[Cite as Franklin v. Brown,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUMILLE FRANKLIN JUDGES: Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 16CA24 STANLEY BROWN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Domestic Relations, Case No. 2012 SUP 1114

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 26, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JEFFEREY R. STIFFLER STANLEY BROWN, PRO SE Badnell & Dick Co., L.P.A. 478 Allison Ave 21 North Walnut Street Mansfield, Ohio 44903 Mansfield, Ohio 44902 Richland County, Case No. 16CA24 2

Hoffman, J.

{¶1} Defendant-appellant Stanley Brown appeals the April 19, 2016 Judgment

Entry entered by the Richland County Court of Common Pleas, Domestic Relations

Division, which overruled his objections to the magistrate's January 12, 2016 Amended

Decision, and approved and adopted said decision as order of the court. Plaintiff-appellee

is Jumille Franklin.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant and Appellee are the biological parents of three children, S.B.

(DOB 8/7/96), K.B. (DOB 3/26/98) and S.H.B. (DOB 11/26/99). They have never been

married. Appellee is the residential parent of the children. On October 23, 2012, Appellee

filed a motion to establish child support. The magistrate conducted a hearing on the

motion on April 17, and May 29, 2013. Via decision filed June 10, 2013, the magistrate

recommended Appellant pay child support from August 7, 1996, through August 31, 2009.

{¶3} Appellant filed objections to the magistrate's decision. Via Judgment Entry

filed July 25, 2013, the trial court overruled Appellant's objections, and approved and

adopted the magistrate's June 10, 2013 decision. Appellant appealed the trial court's

decision, which this Court affirmed in Franklin v. Brown, 5th Dist. Richland App. No. 13

CA 75,

.

{¶4} On May 15, 2015, Appellant filed a motion to vacate judgment pursuant to

R.C. 3111.16, requesting the trial court vacate the retroactive child support order for the

periods of time the trial court found the parties were not cohabitating. The magistrate

conducted a hearing on Appellant's motion on December 22, 2015. At the hearing,

Appellant argued he had evidence to establish he and Appellee were cohabitating during Richland County, Case No. 16CA24 3

periods of time for which the trial court ordered him to pay child support. Appellant

asserted the same arguments in 2013. Appellant attempted to introduce the children’s

school records as evidence the parties cohabitated. The magistrate concluded the

evidence was inadmissible because Appellant failed to demonstrate he could not have

produced the documents in 2013.

{¶5} Via Decision filed January 4, 2016, the magistrate overruled Appellant's

motion. The magistrate filed an amended decision on January 12, 2016. Appellant filed

objections to the magistrate's decision. Via Judgment Entry filed April 19, 2016, the trial

court overruled Appellant's objections, and approved and adopted the magistrate's

January 12, 2016 Amended Decision as order of the court.

{¶6} It is from the April 19, 2016 Judgment Entry Appellant appeals, raising the

following assignments of error:

{¶7} “I. A TRIAL COURT ERRS WHEN IT FINDS AS A MATTER OF LAW THAT

RELIEF PURSUANT TO O.R.C. 311.16 AND CUYAHOGA V. GUTHRIE, 84 OHIO ST.3D

437 (1999), IS UNAVAILABLE WHERE A DEFENDANT ADMITS HIS PATERNITY AND

PARTICIPATES IN THE PATERNITY PROCEEDINGS.

{¶8} “II. A TRIAL COURT ERRS AS A MATTER OF LAW WHERE IT HOLDS

THAT A DEFENDANT WHO FAILS TO SECURE EVIDENCE NEEDED TO SUPPORT

HIS POSITION AT A PATERNITY HEARING CANNOT SHOW EXCUSABLE NEGLECT

LATER WHEN HE DOES SECURE SUCH EVIDENCE, THEREBY MAKING RELIEF

UNAVAILABLE TO HIM.

{¶9} “III. A TRIAL COURT ERRS AS A MATTER OF LAW WHERE IT HOLDS

THAT CERTIFIED PUBLIC RECORDS ARE ADMISSIBLE IN A PATERNITY HEARING Richland County, Case No. 16CA24 4

BUT ARE INADMISSIBLE IN A SUBSEQUENT HEARING, CONTRA EVIDENCE RULE

902(4).”

I and II

{¶10} Appellant argues pursuant to R.C. 3111.16, the juvenile court had

continuing jurisdiction to modify or revoke a judgment or order issued under R.C. 3111.01

to R.C. 3111.19. Appellant relies upon Guthrie v. Cuyahoga County Child Support

Enforcement Agency (1999),

, as support. We find such reliance

misplaced.

{¶11} In Guthrie, the Ohio Supreme Court recognized R.C. 3111.16 authorized

the juvenile court to relieve the judicially declared father of future child support orders

based upon DNA evidence which established he was not the father. However, the Guthrie

Court found he was not entitled to relief of his retroactive order of child support because

of his own inexcusable neglect in not appearing at the initial parentage proceeding.

{¶12} Appellant’s claim to relief from his prior child support order is based on

school records which were available to him at the original hearing before the magistrate

to establish child support. His neglect in timely presenting the same precludes him from

the retroactive modifications he seeks. The school records could have been presented

at that time.

{¶13} Under the doctrine of res judicata, “[a] valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp.

(1995),

,

, syllabus. Res judicata operates to bar

litigation of “ ‘all claims which were or might have been litigated in a first lawsuit.’ ” Richland County, Case No. 16CA24 5

(Emphasis omitted.)

,

, quoting Natl. Amusements, Inc. v.

Springdale (1990),

,

.

{¶14} We find the claims presently raised by Appellant were previously raised or

could have been raised at his initial hearing. Accordingly, under the doctrine of law of the

case and application of res judicata, we overrule Appellant's first and second assignments

of error.

III

{¶15} Based upon our disposition of Appellant’s first two assignments of error, we

find his third assignment of error moot.

{¶16} The judgment of the Richland County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Hoffman, J.

Farmer, P.J. and

Wise, J. concur