[Cite as Genhart v. David,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

SHANNON GENHART ) CASE NO. 10 MA 144 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) JOHN C. DAVID ) ) DEFENDANT-APPELLEE )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Juvenile Division, of Mahoning County, Ohio Case No. 05 JI 721

JUDGMENT: Vacated. April 20, 2010 Order Reinstated.

APPEARANCES:

For Plaintiff-Appellant: Atty. Charles E. Dunlap 3855 Starr’s Centre Drive, Suite A Canfield, Ohio 44406

For Defendant-Appellee: Atty. Susan Gaetano Maruca Atty. Christopher A. Maruca The Maruca Law Firm, LLC 201 East Commerce Street Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 22, 2011 [Cite as Genhart v. David,

.] WAITE, P.J.

{¶1} Plaintiff-Appellant, Shannon Genhart, and Defendant-Appellee, John C.

David, were never married. They initially resolved the care and parenting

arrangements for their minor son (“D.D.”) in a 2006 paternity suit. The shared

parenting agreement that concluded the parentage suit was not accompanied by any

court order or decree concerning custody. Under Ohio law, by statute, unwed

mothers have sole custody of their offspring unless and until a valid court order or

decree awards custody to another party or to the state. In late 2008 a dispute arose

concerning Appellant’s proposed relocation and a change in school district for D.D.

Although Appellant later revised her relocation plans, she still sought to change

school districts. Initially the trial court ordered the change. Appellee filed a motion to

reconsider, arguing that the trial court had mistakenly assumed Appellant was the

residential parent for school purposes. The trial court converted Appellee’s motion to

a 60(B) motion for relief from judgment and reversed its decision to allow the change

in school district. The trial court’s actions constituted an abuse of discretion and were

contrary to law. For these reasons, the trial court’s July 27, 2010 ruling is vacated

and the April 20, 2010 judgment entry is reinstated.

FACTUAL AND PROCEDURAL HISTORY

{¶2} The matter of the care and support of D.D., born August 17, 2002,

came before the Mahoning County Juvenile Court on petition from the Mahoning

County Child Support Enforcement Agency (“MCSEA”). MCSEA sought

acknowledgement of its administrative paternity finding, pursuant to R.C. 3111.02(B).

The juvenile court acknowledged the administrative finding, and in 2006 the court -2-

concluded the paternity suit by adopting a magistrate’s decision which incorporated

the shared parenting agreement jointly submitted by the parties. Neither the 2006

shared parenting agreement, nor the court order adopting that agreement,

designated a residential parent. The 2006 agreement provided that D.D. would

spend four consecutive days of each week with his mother and three consecutive

days of each week with his father. At the time both parties lived in Austintown. The

Austintown school system was generally designated for D.D.’s education and a child

support payment of $0.00 was included in the agreed parenting plan. Appellee was

required to carry D.D. on his health insurance.

{¶3} Although the 2006 agreement did not designate a residential or a

custodial parent, or specify the location of either parent’s residence, it required: “[i]f

the Residential Parent intends to move to a residence other than the residence

specified in the Decree of this Court, the Residential Parent shall file a Notice of

Intent to Relocate with the Court that issued the Decree.” (3/1/06 Shared Parenting

Plan.) When Appellee was permanently laid off and no longer able to provide health

coverage for D.D., the parties agreed, without court intervention or formal alteration

of the shared parenting plan, that Appellant would pay to have D.D. added to her

coverage until Appellee was again employed with benefits. Similarly, when D.D.

reached school age the parties decided, without intervention, that Appellant was the

residential parent for school purposes and that her address determined D.D. would

attend Woodside Elementary. By December 28, 2008, Appellant was considering

relocating to Pennsylvania and filed a notice of intent with the court. -3-

{¶4} In January of 2009, although the parties had agreed that Appellant

would place D.D. on her insurance at Appellee’s costs, Appellee failed to pay his

portion of the health care expenses or reimburse Appellant for the expense of adding

D.D. Thus, in addition to her notice of intent to relocate, Appellant filed a contempt

motion seeking payment of the healthcare expenses. Appellant also sought

reallocation of the dependant tax exemption for the period of Appellee’s

unemployment. On January 16, 2009, Appellee filed a cross-motion seeking the

termination of the shared parenting agreement and a temporary reallocation of

custody of D.D. during the action. Appellant responded that she was the primary

caregiver and that a change in custody would not be in D.D.’s best interests. A

guardian ad litem was appointed for D.D., the motion for temporary custody was

denied and Appellant was enjoined from moving to Pennsylvania during the

pendency of the proceedings. In June of 2009 Appellee filed a motion to modify,

rather than set aside, the shared parenting plan. He sought in the motion to be

named residential parent for school purposes. Both parties submitted new proposed

shared parenting agreements and the matter was set for hearing on the revisions to

the parenting agreement concerning the summer parenting schedule and D.D.’s

schooling. On September 21, 2009 the magistrate journalized the hearing

proceedings: Appellant withdrew her motion to relocate and cross-motion for custody,

Appellee withdrew his motion to terminate and his motion for custody and these were

all dismissed by the magistrate. -4-

{¶5} Appellant and Appellee agreed to continue (with modifications) the

shared parenting plan rather than make changes in custody, and stipulated to

testimony from the guardian ad litem concerning a place being held for D.D. at

Woodside Elementary School in Austintown while modifications to the parenting plan

were litigated. The matter was scheduled for trial on the issues regarding schooling

and the shared parenting schedule. Trial was held in September of 2009; on

December 29, 2009, following trial, the magistrate ordered Appellee to submit a

revised shared parenting agreement designating Appellee the residential parent for

school purposes, and including the revisions to the parenting schedule the parties

had agreed to in August of 2009. On February 18, 2010, the magistrate issued a

decision adopting a new shared parenting agreement. The new plan alternated D.D.

between his parents on a week-to-week basis, rather than the four day/three day split

of the original agreement, designated Appellee as the residential parent for school

purposes, allocated the dependant tax exemption to Appellee exclusively (previously

the exemption had alternated), and noted that a new motion for support was

scheduled for hearing in front of a different magistrate. Appellant filed timely

objections. On April 20, 2010 the court adopted in part and modified in part the

magistrate’s recommendations. The court ordered that D.D. should complete the

school year in Austintown and should then be enrolled in the school district Appellant

had moved to beginning with the next school year, and remain in that district

thereafter. -5-

{¶6} Appellee filed a motion to reconsider on April 30, 2010, suggesting that

the trial court had erred in assuming that Appellant was the residential parent for

school purposes based on the shared parenting agreement. The trial court

scheduled a hearing on the motion to reconsider and decided to consider this motion

as if it was a motion to vacate. The trial court then granted Appellee’s motion to

vacate, and adopted the magistrate’s decision in its entirety; reversing the decision to

allow D.D. to attend school in the district near his mother’s new home. The court

instead ordered D.D. to continue attending the Austintown school near his mother’s

former address and gave Appellee, solely, the dependant child tax exemption.

Appellant filed this timely appeal on August 30, 2010.

Assignment of Error No. 1

{¶7} “Whether the trial court’s April 20, 2010 judgment entry is a final

appealable order.”

Assignment of Error No. 2

{¶8} “Ohio Civ. R. 60 (B) cannot be used as a substitute for a direct appeal,

and even if the Defendant- Appellee’s motion was properly before the court, the

Defendant-Appellee’s motion failed to comply with Ohio Civ. R. 60 (B).”

Assignment of Error No. 3

{¶9} “The Ohio Rules of Civil Procedure do not provide for a motion to

reconsider, and the court lacks jurisdiction to entertain such a motion.”

{¶10} Appellant’s three assignments of error address the same operative

facts and hence, will be considered together. Appellant alleges that the April 20, -6-

2010 judgment entry was a final appealable order and Appellee concedes as much.

Although Appellee does concede that the April 20, 2010 judgment entry was a final

appealable order, Appellee claims that because neither party filed an appeal, no

harm resulted from the court’s May 18, 2010 decision to construe Appellee’s motion

for reconsideration as a motion for relief from judgment, set the matter for hearing

and alter its April 20, 2010 judgment entry.

{¶11} Despite the parties’ concession, on July 27, 2010, after a hearing on

Appellee’s motion, the trial court determined that the April entry was not a final

appealable order, “since the matter is one that can be re-litigated based upon a

change of circumstances.” Having found that the prior order was not final, the court

nevertheless construed Appellee’s motion to reconsider as a Civ.R. 60(B) motion for

relief from judgment. The court made its determination under Civ.R. 60(B)(1)

regarding “mistake, inadvertence surprise, or excusable neglect.” The trial court

vacated its April 20, 2010, judgment entry and adopted the February 18, 2010,

magistrate’s decision in its entirety. The July of 2010 ruling seems to indicate that it

was the court’s own “mistake” in assuming the mother was residential parent for

school purposes, as suggested by Appellee, that provided the grounds for relief.

{¶12} A trial court may, at its discretion, entertain a motion to reconsider an

interlocutory order. Jefferson Cty. Child Support Enforcement Agency v. Pickett

(Sept. 21, 2000), 7th Dist. No. 99 JE 5, *2. “Although a motion to reconsider a final

order is a nullity, one can see reconsideration of an interlocutory order.”

A trial

court may also, if it chooses, construe a motion for reconsideration as a motion for -7-

relief from judgment, if that motion otherwise satisfies the requirements of Civ.R.

60(B). Ray v. Dickinson, 7th Dist. No. 03 BE 29,

, ¶15 and GTE

Automatic Elec., Inc. v. Arc Industries, Inc. (1976),

,

,

, paragraph two of the syllabus. However, such construction is

generally viewed with disfavor. “Once again, this court as well as the lower courts

are left in a procedural quagmire of trying to elevate a motion for reconsideration after

a final judgment to the status of a motion for a new trial or as a motion for a directed

verdict or the like. * * * This is a costly procedure, both financially and in manual

labor, which, as in the present cause, results in a procedural morass which clouds

the merits. Complications * * * can and should be avoided.” Pitts v. Dept. of Transp.

(1981),

,

. “We conclude that the trial

courts, already overburdened, cannot be responsible for reviewing every motion in

order to determine whether the contents of the motion should be interpreted and

applied in a different, and perhaps more appropriate, manner than the form or

caption of the motion indicates. Such an activity would engage the trial courts in the

impossible task of trying to second-guess the strategy and intentions of the parties at

any point in the litigation process.” Miamisburg Motel v. Huntington Natl. Bank

(1993),

,

. Even the trial court’s broad

discretion cannot alter the fact that a motion to reconsider a final order is a nullity.

Jefferson Cty. at *2. Similarly, “ ‘[a] ruling upon a motion for reconsideration made

after final judgment is a nullity.’ ” McAuley v. Smith (1999),

,

. Nor can a trial court consider a Civ.R. 60(B) motion for relief -8-

from judgment unless the party is seeking relief from a final appealable order.

Jefferson Cty. at *3.

{¶13} The threshold question is whether, as the parties agree, the trial court’s

April 20, 2010 order is final and appealable. Civil Rule 54 and R.C. 2505.02 govern

the jurisdiction of this Court over final orders of the lower courts. Under Civ.R. 54,

there is no restriction on appeals from decisions in special matters that affect the

substantial rights of the parties as provided by R.C. 2505.02. See also, In re Murray

(1990),

,

; Voss v. Voss (1989),

,

. A paternity suit is a special proceeding. State ex rel

Fowler v. Smith (1994),

,

(“[p]roceedings in

the juvenile division, including parentage actions, are special statutory proceedings

pursuant to Civ.R. 1(C)(7).”) Parents have substantial rights in the custody and care

of their children. R.C. 2505.02; In re Adams, ¶43-44, see also In re

,

“The United States Supreme Court has stated that the right to raise one’s children is

an ‘essential’ and ‘basic civil right.’ * * * Parents have a ‘fundamental liberty interest’

in the care, custody, and management of the child.” (Internal citations omitted).

Initially, in a parentage suit, a court order establishing parentage and a duty of

support, but failing to specify the terms of that support, is not a final appealable order

until the amount and the nature of support is established. State ex rel. Wilkerson v.

Truss (1999),

,

, see also Garvin v. Garvin

4th Dist. No. 02 CA 23,

. Once the amount and nature of support is

established, all subsequent orders that affect the substantial rights of the parties are -9-

final, appealable orders. Parenting, companionship, support, and visitation issues

may be revisited at any time due to a change in circumstances, or in the best interest

of the child pursuant to the controlling statute. Thus, where a judgment entry or order

is made in a juvenile proceeding that conclusively affects parenting rights, the order

is final and appealable. The fact that the court retains some measure of jurisdiction,

as prescribed by statute, does not alter the appealable character of final entries and

orders made during the subject child’s minority.

{¶14} In the matter at bar, the paternity suit and resulting visitation and/or

parenting rights were resolved in 2006 when the court, having determined paternity,

adopted the parties’ parenting agreement. The subsequent motions to modify and

enforce the agreement are allowed by statute. Modifications that alter custody

specifically require the court to find that there has been a change in circumstances,

and these modifications must be based on the best interests of the child. R.C.

3109.04(E)(1)(a). All other modifications must meet the best interest standard. R.C.

3109.04(E)(2); Fisher v. Hasenjager (2007),

,

,

. When a court rules on modifications of the agreement or order that

resolved the initial suit, such decisions are rulings in special proceedings that alter

the substantive rights of the parties. Hence, the juvenile court’s April 20, 2010,

judgment entry adopting in part and rejecting in part the magistrate’s decision on the

proposed amendments to the parenting agreement was a ruling in a special

proceeding that had a conclusive effect on the substantial rights of the parties. The

April 20, 2010 entry was a final, appealable order. -10-

{¶15} Because we have determined that the trial court’s April 20, 2010

judgment entry was a final appealable order, we turn to Appellee’s motion for

reconsideration. A motion for reconsideration of a final appealable order is a nullity,

but may be construed as a motion for relief from judgment if it satisfies the

requirements of Civ.R. 60(B). In GTE Automatic Electric v. ARC Industries (1976),

,

, the Ohio Supreme Court held:

{¶16} “To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if relief

is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.

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

where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year

after the judgment, order or proceeding was entered or taken.”

at paragraph two

of the syllabus.

{¶17} The court in GTE Automatic stated that the three requirements “are

independent and in the conjunctive, not the disjunctive.”

. According to the

rule in GTE Automatic, Appellee must both place his motion under one of the

applicable grounds identified by the rule and show that he has a meritorious claim to

present if victorious. The record reflects that he does not. His claim, that the court

was mistaken in assuming that Appellant was the residential parent for school

purposes pursuant to the 2006 agreement when it reached its decision, is inaccurate.

While the 2006 agreement is silent as to which parent is D.D.’s residential and

custodial parent, Appellant is apparently unaware that where a court does not make -11-

a different determination pursuant to statute, the mother is the residential and

custodial parent by operation of law. This means that Appellant was, in fact, D.D.’s

residential parent for school purposes and the trial court could not have been

mistaken in so assuming. Furthermore, as we have previously explained in

Hankinson v. Hankinson, 7th Dist. No. 3 MA 7,

, and in Gron v. Gron,

7th Dist. No. 07 JE 49,

, the mistake contemplated by Civ.R. 60(B)(1)

is some mistake on the part of the parties, not a mistake of fact or law by the court.

;

. Mistakes of fact or law may constitute

grounds for an appeal, but a motion for relief from judgment may never substitute for

an appeal. The record reflects no grounds that merit relief under 60(B). Appellee’s

motion for reconsideration seeks exactly what it presents, it asks the court to

reconsider the factors the court weighed when deciding whether or not to allow the

designated school district to be changed. A “mistake” by the court, which does not

appear in this record, is not grounds for relief under 60(B)(1). The motion fails to

satisfy the GTE test.

{¶18} When an unmarried woman gives birth to a child, she “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.” R.C. 3109.042. If the father of the child born to an unmarried

woman acknowledges paternity, and that acknowledgment has become final

according to statute, the father may seek reasonable parenting time with the child in

a court of competent jurisdiction. R.C. 3111.26. The determination of reasonable -12-

parenting rights or other rights sought by the father who has acknowledged paternity

is made pursuant to sections (D), (C), (K) and (L) of R.C. 3109.051. R.C. 3109.12.

{¶19} In the alternative, the parties to a parentage suit may reach an

agreement allocating rights and responsibilities. The confusion of the parties and,

perhaps, the court with regard to the applicability of our decision in Campana v.

Campana, 7th Dist. No. 08 MA 88,

, as well as the nature of their

parenting agreement, and the applicable standard for changing the terms of their

agreement, stems from the fact that unlike the parties in Campana, the parties in this

instance were never married. Married couples by statutory default have equal

parenting and custody rights over the issue of the marriage, even when they are

separated. R.C. 3109.03. In contrast, by statute, unwed mothers have sole custody

over their children. R.C. 3109.042. For parents who were or are married, shared

parenting under the code replaces joint custody, and is a continuation of the

separate-but-equal-parenting rights that are the product of marriage. The code does

not appear to contemplate a similar arrangement for parties that never were married,

see, e.g. R.C. 3109.04(A) “[i]n any divorce, legal separation, or annulment

proceeding and in any proceeding pertaining to the allocation of parental rights and

responsibilities for the care of a child, * * * the court shall allocate the parental rights

and responsibilities for the care of the minor children of the marriage.” See also, R.C.

3109.04 (D)(1)(d) “[a]ny final shared parenting decree shall be issued at the same

time as and shall be appended to the final decree of dissolution, divorce, annulment,

or legal separation arising out of the action out of which the question of the allocation -13-

of parental rights and responsibilities for the care of the children arose.” Where the

parties have never married, there is no statutory equivalent. Instead, the code

allocates all parenting rights to the unmarried mother, and provides that the father,

whose paternity has been established by law or whose acknowledgment of the child

has become final, may petition for parenting time, companionship or visitation rights.

R.C. 3109.12(A). Once paternity is established by law, a natural father may seek

custody of his acknowledged child, and at that time the trial court may consider both

the unmarried mother and the father equally. Nevertheless, absent a specific court

order to the contrary, the unmarried mother is the default legal custodian and

residential parent of the child for all purposes. R.C. 3109.042.

{¶20} Despite the disconnect between the shared parenting provisions and

the statutory defaults for children born out of wedlock, never-wed parents may enter

into an arrangement titled “shared parenting agreement,” and those agreements are

generally adopted by family and juvenile courts throughout the state. The title of the

agreement between the parties, however, does not alter the fact that absent an

explicit order to the contrary, Appellant remains the sole residential and custodial

parent, by statute. R.C. 3109.04, .042, .12; R.C. 3111.13(C). A court order that

gives the father of a child born to an unmarried woman parenting time, but fails to

designate a residential parent, or custodial parent, does not disturb the mother’s

statutory rights. R.C. 3109.042.

{¶21} The trial court’s attempt to designate Appellee’s motion for

reconsideration into a Civ.R. 60(B) motion to vacate is unmerited by the facts in the -14-

record and is contrary to law. The trial court’s July 27, 2010 ruling amounts to an

abuse of discretion and is vacated. The trial court’s April 20, 2010, order is

reinstated.

CONCLUSION

{¶22} The trial court’s April 20, 2010 order was a final, appealable order,

Appellee’s motion to reconsider was a nullity, as was the trial court’s order construing

Appellee’s motion as a motion to vacate and granting a motion to vacate when no

appropriate factors exist. The trial court’s July 27, 2010 order is hereby vacated and

the April 20, 2010 judgment is reinstated. Any future proceeding is to be made in

accordance with the Ohio Supreme Court’s decision in Fisher v. Hasenjager and R.C.

3109.12, .04, .041, and .042, where applicable.

Donofrio, J., concurs.

DeGenaro, J., concurs.