[Cite as In re S.K.L., 2016-Ohio-2826.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 102136




                                          IN RE: S.K.L.

                                          A Minor Child

                                          [Appeal By D.F.]



                                 DECISION EN BANC:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. PR 13706774

        BEFORE: The En Banc Court

        RELEASED AND JOURNALIZED: May 5, 2016
ATTORNEYS FOR APPELLANT D.F.

Jay F. Crook
John W. Shryock
Shryock, Crook & Associates, L.L.P.
30601 Euclid Avenue
Wickliffe, Ohio 44092


ATTORNEY FOR APPELLEE T.F.

Pamela D. Kurt
Kurt Law Office L.L.C.
3503 Carpenter Road
Ashtabula, Ohio 44004


ATTORNEY FOR APPELLEE S.W.L.

Steven E. Wolkin
820 W. Superior Avenue, Suite 510
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State

Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court determined that a

conflict existed between the original panel’s decision in In re S.K.L., 2015-Ohio-2860, 39

N.E.3d 825 (8th Dist.), and the decisions in Gatt v. Gedeon, 20 Ohio App.3d 285, 485

N.E.2d 1059 (8th Dist.1984), and State ex rel. Smith v. Smith, 110 Ohio App.3d 336, 674

N.E.2d 398 (8th Dist.1996), on the question whether the legislature’s grant of original

jurisdiction to the domestic relations courts to determine parentage divests the juvenile

court of its jurisdiction to determine the same. To secure and maintain uniformity of

decisions within the district, we vacate the original panel’s decision, reverse the decision

of the trial court, and remand for further proceedings.

       {¶2} Neither party has cited any need to revisit the facts as set forth in the original

panel decision.    T.F. and S.W.L. were married on December 30, 1995.          Two children,

K.M.L. and S.K.L., were born during their marriage. K.M.L. was born on May 6, 2001,

and S.K.L. was born on June 17, 2005. S.W.L. was identified as the father of both

children on their birth certificates.

       {¶3} In July 2007, T.F. filed for divorce in the Cuyahoga County Common Pleas

Court Domestic Relations Division. A judgment of divorce was entered on September

27, 2007. The judgment entry of divorce included a finding that K.M.L. and S.K.L.

were born as issue of the marriage, identified S.W.L. as the father of the two children, and
incorporated the separation agreement that had been agreed to by the parties.      Since the

children were born, T.F. and S.W.L.raised the two children as their own both during the

marriage and pursuant to the terms of the shared parenting plan following their divorce.

       {¶4} After her divorce from S.W.L., T.F. married D.F. Although D.F. arguably

knew or should have known since 2004 or 2005 that S.K.L. could have been his

biological child (because of his extramarital sexual relationship with T.F. at or around the

time S.K.L. was conceived), he took no action to determine whether he was, in fact,

S.K.L.’s biological father or to assert any parental claim with respect to S.K.L. until she

was more than six years old.

       {¶5} It was T.F. who first raised the issue of S.K.L.’spaternity with the domestic

relations court in December 2011, four years after her divorce from S.W.L.       T.F. filed a

series of motions in the domestic relations court seeking to modify the allocation of

parental rights and responsibilities, parenting time, and the shared parenting plan set forth

in the divorce decree based on the allegation that S.W.L. was not S.K.L.’s biological

father. T.F. argued that genetic testing performed in September 2011 indicated that D.F.

was S.K.L.’s probable biological father and that this “change in circumstances” warranted

modification of the parties’ rights as set forth in the divorce decree. T.F. also sought to

modify the child support order, seeking an increase in support from S.W.L. for the care of

the children. S.W.L. moved to dismiss these motions, arguing that there had been no

change in circumstances and that the issue of the children’s paternity had been established

in the divorce decree and could not be relitigated.   The domestic relations court ordered
that the genetic test results be sealed until further order of the court.     On October 1,

2012, T.F. filed a motion to add D.F. as a third-party defendant.

       {¶6} On April 24, 2013, the magistrate dismissed T.F.’s motions to modify

allocation of parental rights and responsibilities, parenting time, and the shared parenting

plan — the motions that had been predicated on the claim that D.F. was S.K.L.’s

biological father — and ordered that the motion to modify child support be referred to a

support magistrate.    The magistrate concluded that “the paternity of the parties’ minor

children ha[d] been established in their divorce decree and is res judicata” and that T.F.,

therefore, “cannot raise the issue of paternity as a change of circumstances.”           The

magistrate also denied T.F.’s motion to add D.F. as a new party defendant. T.F. filed

objections to the magistrate’s decision. On June 27, 2013, the trial court overruled her

objections and adopted the magistrate’s decision without modification. T.F. did not

appeal the trial court’s decision.

       {¶7} While these motions were pending in the domestic relations court, D.F.

commenced proceedings in the juvenile court. In August 2012, D.F. filed a verified

application to determine custody (Cuyahoga C.P. Juv.No. CU 12113563), identifying

himself as the “father” and one of the “parents” of S.K.L. (making no reference to

S.K.L.’s legal father, S.W.L.) and inaccurately attesting that S.K.L. had lived only with

T.F. or with himself and T.F. from 2006 to present. That same day, D.F. also filed a

complaint to establish paternity and for allocation of parental rights and responsibilities in

the juvenile court (Cuyahoga C.P. Juv.No. PR 12713562), alleging that he was the
biological father of S.K.L. based on the results of the genetic testing performed in

September 2011 and requesting (1) that “any presumption of parentage subscribed [sic] to

[S.W.L.] be rebutted,” (2) that he “be recognized as Father to [S.K.L.]” and (3) that he be

granted custody of S.K.L.       S.W.L. filed an answer to the complaint denying the

allegations related to D.F.’s claims of paternity and asserting various affirmative

defenses. Concluding that “not all proper parties to this action were joined and served”

in accordance with R.C. 3111.07, the magistrate ordered D.F. to file an amended

complaint that complied with R.C. 3111.07 and to serve all proper parties within 30 days

or the case would be dismissed for want of prosecution. On January 25, 2013, D.F.’s

complaint in Case No. PR 12713562 was dismissed without prejudice pursuant to Civ.R.

41(A). Shortly thereafter, D.F.’s application for custody in Case No. CU 12113563 was

likewise dismissed.

       {¶8} Having been stymied by any attempt to intercede in the domestic relations

action and upon the dismissal (without prejudice) of his action in the juvenile court on

technical grounds, D.F. filed the current action to establish paternity in the juvenile court.

 D.F. averred that he and T.F. had an extramarital relationship during T.F.’s marriage to

S.W.L., that S.K.L. was conceived as a result of that relationship, and that he is the

biological father of S.K.L. Also attached to the complaint was a “brief in support” along

with copies of S.K.L.’s birth certificate, the divorce decree, the results of the genetic

testing, the April 23, 2013 magistrate’s decision, and a Uniform Child Custody

Jurisdiction Enforcement Act affidavit.          S.W.L., “ex-husband/father,” and T.F.,
“ex-wife/mother,” were named as defendants in the action.        S.W.L. filed an answer

denying the allegations related to D.F.’s claims of paternity and asserting various

affirmative defenses, including lack of subject matter jurisdiction, laches, the failure to

join indispensable parties, and that the prior determination of S.K.L.’s paternity in the

divorce decree was final as to both T.F. and D.F.    S.W.L. also filed a counterclaim for

declaratory judgment, seeking a dismissal of the complaint to establish paternity and a

declaration that (1) R.C. 3111.04(A) was unconstitutional as applied to S.W.L.; (2) the

court lacked jurisdiction to hear the action; and (3) D.F. could not bring an action to

establish the paternity of S.K.L. because she had been previously found to be issue of a

valid marriage.   S.W.L. also filed motions to realign the parties (i.e., to have T.F.

identified as a plaintiff rather than a defendant), to allow K.M.L. to intervene in the

action, for the appointment of counsel and a guardian ad litem for K.M.L., for the

appointment of a guardian ad litem for S.K.L., and to seal the results of the genetic

testing. D.F. filed briefs opposing these motions, as well as a brief opposing S.W.L.’s

“motions for declaratory judgment.”

      {¶9} At a pretrial conference held on March 13, 2014, the juvenile court ordered

the parties to submit briefs on various legal issues relating to the court’s jurisdiction,

T.F.’s and D.F.’s standing to challenge the paternity of S.K.L., the constitutionality of

R.C. Chapters 2151 and 3111 as applied to the case, the applicability of the estoppel

affirmative defense, and the admissibility of the genetic testing results.     The parties

timely submitted briefs (D.F. and T.F. submitted a joint brief) on these issues as ordered
by the court. S.W.L. thereafter filed a motion to dismiss the complaint to establish

paternity, or in the alternative, requesting that the court not consider T.F. and D.F.’s brief

on the legal issues on the grounds that (1) D.F. and T.F. had failed to serve the Ohio

Attorney General with a copy of their brief, and (2) T.F. had failed to file an answer,

which S.W.L. argued precluded her from filing any briefs in the case.

       {¶10} On September 25, 2014, following its consideration of the pleadings,

motions, and briefs submitted by the parties, the juvenile court entered a judgment entry

in which it granted S.W.L.’s motions to realign the parties and to dismiss the complaint,

concluding (1) that the juvenile court lacked subject matter jurisdiction over the parentage

issue, and (2) that D.F. and T.F. were barred from bringing a parentage action based on

the doctrine of laches.    The juvenilecourt held that pursuant to R.C. 3111.16 and

3111.381(E), the domestic relations court “has jurisdiction and continues to hold

jurisdiction over the subject matter herein.”   The court further held that pursuant to R.C.

3111.02(B), it was required to give full faith and credit to the determination made by the

domestic relations court in the judgment entry of divorce that S.K.L. was the child of T.F.

and S.W.L., that the determination of the parent-child relationship between S.K.L. and

S.W.L. was determinative for all purposes under R.C. 3111.13(A), and that T.F. was

“judicially estopped” from asserting that S.W.L. was not S.K.L.’s legal father.

       {¶11} With respect to the laches issue, the juvenile court concluded that although

T.F. and D.F. knew, or had reason to know, as early as 2004 that S.K.L. might not be the

biological child of S.W.L., they did nothing to assert any such claim until seven or eight
years later, after “[t]he parent-child relationship between [S.W.L.] and [S.K.L.] has not

only been legally created, but has also been emotionally, socially and financially

established.”   As such, the juvenile court concluded, “[a]ny determination that [S.W.L.]

is not [S.K.L.’s] father would not only be an affront to their legal andemotional

parent-child relationship, but would also result in devastating consequences to [S.W.L.]

and [S.K.L.].” The juvenile court, therefore, dismissed D.F.’s complaint to establish

paternity. It then dismissed S.W.L.’s counterclaim and all other pending motions as

moot.

       {¶12} D.F. appealed, raising five assignments of error. In his merit brief, D.F.

tangentially assigned error challenging the trial court’s conclusion that it lacked

jurisdiction, primarily relying on this district’s decision in Gatt, 20 Ohio App.3d 285, 485

N.E.2d 1059, in which a panel of this court concluded that the juvenile court has

jurisdiction to determine parentage actions filed by nonparents. In response, S.W.L.

filed his appellee brief arguing that the juvenile court correctly concluded that it lacked

jurisdiction because the domestic relations court possessed continuing jurisdiction over

the parentage issue.   The issue, therefore, was fully briefed for our review with all

parties having notice of the jurisdictional dispute. See State v. Tate, 140 Ohio St.3d 442,

2014-Ohio-3667, 19 N.E.3d 888, ¶ 21 (appellate courts should not decide cases on the

basis of a new, unbriefed issue without providing the parties notice and an opportunity to

brief the issue).
       {¶13} Subject matter jurisdiction refers to “a court’s power to hear and decide

cases.”   Davis v. Heisler, 4th Dist. Hocking No. 09CA12, 2010-Ohio-98, ¶ 15, and State

ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). Appellate

courts review a trial court’s decision to dismiss a complaint for lack of subject matter

jurisdiction under a de novo standard of review. Bank of Am. v. Macho, 8th Dist.

Cuyahoga No. 96124, 2011-Ohio-5495, ¶ 7, and Crestmont Cleveland Partnership v.

Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th Dist.2000).

       {¶14} The legislature granted both the domestic relations and juvenile courts

jurisdiction to determine the parent and child relationship.     The juvenile court is vested

with original jurisdiction to determine the paternity of any child alleged to have been born

out of wedlock. R.C. 2151.23(B)(2). The phrase “born out of wedlock” includes a

child conceived by a married mother through an extramarital relationship. State ex rel.

Willacy v. Smith, 78 Ohio St.3d 47, 52, 676 N.E.2d 109 (1997).                 In turn, R.C.

3111.06(A) provides the domestic relations court with “original jurisdiction” over

paternity actions if “an action for divorce, dissolution, or legal separation has been filed in

a court of common pleas.” R.C. 3111.06(A).

       {¶15} “Original jurisdiction” should not be confused with “exclusive original

jurisdiction.” See, e.g., R.C. 2151.23(A) and 2151.23(B) (division (A) sets forth the

issues within the exclusive original jurisdiction of the juvenile court while division (B)

presents the issues within the original jurisdiction of the juvenile court). The legislature

is cognizant of the difference between exclusive and concurrent jurisdiction and has
determined that the juvenile and the domestic relations courts shall share jurisdiction over

parentage determinations if a proceeding was initiated with the domestic relations court.1

       {¶16} The domestic relations court, in particular, also has continuing jurisdiction

to modify or revoke: (1) a judgment or order “to provide for future education and

support” as issued under R.C. 3111.01 through 3111.18; (2) a judgment or order issued

with respect to divisions (C) and (D) of R.C. 3111.13 (support and parenting time) and

division (B) of R.C. 3111.15 (annuity for support); and (3) a judgment or order for the

purchase of an annuity under division (D) of R.C. 3111.13. R.C. 3111.16. Thus, and

as relevant to the current appeal, although the legislature provided the domestic relations

court with continuing jurisdiction, the scope of that grant was limited only to orders

issued under R.C. 3111.01 through 3111.18 that provide for the future education and

support of the child. If R.C. 3111.16 were considered at face value, our inquiry would

end.   The juvenile court was the only court with jurisdiction to determine the parent and

child relationship for a child born out of wedlock because the domestic relations court

lacked continuing jurisdiction over that determination.

       {¶17} In In re Poling, 64 Ohio St.3d 211, 594 N.E.2d 589 (1992), paragraph two

of the syllabus, for example, the Ohio Supreme Court affirmed that rationale and held that

the juvenile court maintains jurisdiction to make custody determinations pursuant to R.C.


       1
         We acknowledge that the domestic relations courts in other counties within Ohio may have
an additional basis of jurisdiction through R.C. 2301.03, which grants those courts jurisdiction over
parentage actions irrespective of a divorce, legal separation, dissolution of marriage, or annulment
action. See, e.g., R.C. 2301.03(U). The legislature has not granted the Cuyahoga County Common
Pleas Court Domestic Relations Division that level of jurisdiction. R.C. 2301.03(L).
2151.23(A)(2), even though there has been a divorce decree granting custody of the

children to a parent and the domestic relations court maintained continuing jurisdiction to

modify that decision. Id. at 215; In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660,

780 N.E.2d 241, ¶ 45 (distinguishing Poling, holding that the juvenile court has

jurisdiction to determine custody claims pursuant to R.C. 2151.23(A)(2) without

reference to R.C. 3109.04).

       {¶18} The grant of continuing jurisdiction to the domestic relations court in R.C.

3111.16, however, has been judicially extended.        In Cuyahoga Support Enforcement

Agency v. Guthrie, 84 Ohio St.3d 437, 443, 705 N.E.2d 318 (1999), the Ohio Supreme

Court interpreted that first prong of R.C. 3111.16 as providing continuing jurisdiction

over all judgments or orders issued under R.C. 3111.01 through 3111.18. Id. at 445

(Cook, J., dissenting).     Pursuant to Guthrie, a domestic relations court thus has

continuing jurisdiction to modify its prior determination of parentage originally

determined pursuant to R.C. 3111.02.         Although the Ohio Supreme Court greatly

expanded the scope of the continuing jurisdiction of a domestic relations court, whether

the domestic relations court has continuing jurisdiction is irrelevant to the juvenile court’s

jurisdiction to determine parentage for a nonparent after the parents’ divorce.

       {¶19} Importantly, any statutory grant of continuing jurisdiction is necessarily a

reference to the jurisdiction originally conferred upon that court.     If, for example, the

court was granted exclusive original jurisdiction, any grant of continuing jurisdiction for

that issue would also be exclusive.     See, e.g., R.C. 3127.16 (the court making a child
custody determination consistent with the pertinent statutes has “exclusive, continuing

jurisdiction” over that determination).    The domestic relations court, in this instance,

shares original jurisdiction over parentage determinations if such a petition is filed during

the pending divorce, dissolution, or legal separation proceeding.         R.C. 3111.06(A).

The statute does not provide for exclusive original jurisdiction or exclusive continuing

jurisdiction over the matter in this instance.   The jurisdiction to resolve the parentage

issue remains shared with the juvenile court as established pursuant to R.C.

2151.23(B)(2).     As a result, the continuing jurisdiction vested with the domestic

relations court must be considered concurrent with that of the juvenile court.

       {¶20} At this point, it should be noted that our decision in Gatt, 20 Ohio App.3d

285, 485 N.E.2d 1049, should not be interpreted to support the argument that the

domestic relations court has exclusive jurisdiction over parentage determinations once a

divorce, dissolution, annulment, or legal separation has been initiated in the domestic

relations court.   See id. at 289.     Such an interpretation would graft jurisdictional

exclusivity onto an otherwise unambiguous statute.          We, therefore, overrule Gatt

inasmuch as this court stated that a party is required to file a petition to determine

paternity in the domestic relations court during the pendency of a divorce, dissolution, or

legal separation action. R.C. 3111.06(A) merely provides jurisdiction to the domestic

relations court to determine whether a parent and child relationship exists; it does not

confer exclusive jurisdiction for that determination. Although it is expedient to keep the

issue before one court, the legislature has specifically allowed for either court to
determine     the    issue   subject   only   to   the    limitations     imposed   through    the

jurisdictional-priority rule.

       {¶21} Generally, “‘[a]s between courts of concurrent jurisdiction, the tribunal

whose power is first invoked by the institution of proper proceedings acquires

jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and

to settle the rights of the parties.’”    State ex rel. Racing Guild of Ohio v. Morgan, 17

Ohio St.3d 54, 56, 476 N.E.2d 1060 (1985), quoting State ex rel. Phillips v. Polcar, 50

Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus.              In this case, the juvenile court

determined that it lacked jurisdiction over D.F.’s action because the domestic relations

court had already entered a judgment and maintained continuing jurisdiction over the

matter.     The juvenile court basically referenced the jurisdictional-priority rule by

definition. Morello v. Ferrucio, 5th Dist. Stark No. 2014CA00139, 2015-Ohio-1370, ¶

12; In re Estate of Scanlon, 8th Dist. Cuyahoga No. 95264, 2011-Ohio-1097, ¶ 21

(jurisdictional-priority rule applies to situations involving concurrent jurisdiction between

two divisions of the same court).

       {¶22} The juvenile court’s conclusion that the domestic relations court’s

continuing jurisdiction divested the juvenile court of its jurisdiction is an unsupported

extension    of     the   jurisdictional-priority rule.      “[I]t   is   a   condition   of   the

jurisdictional-priority rule[, however,] that the claims and parties be the same in both

cases, so ‘if the second case is not for the same cause of action, nor between the same

parties, the former suit will not prevent the latter.’” State ex rel. Dunlap v. Sarko, 135
Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 10, quoting State ex rel. Judson v.

Spahr, 33 Ohio St.3d 111, 113, 515 N.E.2d 911 (1987). Further, “‘the jurisdictional

priority rule requires that there be two cases pending.’”           (Emphasis sic.) State ex rel.

Vanni v. McMonagle, 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 10, quoting

Family Med. Found., Inc. v. Bright, 10th Dist. Franklin No. 00AP-1476, 2001 Ohio App.

LEXIS 2864, *4 (June 28, 2001), rev’d on other grounds, 96 Ohio St.3d 183,

2002-Ohio-4034, 772 N.E.2d 1177. In this case, no action remained pending before the

domestic relations court and D.F. was not a party to that proceeding.

       {¶23} The fact that the domestic relations court maintained continuing jurisdiction

over the divorce matter is therefore irrelevant because the nonparent, D.F., was not a

party to the divorce action, notwithstanding the additional fact that he was prohibited

from intervening in that action, and that action was no longer pending.2 D.F.’s remedy

was properly advanced in the juvenile court.            In both Gatt, 20 Ohio App.3d 285, 485

N.E.2d 1049, and State ex rel. Smith, 110 Ohio App.3d 336, 674 N.E.2d 398, panels of

this court held that the juvenile court has jurisdiction over parentage claims brought by


       2
          It should also be noted that the “same party rule” as described in our jurisdictional-priority
analysis is also the reason that the doctrine of res judicata and the full faith and credit language in
R.C. 3111.03(A)(1) do not apply to preclude D.F. from pursuing his claim. Holzemer v. Urbanski,
86 Ohio St.3d 129, 132, 712 N.E.2d 713 (1999) (full faith and credit implicates the doctrine of res
judicata because full faith and credit only requires courts to enforce judgments as the other court
would enforce); Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp., 106 Ohio App.3d 477,
487, 666 N.E.2d 571 (2d Dist.1995); Meenach v. Gen. Motors Corp., 891 S.W.2d 398, 401,
(Ky.1995), citing New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133
(1947) (“full faith and credit” only refers to giving judgments from other courts as much effect as they
have where they are rendered, nothing more).
third parties even after the final judgment of divorce, dissolution, annulment, or legal

separation was entered in the domestic relations court.     We reaffirm our precedent and

hold that the Ohio Supreme Court’s decision in Guthrie, 84 Ohio St.3d 437, 705 N.E.2d

318, extending the grant of continuing jurisdiction to the domestic relations court over

parentage issues, does not divest the juvenile court of its original jurisdiction pursuant to

R.C. 2151.23(B)(2). Inasmuch as the juvenile court held that it lacked jurisdiction to

address the merits of D.F.’s petition, the court’s decision was in error.

       {¶24} We acknowledge that our conclusion introduces an unnecessary tension

between two courts competing for jurisdiction.     It is not, however, for an appellate court

to provide jurisdictional exclusivity not otherwise provided for by the legislature — even

in the well-intentioned effort to promote the best interest of a child.      The legislature

granted two divisions of the common pleas court with concurrent jurisdiction over the

parent and child relationship determination, and we cannot judicially divest one court of

that jurisdiction out of convenience.

       {¶25} Finally, and in the alternative to the jurisdictional question, the trial court

concluded on the merits that the doctrine of laches precluded D.F. from pursuing his

parentage action.   Laches is an affirmative defense.     It applies where a party fails “‘to

assert a right for an unreasonable and unexplained length of time, under circumstances

prejudicial to the adverse party.’” Connin v. Bailey, 15 Ohio St.3d 34, 35, 472 N.E.2d

328 (1984), quoting Smith v. Smith, 107 Ohio App. 440, 443-444, 146 N.E.2d 454 (8th

Dist.1957); see also Sobin v. Lim, 2012-Ohio-5544, 984 N.E.2d 335, ¶ 17 (8th Dist.).
       {¶26} In applying the laches doctrine in this case, the juvenile court presumed that

S.W.L. was materially prejudiced by D.F.’s petition.                Although S.W.L. raised the

doctrine as an affirmative defense in answer to D.F.’s petition, pursuant to Juv.R. 22(C),

he never supported the same with an evidentiary or legal foundation.                  Although the

juvenile court ordered the parties to brief some issues, that request was in pertinent part

limited to whether T.F. was estopped from supporting D.F.’s claim.                    Estoppel is a

separate and distinct defense from laches: estoppel pertains to an individual’s reliance on

another’s action, while laches pertains to an unreasonable delay in asserting a known

claim. Further, in S.W.L.’s motion to dismiss, the only issue raised dealt with service of

the petition.   In short, the juvenile court merely presumed the evidence existed on an

issue not yet advanced by S.W.L.              For this reason, any determination as to the

applicability of the laches doctrine was premature and in error.3

       {¶27} In addition to being premature, the dissent’s conclusion — that D.F. was not

entitled to pursue his paternity action pursuant to R.C. 3111.381(E) because “there is

nothing in the record that indicates that D.F. requested an administrative decision of the

existence or nonexistence of a parent and child relationship prior to filing the action” —

is improper for two other reasons. First, the trial court concluded it lacked jurisdiction

to allow the parties to create the very record found to be missing.         Second, this issue was

not briefed by the parties.       State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19


       3
          We can render no merit determination regarding the applicability of the doctrine in light of
the record.
N.E.3d 888, ¶ 21 (appellate courts cannot sua sponte decide cases on the basis of

unbriefed issues).     The sole issue before this court is whether the juvenile court

possessed jurisdiction to consider the merits of D.F.’s petition. The failure to request an

administrative decision is not jurisdictional. See, e.g., State ex rel. Jackson Cty. Child

Support Enforcement Agency v. Long, 4th Dist. Jackson No. 03CA1, 2004-Ohio-2184,

¶ 26 (failure to obtain administrative decision of parentage did not deprive trial court of

jurisdiction to entertain action).

       {¶28} We understand the dissent’s frustration.           Nevertheless, we are not

concerned about the outcome of the juvenile court action only because the juvenile court

has not rendered a decision on the merits.         The dissent is entirely premised on a

speculative outcome that may never come to fruition. Our review is limited to the issues

presented.   On the sole issue in this appeal, whether the juvenile court appropriately

declined to exercise its jurisdiction to determine a parent and child relationship for a child

born out of wedlock, we must conclude the court erred.

       {¶29} The decision of the juvenile court is reversed, and the matter is remanded

for further proceedings on D.F.’s petition.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court, juvenile division, 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.




SEAN C. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, J.,
MARY J. BOYLE, J.,
LARRY A. JONES, SR., A.J.,
KATHLEEN ANN KEOUGH, J.,
MARY EILEEN KILBANE, J.,
ANITA LASTER MAYS, J.,
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR

EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION in which
FRANK D. CELEBREZZE, JR., J., and EILEEN T. GALLAGHER, J., CONCUR


EILEEN A. GALLAGHER, J., DISSENTING:

       {¶30} I respectfully dissent. For the reasons set forth below, I would find that the

juvenile court lacks jurisdiction over D.F.’s paternity action and affirm the trial court’s

dismissal of his complaint.

       {¶31} As I read the majority’s decision, an alleged father can file a paternity action

(1) in the juvenile court at any time regardless of whether an action for divorce,

dissolution or legal separation is pending and (2) in the domestic relations court (a) during

the pendency of an action for divorce, dissolution or legal separation or (b) if the

domestic relations court makes a paternity determination as part of a divorce, dissolution

or legal separation, anytime thereafter pursuant to the court’s exercise of its continuing
jurisdiction.   I do not believe this is a proper interpretation of R.C. 2151.23(B)(2),

3111.06(A), 3111.16 and 3111.381 — the provisions governing the jurisdiction of the

domestic relations court and juvenile court over paternity actions.

        {¶32} Although in analyzing statutory provisions, we must ordinarily “presume the

legislature means what it says” and cannot by our decisions add or delete words or

“amend statutes to provide what we consider a more logical result,” State v.

Virasayachack, 138 Ohio App.3d 570, 574, 741 N.E.2d 943 (8th Dist.2000); Cleveland

Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three

of the syllabus, we are also obliged, when construing a statute, to presume that the

legislature intended a “just and reasonable result.” See R.C. 1.47(C) (“In enacting a

statute, it is presumed that * * * [a] just and reasonable result is intended.”); see also State

ex rel. Dispatch Printing v. Wells, 18 Ohio St.3d 382, 384, 481 N.E.2d 632 (1985) (“It is

an axiom of judicial interpretation that statutes be construed to avoid unreasonable * * *

consequences.”).

        {¶33} To that end, where doubt or ambiguity exists with respect to the

interpretation or application of a statute,4 we must read the statute in pari materia with


        4
           That doubt or ambiguity exists with respect to the interpretation and application of the
statutes at issue here is supported by the fact that the majority’s decision necessitates overturning an
interpretation of R.C. 3111.06(A) that has existed for more than 30 years. Although the majority
states that it “reaffirm[s] our precedent” in Gatt v. Gedeon, 20 Ohio App.3d 285, 485 N.E.2d 1059
(8th Dist.1984), and State ex rel. Smith v. Smith, 110 Ohio App.3d 336, 674 N.E.2d 398 (8th
Dist.1996), in fact, the majority’s opinion overrules those cases in significant part. In Gatt and
Smith, this court interpreted the final sentence of R.C. 3111.06(A) as requiring paternity actions filed
during divorce proceedings to be filed in domestic relations court and not juvenile court and as
requiring paternity actions filed after the entry of a final divorce decree to be filed in juvenile court
other statutes relating to the same subject matter and construe them together, giving “such

a reasonable construction as to give the proper force and effect to each and all such

statutes * * * viewed in a manner to carry out the legislative intent * * *.” State v. Cook,

128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45, quoting United Tel. Co. of

Ohio v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994); see also R.C. 1.49

(“If a statute is ambiguous, the court, in determining the intention of the legislature, may

consider among other matters: * * * [t]he object sought to be attained; * * * [t]he

circumstances under which the statute was enacted; * * * [and] [t]he consequences of a

particular construction * * *.”).

       {¶34} Furthermore, as this court stated in Cuyahoga Cty. Support Enforcement

Agency v. Lozada, 102 Ohio App.3d 442, 657 N.E.2d 372 (8th Dist.1995):

       The business of writing statutes is often a complex and cumbersome affair.
       In determining the intent of the General Assembly, it is to be presumed that
       a code of statutes relating to one subject is governed by one spirit and
       policy and intended to be consistent and harmonious in its several parts. * *
       *

       The underlying spirit and policy of * * * R.C. Chapter 3111 [is] concern for
       “the best interest of the child.” Marker v. Grimm, 65 Ohio St.3d 139, 601
       N.E.2d 496 (1992).

and not domestic relations court. Gatt at 288-289; Smith at 339. Although neither decision
considered the effect of the domestic relations court’s continuing jurisdiction under R.C. 3111.16 and
both cases were decided prior to the Ohio Supreme Court’s decision in Cuyahoga Support
Enforcement Agency v. Guthrie, 84 Ohio St.3d 437, 444, 705 N.E.2d 318 (1999), under the approach
adopted by this court in Gatt and Smith, although both the domestic relations court and the juvenile
court had jurisdiction over paternity actions, only one court was deemed to be the proper court to
consider a paternity issue at any given time. Under the majority’s approach, both the juvenile court
and domestic relations court can consider paternity issues at the same time, even if paternity was
previously determined by the domestic relations court.
Lozada at 450.

       {¶35} In this case, D.F. seeks an order establishing himself as S.K.L.’s natural

biological father, i.e., her legal father. S.K.L., however, already has a legal father as

determined by the domestic relations court, as well as a legal mother. It does not appear

that Ohio law currently supports recognition of more than two legal parents of one child.

Thus, D.F. seeks an order that would — in effect, if not directly — disestablish S.W.L. as

S.K.L.’s legal father or would conflict with the prior determination by the domestic

relations court that S.W.L. is S.K.L.’s legal father.

       {¶36} R.C. 2151.23(B)(2) provides:

       Except as provided in divisions (G) and (I) of section 2301.03 of the
       Revised Code, the juvenile court has original jurisdiction under the Revised
       Code * * * [t]o determine the paternity of any child alleged to have been
       born out of wedlock pursuant to sections 3111.01 to 3111.18 of the Revised
       Code.

R.C. 3111.06(A) provides, in relevant part:

       Except as otherwise provided in division (B) or (C) of section 3111.381 of
       the Revised Code, an action authorized under sections 3111.01 to 3111.18
       of the Revised Code may be brought in the juvenile court or other court
       with jurisdiction under section 2101.022 or 2301.03 of the Revised Code of
       the county in which the child, the child’s mother, or the alleged father
       resides or is found * * *.

       If an action for divorce, dissolution, or legal separation has been filed in a
       court of common pleas, that court of common pleas has original jurisdiction
       to determine if the parent and child relationship exists between one or both
       of the parties and any child alleged or presumed to be the child of one or
       both of the parties.

R.C. 3111.16, which addresses continuing jurisdiction, provides:
       The court has continuing jurisdiction to modify or revoke a judgment or
       order issued under sections 3111.01 to 3111.18 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) [provisions in judgments or
       orders “concerning the duty of support * * * or any other matter in the best
       interest of the child”] and (D) [addressing periodic payments of support and
       the purchase of an annuity in lieu of periodic payments] of section 3111.13
       and division (B) of section 3111.15 of the Revised Code [addressing to
       whom the court may order support payments be made], except that a court
       entering a judgment or order for the purchase of an annuity under division
       (D) of section 3111.13 of the Revised Code may specify that the judgment
       or order may not be modified or revoked.

       {¶37} See also Cuyahoga Support Enforcement Agency v. Guthrie, 84 Ohio St.3d

437, 443-444, 705 N.E.2d 318 (1999) (interpreting R.C. 3111.16 as providing the court

that makes an initial paternity determination “continuing jurisdiction over all judgments

and orders issued in accordance with R.C. 3111.01 to [3111.18], which includes

judgments or orders that concern the duty of support or involve the welfare of a minor

child,” including the court’s prior paternity determination); Broxterman v. Broxterman,

101 Ohio App.3d 661, 663, 656 N.E.2d 394 (1st Dist.1995) (legal custodians of a minor

child had the right to bring a paternity action in domestic relations court after paternity

had been previously determined in a final decree of divorce; because other post-decree

matters were pending in the domestic relations court, the domestic relations court retained

jurisdiction to hear the matter after the final divorce decree had been entered); R.C.

3111.381(E) (“If an action for divorce, dissolution of marriage, or legal separation * * *

has been filed in a court of common pleas and a question as to the existence or

nonexistence of a parent and child relationship arises, the court in which the original

action was filed shall retain jurisdiction to determine the existence or nonexistence of the
parent and child relationship without an administrative determination being requested

from a child support enforcement agency.”).5

        {¶38} Reading these provisions in pari materia with the other provisions of

Chapter 3111 and considering both the significance of a paternity determination and the

overriding purpose and policy of R.C. Chapter 3111, i.e., to act in the “best interests of

the child,” I believe that Ohio’s parentage statute should be interpreted as granting

exclusive continuing jurisdiction to the domestic relations court to resolve an issue of a

child’s paternity after the domestic relations court makes an initial paternity determination

with respect to that child.

        {¶39} The majority cites In re Poling, 64 Ohio St.3d 211, 594 N.E.2d 589 (1992),

in support of its interpretation of R.C. 2151.23(B)(2), 3111.06(A) and 3111.16 as

granting concurrent, non-exclusive jurisdiction over paternity determinations to both the


        5
           The majority claims that the fact the domestic relations court retained continuing jurisdiction
over the paternity determination in this case is “irrelevant” because as of the time D.F. filed his
paternity action, “no action remained pending before the domestic relations court” and D.F. was not a
party to that action and “was prohibited from intervening in that action.” This is not correct. First,
although the divorce decree was entered in 2007, post-decree proceedings are still pending; the
domestic relations court continues to address issues relating to the support of, and allocation of
parental rights and responsibilities with respect to, S.K.L.
        Second, D.F. was not required to intervene in the divorce action in order to have his paternity
action heard by the domestic relations court and was never prohibited from intervening in the
post-decree proceedings; he never even filed a motion to intervene in the domestic relations action.
Although the juvenile court indicated in its March 13, 2014 journal entry that D.F. had attempted to
intervene on a post-decree basis in the domestic relations action, there is no indication that D.F. ever
filed a motion to intervene in that case or otherwise filed a paternity action in the domestic relations
court. Rather, the mother, T.F., filed a motion seeking to having D.F. joined as a third-party
defendant to the post-decree proceedings. That motion was denied after the domestic relations court
concluded that the paternity of S.K.L. had been established in the divorce decree and was res judicata
as to T.F.
juvenile court and the domestic relations court where there is an existing paternity

determination by the domestic relations court.    That case is distinguishable.   In Poling,

the issue was whether the juvenile court had jurisdiction to modify the legal custody of

two children who were the subject of a custody order issued by the domestic relations

court after the children were determined by the juvenile court to be dependent. Id. at

215. The court held that the juvenile court had concurrent jurisdiction to modify custody

of the children but that it “must do so in compliance with R.C. 2151.23(F)(1).” Id. at

215-216. Under R.C. 2151.23(F)(1), the juvenile court was required to “exercise its

jurisdiction in child custody matters in accordance with* * * [R.C.] 3109.04,” which

specifies the circumstances under which an existing custody order entered by the

domestic relations court is subject to modification.   Id. As the court explained:

       The issue before this court is whether a juvenile court has jurisdiction to
       consider the question of custody of dependent children, where custody has
       previously been determined and granted under a divorce decree pursuant to
       R.C. 3109.04. * * *

       Our analysis begins with R.C. 2151.23, which governs the jurisdiction of
       the juvenile court and provides in pertinent part:
       “(A) The juvenile court has exclusive original jurisdiction under the
       Revised Code:

       (1) Concerning any child who on or about the date specified in the
       complaint is alleged to be a[n] * * * abused, neglected, or dependent child;

       (2) To determine the custody of any child not a ward of another court of this
       state[.]” * * *

       [P]ursuant to R.C. 2151.23(A), the juvenile court has jurisdiction to
       determine the custody of a child alleged to be abused, neglected, or
       dependent when not the ward of any court in this state. Under our
       interpretation of subdivision (A)(2) of R.C. 2151.23, this jurisdiction
       includes children subject to a divorce decree granting custody pursuant to
       R.C. 3109.04.

       While clarifying the jurisdiction of the juvenile court under R.C. 2151.23,
       we recognize some confusion exists in light of the continuing jurisdiction of
       the domestic relations court which awards custody in divorce cases under
       R.C. 3109.04. * * * [A] court which renders a custody decision in a divorce
       case has continuing jurisdiction to modify that decision. However, the
       juvenile court has jurisdiction to make custody awards under certain
       circumstances. Hence, for the purposes of deciding custody where there
       has been a prior divorce decree, these courts can accurately be said to have
       concurrent jurisdiction. In other words, the juvenile court may entertain and
       determine custody of children properly subject to its jurisdiction, even
       though there has been a prior divorce decree granting custody of said
       children to a parent pursuant to R.C. 3109.04.

       ***

       However, when a juvenile court seeks to exercise its concurrent jurisdiction
       in a situation such as before us, i.e., where there is an existing custody
       decree, the juvenile court must do so in compliance with R.C.
       2151.23(F)(1). This statute requires that “[t]he juvenile court shall exercise
       its jurisdiction in child custody matters in accordance with sections
       3109.04, 3109.21 to 3109.36, * * * of the Revised Code.” * * * Therefore,
       when a juvenile court makes a custody determination, it must do so “in
       accordance with R.C. 3109.04.”

       We view this legislative scheme as a means of granting the juvenile court
       jurisdiction to make particularized determinations regarding the care and
       custody of children subject to its jurisdiction, while respecting the
       continuing jurisdiction of the domestic relations or common pleas court that
       makes a custody decision in a divorce case. Stated otherwise, when a
       domestic relations or common pleas court makes a custody decision
       ancillary to a divorce proceeding, that court must comply with the strictures
       contained in R.C. 3109.04. Likewise, under R.C. 2151.23(F)(1), a
       juvenile court must consider the dictates of R.C. 3109.04 when exercising
       its custody jurisdiction. The juvenile court’s custody decision is thus
       harmonized with the prior custody determination by the requirement in R.C.
       2151.23(F)(1) that the juvenile court exercise its custody jurisdiction in
       accordance with R.C. 3109.04.

Id. at 213-216.
       {¶40} The court further noted that policy considerations supported its conclusion

that the juvenile court had jurisdiction to make the custody determination in that case:

       Both appellant and the guardian ad litem advance judicial economy
       arguments to buttress their assertion that the juvenile court has jurisdiction
       to decide the custody issue in this case. They contend the juvenile court is in
       a position to hear all the relevant evidence concerning the child’s
       environment and needs, and that it is a waste of judicial time and resources
       to then require additional hearings in the original divorce court to determine
       custody of the children.

       We agree. The issues and facts relating to the disposition or custody of
       these children will have been examined in the juvenile court. In deciding
       how to best address the needs and interests of the children, the juvenile
       court would have before it home investigations germane to the case,
       psychological assessments, special educational or treatment concerns,
       relevant testimony from the pertinent parties, and the recommendation of
       both the county children services agency and the guardian ad litem. To
       now hold that the juvenile court does not have jurisdiction would require
       the original divorce court to possibly rehear the entire case, at a
       considerable cost not only to the judicial system but more importantly to the
       parties involved. This is especially true with respect to children whose
       well-being mandates an effective, timely means of resolving their care and
       custody.

Id. at 215-216.6

       {¶41} In sharp contrast to the statutes the court applied in Poling, i.e., R.C.

2151.23(F)(1) and 3109.04, which expressly contemplated the juvenile court’s

modification of custody determinations made by the domestic relations court in

appropriate circumstances, here, there is nothing in the statutes at issue that authorizes the


       6
         The majority also cites In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241.
 That case, which involved the juvenile court’s jurisdiction to give effect to a voluntary shared
custody agreement between the children’s mother and their primary caregiver where no prior custody
determination had been made by the domestic relations court, is not relevant to the issues here.
juvenile court to modify or reconsider a paternity determination previously made by the

domestic relations court or that would serve to “harmonize” a subsequent paternity

determination made by the juvenile court with a paternity determination previously made

by the domestic relations court.   Rather, in this case, if the juvenile court were to have

jurisdiction over D.F.’s paternity action and were to award D.F. the relief he seeks, S.K.L.

would have two legal fathers — one declared by the domestic relations court and one

declared by the juvenile court — in addition to a legal mother.

       {¶42} The majority ignores the practical effects of its ruling other than to

acknowledge that its interpretation introduces “an unnecessary tension between two

courts competing for jurisdiction,” downplaying those effects as matters of

“convenience.”     However, I would respectfully submit that avoiding potentially

conflicting determinations of a child’s legal father implicates much more than

“convenience.”

       {¶43} When dealing with matters involving children, I believe we must always be

guided by the mandate to act in the best interests of the child — even when faced with

issues of statutory construction. See Lozada, 102 Ohio App.3d at 450.         There are few

areas where matters of stability, consistency and uniformity are more important than the

life of a child. In my view, interpreting the relevant statutory provisions as requiring that

D.F.’s paternity action be heard by the domestic relations court that made the initial

determination of S.K.L.’s paternity is not only consistent with established principles of

statutory construction but would also promote judicial economy, avoid piecemeal rulings
and the possibility of inconsistent or conflicting results and facilitate the fashioning of a

single, comprehensive resolution that addresses all aspects of this family’s situation and

circumstances in the best interests of the child. These are many of the same policy

considerations the Ohio Supreme Court cited in support of its decision in Poling. See

Poling, 64 Ohio St.3d at 215-216, 594 N.E.2d 589. I do not find anything in R.C.

Chapter 3111 or elsewhere in the Ohio Revised Code that suggests a contrary result was

intended by the legislature. See R.C. 1.49.

       {¶44} Accordingly, I would affirm the trial court’s dismissal of D.F.’s complaint.

       {¶45} Furthermore, I question the majority’s conclusion that “D.F.’s remedy was

properly advanced in the juvenile court” in light of R.C. 3111.381. R.C. 3111.381(A)

provides:

       Except as provided in divisions (B), (C), (D), and (E) of this section, no
       person may bring an action under sections 3111.01 to 3111.18 of the
       Revised Code unless the person has requested an administrative
       determination under section 3111.38 of the Revised Code of the existence
       or nonexistence of a parent and child relationship.

R.C. 3111.381(C) provides, in relevant part:

       An action to determine the existence or nonexistence of a parent and child
       relationship may be brought by the putative father of the child in the
       appropriate division of the court of common pleas in the county in which
       the child resides, without requesting an administrative determination, if the
       putative father brings the action in order to request an order to determine
       the allocation of parental rights and responsibilities. * * *

R.C. 3111.381(E) provides, in relevant part:

       If an action for divorce, dissolution of marriage, or legal separation * * *
       has been filed in a court of common pleas and a question as to the existence
       or nonexistence of a parent and child relationship arises, the court in which
      the original action was filed shall retain jurisdiction to determine the
      existence or nonexistence of the parent and child relationship without an
      administrative determination being requested from a child support
      enforcement agency.7

       {¶46} In his complaint, D.F. sought only to have himself “deem[ed] the natural
biological father” of S.K.L. He did not “request an order to determine the allocation of
parental rights and responsibilities.” There is nothing in the record that indicates that
D.F. requested an administrative determination of the existence or nonexistence of a
parent and child relationship under R.C. 3111.38 prior to filing this action. Although, in
the absence of such a request, the domestic relations court “retain[s] jurisdiction to
determine the existence or nonexistence of the parent and child relationship without an
administrative determination being requested,” under a plain reading of R.C.
3111.381(E), D.F. was not entitled to bring his paternity action in juvenile court.




      7
          R.C. 3111.381(B) and (D) are not applicable to the situation here.
