[Cite as Loveridge v. Loveridge, 2011-Ohio-2611.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY



JAMES W. LOVERIDGE,                                      CASE NO. 5-10-37

   PLAINTIFF-APPELLEE,

  v.

FRANCES LOVERIDGE, NKA BALL,                                   OPINION

   DEFENDANT-APPELLANT.



                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2002 DR 307

                                     Judgment Affirmed

                              Date of Decision: May 31, 2011




APPEARANCES:

        Drew A. Hanna for Appellant

        Teresa Glover for Appellee
Case No. 5-10-37


SHAW, J.

       {¶1} Appellant, Frances Loveridge nka Ball (“Frances”), appeals the

November 18, 2010 judgment of the Hancock County Court of Common Pleas

overruling her objections to the magistrate’s decision finding that her Motion to

Modify Judgment Entry of Divorce was without merit.

       {¶2} Frances and Appellee, James W. Loveridge (“James”), were married

on April 3, 1993, in Findlay, Ohio. Two children were born during the marriage,

Michael Loveridge, born in April of 1994, and Christopher Loveridge, born in

August of 1995.

       {¶3} On March 27, 2003, the parties divorced. At that time, the parties

entered into a shared parenting plan regarding custody of their minor children,

which provided for equal parenting with each party having the children every

other week. Neither party was obligated to pay child support so long as the shared

parenting plan remained in effect.

       {¶4} In May of 2004, the parties by Consent Judgment Entry agreed to a

modification of the Judgment Entry of Divorce by setting aside the shared

parenting plan and designating James the residential parent and legal custodian of

their children. Frances was given visitation and ordered to pay child support in the

amount of $352.32 a month.



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       {¶5} In August of 2007, Hancock County Child Support Enforcement

Agency (“HCCSEA”) modified the child support order in place to increase

Frances’ child support obligation to $599.50 per month. Frances filed objections

to HCCSEA’s modification of her child support. Frances also filed a Motion to

Modify Support claiming that a change in her employment warranted a ten percent

reduction in the child support order.

       {¶6} The parties reached an agreement on the matter of child support which

was journalized by the trial court in its April 24, 2008 Judgment Entry. The trial

court ordered Frances to pay $599.50 per month for August, September and

October of 2007, and the sum of $441.99 per month commencing on November 1,

2007 and continuing each month thereafter.

       {¶7} On July 2, 2010, Frances filed a Motion to Modify Judgment Entry of

Divorce. As the basis for her motion, Frances alleged that James was not the

father of their oldest child, Michael, and requested the trial court order genetic

testing. Frances also requested that the trial court modify the Judgment Entry of

Divorce if the testing excluded James as Michael’s biological father.        In a

supplemental memorandum of law accompanying her motion, Frances argued that

she is entitled to relief from judgment pursuant to Civ.R. 60(B).




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       {¶8} On September 23, 2010, HCCSEA filed a Motion to Show Cause

alleging that Frances had failed to pay child support as previously ordered, and

requested that she be held in contempt for failing to comply with the court’s order.

       {¶9} On October 6, 2010, the magistrate issued his decision recommending

that the trial court overrule Frances’ Motion to Modify Judgment Entry of

Divorce, stating that Frances failed to present any operative facts for the

magistrate to conclude that she has a meritorious claim and that she is entitled to

relief under Civ.R. 60(B).       Frances subsequently filed objections to the

magistrate’s decision. On November 18, 2010, the trial court overruled Frances’

objections and denied her motion.

       {¶10} Frances now appeals, asserting the following assignment of error.

                              ASSIGNMENT OF ERROR

       IT IS ERROR FOR THE COURT TO DENY
       APPELLANT/DEFENDANT’S MOTION FOR RELIEF FROM
       JUDGMENT AND FOR GENETIC TESTING.

       {¶11} Frances’ Motion to Modify Judgment Entry of Divorce states the

following, in its entirety:

       Defendant requests the Judgment Entry of Divorce of March 27,
       2003 be modified as to the alleged paternity of Plaintiff of
       Michael Loveridge [], since Plaintiff is not the father of this
       child.




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       Defendant requests the Court order genetic testing as to
       paternity of Michael Loveridge, and if the genetic testing
       excludes Plaintiff as the father of Michael Loveridge appropriate
       modifications be made to the Judgment Entry of Divorce of
       March 27, 2003.

       Defendant agrees to be responsible for the cost of the genetic
       testing.

(Def. Mot. July 2, 2010).

       {¶12} Based upon this motion, Frances subsequently requested relief from

judgment pursuant to Civ.R. 60(B)(4), which permits the court to relieve a party

from a final judgment when “it is no longer equitable that the judgment has

prospective application.” Civ.R. 60(B)(4). “The decision to grant or deny a

motion to vacate judgment pursuant to Civ.R. 60(B) lies in the sound discretion of

the trial court and will not be disturbed absent an abuse of discretion.” Strack v.

Pelton (1994), 70 Ohio St.3d 172, 174, 637 N.E.2d 914. An abuse of discretion

means that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶13} Initially, we acknowledge that trial courts may utilize Civ.R. 60(B) to

modify domestic relations decrees. Osborne v. Osborn (1992), 81 Ohio App.3d

666, 671, 611 N.E.2d 1003. In order to prevail on a Civ.R. 60(B) motion, a party

must show 1) a meritorious defense or claim to present if relief is granted; 2) the

party is entitled to relief under one of the five enumerated grounds stated in Civ.R.


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60(B)(1) through (5); and 3) the motion is made within a reasonable time. In re

Whitman, 81 Ohio St.3d 239, 242, 690 N.E.2d 535, 1998-Ohio-466; Douglas v.

Boykin (1997), 121 Ohio App.3d 140, 145, 699 N.E.2d 123.            The elements

entitling a movant to Civ.R. 60(B) relief “are independent and in the conjunctive;

thus, the test is not fulfilled if any one of the requirements is not met.” Strack,

supra, 70 Ohio St.3d at 174, 637 N.E.2d at 915.

      {¶14} First, Frances failed to present any operative facts to support her

allegation that she has a meritorious defense or claim to present in the event that

she is afforded Civ.R. 60(B) relief. Rather, Frances simply asserts that James is

not Michael’s father. Noticeably, absent from Frances’ motion is any basis to

support her claim that James is not the biological father, or any identification of

who may be Michael’s father in the alternative.

      {¶15} Next, Frances attempts to satisfy the second requirement by arguing

that she is entitled to relief under the specific grounds enumerated in Civ.R.

60(B)(4). However, the Ohio Supreme Court has held that Civ.R. 60(B)(4) applies

“to those who have been prospectively subjected to circumstances which they had

no opportunity to foresee or control.” Knapp v. Knapp (1986), 24 Ohio St.3d 141,

493 N.E.2d 1353, paragraph one of the syllabus. “Civ.R. 60(B)(4) was not meant

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



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reasonably prevented.” Cuyahoga Support Enforcement Agency v. Guthrie, 84

Ohio St.3d 437, 443 N.E.2d 218, 1999-Ohio-362.

       {¶16} In the instant case, Frances provides no justification for why she is

entitled to relief under Civ.60(B)(4). Specifically, she does not explain that why

sixteen years after giving birth to Michael she now possesses sufficient

information to pursue this motion placing James’ paternity of Michael into

question. To the contrary, in a supplemental memorandum requested by the court,

Frances simply states “it is apparent [she] did not formulate these suspicions until

recently, as evidenced by the timing of her request for genetic testing.” This

vague reasoning fails to provide any adequate basis to justify the court disturbing

the long established parent-child relationship between James and Michael by

ordering genetic testing be performed. Moreover, it is clear from the nature of this

situation that Frances alone has always been in the best position to know whether

or not James is Michael’s biological father.

       {¶17} Finally, Frances has also failed to demonstrate that she made this

motion within a reasonable time.      The inquiry of whether a Civ.R. 60(B)(4)

motion is timely depends, in part, on the nature of the relationship between the

parent and the child. Leguillon v. Leguillon, 124 Ohio App.3d, 757, 768, 707

N.E.2d 571. The reasonable time period may have elapsed where the child and the



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adjudicated “father” have established a relationship. Id.; see, also, Strack, supra,

70 Ohio St.3d at 176, 637 N.E.2d at 916 (Pfeifer, J., dissenting) (if the child has

come to rely upon the wrongly identified “father” for emotional and financial

support, the reasonable time period for filing Civ.R. 60(B)(4) motion has expired).

In addition, if the movant unreasonably failed to seek relief earlier, a court may

properly decide that the reasonable time period for Civ.R. 60(B)(4) relief has

expired. Dunkle v. Dunkle, 135 Ohio App.3d, 669, 681, 735 N.E.2d 469.

       {¶18} As previously noted, Frances offered no explanation for the delay in

filing her motion for relief from judgment.      When weighing all the relevant

factors, including Michael’s interests in this matter, we find of particular

importance the fact that James has been Michael’s residential parent and custodian

since the parties agreed to the arrangement in 2004. In addition, since the parties’

divorce in 2003, numerous post-decree actions have taken place in the trial court

involving custody and child support matters, which presented ample opportunities

for Frances to revisit the issue of Michael’s paternity. Based on these factors, we

find that the reasonable time period for Frances making her motion for relief from

judgment has expired.

       {¶19} Accordingly, having determined that Frances failed to meet any of

the requirements entitling her to relief under Civ.R. 60(B), we conclude that the



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trial court did not err in denying Frances’ Motion to Modify the Judgment Entry of

Divorce and her request for genetic testing.

       {¶20} For all these reasons, the assignment of error is overruled and the

judgment of the Hancock County Court of Common Pleas is affirmed.

                                                             Judgment Affirmed

ROGERS, P.J., and PRESTON, J., concur.
/jnc




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