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1985 Ohio App. LEXIS 7183, *


WYNNE FRASE, et al., Plaintiffs-Appellees vs. FREDERICK ALBRIGHT, Defendant-Appellant
No. CA-3125
Court of Appeals, Fifth Appellate District of Ohio, Licking County, Ohio
1985 Ohio App. LEXIS 7183
September 19, 1985
PRIOR HISTORY: [*1] Civil Appeal from the Court of Common Pleas Case No. 587
DISPOSITION: Modified.
CASE SUMMARY
PROCEDURAL POSTURE: Defendant, an alleged putative father, sought review of a judgment from
the Licking County Common Pleas Court (Ohio) that ordered plaintiffs to pay only a part of the
expenses incurred for paternity tests in the paternity action filed by plaintiffs.
OVERVIEW: Plaintiffs filed a paternity action against the alleged father to determine whether he was
the natural father of a child. By an agreed stipulated journal entry the parties agreed to submit the
matter to blood testing and also agreed that if the alleged father was found not to be the child's
natural father, the costs of the testing would be payable by plaintiffs. He was determined not to be
the natural father, and the paternity action was dismissed. Plaintiff failed to pay the expenses of the
tests, and the alleged father filed a motion for contempt. The trial court ordered plaintiffs to pay for
part of the expenses incurred for the paternity tests. The alleged father appealed, and the court
modified the trial court's judgment and ordered plaintiffs to pay for all the expenses of the testing.
The court held that no ambiguity existed in the parties' stipulation and the trial court should not have
attempted to create an ambiguity. The expenses incurred for the three tests actually conducted
corresponded to the three tests referred to in the parties' agreed upon stipulation.
OUTCOME: The court modified the trial court's judgment by ordering plaintiffs to pay all the
expenses incurred for the paternity tests. As modified, the court affirmed the trial court's judgment.

CORE TERMS: assignment of error, testing, expenses incurred, parties agreed, journal entry, blood
testing, memorandum-opinion, paternity, ambiguity, modified, antigen, partial

LEXISNEXIS HEADNOTES

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Civil Procedure > Appeals > Standards of Review > General Overview
HN1

Where no ambiguity exists, a reviewing court will not attempt to create


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COUNSEL: FOR PLAINTIFFS-APPELLEES: JAMES N. TRIFELOS, Ass't Prosecuting Attorney, Courthouse,


Newark, Ohio 43055
FOR DEFENDANT-APPELLANT: MARK W. BASERMAN
449 North Market Street, Wooster, Ohio 44691

, LOGEE, HOSTETLER, STUTZMAN & BROEHL,

JUDGES: Putnam, P.J. and Milligan , J. concur.


OPINION BY: HOFFMAN
OPINION

OPINION
HOFFMAN, J.
Defendant-appellant herein, Frederick Albright, appeals a judgment of the Court of Common Pleas of
Licking County, allowing only Three Hundred Ninety-Five Dollars ($ 395) of a total of Seven Hundred
Thirty-Five Dollars ($ 735) in expenses incurred by appellant. The expenses arose out of various tests
regarding a paternity matter in the Licking County Juvenile Court.
Plaintiffs-appellees herein, Wynne Frase, et al., filed the paternity action referred to, supra. The parties
agreed by stipulated journal entry filed May 19, 1983, to submit the matter to blood testing. Specifically,
the parties agreed:
If the Defendant is not found to be the natural father of said child, the cost of the testing
noted herein shall be taxed as costs of this action payable by the plaintiffs.
Paragraph [*2] THREE

The tests referred in the stipulated entry set forth in paragraph ONE therein as:
. . . red blood cell antigen, human leucocyte antigen, and erythrocyte enzyme studies.

The record demonstrates that the appellant duly submitted to the tests as stipulated at the Sparrow
Hospital Association of Lansing, Michigan, and was billed a total of Seven Hundred Thirty-Five Dollars ($
735). Said bill was prepaid through appellant's attorney on August 29, 1983.
As a result of the instant tests, appellant was determined not to be the putative father and the
complaint was dismissed by the court. (Dismissal Entry of October 13, 1983.)
Appellant filed a motion for contempt upon appellees' failure to pay the expenses of the tests.

After taking the matter under advisement, the court below ordered appellees to pay Three Hundred
Ninety-Five Dollars ($ 395) of the bill. (Entry of March 29, 1985.)
Appellant now raises the following single assignment of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN ORDERING PAYMENT TO APPELLANT OF PARTIAL TESTING
EXPENSES ONLY, WHERE THE APPELLEE BY PRIOR STIPULATIONS AGREED TO PAY, AND
THE COURT'S ORDER BY JOURNAL ENTRY [*3] PURSUANT TO STIPULATION ORDERED
PAYMENT OF THE FULL AMOUNT OF TESTING EXPENSE.

I
Appellee argues that the instant stipulation agreement is "unclear and ambiguous on its face. . ."
It is axiomatic that HN1 where no ambiguity exists, a reviewing court will not attempt to create any. No
ambiguity exists in the instant stipulation.
Our review of this case reveals that appellant upheld his part of the stipulated agreement and appellee
did not.
Specifically, an attachment to attorney Baserman's letter to the Licking County Prosecutor clearly
detailed the three tests comprising the Seven Hundred Thirty-Five Dollar ($ 735) total. (February 8,
1985, letter, filed February 8, 1985, docket entry number 17.)
This filing, as well as other documentation in the instant record, shows that the expenses incurred
correspond to paragraph THREE of the stipulation agreement.
Appellant's assignment of error is sustained and the judgment of the Court of Common Pleas of Licking
County of March 29, 1985, which ordered a Three Hundred Ninety-Five Dollar ($ 395) partial payment is
vacated as set forth in the judgment entry of this court which accompanies this memorandum-opinion.
Putnam, P.J. and [*4] Milligan , J. concur.
JUDGMENT ENTRY
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas
of Licking County, Ohio, filed March 29, 1985, is modified to read as follows:
Pursuant to the pre-trial held on February 7, 1985, plaintiff, Licking County Welfare Department, is
hereby ordered to pay the Seven Hundred Thirty-Five Dollar ($ 735) bill for the blood testing to the
defendant, Frederick Albright, pursuant to the findings of the court.
As modified, the judgment of the Court of Common Pleas of Licking County, is affirmed.
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