This is my ex wife........

[Cite as Joslyn v. Reynolds, 2001-Ohio-1416]


STATE OF OHIO )


IN THE COURT OF APPEALS


)ss:


NINTH JUDICIAL DISTRICT COUNTY OF MEDINA ) ROBERT B. JOSLYN C.A. No. 3169-M


Appellant


v.


APPEALS FROM JUDGMENTS MICHELE A. REYNOLDS ENTERED IN THE


COURT OF COMMON PLEAS Appellee COUNTY OF MEDINA, OHIO


CASE Nos. 48802


48803


48804


DECISION AND JOURNAL ENTRY


Dated: October 10, 2001


This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:


WHITMORE, Judge.


Plaintiff-Appellant Robert B. Joslyn has appealed from a judgment of the Medina County Court of Common Pleas, Probate Division, that dismissed his complaint seeking to vacate three adoption decrees. This Court affirms.


I.


Robert B. Joslyn ("Appellant") and Michelle A. Reynolds ("Appellee") married on July 1, 1994. Appellee had three children from a prior marriage. On November 8, 1994, Appellant adopted each of Appellee's three children. The


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parties divorced on August 14, 1998. Pursuant to the divorce decree, Appellant was ordered to pay child support for each of the three children.


On July 30, 1999, Appellant filed an action under R.C. 3107.16 to vacate the adoption decrees of Appellee's three children on the ground of fraud, and for compensatory damages, including all previously paid child support. Appellee filed a motion to dismiss, arguing that even if the allegations in Appellant's complaint were true, Appellant failed to state a claim upon which relief can be granted. The trial court found that Appellant's complaint was barred by the one- year statute of limitations found in R.C. 3107.16(B), and that Appellant could not be granted relief because his action endeavors to hold Appellee liable based upon a promise of marriage or upon an obligation dependent upon or growing out of a contract for marriage. The court granted the motion and dismissed the complaint.


From the dismissal of his complaint, Appellant has appealed and has assigned three errors for this Court's review. Appellant has asserted that the trial court erred in granting Appellee's motion to dismiss pursuant to Civ.R. 12(B)(6) because the court: (1) erred in ruling that he was required to file his action within one year of the entry of the adoption decrees; (2) erred in ruling that the one-year statute of limitations began to run in July 1997; and (3) erred in determining that the children's best interests prevented vacating the adoptions.


II.


Court of Appeals of Ohio, Ninth Judicial District


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This Court's review of a dismissal under Civ.R. 12(B)(6) is de novo. Hunt v. Marksman Prod., Div. of S/R Industries, Inc. (1995), 101 Ohio App.3d 760, 762, appeal not allowed (1995), 73 Ohio St.3d 1427. This Court is bound to "presume that all factual allegations of the complaint are true and [to] make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. Furthermore, this Court can only consider "the statements and facts contained in the pleadings[.]" Powell v. Vorys, Sater, Seymour & Pease (1998), 131 Ohio App.3d 681, 684. This Court is prohibited from "consider[ing] or rely[ing] on evidence outside the complaint." Id. Before we can conclude that the trial court properly dismissed the complaint, it must appear beyond doubt that the plaintiff-appellant can prove no set of facts which would warrant a recovery. O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, syllabus.


Appellant's complaint, filed nearly four and a half years after the decrees had been entered, sought vacation of the adoptions on the basis that Appellant had been fraudulently induced to marry Appellee and to adopt her children. Appellant asserts that Appellee's fraud had its origins in the early part of the parties' relationship--a relationship which began when Appellee was hired to care for Appellant, who is a quadriplegic. Appellant asserts that Appellee, who was married and had three children, began to ingratiate herself to Appellant, and began managing his money--which consisted of monthly annuity payments of over


Court of Appeals of Ohio, Ninth Judicial District


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$10,000. Eventually, Appellee left her husband and she and her three children moved into Appellant's home. According to the complaint, Appellee immediately started spending large amounts of Appellant's money, and initiated a sexual relationship with him. Appellee told Appellant that she wanted to be married to him, that she, like he, believed marriage was a lifetime commitment, and that she wanted to spend her life with Appellant and her children as one family. Two years after Appellee and her children moved into Appellant's home, the couple married, and shortly thereafter, Appellant adopted Appellee's three children. However, Appellant says that it was not long before Appellee stopped providing Appellant the necessary care, and that she suddenly had no interest in a sexual relationship.


She did, however, have a great interest in spending his money.


The relationship rapidly deteriorated. Appellee began engaging in adulterous affairs, and told Appellant's sister that she had married Appellant "only for her children and their security." The relationship became hostile, and Appellant feared for his life. Appellant's family intervened and transported Appellant to the hospital, while Appellee and one man with whom she was having an affair destroyed much of Appellant's property, including the wheelchair ramps at the house. Appellant went to live with his family. Appellee denied Appellant any contact with the children. The parties divorced and Appellant was ordered to pay $2,354.00 per month in child support. Appellant's complaint asserts that because Appellee "connived and plotted to get [him] to marry her and adopt her


Court of Appeals of Ohio, Ninth Judicial District


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children and get his money, and falsely represented her intentions for the marriage and subsequent adoptions *** inducing [him] to marry her and adopt her three children[,] *** he has incurred damages including substantial financial damages for child support[.]" While the allegations, which must be taken as true, are heart-wrenching, the issue, quite simply, is whether R.C. 3107.16(B) permits vacation of an adoption based on the facts as alleged in Appellant's complaint. This Court finds that it does not. We agree with the trial court's conclusion that "the nature of this action is one of the heart *** based upon a promise of marriage or upon an obligation dependent upon, or growing out of, a contract of marriage and [is] not cognizable by law[.]" R.C 3107.16(B) provides: Subject to the disposition of an appeal, upon the expiration of one year after an adoption decree is issued, the decree cannot be questioned by any person, including the petitioner, in any manner or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter, unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor, or, in the case of the adoption of a minor by a stepparent, the adoption would not have been granted but for fraud perpetrated by the petitioner or the petitioner's spouse, or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period. (Emphasis added.) Appellant has contended that the trial court erred in finding that his complaint is barred by the one-year statute of limitations. He has insisted that the


Court of Appeals of Ohio, Ninth Judicial District


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language "the [stepparent] adoption would not have been granted but for fraud perpetrated by the *** petitioner's spouse[,]" expressly provides for his claim because "if the Court had known that [Appellee] had married [Appellant] and induced him to adopt her three children only because of his money with no intention of staying married to him, it certainly would not have granted the adoption[s]." There is no case law interpreting what "fraud" means in the context of the particular provision "the [stepparent] adoption would not have been granted but for fraud perpetrated by the *** petitioner's spouse[.]" Courts have, however, permitted adoptions to be challenged on the basis of fraud in the general context.


In those cases, the fraud has concerned either the consent of the birthparents, or the health or identity of the children. See Copeland v. Delvaux (1993), 89 Ohio App.3d 1; In re Adoption of Zschach (1996), 75 Ohio St.3d 648, cert denied (1996), 519 U.S. 1028, 136 L.Ed.2d 513; see, also Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69. We see no reason to expand the type of fraud permitted to challenge stepparent adoptions. This Court rejects Appellant's contention that the General Assembly intended to permit all stepparent adoptions to be challenged upon divorce of the adoptive parent(s). We also reject Appellant's assertion that a stepparent adoption can be vacated on the basis of fraud where the fraud goes to misrepresentations concerning the marriage.


Court of Appeals of Ohio, Ninth Judicial District


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Therefore, we find that the trial court did not err in dismissing Appellant's complaint.


Because we have determined that Appellant has stated a claim for which there is no relief, this Court need not decide whether the trial court erred in finding that the statute of limitations began to run in July 1997, or whether the best interests of the children prevent vacating the adoption decrees. See App.R. 12(A)(1)(c).


III.


The judgment of the court of common pleas is affirmed.


Judgment affirmed.


The Court finds that there were reasonable grounds for these appeals.


We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.


Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).


Costs taxed to Appellant.


Exceptions.


Court of Appeals of Ohio, Ninth Judicial District


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BETH WHITMORE


FOR THE COURT


SLABY, P. J.


CARR, J.


CONCUR APPEARANCES: TIM M. WATTERSON, Attorney at Law, 111 Second Street NW, Suite 300, Canton, Ohio 44702, for Appellant.


RONALD L. TOWNE, LINDA S. GURAN, and ANN L. WEHENER, Attorneys at Law, 2210 First National Tower, Akron, Ohio 44308-1449, for Appellee.


Court of Appeals of Ohio

A Day in the Life

So here I sit in my studio. 2 o'clock in the afternoon. Totally exhausted. My little black Brussels Griffon puppy in my lap. Home again from another one of my wonderful journeys. This one is particularly surreal. Twenty-four hours ago, I was sitting on a plane bound for La Guardia, anxiously staring at my watch. My flight was delayed. I was an hour and a half behind schedule. I was supposed to have started sound check at Shea Stadium at 3 o'clock. This, obviously, was not going to happen on time.



Shea stadium. Boy, my parents would be proud. My father, proud because I was doing what he wanted for me to do with my life. It's hard for me to measure success but through his eyes, this is success. My mother would be proud, particularly because when I go to work I wear a suit and tie. When I saw the Beatles on the Ed Sullivan Show in 1964, I wanted to grown my hair long. And my mom said, "When you turn 18, you can grown it as long as you want." Who would've thought that motherly line would have stuck with me for 42 years? She said, "You'll look like a girl." I said, "No, I'll look like a Beatle." What if I would have said, "I wanna bond ions?"



Yesterday is a day that I will never forget. How many musicians dream of performing in front of 50,000 people? And yesterday, there were four. The group that I feel so fortunate to be back performing with, 1964 the Tribute, performed at Shea Stadium on the 40th Anniversary of the Beatles' performance at Shea. We played 30 minutes before the Mets/Cardinals game and played a song between the innings. Naturally, we did "Twist and Shout" for the seventh inning stretch.

I thought that I would be nervous but I was unusually calm, almost detached. Yes, literally, I was beside myself. Caught up in the moment and the scope and magnitude of where I was and what I was doing. Surreal is an understatement. I was surrounded by people that spanned nearly my entire professional career. A roommate from the 70s when I first moved to Cleveland. Photographers that I met in the 80s. There are no words to describe this. Moments after we started our first song, I looked straight ahead in front of me at the scoreboard and saw the advertisement "1964 the Tribute: Live at Carnegie Hall January 27th. Tickets on sale now." Am I rambling? That was yesterday. As I said, today, I'm back at home in the Blue Ridge Mountains, surrounded by my gaggle of dogs wondering if yesterday was just a dream or if it really happened?



The weeks not over. Saturday I perform at Red Rocks Amphitheater in Denver, Colorado. By the end of January, I will have performed at three of the five venues where the Beatles performed that are still in existence. Not bad for a Beatles' tribute.

There were several amusing elements about my day and evening at Shea Stadium. I was very excited about performing and so nonchalant about it at the same time. For instance, my brother knows that I'm playing Carnegie Hall January 27th but I didn't tell him I was playing Shea Stadium. He didn't know until yesterday morning.

I looked up at the Jumbo-Tron (imagine a TV 80 feet wide)projecting our images and it was 15 seconds behind what we were doing. I only did that once. "Don't do that again," I thought to myself. "Nothing good can come of this."

One of the network correspondents covering the game approached us and asked if he could stand onstage in the background holding a guitar while we played a song. Apparently, in New York City, he is famous for this kind of stunt. We thought it would be funny. So as we were playing "Paperback Writer" I glanced over at stage left to see a reporter holding an electric guitar doing a really good Keith Richards impersonation. After he finished the song and the network cut back to the game, we waited for a break so he could interview us. Towards the end of the interview (I've been waiting six months to do this) he asked us to introduce ourselves and the characters we portray. He put the microphone in front of Mark: "I'm Mark Benson and I play John Lennon" then to Tom: "I'm Tom Work, I play George Harrison" then to Gary: "I'm Gary Grimes and I play Paul" then to me: "I'm Terry Manfredi and I play Paul. I do play Paul, don't I?" I asked Paul. Gary replied, "Not today Rings." "I'm Terry Manfredi and I play Ringo." It's funny how you can imagine yourself in a situation and then have it come to pass months later. I was more amused by it than anyone else on the planet. I guess you become attuned to Beatle-ish humor.

At the end of our last song, we called the hotel shuttle to come and pick us up. We left through the press gate but the driver had a difficult time finding us. As the game ended, 50,000 baseball fans streamed from the stadium and there we stood, the four of us in costume with a few photographers and a few friends. People wanted to talk to us, shake our hands, have their pictures made and spread a million kinds of bacteria onto our collective person. Several people wanted to tell me what a great job I did and how much I look like John Lennon. I play Ringo. I politely said, "Thank you" and smiled for the camera.



Well, I'm tired. I'm gonna take a nap with my little black Brussels Griffon puppy.

ZZZZZZZZZZzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

Vote for peace!

Wars throughout history have been waged for conquest and plunder.... the working class who fight all the battles, the working class who make the supreme sacrifices, the working class who freely shed their blood and furnish their corpses, have never yet had a voice in either declaring war or making peace. It is the ruling class that invariably does both. They alone declare war and they alone make peace....They are continually talking about their patriotic duty. It is not their but your patriotic duty that they are concerned about. There is a decided difference. Their patriotic duty never takes them to the firing line or chucks them into the trenches.--Eugene V. Debs

These are a few of my favorite things

If I Had a Hammer.......

APPLE CORPS Ltd. -Vs-1964

APPLE CORPS Ltd. -Vs-1964

A case with merit OR JUST HOT AIR?

On August 22, 1991, in a parking lot in Murfeesboro, Tennessee, approximately ten minutes before curtain, 1964 was arriving for their show in full regalia of boots, suits and ties, and wigs. Inside, two thousand excited fans twitched with anticipation as the house lights began to dim. Outside the stage door, John, the band's stage manager and guitar technician, was waiting for the boys - a sure sign something was up. Forewarning the band could serve as no purpose, John knew, they stepped foot inside the building. Just inside the door were two U.S. Marshals and an official of the U.S. District court, waiting to serve the band with copies of the complaint Apple had filed that day. Mark, Gary, Tom, and Terry identified themselves to the court representative, accepted the subpoenas, and shook hands with the two local Marshals - apparantly the officers had seen the show before and were planning to stay and watch it again. The irony helped to break the ice. The six weeks that followed were filled with finding, retaining and meeting with attorneys. Then, in October, Apple's lawyers came to Washington, D.C. to meet with 1964 and their attorneys for the purpose of taking 1964's depositions. The ordeal took two days as the two attorneys representnig Apple asked question after question of the four members of the band. Repeatedly they presented to the Defendants photocopies of various documents and it began to get humorous as the boys noticed the Revolver logo on several of the documents. That Robert Cesare (owner-operator of Revolver) had been furnishing Apple and/or Apple's attorneys with information and documentation seemed apparant less than halfway through the depositions...of course, one cannot be certain that this is true. Another name was found on much of the documentation, one that cannot be divulged, but one that lends weight to the argument that this lawsuit is malicious and fueled by Cesare's personal vendetta. Be that as it may, it is a bona fide lawsuit and, while it seems to have slowed for the moment, it will surely pick up again, probably at the most inopportune moment imagineable. When discussing this case with friends, supporters and business associates, the usual response the band hears is, "what about Rich Little?" There seems to be very little that can be said in answer to that question, without getting into a lenghty definition of "parody". In a nutshell, Mr Little can get away with what he does apparantly because what he says carries some form of social comment. In a democratic society law follows public opinion, in principle at least, and if legislators were to read what many of 1964's supporters have written, they might be introducing bills aimed at repealing so-called Right of Publicity laws.

At several points 1964 has offered to make specific changes to the show in an attempt to satisfy Apple's complaint, for example, the removal of "The Beatles" from the bass drum head, but Apple has consistantly and categorically turned down any and all of these counteroffers. Sometimes it is difficult to make any sense out of the whole thing!

In May of 1992 Plantiff (Apple Corps, Ltd.) took their next action, having done essentially nothing since taking 1964's depositions seven months earlier. Two of their lawyers came to Akron and pored over ADPR's financial records. ADPR is a small operation, and they were able to cover seven and one half years of financial data in only four or five hours. 1964 was left with the district impression that Apple's attorneys were quickly coming to the realization that what they had thought was a big corporation ripping off the Beatles, was merely a small-time operation of no significant threat to Apple at all. Last December, 1964 went to Nashville, Tennessee and filed a Motion to Transfer Venue. This motion requests the court to move the site of the trial and any related hearings to Akron, Ohio, 1964's home base. The statutes require that the venue (site) be convenient to at least one party. Since Apple Corps, Ltd. is a British corporation, it would seem that any city at all in the U.S. would be as convenient to them as any other. Akron is certainly more convenient to 1964 than is any other. For reasons unknown, the judge has not yet ruled on this simple motion. Defendants (1964) argued that virtually all their witnesses reside in or near Akron, and that to travel to Nashville to testify would result in serious financial hardship to most of them. Many of the others would be unwilling to make the trip because of business or other obligations. The Defendants can hardly get a fair chance in court, and justice would hardly be served, if the court refuses to transfer venue to Akron.

As this lawsuit progresses, we will keep you up-to-date and abreast of its developments. In the meantime, let's hope and pray that Apple will withdraw their complaint.



UPDATE!
As you already know 1964 have won this case! They are the only tribute band with a written agreement from Apple Corps, Ltd. to perform their tribute.





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Words to live by

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."- Benjamin Franklin, 1759

"When I despair, I remember that all through history the way of truth and love has always won. There have been tyrants and murderers and for a time they seem invincible but in the end, they always fall - think of it, ALWAYS." - Gandhi