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Kerns v. Schmidt6/9/1994
his previous appeal to this court, Kerns asserted that the domestic relations court should have granted his Civ.R. 60(B) motion on the basis that he lacked proper notice and an opportunity to be heard prior to the issuance of the divorce decree. This court rejected that claim, holding that Kerns's motion for relief from judgment had not been timely and, therefore, that the domestic relations court was within its discretion to deny the motion. Kerns, 87 Ohio App.3d at 703, 622 N.E.2d at 1152-1153. Thus, regardless of whether the divorce decree properly determined the child was born as issue of the marriage, the untimeliness of Kerns's Civ.R. 60(B) motion resulted in the divorce decree being upheld. See, generally, Weber v. Weber (1991), 74 Ohio App.3d 396, 599 N.E.2d 288. Moreover, Kerns clearly knew, during the pendency of the divorce, that the child was not his and that his lack of consent to the artificial insemination needed to be adjudicated. But because Kerns did not effectivelsassert his defense, this issue apparently was not properly before the domestic relations court. A missed opportunity to raise the issue of parentage during the pendency of a divorce can result in a subsequent parentage action being barred by the doctrine of res judicata. Kashnier v. Donelly (1991), 81 Ohio App.3d 154, 156, 610 N.E.2d 519, 520.
Kerns admits as much, stating that the action filed in this case did not question parentage and that Kerns accepts the finality of the domestic relations court's decree. Instead, Kerns's second and third assignments of error challenge whether Baker committed fraud in failing to obtain his consent to the artificial insemination.
Despite Kerns's protestations that his action for fraud has nothing to do with parentage, the essence of Kerns's claim against Baker is that he is not the father of the child, that Baker did not obtain his consent prior to becoming artificially inseminated, that he has no duty to support the child, that he has been damaged by being forced to pay child support for a child who is not his, and that he has been required to seek psychological counseling for extreme emotional distress. Because Kerns's action contests the consequences of an earlier decision imposing an obligation to support the child, and is an attempt to rebut the presumption apparently followed by the domestic relations court that a child born during a marriage is the husband's natural child, R.C. 3111.03, the action is a parentage action which must be commenced either as a part of a divorce action or as an independent action in accordance with R.C. Chapter 3111.
We therefore find that the gravamen of Kerns's claim with regard to Baker contests parentage, that Kerns knew he was not the father of the child during the pendency of the divorce and had a duty to raise the issue at that time, that any remedy Kerns had for harm done by Baker arose out of the divorce action, and that Kerns is collaterally estopped from relitigating the parentage issue, which was determined by the divorce decree.
Baker's assignment of error on cross-appeal is sustained on the basis that the trial court erred in failing to find Baker was entitled to judgment as a matter of law because the issue of the parentage of the child was barred by collateral estoppel. Kerns's second and third assignments of error are overruled on the basis that Kerns's cause of action alleging fraud against Baker disputed the parentage of the child, and could not be maintained as an independent action for fraud.
Kerns's first, fourth and fifth assignments of error are related and will be addressed together. By these assignments of error, Kerns asserts that the trial court erred in dismissing his cause of a
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