SPARC Forums

Main Forums => Dear Socrateaser => Topic started by: cmk1220 on Feb 28, 2007, 01:28:02 PM

Title: Vacating Child Support
Post by: cmk1220 on Feb 28, 2007, 01:28:02 PM
Hi Soc!

All parties reside in Ohio.

BM&I married 1993. Mom Pregnant at the time.  2nd child born 1994.

BM&I divorce 1999.  I pay child support for 2 children.

2002- I find out BM is telling people Child #1 is not mine.  I did a home paternity test.  Child #1 0% probability being mine.  Child #2 99.99% child is mine.

2002-I filed a motion to vacate support order for Child #1 siting R.C. 3119.961.  Court ordered genetic testing.  Test results 0% probablitiy of Child being mine.  Case gets continued a lot until 2003.

2003- Court of Appeals rules it is unconstitutional (in a different case) to vacate order (Van Duesen v. Van Duesen).  With my attorney's advise I dismissed the motion without prejudice(I did not have the $ to take it to the Supreme Court).

Fast forward to 2007.  I am still paying CS for child #1.  I look on the Supreme Court website and come across this...

Law Creating Substantive Right That Conflicts With Court Rule Upheld As Constitutional

2004-1465. State ex rel. Loyd v. Lovelady, 2006-Ohio-161.
Cuyahoga App. No. 83090, 2004-Ohio-3617. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-161.pdf

In a 7-0 decision announced today, the Supreme Court of Ohio upheld as constitutional a state law enacted in 2000 that creates a substantive right for men against whom paternity judgments have been entered to obtain relief from those judgments through DNA testing “notwithstanding” their failure to comply with one of the Supreme Court's Rules of Civil Procedure.

Today's decision, authored by Justice Paul E. Pfeifer, affirms a ruling by the 8th District Court of Appeals that the statutory provisions in question, R.C. 3119.961 et seq., do not violate the constitutional separation of powers between the legislative and judicial branches of state government. (I could copy the entire text but I am not sure that that is allowed on here.)

1.) Am I reading this right, that I can now go back and vacate the CS order or did I blow it by not pursuing it further in 2003?

Thanks!
Title: RE: Vacating Child Support
Post by: socrateaser on Feb 28, 2007, 04:02:38 PM
>1.) Am I reading this right, that I can now go back and vacate
>the CS order or did I blow it by not pursuing it further in
>2003?

Issue is: had you not withdrawn your action, would you have been granted relief were this law deemed constitutional at the time you withdrew.

You had one bite at the apple, and by voluntarily withdrawing, you essentially allowed the prior finding of the court to become final, which would ordinarily bar you from filing for the same relief a second time, under the doctirne of res judicata. However, you may have good cause, in equity, for reasserting your claim, because you relied on the determination of the appellate court in another case identical to your own, which was eventually reversed.

I can't say for sure that you have a case, because there is probably some OH appellate case law which has determined what you must show in order to get a prior final order set aside, based on equitable principles, such as a finding that the legal rationale for the judgment against you is invalid.

But, I'd plead it anyway, because you won't be alone out there, and the trial court will either allow you to proceed and void your CS order, placing the burden of appeal on the other parent, or not.