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Kerns v. Schmidt6/9/1994
BOWMAN, Judge.
In August 1991, appellant, Phillip Kerns, initiated this action against appellees, Grant Schmidt, M.D., and against his former wife, Sharon Kerns Baker ("Baker"), alleging that the two had committed fraud by failing to obtain his consent to his wife's artificial insemination by a nonspousal donor, in violation of R.C. 3111.30 through 3111.38. Appellant's claim against Riverside Hospital was voluntarily dismissed.
Kerns had fathered two children during a previous marriage and undergone a vasectomy. Although Kerns did not desire any more children, Baker wanted a child and Kerns accompanied her when she first visited Schmidt to discuss the possibility of artificial insemination by a nonspousal donor; however, Kerns contends he never consented to the procedure. Despite the alleged lack of consent, Baker continued as Schmidt's patient, was artificially inseminated and became pregnant around August 1987. Upon learning that Baker was pregnant, Kerns moved out of the marital residence. The child was born in April 1988, and Baker initiated divorce proceedings shortly thereafter.
Various procedural problems surfaced during the pendency of the divorce action, both with Baker's ability to obtain service of process on Kerns, and with Kerns's ability to retain counsel. The procedural history of the divorce action is set forth in this court's decision in Kerns v. Kerns (1993), 87 Ohio App.3d 698, 62sN.E.2d 1149, in which this court noted that, in response to Baker's complaint for divorce, Kerns filed both a counterclaim and an "Action for the Determination of Parentage," alleging that the child was not issue of the marriage and that Baker had been artificially inseminated without Kerns's consent. In our previous decision, this court outlined Kerns's repeated failure to timely file pleadings and make appearances, which was compounded by his failure to timely assert a Civ.R. 60(B) motion for relief from the decree of divorce. Thus, despite the trial court's having entered judgment without Kerns's having appeared for trial, which this court found was partially the result of conduct by Baker's counsel, this court affirmed the trial court's denial of the Civ.R. 60(B) motion because said motion was untimely. Id. at 703, 622 N.E.2d at 1152-1153.
Considering the divorce decree again as a part of the record currently before us, we observe that, although the issue of the child's parentage was apparently never fully litigated, the divorce decree stated that "one child was born as issue of said marriage." In deciding the issue of custody, the court found that Baker was artificially inseminated and the child "is deemed an issue of the marriage," pursuant to R.C. 3111.03. The domestic relations court additionally ordered child support but never addressed Kerns's allegation that the child was the result of a nonspousal artificial insemination and, therefore, was not his child.
In August 1991, Kerns filed the instant cause, alleging fraud by both Schmidt and Baker and seeking damages for their failure to obtain his consent to the artificial insemination.
Schmidt countered with a motion to dismiss, alleging Kerns's claim was timebarred as a medical claim under R.C. 2305.11 and, further, that Kerns's claim was unsupportable because he had failed to present expert testimony regarding Schmidt's standard of care, that R.C. 3111.34 allowed no cause of action for a physician's breach of a duty to obtain consent, and that Kerns's child support obligations arose out of the divorce decree rendering the question res judicata.
In August 1993, the trial court granted Schmidt's motion to dismiss, additionally ruling that Kerns
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