[Cite as In re H.M., 2011-Ohio-3697.]



         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 96470




                                         IN RE: H.M.

                                        A Minor Child

                      [APPEAL BY HENRY DAVIS]



                                         JUDGMENT:
                                         DISMISSED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. PR 98771326

        BEFORE: Boyle, J., Kilbane, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED: July 28, 2011
FOR APPELLANT

Henry Davis, pro se
15815 Arcade Avenue
Cleveland, Ohio 44110

FOR APPELLEE

Tamika Maxwell, pro se
986 Nathaniel Road
Cleveland, Ohio 44110


ATTORNEY FOR APPELLEE, STATE OF OHIO

William D. Mason
Cuyahoga County Prosecutor
BY: Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga Support Enforcement Agency
1910 Carnegie Avenue, 2nd Floor
Cleveland, Ohio 44115




MARY J. BOYLE, J.:

      {¶ 1} Plaintiff-appellant, Henry Davis, appeals from the judgment of

the Cuyahoga County Common Pleas Court, Juvenile Division, adopting the

magistrate’s decision and dismissing “without prejudice” his objections to a

Cuyahoga County Child Support Enforcement Agency order issued on April

21, 2010. The order from which Davis is appealing, however, is not a final

order; therefore, this court lacks jurisdiction.   For the reasons discussed

below, we dismiss the appeal.
                                  Procedural History and Facts

       {¶ 2} Due to the apparent procedural irregularities in the proceedings below, we will

briefly discuss the procedural history in order to alleviate further confusion in this case.

       {¶ 3} In May 1998, the Agency commenced the underlying paternity

action, along with defendant-appellee, Tamika Maxwell, against Davis,

alleging that he was the father of H.M. According to the record, the matter

ultimately came for a hearing on October 18, 1999 before a magistrate, who

determined that the parties had been served, but that Davis failed to appear.

After hearing testimony from the mother under oath, the magistrate

determined that Davis was the father of H.M., born September 9, 1990, and

found that a parent-child relationship had been established between Davis

and H.M. The magistrate further ordered Davis to pay weekly child support,

plus $3,434.85 in maternity expenses and $15,933 for “past care.”

       {¶ 4} The magistrate signed the order on December 1, 1999.                              Nine

days later, the juvenile court judge signed it and ordered it to be journalized.

       {¶ 5} The record reflects that a subsequent hearing was held on

January 13, 2000 before a magistrate on mother’s claim for past care.                          Since

only the Agency’s attorney appeared for the hearing, the magistrate

recommended that “mother’s claim for past care be dismissed for lack of

evidence.” The juvenile court judge approved the order on February 29, 2000

and it was journalized on March 6, 2000. No other action appears to have
taken place in the case until ten years later, on May 17, 2010, when Davis

filed a “motion to request hearing to terminate arrears and current child

support order.”

      {¶ 6} Davis filed this motion in response to the administrative decision

issued on April 21, 2010 that terminated Davis’s child support obligations,

but determined he owed $59,325.33 in past due amounts. According to the

notice of “Hearing Rights” contained in the administrative decision, Davis

had 30 days to file “a motion to object to the Administrative Termination

Hearing Decision,” by filing a motion “in the court that issued the Order.” In

his motion, Davis objected to the finding that he owed past arrears and

further requested “a paternity test and hearing to justify requested support

payment and arrears.” Davis argued that he was incarcerated when H.M.

was born, and that while the mother had told him upon his release (after

serving five years and seven months) that he was the father, he had never

been “provided a paternity test confirming that [H.M. was his] child.”

      {¶ 7} Despite Davis’s timely filing, however, the juvenile court ignored

the objection. On June 10, 2010, the court adopted the April 21, 2010 CSEA

Administrative Termination Hearing Decision, finding that “[n]either obligor

nor obligee objected to CSEA’s decision by filing a motion with this Court.”

On June 23, 2010, the juvenile court judge signed a journal entry, adopting

its June 10, 2010 order. The journal entry was filed with the clerk on June 25,
2010.   The foregoing journal entry expressly indicated that appeals “may be taken to the

Eighth District * * * by filing a Notice of Appeal” within 30 days.      But despite this journal

entry, the record reflects that the juvenile court subsequently held on July 12, 2010 a “pretrial”

hearing on Davis’s May 17 objection — the very objection pertaining to the administrative

order that the juvenile court had previously adopted in the June 25 journal entry.    Due to lack

of service of the mother, however, the magistrate ordered Davis to perfect service and

continued the pretrial.

        {¶ 8} In the magistrate’s decision dated “December 8, 2010,” the magistrate indicated

that hearing was held on Davis’s May 17, 2010 “motion” that objected to the CSEA order

issued on April 21, 2010.       The magistrate recommended Davis’s “motion” should be

dismissed without prejudice because it failed “to state a sufficient claim upon which this court

may grant relief in that the objection questions the establishment of paternity, however the

administrative recommendation concerns the termination of the support order due to

emancipation and the repayment of previously determined arrears.”

        {¶ 9} Davis subsequently filed timely objections to the magistrate’s decision, arguing

that he had not properly been determined to be H.M.’s father.      That same day, on December

23, 2010, Davis also filed a “motion for order to show cause and order to vacate order,”

requesting the juvenile court to vacate its “June 25, 2010” order for the following four

grounds: “1.   mistake in findings and recommendations[;] 2.       failure of obligee [mother] to
show cause[;]     3.     failure of obligee to appear April 21, 2010, July 12, 2010, or December 8,

2010[; and] 4. failure to establish paternity.”

         {¶ 10} The juvenile court judge ultimately overruled Davis’s objections and adopted

the magistrate’s decision of December 8, 2010, thereby dismissing without prejudice Davis’s

motion filed May 17, 2010.

         {¶ 11} From this decision, Davis appeals, raising the following two assignments of

error:

         {¶ 12} “[I.]    The trial court committed reversible error by failing to consider relief

from judgment under Civ.R. 60(B)(3), (4), and (5).         Henry Davis’ motion to vacate order is

sufficient claim upon which court could grant relief.      Henry Davis’ motion for order to show

cause and order to vacate order is sufficient claim upon which court could grant relief.

         {¶ 13} “[II.]    The trial court committed reversible error by failing to serve plaintiff

with notice of parentage or evidentiary hearing.”

                                                  Final Order

         {¶ 14} Initially, we note that, although Davis’s two assignments of error pertain to his

motion to vacate order, the judgment from which he appeals does not address that motion.        In

fact, we fail to find any order of the juvenile court addressing this motion; it appears that the

trial court has yet to rule on the motion.
       {¶ 15} Turning to the judgment that Davis has appealed from, we find that this is not a

final order.     As this court recently recognized in In re Z.S., 8th Dist. No. 96500,

2011-Ohio-3269, a trial court’s dismissal of an action to vacate a paternity determination

“without prejudice” is not a final order.    Relying on Civ.R. 41(B)(3), this court recognized

that an adjudication that is not upon the merits, such as the one issued by the trial court in this

case, is neither a judgment nor a final order for purposes of R.C. 2505.02.              Id. at ¶22.

Indeed, under such circumstances, the action can be refiled; therefore, an appeal from a

judgment that does not adjudicate the merits is not a final, appealable order.

       {¶ 16} Here, it is clear that Davis is seeking an order from the juvenile court vacating

the CSEA’s determination that he owes $59,325.33 in child-support arrears.               And while

Davis’s objection and motion to terminate arrears was dismissed without prejudice, Davis is

free to proceed further under R.C. 3119.961 and seek relief from the paternity judgment.         Id.

at ¶23, citing State ex rel. E.T. v. H.S., 8th Dist. No. 82820, 2004-Ohio-2343, ¶8 (“R.C.

3119.96 et seq. provides a right to seek relief from a judgment of paternity without a specific

time limit.”).   Davis, however, must first attempt to obtain DNA testing in order to invoke the

juvenile court’s jurisdiction.    Id., citing Jones v. Jones, 2d Dist. No. 2008 CA 34,

2010-Ohio-744.

       {¶ 17} Accordingly, because we find that the order from which Davis appeals is not a

final order, thereby depriving this court of jurisdiction, we must dismiss the appeal.
       Appeal dismissed.

       It is ordered that appellees recover from appellant the costs herein taxed.




       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR
