[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

                                                :              OPINION
                                                                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. 88AP-

182, 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-Ohio-

5824. 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 well-

established 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.




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