[Cite as In re E.B., 2023-Ohio-2089.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WOOD COUNTY

In re E.B. Court of Appeals No. WD-22-060

Trial Court No. 2021JI0072

 

DECISION AND JUDGMENT

Decided: June 23, 2023

* * * * *

James S. Ardray, for appellee.

Christine M. Smith, for appellant.

* * * * *

MAYLE, J.

{¶ 1} Appellant, H.R., on behalf of her child, E.B., appeals the August 23, 2022 

judgment of the Wood County Court of Common Pleas, Juvenile Division, denying her 

motion for relief from judgment under Civ.R. 60(B), and declining to set aside an

acknowledgment of paternity, pursuant to which appellee, R.B., is recognized as the 

child’s legal father. For the following reasons, we reverse the trial court judgment and 

remand this matter to the trial court.
2.

I. Background

{¶ 2} H.R. (“mother”) is the mother of E.B. (born in April of 2019). At the time 

of E.B.’s birth, mother was in a relationship with R.B. (“father”); they lived together, but 

were not married. Both believed that R.B. was the biological father of E.B. On 

September 30, 2019, they executed a voluntary acknowledgment of paternity pursuant to 

which R.B. is recognized as the child’s legal father. 

{¶ 3} By February of 2020, mother and father’s relationship had soured, and 

mother, E.B., and mother’s two older children from previous relationships, moved out of 

the home they shared with father. Although no formal custody arrangement existed, 

father exercised parenting time with E.B. on Wednesdays and weekends. 

{¶ 4} Sometime in December of 2020, T.M., with whom mother had had a single 

sexual encounter, saw a picture of E.B. on social media and observed that E.B. looked 

much like he did at the same age. He reached out to mother, who too saw the 

resemblance, and she agreed to genetic testing to determine if T.M. was E.B.’s biological 

father. Test results dated January 25, 2021, confirmed that E.B.’s biological father is, in 

fact, T.M. (“biological father”).

{¶ 5} On February 10, 2021, mother—purportedly on behalf of the child—filed a 

complaint in parentage asserting that based on the results of the genetic tests, the court 

should find that a parent-child relationship exists between E.B. and T.M., E.B.’s birth 

certificate filed with the Bureau of Vital Statistics should be corrected to reflect that T.M. 
3.

is E.B.’s father, child support should be established, and parenting time should be 

ordered.

1

 Biological father filed a motion for visitation. 

{¶ 6} Beginning in April of 2021, mother prevented father from visiting with E.B. 

On April 23, 2021, father moved to establish visitation rights. On May 10, 2021, he

moved for custody and to dismiss mother’s complaint and biological father’s motion for 

lack of standing. In a written decision filed July 15, 2021, the magistrate recommended 

that father’s motion be granted. Mother filed objections, as did T.M. Mother also filed a 

Civ.R. 60(B) motion for relief from judgment. The trial court overruled mother and 

T.M.’s objections and adopted the magistrate’s July 15, 2021 decision. Despite the fact 

that this meant that father’s motion to dismiss had been granted—which would ordinarily 

bring an end to the action—it ordered that the case would remain open for consideration 

of mother’s motion for relief from judgment.

{¶ 7} On May 9, 2022, the magistrate conducted a hearing on mother’s Civ.R. 

60(B) motion, at which mother, father, and biological father testified. In a written 

decision filed June 6, 2022, the magistrate recommended that mother’s motion be denied. 

Mother filed objections to the magistrate’s decision. In a judgment entered on August 23, 

2022, the trial court overruled mother’s objections and adopted the magistrate’s decision. 

Mother appealed. She assigns the following errors for our review:

1 For reasons that will become apparent, we characterize the arguments and claims here 

as belonging to mother.
4.

I. THE TRIAL COURT ERRONEOUSLY INTERPRETED AND 

RELIED UPON DECISIONS MADE IN CUYAHOGA ENFORCEMENT 

AGENCY V. GUTHRIE (1999), 84 OHIO ST.3D 437 AND 

POSKARBIEWICZ V. POSKARBIEWICZ (NO. L-01-1305 MAR. 22, 2002) 

2002-OHIO-3666 IN DETERMINING THAT THE MOTION FOR 

RELIEF FROM JUDGMENT RELIED UPON NEWLY DISCOVERED 

EVIDENCE SO THE CHILD IS PRECLUDED FROM ARGUING AND 

THE COURT FROM CONSIDERING CIV.R. 60(B)(5) AS A BASIS FOR 

RELIEF[.]

II. THE TRIAL COURT’S TREATMENT OF GENETIC 

TESTING AS NEWLY DISCOVERED EVIDENCE DENIES DUE 

PROCESS AND EQUAL PROTECTION OF THE LAW AS APPLIED 

AND IGNORS [sic] THE SYLLABUS IN GUTHRIE[.]

III. THE COURTS OF APPEAL IN OHIO ARE IN CONFLICT 

AS TO THE APPLICATION OF CIV.R. 60(B) AS TO THE 

ADJUDICATION OF PATERNITY[.]

IV. THE OVERRIDING OBJECTIVE OF THE CIV.R. 60(B) IS 

TO AFFECT [sic] JUSTICE. POLICY CONSIDERATIONS OF THE 

UNIFORM PARENTAGE ACT[,] PARTS OF WHICH HAVE BEEN 

ADOPTED IN OHIO, DICTATE THE ADOPTION OF A DIFFERENT 

JUDICIAL INTERPRETATION OF THE USE OF THIS MECHANISM. 
5.

THE DECISION BY THE TRIAL COURT TO LIMIT THE 

AVAILABILITY OF THE RELIEF IS AN ABUSE OF DISCRETION[.]

II. Law and Analysis

{¶ 8} In her first assignment of error, mother argues that the trial court misapplied 

Ohio case law and erred in rejecting her claim that she was entitled to relief under Civ.R. 

60(B)(4) or (5). In her second assignment of error, mother argues that by treating genetic 

testing as newly-discovered evidence, the trial court denied her rights to due process and 

equal protection under the law. In her third assignment of error, mother argues that there 

is an interdistrict conflict as to the application of Civ.R. 60(B) as related to the 

adjudication of paternity. And in her fourth assignment of error, mother argues that 

policy considerations of the Uniform Parentage Act favor a different judicial 

interpretation of Civ.R. 60(B) as a mechanism for vacating an acknowledgment of 

paternity.

{¶ 9} Before addressing mother’s assignments of error, we will provide some 

background concerning the procedure for establishing paternity under R.C. Chapter 3111, 

and we will explain the underlying findings by the magistrate, which eventually led 

mother to file her motion for relief from judgment. Because of its tangential relationship 

to certain of mother’s arguments, we will also briefly discuss R.C. 3119.96 et seq., 

relating to relief from a paternity determination. We will then summarize the parties’ 

arguments in support of their positions on the Civ.R. 60(B) motion and the trial court’s 

reasons for denying the motion. 
6.

A. Procedure for Establishing Paternity

{¶ 10} As previously stated, mother and father executed a voluntary 

acknowledgment of paternity on September 30, 2019. Under R.C. 3111.02, the parent 

and child relationship between a child and the child’s natural father may be established 

by an acknowledgment of paternity. A man is presumed to be the child’s natural father 

where an acknowledgment of paternity has been filed and has not become final. R.C. 

3111.03(A)(3). Once an acknowledgment of paternity becomes final, it is no longer just 

a presumption and “shall be considered a final and enforceable determination of paternity 

unless the acknowledgment is rescinded under [R.C.] 3111.28 or 3119.962.” R.C. 

3111.03(B).

{¶ 11} Under R.C. 3111.25, “[a]n acknowledgment of paternity is final and 

enforceable without ratification by a court when the acknowledgment has been filed with 

the office of child support, the information on the acknowledgment has been entered in 

the birth registry, and the acknowledgment has not been rescinded and is not subject to 

possible recission” under R.C. 3111.27. “After an acknowledgment of paternity becomes 

final and enforceable, the child is the child of the man who signed the acknowledgment 

of paternity, as though born to him in lawful wedlock.” R.C. 3111.26. Except as 

provided in R.C. 2151.232 or 3111.821, for an acknowledgment of paternity filed with 

the office of child support to be rescinded, the following must occur:
7.

(1) Not later than sixty days after the date of the latest signature on 

the acknowledgment, one of the persons who signed it must do both of the 

following:

(a) Request a determination under [R.C.] 3111.38 * * * of whether 

there is a parent and child relationship between the man who signed the 

acknowledgment and the child who is the subject of it;

(b) Give the office written notice of having complied with division 

(A)(1)(a) * * * and include in the notice the name of the child support 

enforcement agency conducting genetic tests to determine whether there is 

a parent and child relationship;

(2) An order must be issued under [R.C.] 3111.46 * * * determining 

whether there is a parent and child relationship between the man and the 

child.

(Emphasis added.) R.C. 3111.27(A). In other words, under this statute, unless someone 

who has signed an acknowledgment of paternity takes action to rescind it within 60 days 

after it is filed with the office of child support and entered in the birth registry, an 

acknowledgment of paternity is final and enforceable.

{¶ 12} There is a second method for rescinding an acknowledgment of paternity. 

Under R.C. 3111.28, after an acknowledgment becomes final, “a man presumed to be the 

father of the child * * * who did not sign the acknowledgment, either person who signed 

the acknowledgment, or a guardian or legal custodian of the child may bring an action to 
8.

rescind the acknowledgment on the basis of fraud, duress, or material mistake of fact.” 

(Emphasis added.) An action under R.C. 3111.28 must be brought “no later than one 

year after the acknowledgment becomes final.” (Emphasis added.) Id. Restated, once an 

acknowledgment of paternity becomes final, an action to rescind the acknowledgment 

may be brought within one year of it becoming final by (1) a man presumed to be the 

child’s father who did not sign the acknowledgment, (2) either person who signed the 

acknowledgment, or (3) a guardian or legal custodian of the child, but only on the basis 

of fraud, duress, or material mistake of fact. 

{¶ 13} The magistrate observed that no one had alleged that there was any defect 

in the acknowledgment of paternity or that it had not been filed with the office of child 

support and entered in the birth registry. She also observed that neither mother nor father 

had taken steps to rescind the acknowledgment within 60 days and no one had filed any 

action within one year of the acknowledgment becoming final. As such, the magistrate 

concluded that father is the legal father of the minor child and his “status as legal father is 

a final enforceable order.”

{¶ 14} The magistrate further noted that Ohio does not recognize more than two 

legal parents. And because the acknowledgment of paternity and the passage of time

rendered father’s status final and enforceable, mother’s complaint could not be viewed as 

an action to determine the existence or nonexistence of a father and child relationship 

under R.C. 3111.04. She explained that “to establish paternity anew,” mother “would 

first need to successfully vacate the finding of paternity already in place.” The magistrate 
9.

pointed out that no Civ.R. 60(B) motion had been filed, thus she declined to address the 

potential application of Civ.R. 60(B) to the parties’ dispute.

B. Procedure for Challenging a Paternity Determination

{¶ 15} Although not directly pertinent to this matter, R.C. 3119.961(A) provides a 

mechanism under which—“[n]otwithstanding the provisions to the contrary in Civil Rule 

60(B)”—a (male) person may seek relief from a final judgment, court order, or 

administrative determination or order (including an acknowledgment of paternity that has 

become final) determining that he is the father of a child. Under R.C. 3119.962(A)(1), a

court shall grant relief from a final judgment, court order, or administrative determination 

or order that determines that a person is the father of a child if “(a) [t]he court receives 

genetic test results from a genetic test administered no more than six months prior to the 

filing of the motion for relief that finds that there is a zero per cent probability that the 

person or male minor is the father of the child; (b) [t]he person or male minor has not 

adopted the child; and (c) [t]he child was not conceived as a result of artificial 

insemination * * *.” 

{¶ 16} If the person did not know that he was not the natural father of a child, a 

court may not deny relief solely because (a) the person was required by a child support 

order to support the child; (b) the person validly signed the child’s birth certificate as an 

informant under former R.C. 3705.09; (c) the person was named in an acknowledgment 

of paternity under former R.C. 2105.18; (d) the person was named in an acknowledgment 

of paternity of the child that has become final under R.C. 2151.232, 3111.25, or 
10.

3111.821 or former R.C. 3111.211 or 5101.314; (e) the person was presumed to be the 

natural father of the child under R.C. 3111.03; (f) the person was presumed to be the 

natural father of the child under former R.C. 3111.03(A)(3) or (5); (g) the person was 

determined to be the father of the child in a parentage action under R.C. Chapter 3111; or 

(h) the person otherwise admitted or acknowledged himself to be the child’s natural 

father. R.C. 3119.962(A)(2)(a) to (h). 

{¶ 17} Finally, a court may not grant relief from a final judgment, court order, or 

administrative determination or order that determines that a person is the father of a child 

if it determines, by a preponderance of the evidence, that the person knew that he was not 

the natural father of the child before (1) any act listed in R.C. 3119.962 (A)(2)(a) to (d) 

and (A)(2)(f) occurred; (2) the person was presumed to be the natural father of the child 

under any of the circumstances listed in R.C. 3111.03(A)(1) to (3); or (3) the person 

otherwise admitted or acknowledged himself to be the child’s father. R.C. 

3119.962(B)(1) to (3).

{¶ 18} By its own terms, only a person who has been determined to be a father 

may utilize the procedure set forth in R.C. 3119.96 et seq. See Demore v. Demore, 11th 

Dist. Lake No. 2007-L-164, 2008-Ohio-1328, ¶ 20 (“[B]y its very language, R.C. 

3119.961(A) only allows putative fathers—males, adult or minor—to challenge a prior 

finding of paternity outside the parameters of Civ.R. 60(B).”).
11.

C. The Civ.R. 60(B) Motion

{¶ 19} After filing objections to the magistrate’s decision, but before the trial court 

ruled on them, mother filed a motion for relief from judgment under Civ.R. 60(B). The 

trial court overruled mother’s objections and adopted the magistrate’s decision, but 

ordered that the case remain open so that it could rule on mother’s motion.

{¶ 20} Under Civ.R. 60(B), “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 * * *, misrepresentation or other misconduct of an adverse 

party; (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.” A motion under Civ.R. 60(B) must be made within a 

reasonable time, “and for reasons (1), (2) and (3) not more than one year after the 

judgment, order or proceeding was entered or taken.”

{¶ 21} The Supreme Court of Ohio has held that to prevail on a motion for relief 

from judgment under Civ.R. 60(B), the moving party must demonstrate: “(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), 
12.

(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, 351

N.E.2d 113 (1976), paragraph two of the syllabus. 

{¶ 22} It is not entirely clear from her motion which provisions of Civ.R. 60(B)

mother relied on in seeking to vacate the judgment of paternity. Mother’s brief in support 

of her motion was not neatly organized to correspond to any single provision, so we will 

just briefly summarize the substance of her arguments.

{¶ 23} First, mother argued that while Article I, Section 16 of the Ohio 

Constitution provides that “all courts shall be open, and every person * * * shall have 

remedy by due course of law * * *,” the only opportunity that the child had here to 

contest father’s paternity judgment was Civ.R. 60(B). She complained that “legal 

fathers” have more avenues available to them than mothers, children, and natural fathers.

{¶ 24} Second, mother argued that a Civ.R. 60(B) motion should be granted when 

a person mistakenly believes he is the child’s legal father, but genetic testing proves that 

he is not. She insisted that it is in the child’s best interest that his biological father be 

granted rights to rear the child. She contended that by failing to recognize a parent-child 

relationship between a child and biological father, the child may be deprived of familial 

bonds, cultural heritage, knowledge of family medical history, inheritance and 

survivorship rights, religious attachments, language, family traditions, and biological 

father’s special skills, education, and history. Mother maintained that E.B. had no 

established relationship with father and no bonding had occurred between them—
13.

assertions that would later be proven false at the evidentiary hearing—and father has not 

supported child. 

{¶ 25} Third, mother argued, in essence, that father is not a good father and 

biological father is a good father. She claimed that father had not supported, taken care 

of, nurtured, or actively reared the child. She insisted that biological father is willing to 

and has done these things. Mother maintained that “equity and good conscience” 

required that the child be relieved “from any judgment that forces a relationship with” 

father.

{¶ 26} Fourth, mother argued that “prospective application of [the] final judgment 

raises things to an absurdity.” She maintained that father wants to be recognized as 

E.B.’s legal father for “less than honorable reasons.” Mother emphasized that while there 

had been no support order set, father could have voluntarily supported E.B., but has not. 

She insisted that if the judgment is vacated, biological father stands ready, able, and 

willing to support E.B.

{¶ 27} Fifth, mother argued that Civ.R. 60(B)(5) would allow the court to strike a 

balance between “the sanctity of final judgments and the need for ongoing or executory

equitable remedies.” She insisted that vacating the judgment would not work a hardship 

against any person “or create any significant problem with regard to the administration of 

justice.” Mother claimed there was “no downside” to vacating the judgment and no 

prejudice to father because father “has done absolutely nothing to help, assist or care for 

the child since birth,” whereas relief from the prospective application of the judgment 
14.

would create statutory duties for biological father that he is willing to honor and would 

give him the right to participate in E.B.’s life.

{¶ 28} Finally, mother argued that the statutory scheme in Ohio’s Parentage Act is 

unconstitutional because it violates child and biological father’s rights to due process and 

equal protection under the law. She questioned why legal fathers should have access to

the courts to seek relief from a judgment of paternity, but no one else. Mother insisted 

that R.C. 3111.04 permitted the child to pursue an action here, and by holding that R.C. 

3111.04 is not available after paternity is established otherwise, Ohio courts violate the 

rights of the child, biological father, and mother.

{¶ 29} Father responded that E.B. was not a party to the acknowledgment of 

paternity, therefore, he lacks standing to alter the judgment or interfere with its 

prospective effects. Moreover, father argued, if he was going to challenge the 

acknowledgment, E.B. was required to do so within 60 days of its execution or, if he 

could show fraud, duress, or a material mistake of fact, within one year; res judicata now 

bars relitigation. Father claimed that mother was attempting to use Civ.R. 60(B) as a 

substitute for appeal. He maintained that mother failed to follow the proper procedures 

for challenging the constitutionality of the Ohio Parentage Act. Finally, father alleged 

that mother was the actual party here whose objective was simply “to trade fathers.”

{¶ 30} The magistrate conducted an evidentiary hearing on May 9, 2022. Mother 

and father both testified that they believed that he was the child’s biological father. They 

executed an acknowledgment of paternity because father was not at the hospital during 
15.

the hours when the employee responsible for filing birth certificates worked. Mother

claimed that she was afraid and cried on the way to the health department, however, 

father disputed this. Mother claimed that father drank too much and did not help with 

childcare. Both mother and father agreed that their relationship was “toxic.” 

{¶ 31} Mother testified that she lived with father from April of 2019 until 

February of 2020, when she and her three children moved out of father’s home. When 

mother and her children lived with father, he did not charge her rent, but she paid for 

cable, internet, and food. Father maintained health insurance for E.B. until January of 

2021, when he learned that T.M. was E.B.’s biological father.; not knowing the law, he 

did not believe that he would continue to be recognized as E.B.’s legal father. Mother 

claimed that father sporadically provided financial assistance after mother moved out, but 

provided practically no assistance after learning that he was not the biological father. 

Father took the child tax credit for E.B. and did not share it with mother. 

{¶ 32} Mother acknowledged that father was emotional when mother moved out 

because he went from seeing E.B. all the time to not seeing him at all. She testified that 

from the time she moved out in February of 2020, until January of 2021, father exercised 

parenting time with the child. Father’s parents also love and visited with the child. 

When with mother, E.B. calls T.M. “daddy” and calls R.B. “his Ryan.” When E.B. is 

with R.B., he calls him dad. Father loves E.B. and does not want to walk away from him 

despite the fact that they are not biologically related. Nevertheless, mother believes that 

it is in E.B.’s best interest to remove father from E.B.’s life. 
16.

{¶ 33} In April of 2021, mother texted father and told him that at the advice of her 

attorney, he could not spend time with E.B. In September of 2021, the parties 

compromised to permit E.B. time with father and this was reflected in a court order. 

Father testified that when he picked E.B. up for the first time in September of 2021, E.B. 

jumped into his arms and screamed “daddy.” Mother stopped abiding by the court order 

in February of 2022.

{¶ 34} Mother explained that she first discovered that R.B. may not be E.B.’s 

biological father when T.M. reached out to her concerning his resemblance to the child. 

She had had nonconsensual sex with T.M. in September of 2018. She had heard that he 

was “sterile” and she never told father about the incident because she was afraid. Genetic 

testing in January of 2021, confirmed that T.M. is the biological father. Mother and T.M. 

testified that T.M. has provided love, care, and financial support for mother, E.B., and 

mother’s other children. Although they are not in a relationship and mother now lives 

with another man, mother and biological father conceived a second child together, born 

approximately two-and-a-half years after E.B. Biological father visits practically daily 

and his family sees E.B. too. He has $150 per week directly deposited into mother’s 

bank account and frequently buys other things for E.B. and mother’s other children. 

Mother and biological father’s second child has a genetic illness, and they fear that E.B. 

may also have inherited the illness. 

{¶ 35} The magistrate reiterated that R.B. is E.B.’s legal father based on the 

finality of the acknowledgment of paternity. She explained that once final and 
17.

enforceable, an acknowledgment of paternity cannot be rebutted, even by the results of 

genetic testing. The magistrate interpreted mother’s brief as an attempt to vacate the 

acknowledgment of paternity rather than an attempt to vacate the court’s August 31, 2021 

judgment confirming the enforceable finding of paternity.

{¶ 36} The magistrate rejected father’s position that E.B. lacked standing to 

challenge the acknowledgment of paternity under Civ.R. 60(B). She found that as to the 

request for relief itself, the child had a meritorious claim because the genetic test 

established to a 99.99 percent certainty that T.M. is his biological father. The magistrate 

went on to examine mother’s Civ.R. 60(B) motion under every possible ground—i.e., 

subsections (1) through (5).

{¶ 37} The magistrate found that the acknowledgment of paternity became final 

and enforceable on September 30, 2020—one year after it was executed—therefore, a 

Civ.R. 60(B) motion under (1), (2), or (3), would be timely if filed before September 29, 

2021. She concluded that the motion was timely because it was filed August 25, 2021. 

{¶ 38} Under Civ.R. 60(B)(1)—mistake, inadvertence, surprise or excusable 

neglect—the magistrate identified that the mistake alleged here is that mother and father 

executed the acknowledgment of paternity mistakenly believing that father was E.B.’s 

biological father. The magistrate characterized the acknowledgment of paternity as a 

consent judgment to which the parties voluntarily agreed. She observed that to attack a 

consent judgment, the movant must show why he or she was justified in failing to avoid 

the mistake or inadvertence—carelessness is insufficient. 
18.

{¶ 39} The magistrate recognized that mother claimed that father forced her to 

sign the acknowledgment, but the magistrate did not find this testimony credible, 

particularly because the acknowledgment had been signed in the presence of a notary, 

who would have been prohibited under R.C. 147.141(14) from notarizing it if it appeared 

that the signer was coerced or unduly influenced. Moreover, the magistrate questioned 

why mother would have been unwilling to sign the acknowledgment if, as she testified, 

she believed R.B. was E.B.’s biological father.

{¶ 40} The magistrate emphasized that mother was in a position to know that there 

were two potential fathers of her child because she engaged in sexual relations with both 

men. She did not believe mother’s testimony that she thought that T.M. was infertile and, 

therefore, that it was impossible that he could be the father. She pointed out that under 

Ohio law, “a person who has sexual intercourse with another is effectively on notice that 

person may be a parent with certain rights.” The magistrate imputed mother’s knowledge 

to E.B. She emphasized that mother could have sought genetic testing before executing 

the acknowledgment of paternity or before the one-year rescission deadline. In sum, she 

concluded that mother was not justified in failing to avoid the mistake here, thus she was 

not entitled to relief under Civ.R. 60(B)(1).

{¶ 41} Under Civ.R. 60(B)(2)—newly discovered evidence which by due 

diligence could not have been discovered in time to move for a new trial—the magistrate 

acknowledged that genetic test results demonstrated that T.M. is E.B.’s biological father. 

But she cited Strack v. Pelton, 70 Ohio St.3d 172, 637 N.E.2d 914 (1994), for the 
19.

proposition that “for purposes of Civ.R. 60(B)(2), results of a paternity test, not obtained 

and thus not provided until after the adjudication of the existence of a parent-and-child 

relationship, are not ‘newly discovered evidence.’” (The magistrate attributed this quote 

to the wrong case. It actually appears in Cuyahoga Support Enf’t Agency v. Guthrie, 84 

Ohio St.3d 437, 442, 705 N.E.2d 318 (1999).) The magistrate stated that the Strack court 

had characterized this evidence as “late-discovered evidence” rather than “newlydiscovered evidence” because paternity tests could have been obtained before a paternity 

judgment. (Again, the magistrate incorrectly attributed this quote to Strack. The term 

“late-discovered evidence” was actually used in this court’s decision in Poskarbiewicz v.

Poskarbiewicz, 6th Dist. Lucas No. L-01-1305, 2002 WL 445058, * 2 (Mar. 22, 2002).) 

The magistrate emphasized that mother had access to genetic testing before the 

acknowledgment of paternity became final and enforceable. She concluded that relief 

was not available under Civ.R. 60(B)(2).

{¶ 42} Under Civ.R. 60(B)(3)—fraud * * *, misrepresentation or other misconduct 

of an adverse party—the magistrate found that there had been no allegations that any 

party engaged in fraudulent behavior; they genuinely believed that R.B. was the child’s 

biological father.

{¶ 43} Under Civ.R. 60(B)(4)—it is no longer equitable that the judgment should 

have prospective application—the magistrate cited Guthrie, where the Ohio Supreme 

Court held that (B)(4) “was not meant to offer a party a means to negate a prior finding 

that the party could have reasonably prevented.” Id. at 443. The magistrate explained 
20.

that in Guthrie, the court recognized that relief from a paternity judgment was not 

available under this subsection where a party was aware of the parentage proceedings and 

made a voluntary, deliberate choice not to seek genetic testing until after a finding of 

parentage. To hold otherwise, the court explained, would encourage litigants to litigate 

carelessly, judgment winners would be unable to rely on their victories, and judicial 

economy would be subverted, opening the “proverbial floodgates, causing Ohio’s courts 

to drown in a sea of duplicative, never-ending litigation.” Id. The magistrate rejected the 

argument that the child himself could not have prevented the original acknowledgment of 

paternity, explaining that he could have—through his guardian or representative—moved 

to rescind the acknowledgment before it became final. The magistrate noted that this 

court had applied Guthrie in Poskarbiewicz, 6th Dist. Lucas No. L-01-1305, 2002-Ohio3666, involving a support order premised on late-discovered evidence, and reached the 

same conclusion as Guthrie. 

{¶ 44} Under Civ.R. 60(B)(5)—any other reason justifying relief from the 

judgment—the magistrate cautioned that this provision has been narrowly defined and 

should form the basis for granting relief from judgment only in extraordinary 

circumstances. She emphasized that in Poskarbiewicz, this court observed that (B)(5) is 

not available to challenge a judgment based on late-discovered genetic test results. She 

also cited Atchison v. Atchison, 4th Dist. Scioto No. 00CA2727, 2001 WL 812804 (June 

29, 2001), where the Fourth District applied Guthrie in concluding that (B)(5) does not 

apply where a more specific provision of Civ.R. 60(B) applies—in this case (B)(2). The 
21.

magistrate concluded that because paternity testing was available before the 

acknowledgment of paternity became final and enforceable, (B)(2) could not form the 

basis for vacating the judgment, nor would the less specific provision, (B)(5), allow a 

second bite at the apple.

{¶ 45} The magistrate acknowledged that the Fifth District in West v. Reichman, 

5th Dist. Tuscarawas No. 2019 AP 10 0044, 2020-Ohio-1226, and the Eighth District in 

Mitchell v. Mitchell ̧ 8th Dist. Cuyahoga No. 50889, 1987 WL 6545 (Feb. 12, 1987), 

relied on Civ.R. 60(B)(5) to provide relief from a paternity judgment, but she afforded 

those cases no weight because West failed to cite Guthrie, and Mitchell was decided 

before Guthrie.

{¶ 46} The magistrate addressed—and rejected—other arguments raised by 

mother. She found that (1) R.C. 3119.961 et seq. is inapplicable here because father has 

not tried to invoke any rights under this statute; (2) the Ohio Supreme Court in State ex 

rel. Loyd v. Lovelady, 108 Ohio St.3d 86, 2006-Ohio-161, 840 N.E.2d 1062, has already 

ruled that R.C. 3119.961 et seq. is constitutional; (3) the child had the same right to seek 

rescission as anyone else under R.C. 3111.27 and 3111.28, but failed to avail himself of 

that procedure; (4) R.C. 3111.01 et seq. provides all parties access to the courts—mother, 

E.B., and biological father simply failed to avail themselves of those rights in a timely 

manner; (5) although the circumstances are difficult, there are compelling reasons for 

declining to disrupt the finality of an acknowledgment of paternity, even where it has 

been shown that another man is the child’s biological father; (6) factors that mother 
22.

claims are counter to E.B.’s best interests are largely able to be overcome (e.g., the 

passing down of cultural and religious heritage, family traditions, medical history, 

inheritance); (7) the evidence at the hearing demonstrated that father is not a stranger to 

E.B.—the child and father have a bond, father exercised parenting time on a regular 

basis, father provided financial support the first nine months of E.B.’s life, the child loves 

father, and terminating this relationship would not be in the child’s best interest; (8) 

mother has not followed the procedures for challenging the constitutionality of Ohio’s 

Paternity Act; (9) mother, child, and biological father were not denied due process or 

equal protection—they simply chose not to pursue the remedies available to them in a 

timely fashion; and (10) R.C. 3111.04 precludes disturbing a determination of paternity 

by a parentage action.

{¶ 47} The magistrate determined that a guardian ad litem should be appointed in 

this case and did so in a separate entry after filing its decision on mother’s Civ.R. 60(B) 

motion. As such, at the time she rendered her decision, the magistrate did not have 

available any recommendations from a disinterested third party purporting to represent 

solely the child’s best interest. 

{¶ 48} Mother filed objections to the magistrate’s decision, which the trial court 

overruled in a detailed judgment entry. Without reciting the objections or describing in 

detail all the arguments in support and in opposition to those objections, we briefly 

summarize the findings of the court relevant to those objections:
23.

(1) Under Guthrie, genetic tests are not “newly-discovered evidence” because they 

could have been obtained by due diligence by mother or anyone acting as 

E.B.’s legal guardian or custodian;

(2) Mother failed to provide sufficient evidence of fraud or other grounds 

sufficient for relief under Civ.R. 60(B)(3);

(3) Civ.R. 60(B)(4) is not available because mother had an opportunity to foresee

or control the circumstances and reasonably prevent the underlying paternity 

finding;

(4) Guthrie is not limited to support-related matters;

(5) Mother knew there was at least a possibility that T.M. was E.B.’s father, yet 

made the voluntary decision not to rescind the acknowledgment of paternity;

(6) A paternity finding arising from an acknowledgment of paternity, which has 

not been rescinded or vacated, is a valid final order;

(7) E.B., through his guardian or legal representative, could have taken steps to 

rescind the acknowledgment of paternity;

(8) Ohio parentage law has been evolving, and the legislature and courts are 

responding to this evolution, albeit not as quickly as a party may wish;

(9) The court is not authorized to dismantle key provisions of Ohio parentage 

laws;
24.

(10) R.C. 3119.961 and 3119.962 are solely for the benefit of fathers—those 

statutes remain valid and have been deemed constitutional on other grounds by 

the Ohio Supreme Court;

(11) Mother’s constitutional challenges are not procedurally proper—they 

should have been raised in the complaint and served on the attorney general;

(12) The court disagrees that the statutes and case law place procedure over the 

child’s best interests;

(13) E.B. deserves finality as to his parentage—mother’s efforts to vacate the 

established paternity finding is inconsistent with E.B.’s best interest;

(14) Father has an established parent-child relationship with E.B.. has had 

ongoing contact with him throughout his life, lived with him from April 2019 

to February 2020, and exercised parenting time with him mid-week and 

weekends after mother and child moved out;

(15) Father’s parents have developed a relationship with the child;

(16) A guardian ad litem has been appointed to protect E.B.’s interests as 

opposed to the interests of the adults in this matter—his welfare has not been

overlooked; and

(17) The unique facts of this case provide the child with the opportunity to have 

multiple adults involved in his life and the parties should seize this opportunity 

and resolve the ongoing matter. 

The trial court adopted the decision of the magistrate.
25.

D. The Assignments of Error

{¶ 49} Having explained this background, we now address mother’s assignments 

of error. But first, we must determine the date on which the acknowledgment of paternity 

became final and enforceable. This is important because Civ.R. 60(B)(1), (2), and (3), 

require that a motion for relief from judgment be filed within one year of the judgment at 

issue. 

{¶ 50} Here, the judgment at issue is the acknowledgment of paternity. The trial 

court assumed that the acknowledgment became final on September 30, 2020—one year 

after it was executed—therefore, a Civ.R. 60(B) motion under (1), (2), or (3), would be 

timely if filed before September 29, 2021. It concluded that the motion was timely 

because it was filed August 25, 2021. We find, however, that the acknowledgment

became final on November 29, 2019—60 days after it was executed. We reach this 

conclusion based on the language of R.C. 3111.25: “An acknowledgment of paternity is 

final and enforceable without ratification by a court when the acknowledgment has been 

filed with the office of child support, the information on the acknowledgment has been 

entered in the birth registry, and the acknowledgment has not been rescinded and is not 

subject to possible recission” under R.C. 3111.27. R.C. 3111.27 permits rescission only 

within 60 days. Accordingly, the acknowledgment of paternity became final on 

November 29, 2019. See In re P.L., 8th Dist. Cuyahoga No. 108312, 2019-Ohio-4681, ¶ 

3, 91 (explaining that acknowledgment of paternity became final and enforceable on July 

14, 2008, where it was executed May 14, 2008).
26.

{¶ 51} Because the acknowledgment became final and enforceable on November 

29, 2019, mother’s complaint was not filed until February 10, 2021, and her Civ.R. 60(B) 

motion was not filed until August 25, 2021—more than a year after the judgment—relief 

under Civ.R. 60(B)(1) to (3) is not available to mother. Evidently realizing this, mother’s 

assignments of error are not premised on those provisions of the rule. Thus, despite the 

magistrate’s incorrect calculation of the date the acknowledgment became final, and 

despite her analysis of Civ.R. 60(B)(1), (2), or (3), mother limits her Civ.R. 60(B)

arguments to provisions (4) and (5), and so will we.

{¶ 52} We review a trial court judgment denying a motion for relief from 

judgment under an abuse of discretion standard. Kerger & Hartman, LLC v. Ajami, 6th 

Dist. Lucas No. L-16-1135, 2017-Ohio-7352, ¶ 13. An abuse of discretion connotes that 

the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

1. Applicability of Civ.R. 60(B)(4) or (5)

{¶ 53} In her first assignment of error, mother argues that the trial court 

incorrectly relied on Guthrie, 84 Ohio St.3d 437, 442, 705 N.E.2d 318, and 

Poskarbiewicz, 6th Dist. Lucas No. L-01-1305, 2002-Ohio-3666, in denying relief under 

Civ.R. 60(B)(4) or (5) on the basis that the more specific provision of Civ.R. 60(B)(2) 

applies. Mother claims that in determining that Civ.R. 60(B)(5) is inapplicable here, the 

trial court failed to recognize that Guthrie and Poskarbiewicz were, by their own 

language, limited to child support orders and are not applicable to actions challenging 
27.

paternity filed by or on behalf of the child. Mother also complains that genetic tests are, 

but should not be, treated differently depending on the litigant; Civ.R. 60(B)(2) forces a 

deadline on mother and child but not on legal fathers. And she insists that because 

Guthrie holds that genetic tests are not “new evidence,” Civ.R. 60(B)(4) provides a 

mechanism for vacating a paternity judgment on the basis of genetic tests establishing 

non-paternity.

{¶ 54} In Guthrie, the Cuyahoga Support Enforcement Agency conducted an 

administrative hearing in 1994 to determine whether there existed a parent-child 

relationship between Guthrie and the child, born four years earlier. Guthrie failed to 

appear, so the determination of parentage was denied. Soon after denying the 

administrative action, CSEA filed a parentage action in the juvenile court. The agency 

sought reimbursement for the expenses of birth and other public assistance and requested 

child support. Despite notice to Guthrie, he again failed to appear. The magistrate 

determined that Guthrie was the child’s father and ordered him to pay child support.

{¶ 55} Six months later, Guthrie was informed that he owed arrearages of $960. 

The notice informed him that he could challenge the arrearage by contacting CSEA by 

November 30, 1995. Two weeks before that deadline, Guthrie sought a delay and 

requested counsel. The matter was set for hearing; this time mother failed to appear. 

Guthrie requested genetic testing, which the magistrate granted. The tests showed a zero 

percent chance that Guthrie was the father. The court found that he was not the child’s 
28.

father, granted judgment in his favor, and “vacated and set aside” the magistrate’s 

previous decision. The court of appeals affirmed.

{¶ 56} The Eighth District Court of Appeals certified the following question to the 

Ohio Supreme Court: “When a motion for relief from a judgment of paternity is based on 

the results of genetic testing, can such motion be brought under Civ.R. 60(B)(4), which 

provides for relief when the continued application of the judgment would be inequitable 

or must the motion be reviewed under Civ.R. 60(B)(2), which provides for relief based 

upon newly discovered evidence?” Id. at 20. The court of appeals had held that the 

juvenile court’s order vacating the initial determination of parentage and interim order of 

support was authorized under Civ.R. 60(B)(4). CSEA contended that relief from a prior 

determination of parentage premised upon later genetic testing can be authorized under 

Civ.R. 60(B)(2), but not (B)(4). The Ohio Supreme Court concluded that neither Civ.R. 

60(B)(2) nor (4) controlled the outcome of the case.

{¶ 57} The court acknowledged its decision in Strack, 70 Ohio St.3d 172, 637 

N.E.2d 914, where it held that a motion to set aside provisions of a divorce decree 

relating to paternity, which is premised on the results of genetic tests, must be evaluated 

as newly-discovered evidence under Civ.R. 60(B)(2)—not the less specific catch-all of 

Civ.R. 60(B)(4) or Civ.R. 60(B)(5). As such, the court found, the motion had to be filed 

within one year of the judgment. Strack filed his motion nine years after the initial 

paternity determination and three years after genetic testing was deemed admissible 

evidence. The court explained that “[t]he time limits of Civ.R. 60(B) refer to the 
29.

judgment from which relief is sought, not to the time of discovery of the new evidence.” 

Id. at 175. Moreover, it continued, “even if [it] were to apply Civ.R. 60(B) loosely and 

allow extra time not provided for by the rule, [it] would have to look to the time when the 

evidence became admissible to determine paternity[.]” Id. That time had also passed.

{¶ 58} The Strack court recognized that its decision “declare[d] as static a state of 

facts that reliable scientific evidence contradict[ed].” Id. Nevertheless, balancing the 

competing principles of “finality and perfection,” it determined that “[f]inality is 

particularly compelling in a case involving determinations of parentage, visitation and 

support of a minor child.” Id.

{¶ 59} Turning back to Guthrie, CSEA argued that Strack was dispositive of the 

question before the court. It asserted that the genetic test results demonstrating that 

Guthrie was not the child’s father constituted “newly discovered evidence” under Civ.R. 

60(B)(2). And because Guthrie requested genetic testing more than one year after the 

initial determination of paternity, his request was untimely.

{¶ 60} The Ohio Supreme Court found Strack distinguishable, however. It 

explained that it did not state in Strack,“nor did [it] intend to establish an absolute rule 

that Civ.R. 60(B)(2) was to have universal application in every situation where later tests 

are submitted to challenge a previous determination of paternity.” Guthrie at 442. It 

cautioned that to do so “would leave little room for a court to consider all the interests 

involved in these types of cases, including the welfare of the minor child, and to balance 

all of the equities.” Id. It further reasoned that Strack involved “genetic testing whose 
30.

technology was not available at the time of the initial determination of paternity”—that’s 

why it constituted newly-discovered evidence. But genetic testing was available to 

Guthrie and was not newly-discovered evidence “because it could have been discovered 

by due diligence in time to move for a new trial.” Id., quoting Cuyahoga Child Support

Enf't Agency v. Guthrie, 8th Dist. Cuyahoga No. 72216, 1997 WL 607530, *2 (Oct. 2, 

1997). The Ohio Supreme Court also pointed out that in Strack, the father actually filed a 

Civ.R. 60(B) motion; Guthrie did not, therefore, “the court did not make a Civ.R. 60(B) 

ruling.” Id. at 442. 

{¶ 61} In sum, the Ohio Supreme Court held in Guthrie that “for purposes of 

Civ.R. 60(B)(2), results of a paternity test, not obtained and thus not provided until after 

an adjudication of the existence of a parent-and-child relationship, are not ‘newly 

discovered evidence.’” Id. at 437. But it also rejected the Eighth District’s conclusion 

that Civ.R. 60(B)(4) could provide relief under the circumstances. It explained that the 

“no longer equitable” clause of Civ.R. 60(B)(4) “was designed to provide relief to those 

who have been prospectively subjected to circumstances which they had no opportunity

to foresee or control”—it “was not meant to offer a party a means to negate a prior 

finding that the party could have reasonably prevented.” (Emphasis added.) Id. at 443, 

quoting Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353 (1986), paragraph one of 

the syllabus. Because Guthrie did not appear at trial despite being aware of the parentage 

proceedings against him and was aware that genetic testing could have been performed, 

the court found that “he made a voluntary, deliberate choice not to seek genetic testing 
31.

until after a finding of parentage and until after he was notified of a support arrearage” 

and was not entitled to relief under Civ.R. 60(B)(4). Id.

{¶ 62} The court did find in Guthrie, however, that the juvenile court had 

continuing jurisdiction under R.C. 3111.16 “to modify or revoke a judgment or order

issued under sections 3111.01 to 3111.19 of the Revised Code to provide for future

education and support and a judgment or order issued with respect to matters listed in

divisions (C) and (D) of section 3111.13 and division (B) of section 3111.15 of the

Revised Code * * *.” (Emphasis in original.) Id., quoting R.C. 3111.16. As such, the

Ohio Supreme Court affirmed the lower court’s decision to vacate the prior finding of 

paternity on the basis that “the subsequent finding of nonpaternity constituted a change in 

circumstances that warranted relief from the initial finding of parentage.” Id. at 444. But 

because Guthrie deliberately disregarded initial parentage proceedings, thereby causing a 

delay of the finding of nonpaternity, it declined to relieve him of the responsibility of 

paying arrearages.

{¶ 63} We later applied Guthrie in Poskarbiewicz, 6th Dist. Lucas No. L-01-1305,

2002-Ohio-3666. There, father moved under Civ.R. 60(B)(5) to set aside his child

support obligations. The trial court granted his motion, and father appealed.

{¶ 64} In Poskarbiewicz, mother and father married in 1975, but were together for

less than seven months. In 1976, during their divorce proceedings, mother gave birth to

child. Father denied that he was the child’s father, but the domestic relations court found
32.

that he did not present sufficient evidence to rebut the presumption that he was the father

of the child born during the marriage. Father was ordered to pay child support. 

{¶ 65} In 1994, just before the child turned 18, father again contested paternity. 

The court rejected his claim on the basis of res judicata. He owed arrearages at that time. 

In 1999, Lucas County Child Support Enforcement Agency stepped up efforts to collect

arrearages incurred before 1994. The same year, father and the now 23-year-old child

submitted to genetic testing. This testing revealed that there was a zero percent chance

that he was the father. He moved to terminate child support and eliminate arrearages.

{¶ 66} The magistrate interpreted father’s motion as a motion for relief from

judgment under Civ.R. 60(B). She found that the genetic test results constituted newlydiscovered evidence and evaluated the motion under Civ.R. 60(B)(2). She denied

father’s motion as untimely. Father objected. The trial court reversed and granted

father’s motion under Civ.R. 60(B)(5). Mother appealed.

{¶ 67} Mother argued, among other things, that the court erred in failing to reject

father’s motion under Strack. We acknowledged that Strack and Guthrie “make clear 

that Civ.R. 60(B)(2) and (4) are not available to support orders in relief from a judgment 

premised on late discovered evidence.” Id. at * 2. We further explained that “Civ.R. 

60(B)(5) applies only when one of the other Civ.R 60(B) categories does not apply.” Id. 

Because the more-specific category of (B)(2) applied, we concluded that the trial court 

erred in granting relief under Civ.R. 60(B)(5). We observed, however, that relief may be 

available to father under the (then) newly-codified R.C. 3119.961 and 3119.962, pursuant 
33.

to which the legislature expressly made relief retroactive. We remanded the matter to the 

trial court for consideration of those statutes.

{¶ 68} Mother argues that Guthrie and Poskarbiewicz were, by their own 

language, limited to child support orders and are not applicable to actions challenging 

paternity filed by or on behalf of the child. She complains that Civ.R. 60(B)(2) forces a 

deadline on mother and child but not on legal fathers, thus genetic tests are improperly 

treated differently depending on the litigant. And she insists that under Guthrie, genetic 

tests are not “new evidence” for purposes of Civ.R. 60(B)(2), therefore, no more specific 

provision applies and relief may be granted under Civ.R. 60(B)(4) or (5). Mother’s first 

assignment of error requires us to answer three questions:

(1) Are the holdings in Guthrie and Poskarbiewicz limited to child-support orders?

(2) Post-Guthrie, must genetic tests be considered under Civ.R. 60(B)(2)?

(3) If mother is correct that post-Guthrie, genetic tests are not “new evidence,” 

may relief be granted under Civ.R. 60(B)(4) or (5)?

Mother’s first assignment of error also raises a fourth issue—whether genetic tests are

improperly treated differently depending on the litigant—but that issue is more 

appropriately organized under her second assignment of error.

{¶ 69} To answer the first question, we do not agree with mother that Guthrie and 

Poskarbiewicz were limited to child-support orders. Guthrie, in particular, is silent and 

does not suggest any intent by the Ohio Supreme Court to limit its holding to support 

orders.
34.

{¶ 70} As to the second question, we agree with mother that post-Guthrie, genetic 

tests are not “new evidence,” thus Civ.R. 60(B)(2) does not apply. The Fourth District in 

Dunkle v. Dunkle, 135 Ohio App.3d 669, 678-79, 735 N.E.2d 469 (4th Dist.1999) 

considered this issue and reached the same conclusion. It emphasized that in Guthrie,

genetic testing was available to father at the time of the initial finding of parentage, the 

results could have been discovered by due diligence in time to move for a new trial, 

therefore, the evidence was not “new evidence” under Civ.R. 60(B)(2). The Dunkle court

held that the trial court erred when it relied upon Civ.R. 60(B)(2) to deny father relief 

from judgment. We agree with the Dunkle court’s conclusion. Guthrie holds that Civ.R. 

60(B)(2) does not apply to genetic tests available at the time of the initial finding of 

paternity.

{¶ 71} Having concluded that Ohio Supreme Court case law renders Civ.R. 

60(B)(2) inapplicable, we turn to the third question—whether relief from judgment is 

possible under Civ.R. 60(B)(4) or (5). The trial court found that it was not because the 

more specific provision of (B)(2) applied. Since it does not, we consider the applicability

of Civ.R. 60(B)(4) and (5).

{¶ 72} In Guthrie, the Ohio Supreme Court acknowledged the potential 

applicability of Civ.R. 60(B)(4) as a basis to seek relief from a judgment of paternity. 

But it explained that “it is no longer equitable” provision in Civ.R. 60(B)(4) “‘was 

designed to provide relief to those who have been prospectively subjected to 

circumstances which they had no opportunity to foresee or control’”—it “was not meant 
35.

to offer a party a means to negate a prior finding that the party could have reasonably 

prevented.” (Emphasis in original.) Guthrie at 443, quoting Knapp, 24 Ohio St.3d 141, 

493 N.E.2d 1353, at paragraph one of the syllabus. 

{¶ 73} The Dunkle court elaborated on this discussion of Civ.R. 60(B)(4), 

particularly in the context of determining whether a movant filed his or his motion within 

a reasonable time, as required for both (B)(4) and (5). The court suggested that the best 

interests of the child should affect a trial court’s determination of whether Civ.R. 60(B) 

motion was filed within reasonable time. Id. at 381, citing Stevens v. Stevens, 

Montgomery App. Nos. 11958, 12060, unreported, 1990 WL 116157 (Aug. 1, 1990) 

(Fain, J., concurring). It explained that “[w]hether a Civ.R. 60(B)(4) motion is timely 

depends in part on the nature of the relationship between the obligor and the child”—i.e., 

whether or not the father and child have a meaningful relationship and whether the child 

has come to rely upon the father for emotional and financial support. But we are 

particularly guided by the Guthrie court’s emphasis on the party’s ability to foresee or 

control the circumstances and whether the party could have reasonably prevented the 

judgment at issue.

In most of the Ohio case law on this subject, the action is filed by a man who has 

learned that he is not the biological father of a child he has supported. Many of those 

cases predate October 27, 2000—the effective date of R.C. 3113.2111 (later renumbered 

as R.C. 3119.961 and 3119.962). But two Ohio cases involving mothers who sought 

relief from judgment are helpful to our analysis.
36.

{¶ 74} In Loveridge v. Loveridge, 3d Dist. Hancock No. 5-10-37, 2011-Ohio2611, for example, a mother sought relief under Civ.R. 60(B)(4) from a final judgment of 

paternity when the child was 16 years old. The court found that Civ.R. 60(B)(4) was not 

available to mother because she failed to make the motion within a reasonable time. In 

reaching this conclusion, it observed that given the nature of the situation, mother 

“alone” had been in the best position to know whether father was the child’s biological 

father. (Emphasis in original.) Id. at ¶ 16. 

{¶ 75} Similarly, in Atchison, 4th Dist. Scioto No. 00CA2727, 2001 WL 812804, 

mother sought relief under Civ.R. 60(B)(1), (4), and (5) from a judgment that found her 

child to be born of issue of mother’s marriage to father. In affirming the denial of 

mother’s motion, the court emphasized that mother knew before the lower court 

judgment that she had had sex with another man who could be the child’s father and 

made the voluntary, deliberate choice not to raise the issue earlier. It held that she was 

not entitled to relief under (B)(1), (4), or (5).

{¶ 76} Here, mother knew that she had had sex with two men. The magistrate 

specifically did not find credible mother’s testimony that she believed that biological 

father was sterile. Therefore, mother knew there were two men who could potentially 

have fathered E.B. She had the opportunity to foresee or control the circumstances here 

and could have reasonably prevented the acknowledgment of paternity from becoming 

final by ensuring the identity of the father before it was executed, seeking to rescind it 

within 60 days of its execution, or attempting to rescind it within one year after becoming 
37.

final. Her failure to do so bars mother from being granted relief under (B)(4). And 

because it was mother who failed to reasonably prevent (or timely rescind) the judgment 

from which she seeks relief, we—like the Atchison court—find that relief for mother is 

not available under (B)(5).

{¶ 77} The problem with the present case, however, is that mother brought this 

action on behalf of E.B. The trial court, without citation, found that mother’s knowledge 

must be imputed to E.B. for purposes of (B)(4). We disagree. Ohio courts have found 

that “where a mother enters into agreement not to establish paternity with an alleged 

father pursuant to R.C. 3111.19, the child is not bound by the agreement and may 

subsequently bring a paternity action against the alleged father.” Fitzpatrick v.

Fitzpatrick, 126 Ohio App.3d 476, 482, 710 N.E.2d 778 (12th Dist.1998). Moreover, 

“privity generally does not arise from the mere relationship of parent and child, especially 

when the interests of the parent and child are clearly different.” Id. at 483. See also 

Snider v. Lillie, 131 Ohio App.3d 444, 447, 722 N.E.2d 1036 (1st Dist.1997) (explaining 

that the right of a child to bring an action to establish paternity is separate and distinct 

from his or her mother’s, “and a mother who agrees not to establish paternity cannot bind 

the child”). We believe it follows then that in circumstances such as those at issue in this 

case, a child will generally not be deemed to possess the same knowledge as his or her 

parents concerning the uncertainty of paternity. And more importantly, we believe that 

where it is possible—perhaps even likely—that a mother’s interest in setting aside a

paternity judgment conflicts with a child’s interest, a guardian ad litem must be appointed 
38.

for the child. Fortunately, the record here reflects that a guardian ad litem was appointed 

after the hearing conducted before the magistrate. However, because there was no 

guardian ad litem appointed before the hearing, there was no testimony and no 

recommendations made by a guardian ad litem in connection with the Civ.R. 60(B) 

motion.

{¶ 78} In Broxterman v. Broxterman, 101 Ohio App.3d 661, 656 N.E.2d 394 (1st 

Dist.1995), the First District acknowledged that a child’s interest in disestablishing 

paternity may diverge from those of his parent or guardian. It held that in such cases, a 

guardian ad litem must be appointed.

{¶ 79} In Broxterman, mother and father’s divorce decree determined that the 

child was born of issue of his parents’ marriage. Mother’s parents eventually were 

granted permanent custody of the child. They filed a post-decree motion requesting a 

blood test to determine parentage; this motion was supported by an affidavit from mother 

averring that father was not the child’s biological father. The trial court dismissed the 

action on the basis of res judicata and the custodians’ lack of standing. On appeal, the 

First District court observed that it was unclear whether the custodians’ brought the 

action only on their own behalf or whether they brought it on behalf of the child too. The 

court addressed the appeal both ways.

{¶ 80} The court began by finding that the custodians had stepped into the shoes 

of mother, who was originally granted custody and who was bound by the finding of 
39.

paternity in the divorce decree. It held, therefore, that they were in privity with mother 

and barred by res judicata from relitigating this issue on their own behalf. 

{¶ 81} But as to the child, the court began by observing that it is “generally held 

that the relationship of a parent and child does not automatically create privity[.]” Id. at 

664. It commented that the child’s interests “ would seemingly coincide with those of his 

mother in the divorce action in part, namely on the issue of support, but may diverge on 

other issues, such as his right to know the identity of his biological father and his 

potential rights of inheritance from his biological father.” Id. Given the potential conflict 

of interests, the court held that the child was not in privity with his parents in the divorce 

action and was not barred by res judicata from bringing a paternity action on his own 

behalf. 

{¶ 82} The court then turned to the issue of standing, which it characterized as

presenting two issues: (1) the custodians’ legal capacity to bring this action on the 

child’s behalf, and, if such capacity exists (2) the court’s role in deciding whether they 

are doing so in the child’s best interest. The court emphasized that “the paramount 

concern of the trial court must be the best interest of the child to ensure that the child is 

not being used as a pawn to further separate adult agendas.” Id. at 665.

{¶ 83} Father argued that even if a paternity action was allowed, it could be 

brought only by a guardian ad litem. The court disagreed, observing that under R.C. 

3111.04, an action may be brought by “the child or the child’s personal representative.” 

Additionally, it pointed out, Civ.R. 17(B) permits “a representative such as a guardian or 
40.

other like fiduciary” to bring suit on a minor’s behalf. It held, therefore, that the child’s 

legal custodians had legal standing to bring an action on his behalf.

{¶ 84} The father further argued, however, that in bringing this action, the 

custodians were acting only in their own self-interest—not the child’s—and were seeking 

to undermine his relationship with his son. The court observed that “[t]hese accusations 

raise[d] certain overriding, fundamental concerns that [could not] be ignored and must be 

addressed in the broader context of Ohio’s parentage laws codified in R.C. Chapter 

3111.” Id.

{¶ 85} The court acknowledged that in adopting a form of the Uniform Parentage 

Act, the state has recognized the importance of a child knowing the identity of his or her 

biological father. But, it emphasized, “there are other interests involved” that may differ 

in the context of a divorce versus a paternity action involving unmarried parents. Id. 

Financial support of the child is one such interest.

{¶ 86} The court recognized that there are also social issues at play and questions 

that may arise from the possibility of stripping father of paternity over the child. Some of 

those issues involve whether the child desires to continue to consider father as his father; 

whether the child is too young to understand the importance of the decision; whether the 

custodians are acting out of spite; and whether father has been emotionally and 

financially committed to the child. The court acknowledged that establishing and 

maintaining the parent-child relationship “‘is a particularly intricate, sensitive, and 

emotional process with which courts should be reluctant to interfere.’” Id. at 666,
41.

quoting In re Galbraith, 32 Ohio St.3d 127 131, 512 N.E.2d 956 (1987). Citing Justice 

Herbert Brown’s concurrence in Hulett v. Hulett, 45 Ohio St.3d 288, 295, 544 N.E.2d 

257 (1989) (Brown, J., concurring), the court observed that “‘[a] father-child relationship 

encompasses more (and greater) consideration[s] than a determination of whose genes the 

child carries. Sociological and psychological components should be considered.’” Id. 

See also Leguillon v. Leguillon, 124 Ohio App.3d 757, 769, 707 N.E.2d 571 (12th 

Dist.1998) (“[T]he Ohio Supreme Court has, for better or worse, rejected an 

interpretation of parentage that would place the genetic relationship of the parties above 

all other considerations.”).

{¶ 87} Observing that the Ohio Parentage Act seeks to promote the child’s best 

interests and emphasizing that the child’s best interest must be given primary 

consideration, the court explained that while a child’s custodian may have the legal right 

to bring a paternity action on his behalf, such an action, in fact, may not be in the child’s 

best interest, “either economically, emotionally, or temporally.” Broxterman at 667. To 

protect against a custodian bringing an action that is potentially not in the child’s best 

interest, the court concluded that “‘the right of an adult to bring a post-decree paternity

action on a child’s behalf is not an absolute, unfettered right.” Id. “Rather,” it 

determined, “the right of adults to bring such an action on the child’s behalf is subject to 

the overriding test of the best interest of the child.” Id. 

{¶ 88} The court held that “after a decree of divorce or dissolution has been 

entered which includes an adjudication or agreement as to parentage and parental rights 
42.

and obligations, a post-decree paternity action cannot be brought on a child’s behalf 

absent an express determination by the court that such an action is in the best interest of 

the child.” Id. Importantly, it found, “[t]o aid in making such a determination, the court 

should consider the appointment of a guardian ad litem.” Id. It suggested that the trial 

court may also wish to appoint separate counsel for the child. The court remanded the 

matter to the trial court to determine whether a paternity action was in the child’s best 

interest and instructed the court to consider (1) the relationship between father and child; 

(2) whether the biological father may be joined as a party; (3) whether the biological 

father has any interest in the child; (4) the question of support for the child; (5) the 

motives of the custodians for bringing the action; (6) the child’s views; and (6) any other 

facts bearing on the child’s best interest.

{¶ 89} Although the procedural posture of the present case differs from 

Broxterman, 101 Ohio App.3d 661, 656 N.E.2d 394, the concerns at issue are identical. 

Of paramount concern is E.B.’s best interest. Related to that concern is the extent to 

which mother’s interest in seeking to vacate the acknowledgment of paternity conflicts 

with E.B.’s best interest. Clearly, mother wishes to sever ties with father. But even she 

conceded that father and child love one another, father regularly exercised visitation until 

mother interfered, and father and child have a bond. And while we conclude in this 

decision that post-Guthrie, Civ.R. 60(B)(4) and (5) are potentially available to the child 

as a mechanism to set aside the acknowledgment of paternity, it is essential that the court 

ensure that “the child is not being used as a pawn to further separate adult agendas.” 
43.

{¶ 90} We, therefore, hold, like Broxterman, that this matter must be remanded to 

the trial court. The trial court has already appointed a guardian ad litem in this matter in 

response to newly-filed pleadings in the case. The guardian ad litem shall make a 

recommendation and, after considering this recommendation, the court shall make an 

express determination whether pursuing the Civ.R. 60(B) motion is in E.B.’s best 

interest. If it is not, the motion shall be dismissed. If it is, the motion may go forward, 

with independent counsel for the child, and the trial court may proceed to consider 

whether the acknowledgment of paternity should be set aside under Civ.R. 60(B)(4) or 

(5). See also Leguillon, 124 Ohio App.3d at 767, 707 N.E.2d 571 (explaining that 

although res judicata may bar father from challenging parental relationship established by 

divorce decree, child may still bring challenge, but appointment of guardian ad litem 

should be considered to determine if challenge is in child’s best interest).

{¶ 91} Accordingly, we find mother’s first assignment of error well-taken.

2. Due Process and Equal Protection

{¶ 92} In her second assignment of error, mother reiterates that under Guthrie, 

genetic tests are not “newly-discovered evidence.” She asks that this court “harmonize” 

any confusion and clarify that Guthrie permits consideration of genetic testing under 

Civ.R. 60(B)(4) and (5). She maintains that because the legislature (in R.C. 3119.961 

and 3119.962) treats later-determined genetic tests as determinative for a father, it must 

also do so for the child. Mother emphasizes that these statutes place no time restrictions 

on the father. She insists that it violates due process and equal protection to treat 
44.

identical evidence differently based on the litigant. And while mother acknowledges that 

she could have pursued genetic tests, her failure to do so should not be imputed to the 

child.

{¶ 93} As thoroughly explained in resolving mother’s first assignment of error, we 

agree with mother that under Guthrie, the results of the genetic tests are not “newlydiscovered” evidence and (B)(4) or (5) potentially provide the child a basis for relief from 

judgment. This conclusion obviates the need for us to specifically address mother’s 

second assignment of error—including her constitutional challenges.

{¶ 94} Accordingly, we dismiss mother’s second assignment of error.

3. Allegations of an Interdistrict Conflict

{¶ 95} In her third assignment of error, mother argues that the law of paternity has 

changed over the last 20 years and emphasizes that Guthrie and Poskarbiewicz were 

decided before R.C. 3119.961 and 3119.962 were enacted. Mother argues that in West v. 

Reichman, 5th Dist. Tuscarawas No. 2019 AP 10 0044, 2020-Ohio-1226, the court 

utilized Civ.R. 60(B)(5) in vacating a paternity finding, as did the court in Dunkle v. 

Dunkle, 135 Ohio App.3d 669, 735 N.E.2d 469. She submits that “[p]aternity should not 

be a variable depending upon where the child resides at the time the determination is 

sought.” 

{¶ 96} As thoroughly explained in resolving mother’s first assignment of error, we 

agree with mother that under Guthrie, Civ.R. 60(B)(4) and (5) are potentially-available 
45.

remedies depending on the circumstances of the case. This conclusion obviates the need 

for us to specifically address mother’s third assignment of error. 

{¶ 97} Accordingly, we dismiss mother’s third assignment of error.

4. Policy Considerations Dictating a Different

Interpretation of Civ.R. 60(B)

{¶ 98} In her fourth assignment of error, mother argues that because Civ.R. 

60(B)(1) to (3) are unavailable, relief should be granted under (4) or (5). She reiterates 

that the child should not be penalized for mother’s failure to take action within a year of 

the paternity judgment. Mother maintains that this is especially so given that “R.C. 

3119.961 and 3119.962 grant a ‘father’ an unlimited right to challenge paternity at any 

time before the child attains the age of 23.”

{¶ 99} As thoroughly explained in resolving mother’s first assignment of error, we 

agree with mother that under Guthrie, Civ.R. 60(B)(4) and (5) are potentially-available 

remedies depending on the circumstances of the case. This conclusion obviates the need 

for us to specifically address mother’s fourth assignment of error. 

{¶ 100} Accordingly, we dismiss mother’s fourth assignment of error.

III. Conclusion

{¶ 101} We find mother’s first assignment of error well-taken. We agree with 

mother that post-Guthrie, for purposes of a motion to set aside a judgment of paternity, 

results of genetic testing are not “newly-discovered” evidence, therefore, Civ.R. 60(B)(2) 

does not apply. While Civ.R. 60(B)(4) or (5) may be available in some cases, it is not 
46.

available to mother here because she knew that she had had sex with two different men, 

either of whom could have been the child’s father. As such, she could have reasonably 

prevented the judgment that she now seeks to vacate. However, because the motion was 

purportedly filed by the child, to whom mother’s knowledge is not fairly imputed, child 

may be able to prevail on such a motion. But before the motion may proceed, the trial 

court must consider the recommendation of the guardian ad litem (who was appointed 

after the hearing on the Civ.R. 60(B) motion in response to newly-filed pleadings in the 

case) and determine whether it is in the child’s best interest to seek to set aside the 

acknowledgment of paternity. If it is not, the motion shall be dismissed. If it is, the 

motion may go forward, with independent counsel for the child, and the trial court may 

proceed to consider whether the acknowledgment of paternity should be set aside under 

Civ.R. 60(B)(4) or (5). 

{¶ 102} Our conclusion with respect to the first assignment of error obviates the 

need for us to consider mother’s second, third, and fourth assignments of error, and we 

dismiss those assignments.

{¶ 103} We reverse the August 23, 2022 judgment of the Wood County Court of 

Common Pleas, Juvenile Division, and remand this matter for further proceedings as 

described in this conclusion. Mother and father are ordered to share the costs of this 

appeal under App.R. 24.

Judgment reversed

and remanded.
47.

In re E.B.

C.A. No. WD-22-060

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ____________________________

JUDGE

Myron C. Duhart, P.J. 

____________________________

Charles E. Sulek, J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.