.H. has resided with the adoptive 

parents in Tennessee since the approval of this application. On the same day, the adoptive 

parents filed a petition for adoption with the probate court. 

{¶ 3} On December 3, 2015, Father filed a complaint in the Butler County Juvenile 

Court to establish parentage and moved for temporary custody. The juvenile court dismissed 

Father's complaint and motions due to the pendency of the adoption proceedings. Father did 

not appeal the dismissal. 

{¶ 4} The adoption proceeded in the probate court with Father opposing the petition. 

On August 12, 2016, the probate court found that Father's consent to the adoption was not 

required and granted the adoption. Father appealed this decision and we affirmed. In re 

Adoption of P.L.H., 12th Dist. Butler No. CA2016-09-185, 2016-Ohio-8453. The Ohio 

Supreme Court accepted review and reversed our judgment on July 18, 2017. In re Adoption 

of P.L.H., 151 Ohio St.3d 554, 2017-Ohio-5824. The Ohio Supreme Court remanded the 

matter to the probate court and directed it to vacate the order granting the adoption and 

dismiss the adoption petition. 

{¶ 5} On July 21, 2017, Father filed a second parentage complaint and moved for 

sole legal custody in the Butler County Juvenile Court. At this time, the probate court had not 

yet carried out the directives of the Ohio Supreme Court. Therefore, Father also moved to 

stay the juvenile court proceedings until the probate court vacated the adoption and 

dismissed the adoption petition. Father captioned his 2017 filings under the 2015 case 

number from his original parentage complaint. However, the clerk of courts struck the case 

number and assigned Father's filings a 2017 case number. The adoption remained pending 
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in the probate court at this time. On July 25, 2017, Mother filed a notice of voluntary 

dismissal of her consent to the adoption with the probate court. On the same day, the 

adoptive parents filed a notice of voluntary dismissal of their adoption petition with the 

probate court and filed a termination of parental rights action in Hillsborough County, Florida. 

The Butler County Juvenile Court and the Florida court held a telephone conference pursuant 

to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") and the Florida 

court accepted jurisdiction. 

{¶ 6} On August 22, 2017, the probate court issued an order dismissing the adoption 

petition. Shortly thereafter, Mother moved to dismiss Father's juvenile court filings for lack of 

jurisdiction. The juvenile court directed Father to file a memorandum in support of 

jurisdiction. In his memorandum, Father raised a claim that he was entitled to Civ.R. 60(B) 

relief from the dismissal of his original parentage complaint and motions. Following a 

hearing, a magistrate found the juvenile court did not have jurisdiction over the matter and 

that Father could not substitute a Civ.R. 60(B) request for relief for an appeal of the dismissal 

of his 2015 filings. Father did not object to the magistrate's decision and the juvenile court 

adopted the decision as an order of the court. 

{¶ 7} Father appealed the juvenile court order. Mother moved to dismiss the appeal 

because Father failed to object to the magistrate's decision. We denied Mother's motion to 

dismiss and noted that because Father did not file objections to the magistrate's decision, 

Father could not contest the juvenile court's factual findings. 

{¶ 8} Father's sole Assignment of Error: 

{¶ 9} THE TRIAL COURT ERRED AS A MATTER OF LAW IN DISMISSING 

APPELLANT/FATHER'S MOTIONS TO ESTABLISH PATERNITY AND CUSTODY OF THE 

MINOR CHILD, P.L.H. 

{¶ 10} Father argues the juvenile court committed plain error by summarily dismissing 
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his Civ.R. 60(B) request for relief from judgment. Father further argues the juvenile court 

erred by finding it lacked jurisdiction and dismissing his complaint and custody motion. 

{¶ 11} We generally review a trial court's decision regarding a Civ.R. 60(B) motion for 

relief from judgment for an abuse of discretion. Foppe v. Foppe, 12th Dist. Warren No. 

CA2010-06-056, 2011-Ohio-49, ¶ 26. However, Father failed to object to the magistrate's 

decision. Therefore, we review Father's assignment of error for plain error. Aviation 

Publishing Corp. v. Morgan, 12th Dist. Warren No. CA2017-12-169, 2018-Ohio-3224, ¶ 12. 

Juv.R 40(D)(3)(b)(iv) provides: 

[e]xcept for a claim of plain error, a party shall not assign as error 

on appeal the court's adoption of any factual finding or legal 

conclusion, whether or not specifically designated as a finding of 

fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the 

party has objected to that finding or conclusion as required by 

Juv.R. 40(D)(3)(b). 

The Ohio Supreme Court has articulated the civil plain error standard as follows: 

reviewing courts must proceed with the utmost caution, limiting 

the doctrine strictly to those extremely rare cases where 

exceptional circumstances require its application to prevent a 

manifest miscarriage of justice, and where the error complained 

of, if left uncorrected, would have a material adverse effect on 

the character of, and public confidence in, judicial proceedings. 

Goldfuss v. Davidson, 79 Ohio St. 3d 116, 121 (1997). Thus, "for a court to find plain error in 

a civil case, an appellant must establish (1) a deviation from a legal rule, (2) that the error 

was obvious, and (3) that the error affected the basic fairness, integrity, or public reputation 

of the judicial process, and therefore challenged the legitimacy of the underlying judicial 

process." State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 30, citing Goldfuss at the 

syllabus. 

{¶ 12} As an initial matter, Mother contends Father failed to file a proper Civ.R. 60(B) 

motion for relief from judgment. Mother contends Father's request did not adhere to the 

motion requirements as set forth in Civ.R. 7(B) and Civ.R. 60(B) because it was included in 
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his jurisdictional memorandum, rather than making such request in a formal motion. 

Additionally, Mother asserts Father's request failed to enumerate conspicuously the grounds 

for relief being sought, to state operative facts with specificity, and to provide a meritorious 

claim or defense. Mother also argues the request was untimely and an attempt to substitute 

for a timely appeal. 

{¶ 13} "A Civ.R. 60(B) motion must comply with the requirements for all motions as 

set forth in Civ.R. 7(B); that is, the motion must be accompanied by a memorandum of facts 

and law, as well as evidentiary materials containing operative facts." (Citation omitted.) 

Whittle v. Davis, 12th Dist. Butler No. CA2013-08-153, 2014-Ohio-445, ¶ 21. While Father 

did not formally move for relief from judgment pursuant to Civ.R. 60(B), courts have 

construed other filings as Civ.R. 60(B) motions where the filing is "in substance" a Civ.R. 

60(B) motion. See, e.g., Anthony v. Cent. Ohio Transit Auth., 10th Dist. Franklin No. 88AP182, 1988 Ohio App. LEXIS 3964, *6-7 (Sept. 29, 1988) (construing a motion for 

reconsideration as a Civ.R. 60[B] motion where it was "in substance" a Civ.R. 60[B] motion 

for relief from judgment); Producers Credit Corp. v. Voge, 12th Dist. Preble No. CA2002-06-

009, 2003-Ohio-1067, ¶ 22 (assuming arguendo that a memorandum qualified as a motion to 

dismiss). 

{¶ 14} Father's memorandum on jurisdiction conspicuously labeled the section 

requesting Civ.R. 60(B) relief. The request asserted the reasons Father believed he had a 

meritorious claim, grounds for relief pursuant to Civ.R. 60(B)(4) and (5), and that the request 

was brought within a reasonable time. It asserted law and facts that Father alleged 

supported his request for relief. Additionally, Mother had an opportunity to respond and 

moved to vacate Father's request for relief. Therefore, we assume arguendo Father's 

memorandum qualified as a Civ.R. 60(B) motion. 

{¶ 15} Civ.R. 60(B) provides, in pertinent part, that 
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[o]n motion and upon such terms as are just, the court may 

relieve a party or his legal representative from a final judgment, 

order or proceeding for the following reasons: (1) mistake, 

inadvertence, surprise or excusable neglect; (2) newly 

discovered evidence which by due diligence could not have been 

discovered in time to move for a new trial under Rule 59(B); (3) 

fraud * * *; (4) the judgment has been satisfied, released or 

discharged, or a prior judgment upon which it is based has been 

reversed or otherwise vacated, or it is no longer equitable that 

the judgment should have prospective application; or (5) any 

other reason justifying relief from the judgment. The motion shall 

be made within a reasonable time * * *. 

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. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146 

(1976), paragraph two of the syllabus. Failing to meet any one of these three factors is fatal, 

for all three must be satisfied in order to gain relief. First Fin. Bank, N.A. v. Grimes, 12th Dist. 

Butler No. CA2010-10-268, 2011-Ohio-3907, ¶ 14. 

{¶ 16} Father argues he presented a meritorious claim for relief from judgment 

because he has a fundamental interest in the care and custody of his child, which he may 

protect by establishing paternity and through an award of custody. The judgment from which 

Father requests relief is the juvenile court's dismissal of his 2015 filings for parentage and 

custody. Father contends the juvenile court dismissed his 2015 filings because of the 

pending adoption proceeding in the probate court. As stated above, in 2017, the Ohio 

Supreme Court reversed our judgment and ordered the probate court to vacate the adoption 

and dismiss the petition. The probate court carried out these directives. Therefore, Father 

argues he is entitled to relief from the dismissal of his 2015 filings pursuant to Civ.R. 
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60(B)(4), as the prior judgment it was based on was vacated. 

{¶ 17} The magistrate did not rule upon the merits of Father's request for Civ.R. 60(B) 

relief. Rather, the magistrate refused to consider the matter and found that Father neither 

filed objections to the magistrate's dismissal of his 2015 filings nor appealed said dismissal. 

The magistrate opined that "had [Father] appealed that order, he may have been able to 

secure a stay of those proceedings pending the outcome of the adoption case thus 

preserving his claim of jurisdiction, at least on issues of paternity." The magistrate further 

found that Father could not use his request for Civ.R. 60(B) relief as a substitute for appeal. 

{¶ 18} While the Ohio Supreme Court has held that it is a fundamental proposition 

that a Civ.R. 60(B) cannot serve as a substitute for appeal, we find the magistrate erred in 

finding that Father's request for relief was being used in this regard. Doe v. Trumbull Cty. 

Children Servs. Bd., 28 Ohio St.3d 128, 130-31 (1986). We have previously held that a 

Civ.R. 60(B) motion did not constitute a substitute for appeal where the arguments raised did 

not concern the merits of the case and could not have been raised on appeal. See Learning 

Tree Academy, LTD v. Holeyfield, 12th Dist. Butler No. CA2013-10-194, 2014-Ohio-2006, ¶ 

20, citing State v. Potts, 7th Dist. Jefferson No. 05-JE-14, 2006-Ohio-7057, ¶ 34. 

{¶ 19} The juvenile court's dismissal of the 2015 filings occurred in January 2016 and 

was based on the pending adoption proceedings in the probate court. In July 2017, the Ohio 

Supreme Court issued its opinion ordering vacation of the adoption and directing the 

dismissal of the adoption petition. In re Adoption of P.L.H., 151 Ohio St.3d 554, 2017-Ohio5824. Father relied on the 2017 opinion in asserting his grounds for Civ.R. 60(B) relief, which 

could not have been raised in an appeal from the January 2016 dismissal, as the Ohio 

Supreme Court had not yet issued its opinion. Therefore, the basis for his request for Civ.R. 

60(B) relief did not concern the merits of the case and could not have been raised on appeal. 

Accordingly, we will address the arguments in Father's Civ.R. 60(B) request for relief for plain 
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error. 

{¶ 20} After a thorough review of the relevant issues, we find the juvenile court did not 

commit plain error by dismissing Father's 2017 filings and his request for Civ.R. 60(B) relief 

contained in his jurisdictional memorandum. 

{¶ 21} Civ.R. 60(B)(4) provides that: 

[o]n motion and upon such terms as are just, the court may 

relieve a party or his legal representative from a final judgment, 

order or proceeding [if] * * * the judgment has been satisfied, 

released or discharged, or a prior judgment upon which it is 

based has been reversed or otherwise vacated, or it is no longer 

equitable that the judgment should have prospective application. 

{¶ 22} Father contends the juvenile court based its dismissal of his 2015 filings on a 

prior judgment upon which has been reversed or otherwise vacated. Father asserts the 

adoption served as the prior judgment, which the Ohio Supreme Court later vacated; 

therefore, he satisfies the requirements of Civ.R. 60(B)(4). However, the juvenile court 

dismissed Father's 2015 filings in January 2016. The probate court did not grant the 

adoption until August 2016. Therefore, the adoption proceedings were still pending and the 

juvenile court did not base its dismissal of Father's 2015 filings on the adoption judgment. 

Thus, Father fails to demonstrate that he met the requirements of Civ.R. 60(B)(4). 

{¶ 23} We are likewise unconvinced by Father's arguments pursuant to Civ.R. 

60(B)(5). Civ.R. 60(B)(5) provides a court may relieve a party from judgment for "any other 

reason justifying relief." Civ.R. 60(B)(5) "is intended as a catch-all provision reflecting the 

inherent power of a court to relieve a person from the unjust operation of a judgment. 

However, the grounds for invoking said provision should be substantial." Caruso-Ciresi, Inc. 

v. Lohman, 5 Ohio St.3d 64, 66 (1983). 

{¶ 24} Father contends Civ.R. 60(B)(5) applies to this case because it will permit him 

to vindicate his fundamental right to the care and custody of his child, and to find otherwise, 
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would seriously affect the basic fairness, integrity, and reputation of the judicial process. 

However, Father fails to present substantial grounds to invoke said provision. "[I]t is wellestablished that the 'other reason' clause of Civ.R. 60(B) will not protect a party who ignores 

its duty to protect its interest." Aurora Loan Servs. v. Brown, 12th Dist. Warren Nos. 

CA2010-01-010 and CA2010-05-041, 2010-Ohio-5426, ¶ 39. As discussed below, Father 

failed to preserve the juvenile court's jurisdiction over the matter by not appealing the juvenile 

court's dismissal of his 2015 filings. Civ.R. 60(B)(5) cannot serve as a basis to absolve this 

failure. Therefore, Father fails to demonstrate that he has met the requirements for relief 

pursuant to Civ.R. 60(B)(4) and (5). 

{¶ 25} Father asserts that the juvenile court had subject matter jurisdiction in 2015 

over his original parentage complaint and custody motions, which the juvenile court 

dismissed in 2016. Father further argues the juvenile court has jurisdiction to consider his 

second parentage complaint and custody motion because his 2017 filings relate back to his 

2015 filings due to his Civ.R. 60(B) motion for relief from judgment. Therefore, Father 

implicitly concedes that the juvenile court does not have jurisdiction to consider his 2017 

filings unless the judgment dismissing his 2015 filings is vacated via his request for Civ.R. 

60(B) relief. 

{¶ 26} We determined above that Father failed to demonstrate grounds for relief 

pursuant to Civ.R. 60(B); therefore, Father implicitly concedes the juvenile court does not 

have jurisdiction over his 2017 filings. Nonetheless, aside from Father's concession, this 

case does not present circumstances supporting a finding that the juvenile court's 

determinations seriously affected the basic fairness, integrity, and reputation of the judicial 

process. Father chose to file his second parentage complaint in Ohio, where P.L.H. does not 

reside, Mother has not resided for more than one year, and Father has not resided for more 

than four years. Additionally, as mentioned above, the juvenile court held a UCCJEA 
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conference wherein a Florida court accepted jurisdiction over the matter. Therefore, Father 

will have an opportunity to pursue his parentage action and custody motion in a court of 

competent jurisdiction. 

{¶ 27} Accordingly, we find Father failed to demonstrate he was entitled to relief 

pursuant to one of the grounds stated in Civ.R. 60(B)(1) thru (5). Additionally, the juvenile 

court did not err in finding it did not have jurisdiction over the matter. Therefore, the juvenile 

court did not commit plain error in dismissing Father's 2017 filings and his request for Civ.R. 

60(B) relief. 

{¶ 28} Father's sole assignment of error is overruled, and the judgment of the juvenile 

court is affirmed. 

 HENDRICKSON, P.J., and M. POWELL, J., concur.