[Cite as Morris v. Mottern, 2015-Ohio-4523.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

DOUGLAS C. MORRIS                                      C.A. No.       14CA0043-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
SHELBY L. MOTTERN                                      COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   11 PA 0125

                                 DECISION AND JOURNAL ENTRY

Dated: November 2, 2015



        CARR, Judge.

        {¶1}    Appellant, Shelby Mottern, appeals from a judgment of the Medina County Court

of Common Pleas, Domestic Relations Division, that established a parent-child relationship

between her minor child and his alleged father, Douglas Morris, and allocated parental rights and

responsibilities between Ms. Mottern and Mr. Morris. Because the Medina County court lacked

statutory authority to exercise its jurisdiction in this case, this Court reverses and remands.

                                                  I.

        {¶2}    Ms. Mottern is the mother of B.M., born during September 2005, while Ms.

Mottern was involved in a non-marital, romantic relationship with Mr. Morris. According to the

allegations of Mr. Morris’s complaint, he and Ms. Mottern resided together with B.M. in

Pennsylvania and then Portage County, Ohio, for the first two and one-half years of the child’s

life before Mr. Morris relocated to Medina County and Ms. Mottern remained in Portage County.

Notably, Mr. Morris and Ms. Mottern apparently never executed an acknowledgement that Mr.
                                                2


Morris was the legal parent of B.M., nor did they otherwise obtain a legal determination that Mr.

Morris was the father of B.M. Instead, they simply agreed that Mr. Morris was B.M.’s father

and made informal arrangements about when each of them would spend time with B.M. and how

they would otherwise meet his basic needs. By the summer of 2011, B.M. was spending most of

his time in Medina County with daycare and preschool providers and at the home of Mr. Morris.

        {¶3}    On June 1, 2011, Mr. Morris filed a complaint in the Medina County Court of

Common Pleas, Domestic Relations Division, explaining that he was concerned about registering

B.M. for kindergarten. His complaint explicitly sought to legally establish his “paternity” of the

child and to establish or modify “residential parent and legal custodian” and “parenting time,

companionship or visitation.” Mother was served with a copy of the complaint on June 23,

2011.

        {¶4}    On July 15, 2011, Mother moved to dismiss the complaint in this case because

Mr. Morris had failed to comply with the statutory requirement that the matter be filed in the

county where the child resides. See R.C. 3111.381; 3109.12. Because she was the unmarried

mother of B.M. and there had been no order by “a court of competent jurisdiction * * *

designating another person as the residential parent and legal custodian[,]” she argued that she

was the child’s sole residential parent. R.C. 3109.042. Consequently, she asserted that the child

legally resided with her in Portage County and that only a Portage County administrative agency

or court had statutory authority to establish a parent and child relationship between Mr. Morris

and B.M.       Shortly afterward, Ms. Mottern filed with the Portage County Child Support

Enforcement Agency to establish a parent and child relationship between Mr. Morris and B.M.

and to calculate child support.
                                                 3


       {¶5}    Mr. Morris opposed the motion to dismiss this action from the Medina County

Domestic Relations Court, asserting that B.M. resided in Medina County and set forth facts

about the child spending considerable time there attending daycare, preschool, and staying at his

home. Following a hearing before a magistrate, the magistrate agreed that B.M. resided in

Medina County because that is where he spent most of his time. Consequently, the magistrate

concluded that this case could proceed in Medina County and denied Ms. Mottern’s motion to

dismiss. The trial court adopted the magistrate’s decision the same day.

       {¶6}    Ms. Mottern filed timely objections to the magistrate’s decision, reiterating her

argument that, as a matter of law, B.M. legally resided with her in Portage County because she

was his sole residential parent. She argued that the parties’ agreement about paternity and that

B.M. would spend time with Mr. Morris and attend preschool and daycare in Medina County did

not legally establish B.M.’s residence in Medina County. She again emphasized that there had

been no court order to supersede her legal status as the sole residential parent of B.M.

       {¶7}    The trial court overruled Mother’s objections. Although Ms. Mottern attempted

to appeal from that order, this Court dismissed Morris v. Mottern, 9th Dist. Medina No.

12CA0037-M, for lack of a final, appealable order.

       {¶8}    Following another hearing, the magistrate decided that Mr. Morris had a parent

and child relationship with B.M. and that he should be designated the child’s primary residential

parent. The trial court adopted the magistrate’s decision. Mother raised objections to the

magistrate’s decision on the merits and also renewed her argument that the Medina County

Domestic Relations Court lacked statutory authority to exercise its jurisdiction over these

proceedings and should have granted her motion to dismiss. The trial court overruled all of

Mother’s objections. Regarding the court’s statutory authority to preside over this action, the
                                                 4


trial court agreed with the magistrate that the child’s legal residence was in Medina County at the

time Mr. Morris filed his complaint. Ms. Mottern appeals and raises three assignments of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED BY FAILING TO DISMISS [MR. MORRIS’S]
        MOTION FOR PATERNITY AND ALLOCATION OF HIS PARENTAL
        RIGHTS AND RESPONSIBILITIES FILED IN HIS COUNTY OF
        RESIDENCE, MEDINA COUNTY, OHIO, WHERE MOTHER IS THE SOLE
        RESIDENTIAL PARENT AND SOLE LEGAL CUSTODIAN OF THE MINOR
        CHILD UNDER R.C. [] 3109.042 AND SHE RESIDES IN PORTAGE
        COUNTY, OHIO[,] AND NO REQUEST FOR AN ADMINISTRATIVE
        DETERMINATION OF PATERNITY HAD BEEN MADE PRIOR TO FILING
        SAID ACTION.

        {¶9}    Ms. Mottern argues that the trial court lacked statutory authority to preside over

this action because B.M. legally resided with her, as the child’s sole residential parent, in Portage

County.    Ms. Mottern has correctly argued throughout these proceedings that, despite any

informal agreement she had with Mr. Morris, the sole means for establishing a legal relationship

between a parent and child in Ohio is set forth in R.C. Chapter 3111.

        {¶10} The legal parent and child relationship between Ms. Mottern and B.M. was

established by operation of law because she is his biological mother and gave birth to him. R.C.

3111.02(A). Because a man does not physically give birth to a child, establishing his legal status

as the child’s father is necessarily more complicated. Consequently, the Ohio General Assembly

has set forth in R.C. Chapter 3111 the specific means by which a man will be legally recognized

as the father of a child.

        {¶11} Because Ms. Mottern and Mr. Morris were not married at or near the time of

B.M.’s birth, nor had they unsuccessfully attempted to marry, no presumption about Mr.

Morris’s paternity arose under R.C. 3111.03(A)(1) or (2). Nevertheless, Mr. Morris and Ms.
                                                 5


Mottern had the opportunity to execute an acknowledgement of paternity at the time of B.M.’s

birth in Pennsylvania or after the parties moved to Ohio, which would have been forwarded to

the appropriate administrative agency in either state and, after a period of time, would have

established a final administrative determination of Mr. Morris’s parent and child relationship

with B.M. See, e.g., R.C. 3111.03(B); R.C. 3111.23; R.C. 3111.25; 23 Pa.Con.Stat.Ann. 5103.

In Pennsylvania, as in Ohio, the hospital where B.M. was born had a statutory duty to discuss

this administrative process for establishing paternity with both unmarried parents, if possible,

and to facilitate the execution and administrative processing of that document.          See 23

Pa.Con.Stat.Ann. 5103(c); R.C. 3727.17.

       {¶12} For reasons not explained on the record, despite the relative ease with which the

parties could have executed an acknowledgement of Mr. Morris’s paternity of B.M. in

Pennsylvania or Ohio, which would have led to a final administrative determination of his parent

and child relationship with B.M., they did not do so. Instead, Mr. Morris attempted to bypass

that administrative determination by proceeding directly to the trial court.

       {¶13} Although he was authorized by R.C. 3111.04 to bring an court action to establish

a parent and child relationship with B.M. because he was a man alleging himself to be the child’s

father, he was also required to comply with the requirements of R.C. 3111.381 because there had

been no prior administrative determination that he was B.M.’s father.          R.C. 3111.381(A)

provides in relevant part:

       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.
                                                6


       {¶14} In other words, the R.C. Chapter 3111 requires that unmarried parents establish

the father’s parent and child relationship through an administrative determination “except as

provided” in R.C. 3111.381(B),(C),(D), and (E). Those subsections set forth the sole means by

which the mother or purported father may bypass an administrative determination and file a

parentage action directly with the court (juvenile or domestic, depending on the county). See

R.C. Chapter 3111; R.C. 2301.03.

       {¶15} Consequently, the only procedural means through which Mr. Morris was

authorized by statute to bypass an administrative determination and invoke a court’s jurisdiction

to determine that he had a parent and child relationship with B.M. was R.C. 3111.381(C), which

provides:

       (C) An action to determine the existence or nonexistence of a parent and child
       relationship may be brought by the putative father * * * 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. * * * (Emphasis added.)

       {¶16} The dispute under Ms. Mottern’s first assignment of error is where B.M. resided,

for purposes of R.C. 3111.381(C), at the time Mr. Morris filed this action. When interpreting the

meaning of “the county in which the child resides,” as that phrase is used in R.C. 3111.381, our

review is de novo because we interpret statutory language as a matter of law. Columbus City

School Dist. Bd. of Edn. v. Testa, 130 Ohio St.3d 344, 2011-Ohio-5534, ¶ 12.

       {¶17} Throughout the trial court proceedings, Ms. Mottern argued that, by operation of

law, B.M. resided with her in Portage County. Mr. Morris responded that the evidence would

prove that B.M. had been residing with him in Medina County. After rejecting Ms. Mottern’s

argument that B.M.’s residence was determined as a matter of law, the magistrate, and later the

trial judge, considered evidence about where B.M. attended preschool and daycare and
                                                7


physically spent most of his time and ultimately found that “the county in which the child

reside[d]” was Medina County. Consequently, the trial court concluded that this action was

properly filed in Medina County.

       {¶18} We cannot agree with Mr. Morris that B.M.’s legal residence was established by

the mere fact that he spent a lot of time with him or others in Medina County because Mr. Morris

had not been legally recognized as B.M.’s father, nor did he have any legal parental rights or

responsibilities. On the other hand, Ms. Mottern’s legal rights and responsibilities as B.M.’s

mother were established by operation of law when she gave birth to him. R.C. 3109.042 then

provided that “[a]n unmarried female who gives birth to a child is the sole residential parent and

legal custodian of the child until a court of competent jurisdiction issues an order designating

another person as the residential parent and legal custodian.”1 It is undisputed that, at the time

Mr. Morris filed this action, no court had ever designated anyone as B.M.’s residential parent.

       {¶19} Although the term “residential parent” is not defined in R.C. Chapter 3109 or

3111, the residential parent is the parent who “is allocated the primary parental rights and

responsibilities for the care of a child[.]” Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-

5589, ¶ 23, citing R.C. 3109(A)(1). Based on the plain meaning of “residential,” the legal

designation of Ms. Mottern as “sole residential parent” means that she was the parent with whom

B.M. legally resided.

       {¶20} Moreover, although a minor child’s legal “residence” is not defined in R.C.

Chapter 3111 or 3109, it is defined within other contexts of the Ohio Revised Code to be the

home of the parent(s) or other custodian or guardian with whom the child legally resides, as


       1
        This same language is now embodied in subsection (A) of the current version of R.C.
3109.042.
                                                8


determined by court order or by operation of law. See, e.g., R.C. 2151.06 and R.C. 2151.362 (for

purposes of R.C. Chapter 2151); R.C. 3313.64 (child’s residence for educational purposes is the

home of his residential parent(s) or legal custodian). It is only reasonable to conclude that R.C.

3111.381 requires that the action be filed in the county where the child legally resides, not

another county where he might be located pursuant to an informal arrangement.

       {¶21} Evidence that B.M. spent much of his time in Medina County should not have

been considered to determine where he resided for purposes of R.C. Chapter 3111. Ohio law

does not support the trial court’s conclusion that Mr. Morris, who had not yet acquired any legal

status as the father of B.M., had somehow become the child’s residential parent through the

parties’ informal arrangements, as those arrangements were not legally binding. The trial court

not only undermined Ms. Mottern’s legally-established rights and responsibilities as B.M.’s sole

residential parent, but also allowed Mr. Morris to circumvent the statutory procedure for

establishing a parent and child relationship and allocating parental rights and responsibilities.

See Myers v. Mantia, 2d Dist. Miami No. 93-CA-44, 1994 WL 277859, *3, fn.1 (June 22, 1994);

In re L.M., 2d Dist. Greene No. 2010-CA-76, 2011-Ohio-3285, ¶ 41.

       {¶22} Although this case fell within the trial court’s subject-matter jurisdiction under

R.C. 2301.03(U), it did not fall within its authority to preside over this case under the explicit

requirement of R.C. 3111.381 that the action be filed in the child’s county of residence. The

term “jurisdiction” is “‘a word of many, too many, meanings.’” Pratts v. Hurley, 102 Ohio St.3d

81, 2004–Ohio–1980, ¶ 33, quoting United States v. Vanness, 85 F.3d 661, 663, fn. 2

(D.C.Cir.1996). In addition to subject-matter jurisdiction and personal jurisdiction, the Ohio

Supreme Court has also recognized what it characterized as a “third category of jurisdiction”:

       The term ‘jurisdiction’ is also used when referring to a court's exercise of its
       jurisdiction over a particular case. See State v. Parker, 95 Ohio St.3d 524, 2002-
                                                  9


        Ohio-2833, ¶ 20 (Cook, J., dissenting); State v. Swiger, 125 Ohio App.3d 456,
        462 (9th Dist.1998). ‘The third category of jurisdiction [i.e., jurisdiction over the
        particular case] encompasses the trial court's authority to determine a specific case
        within that class of cases that is within its subject matter jurisdiction.’

Pratts at ¶ 12.

        {¶23} Examples of the third category of jurisdiction have included requirements of

statutes or rules that impose constraints on the trial court’s authority to exercise its jurisdiction

over a specific case. Pratts and Swiger involved restrictions on the “jurisdiction” of a single trial

judge to determine guilt or impose sentence on a capital murder defendant under R.C. 2945.06

and R.C. 2931.03. Other cases in which courts have recognized this type of jurisdiction have

likewise involved constraints on the trial court’s authority imposed by specific statutes or rules.

See, e.g., In re L.S., 9th Dist. Summit No. 23523, 2007-Ohio-1583; State v. Franklin, 8th Dist.

Cuyahoga No. 81426, 2003-Ohio-2649; and GMAC, LLC. v. Greene, 10th Dist. Franklin No.

08AP-295, 2008-Ohio-4461. The requirement of R.C. 3111.381 that the action be filed in the

county of the child’s residence is another example of a statutory constraint on the court’s

authority to exercise its subject-matter jurisdiction.

        {¶24} Although alleged errors in the trial court’s exercise of its jurisdiction may be

forfeited if not timely raised, Ms. Mottern preserved this error for appellate review. Through her

motion to dismiss, she argued that Mr. Morris filed this action in the wrong county. She also

raised this issue through her timely objections to the magistrate’s March and August 2012

decisions.

        {¶25} Although the dissent relies on the Ohio Supreme Court’s recent decision in In re

Z.R., ___ Ohio St.3d ___, 2015-Ohio-3306, we do not agree that its interpretation of R.C.

2151.27(A)(1) applies to R.C. 3111.381. Other than each statute referring to the county (or

counties) in which a statutory action “may” be filed, there is no similarity between them.
                                                 10


Specifically, the Supreme Court’s reasoning in Z.R. hinged in part on the broad statutory

authority of juvenile courts to protect the best interests of children who have been alleged to be

abused, neglected, or dependent, as the State assumes the role of parens patrie in those cases. In

re Z.R. at ¶ 20-21.

          {¶26} Moreover, the Court construed R.C. 2151.27 as a discretionary venue statute

because it provided that the complaint “may” be filed in the county where the child resided “or”

where the alleged dependency occurred, and, although subsection (F) authorized dismissal of the

complaint where an alleged unruly child completed a court diversion program, no other

subsection of R.C. 2151.27 mentioned dismissal. Id. at ¶ 22-23. The Court also focused on

Juv.R. 11(A), which explicitly grants the juvenile court discretion to determine whether to

transfer a case to the county of the child’s residence, but does not refer to dismissing the

complaint.2

          {¶27} In sharp contrast to Z.R., this was not a case in which the state sought to invoke

the broad jurisdiction of the juvenile court to protect the welfare of an allegedly dependent

child.3       Instead, this was a parentage dispute between two private parties.   Moreover, the

statutory law in both Ohio and Pennsylvania expresses an obvious intent that unmarried parents

promptly execute an acknowledgement of paternity, which must be facilitated by hospital

personnel at the time of the child’s birth, and will lead to a prompt and final administrative

determination of the child’s paternity. Because the parties were apparently living together at the

time of the child’s birth, it is unknown why they did not execute such an acknowledgement,




          2
         Similar provisions are set forth in R.C. 2151.271.
          3
          Although this case was filed in domestic relations court, in Medina County, as the
dissent correctly notes, the juvenile court would have also had subject-matter jurisdiction.
                                                 11


which would have administratively established Mr. Morris’s paternity and allowed him to file

this action in Medina County. Instead, Mr. Morris chose not to use that procedure.

       {¶28} Although the dissent asserts that this case is governed by the broad language of

R.C. 3111.06(A), R.C. 3111.381(A) supersedes that language, for it provides that:

       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 explicitly includes an action brought under R.C. 3111.06 and provides that “no

person may” bring that action unless the person has first sought an administrative determination

under R.C. 3111.38 “except as provided” under R.C. 3111.381(B),(C),(D), and (E).

       {¶29} The language “no person may” has always been understood to mean that the

action is prohibited unless the stated terms are satisfied. See State v. Wellman, 37 Ohio St.2d

162 (1974), paragraph one of the syllabus; Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d

536, 2014-Ohio-2440, ¶ 30 (construing the “no person may” language as mandatory). Aside

from paternity determinations that might arise during a divorce or the probate of an alleged

father’s estate (subsections (D) and (E)), R.C. 3111.381(B) and (C) set forth the sole means by

which a mother or a purported father are authorized to bypass an administrative determination

and proceed directly to a court to establish a parent and child relationship. R.C. 3111.381(B) and

(C) specify that those actions are to be filed in the county of the child’s residence.

       {¶30} Although subsections (B) and (C) provide that the mother or purported father

“may” file the actions in the county of the child’s residence, that is because they are authorized

but are not required to file a court action. Unlike the statute construed by the Supreme Court in

Z.R., R.C. 3111.381(B) and (C) do not connect the term “may” with the word “or” followed by
                                                   12


an alternate choice of county. See Z.R. at ¶ 22 (emphasizing the use of each term in quoting of

the provision).    Under R.C. 3111.381(B) and (C), the authority to bypass an administrate

determination of paternity is confined to filing in the county where the child resides. We do not

agree with the dissent that this requirement is akin to an exhaustion of administrative remedies.

        {¶31} Moreover, even if we could agree with the dissent that R.C. 3111.381 pertains to a

defense other than an exercise of jurisdiction, Ms. Mottern timely raised this defense in the trial

court. If dismissal was not warranted, the trial court should have transferred the case to Portage

County. Instead, the trial court concluded that Mr. Morris had filed in the correct county because

it incorrectly found that B.M. legally resided with him. The trial court’s justification for keeping

this case and deciding it on its merits was based on circular reasoning, for Mr. Morris had no

legal rights as B.M.’s father until the trial court later held that he did.

        {¶32} We agree with the dissent that problems and inconvenience may arise under

numerous scenarios when unmarried parents wait months or years to establish a legal

relationship between the father and the child. It is also our concern for future cases that drives

the majority decision. If this Court were to authorize unmarried parents to bypass the specific

requirements of R.C. Chapter 3111, we would not only undermine the role of the legislature, but

might also encourage further disputes between the parties to custody litigation that already has

the potential to become contentious.

        {¶33} This Court is obligated to rule on the merits of issues properly raised on appeal

and cannot ignore that the trial court committed reversible error by exercising its jurisdiction

over this case. The statutorily-mandated procedures of R.C. Chapter 3111 set forth the exclusive

means by which a father and child relationship can be established and reflect policy

considerations that balance the interests of both parents as well as the best interest of the child.
                                                   13


Although we are reluctant to upset an established custodial arrangement, this Court must

interpret the statutory language as a matter of law, not based on the unique facts of this case.

Mother’s first assignment of error is sustained.

                         REMAINING ASSIGNMENTS OF ERROR

       {¶34} Ms. Mottern raises two additional assignments of error that pertain to the merits

of the trial court’s decisions. Because this Court has determined that the trial court had no

statutory authority to rule on the merits of Mr. Morris’s complaint, Ms. Mottern’s remaining

assignments of error have been rendered moot and will not be addressed.             See App.R.

12(A)(1)(c).

                                                   III.

       {¶35} Ms. Mottern’s first assignment of error is sustained and her remaining

assignments of error were not addressed because they have been rendered moot. The judgment

of the Medina County Court of Common Pleas, Domestic Relations Division, is reversed and

remanded for proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                14


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, P. J.
CONCURS.

SCHAFER, J.
DISSENTING.

       {¶36} Since I would overrule the first assignment of error and proceed to address the

remaining assignments, I must respectfully dissent. I disagree with the majority’s analysis for

three reasons. First, I would conclude that R.C. 2301.03(U) and 3111.06(A) vested the trial

court with jurisdiction to consider this matter. Second, unlike the majority, I do not believe that

R.C. 3111.381, when read in conjunction with several other statutory provisions, creates a

jurisdictional barrier. And, third, I am unable to agree with the majority’s approach in this

matter since I believe that it fails to account for the language of R.C. 3111.06(A) and R.C.

3111.381 and it produces absurd consequences that were unintended by the General Assembly.

                               A. The Trial Court Had Jurisdiction

       {¶37} R.C. 2301.03(U) and 3111.06(A) are the relevant provisions that we must

consider when deciding whether the trial court had jurisdiction in this matter. R.C. 3111.06(A)

states that a paternity action “may be brought in the * * * other court with jurisdiction under
                                                   15


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[.]”         (Emphasis added.) Relatedly, R.C. 2301.03(U)

explicitly gives the Medina County Court of Common Pleas, Domestic Relations Division,

jurisdiction over paternity and legal custody cases. Based on these provisions, the trial court

plainly had jurisdiction over this matter.

                         B. R.C. 3111.381 Does Not Implicate Jurisdiction

        {¶38} I disagree with the majority looking past these provisions and relying on R.C.

3111.381 to determine that the trial court lacked jurisdiction over this particular case. In my

view, R.C. 3111.381 merely creates an exhaustion of administrative remedies requirement that

does not affect the trial court’s jurisdiction. I also believe that R.C. 3111.381’s only import

regarding judicial paternity actions is that it relates to venue, not jurisdiction.

             1. R.C. 3111.381 Relates to an Administrative Exhaustion Requirement

        {¶39} The proper way to view R.C. 3111.381 is that it creates an administrative

exhaustion requirement before bringing a judicial paternity action. R.C. 3111.381(A) defines the

general exhaustion requirement while subsections (B), (C), and (E) codify certain exceptions to

the exhaustion requirement. Since the statute only relates to the exhaustion of administrative

remedies before bringing a judicial action, it creates an affirmative defense and a party wishing

to assert it must specifically plead it. And, most critically, the failure of a party to comply with

the exhaustion requirement does not provide any hint of jurisdictional infirmity. E.g. Driscoll v.

Austintown Assocs., 42 Ohio St.2d 263, 276 (1975); see also E.P.A. v. EME Homer City

Generation, L.P., __ U.S. __, 134 S.Ct. 1584, 1602 (2014) (explaining that while an

administrative exhaustion requirement is mandatory, “[a] rule may be mandatory, yet not

jurisdictional” since “[i]t does not speak to a court’s authority, but only to a party’s procedural
                                                 16


obligations”). This recognition of the administrative exhaustion affirmative defense effectuates

R.C. Chapter 3111.’s preference for administrative paternity determinations and it does not

undermine the role of the General Assembly.

       {¶40} I disagree with the majority’s statement that this defense was timely raised in the

trial court. Ms. Mottern’s filings in the trial court requested the dismissal of this action for lack

of jurisdiction and they never asserted an affirmative defense of failure to exhaust administrative

remedies. Additionally, Ms. Mottern did not file a motion relating to improper venue that

requested the transfer of her case to Portage County. Absent a proper motion, I do not see why

the trial court should have sua sponte transferred the case to Portage County, as suggested by the

majority.

                                2. R.C. 3111.381 Implicates Venue

       {¶41} Moreover, R.C. 3111.381 implicates the issue of venue, not the jurisdiction of

trial courts. See Renacci v. Evans, 9th Dist. Medina No. 09CA0004-M, 2009-Ohio-5154, ¶ 6

(“[V]enue is defined as a particular locality where a suit should be heard, after jurisdiction is

established.”). The Supreme Court of Ohio recently addressed the interplay between venue and

jurisdiction, stating that it is “possible for the General Assembly to restrict any court’s

jurisdiction over a particular case based on a procedural requirement such as venue.” In re Z.R.,

__ Ohio St.3d __, 2015-Ohio-3306, ¶ 17. Nevertheless, the Court also recognized that it “is not

wont to construe procedural provisions as jurisdictional barriers unless they are ‘clearly

statutorily or constitutionally mandated.’” Id., quoting Nucorp, Inc. v. Montgomery Cty. Bd. of

Revision, 64 Ohio St.2d 20, 22 (1980).

       {¶42} Due to the similarities between R.C. 2151.27(A)(1), the subject statute in Z.R.,

and R.C. 3111.381, I believe that the Court’s guidance from Z.R. is applicable here and insightful
                                                17


to the issues presented. The crux of Ms. Mottern’s argument is that R.C. 3111.381(C) requires

this paternity action to be litigated in Portage County, where she resides.        But, like R.C.

2151.27(A)(1), R.C. 3111.381(C) states that “[a]n 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[.]” (Emphasis added.) Additionally, like the provisions of R.C. 2151.27, the provisions

of R.C. 3111.381 do not include any reference to trial courts dismissing paternity actions that are

not properly venued. In sum, drawing from Z.R., I believe that “the failure to couch the venue

provisions of [R.C. 3111.381(C)] in mandatory terms or to mention dismissal in that subsection

strongly indicates that venue is not a jurisdictional requirement in the context of a [judicial

paternity action].” Id. at ¶ 23.

        {¶43} This conclusion is further bolstered when one considers the complexity of Ms.

Mottern’s reasoning for the purported lack of jurisdiction here. In order to reach her conclusion,

she first points to R.C. 3111.06, which authorizes judicial paternity actions. According to her,

though, that statute does not provide the full answer, so she then goes to R.C. 3111.381(A).

Since R.C. 3111.381(A) does not even refer to a court, Ms. Mottern points to subsection (C), but

this statute is not fully determinative of the issue, either. As a result, Ms. Mottern subsequently

points to R.C. 3109.042, which relates to the default rule for custody of children of unmarried

parents. And, when reading all four of these provisions from separate chapters of the Revised

Code together, Ms. Mottern finally concludes that jurisdiction in this matter is only proper in

Portage County.      Such a logical maze is far from “clearly statutorily or constitutionally

mandated” and I do not believe that linking these provisions together creates a mandatory

jurisdictional barrier.
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                           C. The Majority’s Approach Is Problematic

       {¶44} I finally note that the majority’s approach in this matter fails to account for the

language of R.C. 3111.06(A) and R.C. 3111.381 and portends negative consequences for future

litigants. In particular, I would like to highlight two problems that arise from the majority’s

approach.

       {¶45} The first problem is that the majority’s approach renders R.C. 3111.06(A)’s

authorization of a judicial paternity in the county where the alleged father resides meaningless,

which is a result surely not intended by the General Assembly. The majority opinion establishes

that for any court in Ohio to have proper jurisdiction over a judicial paternity action, an alleged

father must first go through the administrative paternity process or file a judicial action in the

county where the child’s unmarried mother resides. Pursuant to R.C. 3111.38, the alleged father

has to file an administrative request in the county where the child or child’s legal custodian

resides. The administrative paternity process will result in one of three possible orders: (1) a

finding of paternity; (2) a finding of non-paternity; or (3) an inconclusive finding. R.C. 3111.46,

3111.47. If the child support enforcement agency (“CSEA”) issues either of the first two orders

and the alleged father wants to object to it via a judicial action, R.C. 3111.49 requires him to file

the action “in the county in which the [CSEA] that employs the administrative officer who issued

the order is located.” Similarly, if the CSEA issues an inconclusive order, the Administrative

Code requires CSEA to file a judicial action in the county where it is located. See Ohio

Adm.Code 5101:12-40-17(C)(3).

       {¶46} Thus, under the majority’s approach, an alleged father is left with no real choice.

If he decides to go through the administrative process, the end result will be that he must litigate

his judicial paternity action in the county where the child or the child’s legal custodian resides.
                                                 19


Meanwhile, if he bypasses the administrative process, the alleged father must file his judicial

action in the county where the child resides. I cannot agree with such an approach since it fails

to give effect to R.C. 3111.06(A)’s authorization of judicial paternity actions in the county where

the child, the child’s mother, or the alleged father resides.

       {¶47} The second problem is that the majority’s approach fails to apply the long-

standing maxim that “words in a statute should be construed in their ordinary and natural

meaning * * * unless a different intention appears in the statute.” State ex rel. Gareau v.

Stillman, 18 Ohio St.2d 63, 64 (1969). The provisions of R.C. Chapter 3111. do not suggest that

the General Assembly intended to have R.C. 3109.042’s default custody rule apply to R.C.

3111.381(C), which provides the alleged father may file his action in the county where “the child

resides.” (Emphasis added.) It seems to me that had the General Assembly intended for R.C.

3109.042’s rule to apply in R.C. 3111.381(C), it would have stated that the putative father may

file his action in the county where “the legal custodian of the child resides.” This becomes

particularly clear when one considers the consequences that could flow from the majority’s

approach. For instance, say that alleged father lives in Medina County and mother lives in

Portage County. After giving birth, mother moves to Lucas County and is completely absent

from the child’s life while child resides with his maternal grandmother in Portage County

without a court order. Where is alleged father supposed to file his paternity action? Under the

majority’s view, the only county with proper jurisdiction is Lucas County, where the child has

never lived, since that is where the child’s legal custodian under R.C. 3109.042 lives. I cannot

go along with such an interpretation of R.C. 3111.381(C).
                                              20


       {¶48} In sum, I believe that the trial court had jurisdiction in this matter and that we

should overrule Ms. Mottern’s first assignment of error. Therefore, I respectfully dissent from

the majority’s conclusion to the contrary.


APPEARANCES:

PATRICK F. LOWERY, Attorney at Law, for Appellant.

MORA LOWRY, Attorney at Law, for Appellee.
