L.G. v. F.O.P., L---G--

• Citation: 466 S.W.2d 41
• Decision Date: 10 March 1971
• Docket Number: P--,I,Z---G--,F---O,No. 14917,L---G--,A,14917
• Parties: ndividually and as Next Friend ofppellant, v.ppellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 41

466 S.W.2d 41

L---G---, Individually and as Next Friend of Z---G---, Appellant, v. F---O. P---, Appellee.

No. 14917.

Court of Civil Appeals of Texas,

San Antonio.

March 10, 1971.

Rehearing Denied April 7, 1971.

Harry B. Adams, III, Royal K. Griffin, John L. Sanders, San Antonio, Tex., for appellant.

KLINGEMAN, Justice.

This is an appeal from a judgment declaring appellee to be the father of Z G , a minor child born out of wedlock, but decreeing that there is no civil liability on the part of appellee to support such child.

The only testimony in the record was by the mother of such child, who testified that she was unmarried when she met appellee at a party and had subsequently dated him; that as a result of this dating, a child had been born; that there is no doubt in her mind that appellee is the father of the child; that appellee is a married man, but that at the time of such dating, she did not know this. Appellee had legal representation in the early proceedings, and an answer was filed on his behalf, consisting of a general denial, and a plea in abatement asserting that no cause of action exists either by statutory or common law in Texas for the support of a minor child born out of wedlock. ¹ Appellee's attorney was given leave to withdraw as counsel prior to the trial of said cause, and appellee did not appear in said trial, either personally or by attorney.

Appellant asserts that such judgment denying such child the support of her father constitutes a denial of equal protection of law under the Fourteenth Amendment of the United States Constitution, and Article 1, Section 3 of the Texas Constitution, Vernon's Ann.St., and is an unconstitutional discrimination contrary to law.

At common law, the father is under no legal obligation for the support and maintenance of his illegitimate children. Lane v. Philips, 69 Tex. 240, 6 S.W. 610 (1887); Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923); 10 Am.Jur.2d Bastards § 68; 10 C .J.S. Bastards § 18, page 86. The majority of the courts in this country have held that without legislation on the subject, the father of an illegitimate child cannot be required to provide for its support. 30 A.L.R.Anno.--Illegitimate--Duty to Support 1069; 10 Am.Jur.2d § 68, supra; 10 C.J.S. § 18, supra.

At the present time there is no Texas statute imposing on the father the duty to support and maintain an illegitimate child. We do not consider it the purpose of this opinion to debate the various sociological reasons for or against such legislation. Sufficient to say, the Family Law Section of the State Bar of Texas has recommended such legislation to both the 61st and 62nd Legislatures of the State of Texas. At the present time all but two states have such legislation. It must be recognized, however, that a dominant feature of any type of legitimation statutes is the provision for proper standards and safeguards for determining the paternity of an illegitimate child.

The Texas Courts have uniformly held that a father is not under a common law or statutory duty to support his illegitimate child. See Lane v. Philips, supra; Beaver v. State, supra; 8 Tex.Jur.2d Bastardy § 13. The Supreme Court in Home of Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965), has recently reconsidered at length the rights and standing of the father of an illegitimate child. It was there said: 'There are no similar statutes (legitimation) in Texas, and here a father is not under a common law or statutory duty to support his illegitimate child.' In the face of this positive holding by our Supreme Court, the cases from other jurisdiction have little, if any, application. However, such holdings must be considered in the light of whether or not such jurisdiction has enacted some type of legitimation statute.

The trial court properly held that there was no cause of action in this State to impose civil liability on the part of appellee to support such illegitimate child. The judgment of the trial court is affirmed.

CADENA, Justice (dissenting).

Appellant's sole complaint is that the Texas rule which consistently with the general governmental policy of condemning children born out of wedlock to a second class way of life, deprives an illegitimate child of the right to paternal support which is accorded to legitimate children, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution . The majority opinion notes appellant's contention and then proceeds to ignore it by applying, without effort to defend, the very rule of laws which appellant assails as unconstitutional.

Perhaps there was a time when the contention here made by appellant could be relegated to that class of arguments which courts consider too frivolous to merit discussion. But, at least during the past decade, there has been an increased concern with the validity, under the Equal Protection Clause, of governmental policies which discriminate against bastards. ¹ Consideration of the problem increased after the May 20, 1968, decisions by the Supreme Court of the United States in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, and Glona v. American Guarantee and Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441, invalidating classifications based on illegitimacy found in a wrongful death statute. ² Neither Levy nor Glona is mentioned by the majority.

Levy struck down the provisions of the Louisiana wrongful death statute which denied to a child born out of wedlock recovery for the wrongful death of his mother. In Glona, the Court invalidated a provision of the same statute which deprived a woman of the right to recover for the wrongful death of her illegitimate child.

Admittedly, the actual holdings in Levy and Glona do no more than equalize the position of legitimate and illegitimate children vis-a-vis their mother insofar as wrongful death claims against tortfeasors are concerned. The extension of the Levy and Glona decisions to eliminate all distinctions between legitimate and illegitimate children in their relation with their mother is difficult to avoid and would work no significant alteration of the Texas Law. ³

However, the extension of Levy ⁴ to the relationship between an illegitimate child and his father would bring about profound changes in the status of the out-of-wedlock child, since most of the legal disadvantages under which such a child labors result from his legal relations, or, more precisely, the lack of such relations, with his father. But we are not here concerned with the validity of all rules regulating the relationship between a father and his illegitimate child. We need consider only the right to paternal support, which is, perhaps, the most important of the rights which the Texas law grants to a legitimate child and denies to a bastard. A denial of the right to paternal support has a greatly more serious effect on a child than does, for example, a denial of the right to bear his father's name.

Interestingly enough, the Supreme Court of Louisiana, on remand of Levy from the United States Supreme Court, assumed that the decision was not limited to the mother-child relationship. ⁵ With reference to the precise question before us, the highest courts of Ohio and Missouri have reached contradictory results.

The Ohio Supreme Court, by a 4--3 decision, concluded that Levy applied solely to 'the intimate, familial relationship which exists between a mother and her child, whether the child is legitimate or illegitimate.' Baston v. Sears, 15 Ohio St.2d 166, 239 N.E.2d 62, 63, n.* (1968). The Baston majority felt that a rule denying the right to paternal support to illegitimates was merely a recognition of the nature of the obligation undertaken by the father at marriage . The marriage contract was viewed as including the promise by the husband to support the legitimate issue of the union. An illegitimate child, therefore, cannot claim a right of support against his father who has not consented to be bound. 239 N.E.2d at 63--64.

The decision of the Missouri Supreme Court on the same question differs from that of the Ohio Court not only in the result reached, but also in the lack of dissent. The unanimous conclusion was simply stated: 'The principles applied by the United States Supreme Court would render invalid state action which produces discrimination between legitimate and illegitimate children insofar as the right of the child to compel support by his father is concerned.' R v. R , 431 S.W.2d 152, 154 (1968).

Apparently, the only other case in which the highest court of a state has considered the problem of paternal support since the Levy decision is Munn v. Munn, 450 P.2d 68 (1969, Colo.). There, the statute providing for the support of an illegitimate child by his father contemplated a judgment awarding damages against the father. The judgment in such a case was a final judgment, no subject to subsequent modification upon a showing of changed financial conditions. Since, under Colorado law, the father of a legitimate child has the right to reopen the case for the purpose of having the amount lowered to reflect changed financial conditions. It was held that the denial of a similar right of the father of an illegitimate child was a denial to such father of the equal protection of the laws. By way of dictum, the Colorado Supreme Court added that the statute was equally objectionable from the viewpoint of the illegitimate child 'for the jury verdict freezes his right to support from his father at a fixed level without regard to changing financial needs on his part.' 450 P.2d at 69.

It may be conceded, as the majority opinion here asserts, that it is not the purpose of that opinion 'to debate the various sociological reasons for or against' the adoption of bastardy statutes. But, in view of the contention pressed upon us by appellant, we cannot escape the task of analyzing the governmental purpose which is supposedly...