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Kerns v. Schmidt6/9/1994
was raising parentage issues which were the province of the domestic relations court, and dismissing the action as to Baker as well. The court also overruled a motion for summary judgment by Baker.
Kerns now assigns the following as error:
"First Assignment of Error
"The trial court erred when it sustained defendant Grant Schmidt, M.D.'s motion to dismiss.
"Second Assignment of Error
"The appellant stated a cause of action in equitable fraud against defendant-appellee Sharon Baker.
"Third Assignment of Error
"The trial court erred when it found that the questions raised in this case involve the issue of paternity which are within the exclusive jurisdiction of the domestic relations court.
"Fourth Assignment of Error
"The trial court erred when it dismissed appellant's complaint because O.R.C. 3111.34 does not provide for a private right of action.
"Fifth Assignment of Error
"The trial court erred when it dismissed appellant's complaint because O.R.C. 3111.34 creates no private right of action.
"Sixth Assignment of Error
"The trial court had a duty to enforce O.R.C. 3111.34 and O.R.C. 3111.35.
"Seventh Assignment of Error
"The trial court erred when it overruled plaintiff's motion for summary judgment alleging negligence per se against Grant Schmidt, M.D."
Baker has filed a cross-appeal in this matter in which she raises one assignment of error:
"The trial court erred when it overruled a Motion For Summary Judgment filed on behalf of Cross-Appellant Baker."
Baker's sole assignment of error on cross-appeal asserts that the trial court should have granted her motion for summary judgment since Kerns's claims were barred by res judicata. Kerns's second and third assignments of error both pertain to Kerns's allegations against Baker, charging that the trial court should have determined he stated a claim upon which relief could be granted by asserting equitable fraud against Baker, and that the court should not have held that his claims involved parentage and properly belonged before the domestic relations court. These assignments will be addressed together.
Summary judgment is only proper where the trial court, construing the facts in a light most favorable to the non-movant, determines there are no genuine issues of material fact, and that the movant is entitled to judgment as a matter of lawsHarless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.
According to Baker, Kerns's claims disputed the parentage of the child and were, or should have been, raised during the pendency of the divorce action. Therefore, she asserts that, because the divorce case resulted in a final decree which determined the child to be issue of the marriage and ordered Kerns to pay child support , the question of parentage was res judicata as to claims asserted against her and may not be relitigated in this action. Thus, Baker argues there were no genuine issues of material fact and she was entitled to judgment as a matter of law.
In overruling Baker's motion for summary judgment, the trial court found that the domestic relations court had not determined the question of the child's parentage, thus rejecting Baker's contention that the divorce decree had rendered that issue res judicata. The court stated:
"* * * A review of the Complaint filed in the divorce action indicates that Defendant Baker did not plead spousal consent for non-spousal artificial insemination. At most, this Complaint can be construe
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