Opinion
No. 19054
Decided December 27, 1965.
Support — Illegitimate child — Uniform Support of Dependents Act — Chapter 3115, Revised Code — Defendant a resident of Ohio — Denies paternity — No previous judicial determination — Paternity action in Ohio available to nonresident child — Chapter 3115, Revised Code, not available in absence of judgment in paternity action.
1. A nonresident of Ohio may commence a paternity action in the appropriate court of this state against a resident defendant, although the child was conceived and born in another jurisdiction and neither mother nor child is or has been a resident of this state.
2. A resident defendant may not be required to support a child born to one not his wife, under the Uniform Support of Dependents Act, where there has been no prior judicial determination of the paternity of the child.
Mr. George Schilling, Jr., prosecuting attorney, for the initiating state, West Virginia.
Mr. Paul E. Riley, for respondent.
This action under the Uniform Support of Dependents Act (Chapter 3115, Revised Code, "Support of Dependents") is based upon the claim of support made by petitioner, for her child, Jonathan Keith Smith, against respondent, a resident of this county.
In her affidavit, filed in proper court of initiating state, she states: "We are not married," "I was staying at the home of the respondent's parents when sex relations resulting in my pregnancy. He knew of my pregnancy, admitted the child was his and gave me money on infrequent intervals," that his last contribution of support was $180.00 on a named date, and that "respondent never lived with me." Her verified petition alleges that respondent "is the father of the following named Dependents: Jonathan Keith Smith, aged 1 1/2 years." (At no place does petitioner give any dates for the alleged sexual relations with respondent, or for the birth of the child. At no place does petitioner state that she is unmarried.)
Upon her affidavit and her petition, proper reciprocal proceedings were completed in West Virginia and forwarded to this court, where the case was docketed and hearing was had under Section 3115.08, Revised Code.
The pertinent parts of the Uniform Act, as enacted in Ohio, state:
"Section 3115.01, Revised Code. Definitions. As used in Sections 3115.01 to 3115.22, inclusive, Revised Code: * * *
"(F) `Duty of support' means any duty of support imposed or imposable by law, court order, decree, or judgment, whether interlocutory or final, and whether incidental to a proceeding for divorce, legal separation, separate maintenance, or otherwise.
"* * *
"Section 3115.10, Revised Code. Order of responding state court. When a court of this state, acting as a court of a responding state, finds a duty of support, it may order the defendant to furnish support or reimbursement for support and may subject the property of the defendant to the order. * * *
"Section 3115.22, Revised Code. Remedies in addition to others. The remedies provided by Sections 3115.01 to 3115.21, inclusive, Revised Code, are in addition to, not in substitution for, any other remedies."
Respondent testified that the parties were first cousins, that they had had sexual relations only one time, that being at his parent's home, exact date not recalled, but this child was born roughly seven and one-half or eight months after this act. He denied paternity, stated that he had told her all along that this child was not his child, admitted he had sent her some money, and further stated that he had never admitted paternity and that there had been no suit to determine the paternity of the child.
Laws concerning support of illegitimate children have been in effect in this area since before the establishment of the state of Ohio.
The First General Assembly of the North-West Territory in "An Act to provide for the maintenance and support of illegitimate children," T. L. II 47, 1 Chase's Stat. 292, c. 131, December 6, 1800, effective May 1, 1801, provided, among other things, for jury determination of question of paternity of such child, if denied. This was replaced by another act in 1805, by the Third General Assembly of the state of Ohio, 3 Ohio Laws 167, 1 Chase's Stat. 490, c. 76, that in turn was replaced in 1824 by another act, 29 Ohio Laws 423, 2 Chase's Stat. 1423, c. 629.
Each of these three acts required that the woman who was pregnant with, or had been delivered of, a bastard child, be a resident of the area, that is, the Territory in the Act of 1800, or of this state of Ohio, in the Acts of 1805 and of 1824.
These acts and all subsequent bastardy acts have provided that if the jury find the defendant, the accused, guilty (of being the father of the child), or if he confess in court before the trial that the accusation is true, he should be judged the reputed father of such child, with orders accordingly.
The 1824 Act, as amended, was repealed and a new act enacted in 1873, 70 Ohio Laws 111, that eliminated the previous residence requirement, and since 1873, it has not been necessary for the woman in the matter to be a resident of the state of Ohio.
The present law, Chapter 3111, Revised Code, styled "Bastardy" is applicable in the present situation where it is claimed that an Ohio resident is father of such child, while the mother and child live in another state.
The Ohio law at the time of the pregnancy of the complainant, of the birth of the child, of the institution of these proceedings, and at the present time, provide in pertinent parts:
"Section 3111.01, Revised Code. Complaint. When an unmarried woman, who has been delivered of, or is pregnant with, a bastard child, makes a complaint in writing, under oath, before a judge of a county court or in juvenile court, charging a person with being the father of such child, the judge shall issue his warrant * * *
"Section 3111.15, Revised Code. Trial. If the accused pleads not guilty of the charge before the court to which he is recognized to appear, or after furnishing recognizance, fails to appear, the court shall order the issue to be tried. Either party shall be entitled to a trial by jury or jury trial may be waived pursuant to Section 2315.20, Revised Code.
"Section 3111.17, Revised Code. Judgment and order. If the accused in a proceeding under Sections 3111.01 to 3111.24, inclusive, Revised Code, confesses in court, in person or by counsel, that the accusation is true or if the jury finds him guilty, he shall be adjudged the reputed father of the illegitimate child. * * *"
In Yuin v. Hilton, 165 Ohio St. 164, 59 O. O. 219, 134 N.E.2d 719, 57 Am. Rep. 2d 681 (April 18, 1956), the Supreme Court held in the syllabus:
"2. A proceeding in bastardy can be maintained in Ohio under Section 8006-1 et seq., General Code (Section 3111.01 et seq., Revised Code), by an unmarried woman, the mother of a bastard child, against a defendant resident and domiciled in Ohio, notwithstanding that the child was begotten, conceived and born in another state and the mother and child were never residents of Ohio and regardless of the laws of such other state." ( McGary v. Bevington, 41 Ohio St. 280, approved and followed.)
Where a legal method of determining the paternity of an illegitimate child is provided, the statutory procedure must be followed. Here, there has been no judicial determination of the paternity of this child, disputed by the putative father, under the laws of Ohio or of any other state.
The petitioner must pursue the legal procedure to determine the paternity of this child, and that cannot be done under the Uniform Support of Dependents Act. The court finds that petitioner, resident of West Virginia, has failed to establish any duty of support for the child, Jonathan Keith Smith, resident of West Virginia, from the respondent, Robert Lee Smith, resident of Ohio, in this proceeding.