Baston v. Sears

• Decision Date: 10 July 1967
• Parties: , 40 O.O.2d 422 BASTON, a Minor, Appellant, v. SEARS, Appellee.
• Court: Ohio Court of Appeals

Page 220

11 Ohio App.2d 220

229 N.E.2d 847, 40 O.O.2d 422

BASTON, a Minor, Appellant, v. SEARS, Appellee.

Court of Appeals of Ohio, First District, Hamilton County.

July 10, 1967.

Syllabus by the Court

A minor child born out of wedlock may, through his next friend, maintain a declaratory judgment action to determine that he is the child of the defendant, and secure by such declaration, an order for maintenance and support.

Vernon Stiver, Loveland, for appellant.

Albert Wettstein, Cincinnati, for appellee.

HUNSICKER, Judge.

This is an appeal on questions of law from the sustaining of a general demurrer to a petition, and the dismissal of the petition.

William Curtis Baston, a minor, who sues by his mother and next friend, says he was born out of wedlock, and that since then his mother has married a man other than his father. He further says he has no adequate remedy at law to establish his relationship and obtain support from James Russell Sears, his father. He asks 'that a declaratory judgment be rendered determining his rights, status, and legal relations' as to James Russell Sears. He also asks that Sears be found 'to be his parent and charged with his maintenance and support during his minority, with the further right to use the name of Sears * * *.'

The sole question presented to this court is whether an illegitimate child may bring a declaratory judgment action to declare his status as a son of the man alleged to be his father, and secure thereby an order for his support and maintenance.

Chapter 2721 of the Ohio Revised Code contains the statutes concerning 'Declaratory Judgments.' Section 2721.02, Revised Code, says:

'Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree.'

Three other sections of this chapter are of interest herein; they are Sections 2721.06, 2721.13, and 2721.14. These sections provide for a liberal and nationally uniform interpretation of such legislative enactment.

There are no reported Ohio appellate decisions bearing on the question before us. There have been several reported Ohio trial court opinions; two of which permit the maintenance of the action, and the other denies the remedy sought. These cases are: Maiden, a Minor v. Maiden, Ohio Com.Pl., 153 N.E.2d 460, 78 Ohio Law Abst. 551; Wilson, a Minor, v. Early, Ohio Com.Pl., 192 N.E.2d 119, 23 Ohio Op.2d 440; and In re Paternity, 4 Ohio Misc. 193, 211 N.E.2d 894, 33 Ohio Op.2d 299.

It is the postition of the appellee herein that a declaratory judgment action does not lie, and that only an action in bastardy, under Chapter 3111, Ohio Revised Code, will permit a determination of Parenthood. Inasmuch as it is alleged that the mother of the appellant is now married, an action in bastardy cannot be maintained.

It is not necessary to bring an action in bastardy to secure support for an illegitimate child. State v. Carter, 175 Ohio St. 98, 191 N.E.2d 541.

It is thus sought, in this proceeding, to establish a third right of action whereby parenthood of an illegitimate child may be determined.

An examination of both the text writers, and cases in other jurisdictions where the question of the status of a child has arisen by way of an action in declaratory judgment, shows a liberal interpretation of the statutes governing such actions. Few cases grant the right to an illegitimate child; most cases deal with problems of adoption or inheritance. Thus, in Missouri, in Keiser v. Wiedmer, Mo.App., 283 S.W.2d 914, and State ex rel. Anonymous v. Murphy, Judge, Mo.App., 354 S.W.2d 42, it was held that status may be determined by a declaratory judgment action with relation to an alleged natural or adoptive parent. In Morecroft v. Taylor, 225 App.Div. 562, 234 N.Y.S. 2, the maternity of an illegitimate child was declared. In Miller v. Currie, 208 Wis. 199, 242 N.W. 570, the status of a child was declared.

Some states, like California, have special statutes which provide for an action by a child to determine parenthood. In Carlson v. Bartels, Admr., 143 Neb. 680, 10 N.W.2d 671, 148 A.L.R. 658, the court said that under...