[Cite as Weinstock v. Howard, 2012-Ohio-5160.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

ERIC E. WEINSTOCK                                   JUDGES:
                                                    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                          Hon. William B. Hoffman, J.
                                                    Hon. Sheila G. Farmer, J.
-vs-
                                                    Case No. 12-CA-20
KARAH B. HOWARD

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Fairfield County Court of
                                                 Common Pleas, Domestic Relations
                                                 Division, Case No. 2010 PA 000286


JUDGMENT:                                        Reversed and Remanded


DATE OF JUDGMENT ENTRY:                          November 2, 2012


APPEARANCES:


For Plaintiff-Appellee                           For Defendant-Appellant


L. JACKSON HENNIGER                              BRIAN J. EASTMAN
150 N. Market St.                                9292 Prestwick Green Drive
Logan, Ohio 43138                                Columbus, Ohio 43240
Fairfield County, Case No. 12-CA-20                                                    2

Hoffman, J.


       {¶1}   Defendant-appellant Karah B. Howard (“Mother”) appeals the December

29, 2010 Judgment Entry entered by the Fairfield County Court of Common Pleas,

Domestic Relations Division, which overruled her Motion to Dismiss Complaint to

Establish Paternity filed by plaintiff-appellee Eric E. Weinstock (“Father”). Mother also

appeals the March 15, 2012 Agreed Judgment Entry entered by the same.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Mother and Father are the biological parents of NJW (DOB 11/17/04).

Mother and Father have never been married.

       {¶3}   Mother and her former husband, John P. Howard, were divorced on May

27, 2004, via Decree of Dissolution of Marriage entered by the Franklin County Court of

Common Pleas, Domestic Division.            Mother gave birth to NJW 174 days after the

Franklin County Court of Common Pleas issued the dissolution decree. The decree did

not indicate Mother was pregnant at the time of the dissolution. NJW’s birth certificate

does not set forth the name of the child’s father.       Pursuant to R.C. 3111.03(A)(1),

Howard was presumed to be NJW’s natural father.

       {¶4}   On January 12, 2005, Mother filed an action to establish paternity in the

Delaware County Court of Common Pleas, Juvenile Division. Mother named Father

and Howard as defendants.          The Delaware juvenile court dismissed the matter,

determining it did not have jurisdiction.

       {¶5}   Father filed a Complaint to Establish Paternity and Allocate Parental

Rights and Responsibilities on August 16, 2010. Father also requested an emergency

ex parte custody order which the trial court granted the same day.        Mother filed a
Fairfield County, Case No. 12-CA-20                                                    3


Motion to Dismiss and a Motion to Return or Grant Temporary Custody on August 24,

2010. The trial court conducted a full hearing on the temporary custody order, which

commenced on August 27, 2010, carried over into September 3, 2010, and was

scheduled to conclude on January 10, 2011. Mother filed an amendment to the motion

to dismiss as well as a motion for temporary restraining order on September 3, 2010.

       {¶6}   Via Judgment Entry filed December 29, 2010, the trial court denied

Mother’s request for a temporary restraining order. The trial court appointed a guardian

ad litem for the child, who subsequently recommended Father be designated the legal

custodian of NJW. The parties engaged in extensive negotiations and ultimately

reached an agreement which they executed and submitted to the trial court. Via Agreed

Judgment Entry filed March 15, 2012, the trial court adopted the parties’ agreement as

order of the court.

       {¶7}   It is from the December 29, 2010 Judgment Entry and the March 15, 2012

Agreed Judgment Entry Mother appeals, raising as error:

       {¶8}   “I. THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE

BECAUSE ANOTHER COURT HAD ORIGINAL JURISDICTION OVER THE MATTER.

       {¶9}   “II. THE TRIAL COURT LACKED JURISDICTION TO HEAR THE CASE

UNDER THE PRINCIPLE OF RES JUDICATA.

       {¶10} “III. THE TRIAL COURT ERRED IN ACCEPTING THE INITIAL

PLEADINGS BECAUSE THE PLAINTIFF/APPELLEE FAILED TO PROVIDE AN

ACKNOWLEDGE OF PATERNITY OR OTHER ADMINISTRATIVE PARENTAGE

DETERMINATION.”
Fairfield County, Case No. 12-CA-20                                                      4


                                                I

      {¶11} In her first assignment of error, Mother challenges the trial court’s

jurisdiction to hear the instant action. Within this assignment of error, Mother also takes

issue with the trial court’s denial of her motion to dismiss Father’s Complaint as Father

failed to make Howard a party to the action.

      {¶12} A parentage action under R.C. 3111.04(A) brought to establish the

existence of a father-and-child relationship must include as necessary parties:

             “(A) The natural mother, each man presumed to be the father under

      section 3111.03 of the Revised Code, and each man alleged to be the

      natural father shall be made parties to the action brought pursuant to

      sections 3111.01 to 3111.18 of the Revised Code or, if not subject to the

      jurisdiction of the court, shall be given notice of the action pursuant to the

      Rules of Civil Procedure and shall be given an opportunity to be heard.

      The child support enforcement agency of the county in which the action is

      brought also shall be given notice of the action pursuant to the Rules of

      Civil Procedure and shall be given an opportunity to be heard. The court

      may align the parties. The child shall be made a party to the action unless

      a party shows good cause for not doing so. Separate counsel shall be

      appointed for the child if the court finds that the child's interests conflict

      with those of the mother.”

      {¶13} R.C. 3111.07 (Emphasis added).
Fairfield County, Case No. 12-CA-20                                                      5


       {¶14} The parties do not disagree, pursuant to R.C. 3111.03(A)(1), Howard is

presumed to be NJW’s natural father because the boy was born 174 days after the

Franklin County domestic relations court issued the dissolution decree.

       {¶15} “A party's failure to join an interested and necessary party constitutes a

jurisdictional defect that precludes the court from rendering a judgment in the case. See

Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d

478, ¶ 99 (declaratory-judgment action).” State ex rel. Doe v. Capper, 132 Ohio St.3d

365, 2012 -Ohio- 2686.

       {¶16} In the instant action, Father failed to name Howard, the presumed natural

father of NJW, and the minor child—interested and necessary parties pursuant to R.C.

3111.07(A)—as parties. Father also failed to show good cause why NJW should not be

joined as a party. The child was not served with a summons, did not appear, and was

not a party to the parentage action. Therefore, we find the trial court lacked jurisdiction

to proceed in the case.

       {¶17} Appellant’s first assignment of error is sustained solely for the reason set

forth herein.

                                              II, III

       {¶18} In light of our disposition of Mother’s first assignment of error, we find any

discussion of the remaining assignments of error premature.
Fairfield County, Case No. 12-CA-20                                               6


      {¶19} The judgment of the Fairfield County Court of Common Pleas is reversed

and the matter remanded to that court for further proceedings.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur
                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin_____________________
                                            HON. W. SCOTT GWIN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER
Fairfield County, Case No. 12-CA-20                                                  7


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


ERIC E. WEINSTOCK                          :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
KARAH B. HOWARD                            :
                                           :
       Defendant-Appellant                 :         Case No. 12-CA-20


       For the reason stated in our accompanying Opinion, the judgment of the Fairfield

County Court of Common Pleas is reversed and the case is remanded to that court for

further proceeding in accordance to our Opinion and the law. Costs to Appellee.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER
