Baston v. Sears

Decision Date10 July 1968
Docket NumberNo. 41259,41259
Citation239 N.E.2d 62,15 Ohio St.2d 166
Parties, 44 O.O.2d 144 BASTON, a Minor, Appellee, v. SEARS, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

Section 2151.42, Revised Code, which makes it a criminal offense for the father of an illegitimate child to fail to support such child, does not give rise to a civil action for support on behalf of such child. (Section 2151.42, Revised Code, construed.)

Josephine Baston bore a child, William Curtis Baston, out of wedlock in 1962. She subsequently married a man other than the father of the child. In 1964, after her marriage, she brought an action for a declaratory judgment on behalf of the child, as his next friend, in the Juvenile Division of the Court of Common Pleas of Hamilton County. In this action, she seeks to have the court declare that one James Russell Sears is the father of the child, and that the child has the right to receive support money from Sears.

Sears filed a general demurrer to the petition. The Court of Common Pleas sustained the demurrer and dismissed the action. Upon appeal, the Court of Appeals, holding that a declaratory judgment action will lie to determine the parenthood of an illegitimate child, and to secure thereby an order for his support and maintenance, reversed the judgment of the Court of Common Pleas.

The cause is here for determination pursuant to the allowance of Sears' motion to certify the record.

Vernon Stiver, Loveland, for appellee.

Albert Wettstein, Cincinnati, for appellant.


It is clear that the marriage of the appellee's mother prevented her use of the bastardy statutes to compel the father to support the appellee. Section 3111.01, Revised Code; Beam v. Ray, 111 Ohio App. 341, 170 N.E.2d 844, 98 A.L.R.2d 253. Nothing in Chapter 3111, Revised Code, gives an illegitimate child a substantive right to support independent of the rights of the mother. If the appellee has any enforceable right to support, it must come from somewhere other than Chapter 3111, Revised Code.

There is no common-law right for an illegitimate child to receive support from its father. 10 C.J.S. Bastards § 18c, p. 86; 10 American Jurisprudence 2d 895, Bastards, Section 68. Any right of support must, therefore, stem from statutes. We find no statute which grants such a right, nor has such a statute been called to our attention.

Certainly, the fact that this action is brought under the declaratory judgment statutes does not serve to support the right claimed, since it is well recognized that declaratory judgment statutes do not establish substantive rights. 1 Anderson, Actions for Declaratory Judgments, 2 Ed., Section 246.

Section 2151.42, Revised Code, makes it a criminal offense for the father of an illegitimate child to fail to support such child, and Section 2151.99, Revised Code, provides penalties which may be enforced by the state, but those sections give no concomitant civil remedy which is enforceable by the child. It is recognized that enforcement of legal liability for the support of illegitimate children can be undertaken only in the manner specified by law. Baugh v. Maddox, 266 Ala. 175, 95 So.2d 268; 10 C.J.S. Bastards § 20a, p. 92. Since Section 2151.42, Revised Code, makes no provision for a civil action and gives no substantive right of enforcement of support to the illegitimate child, the action of the Court of Appeals in this case must be considered legislative, and therefore invalid.

This holding is buttressed by the fact that no such action existed historically and that no state court decision which we have found, or which has been called to our attention gives such a right in the absence of a statute. James v. Hutton (Mo.App.), 373 S.W.2d 167. Compare Section 196a of the California Civil Code, wherein express provision is made for a civil action.

This leaves only the appellee's argument that the different legal treatment of legitimate children and illegitimate children violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. The reasoning behind this assertion is not given. Appellee merely cites a law review article, entitled 'Equal Protection for the Illegitimate,' by Professor Harry D. Krause, 65 Michigan L. Rev. 477. *

Professor Krause's argument there is that since legitimate and illegitimate offspring are similarly situated as to their need for support they must be equally treated.

Krause complains that in many cases only the state and the mother are responsible for the support of an illegitimate child, while there is available to the legitimate child an additional source, the father. The argument is that this results in an unequal treatment caused by state action. The state action complained of, however, can be only the recognition, by the state, of the nature of the voluntary contract which is undertaken when marriage occurs. That contract includes, by way of well understood tradition and custom, the promise by the husband to support children which may result from this relationship which is favored by the law and public policy. Professor Krause's argument, then, is that the favored position and consequences which result from marriage are to be disregarded or that the illegitimate child is to be given a right to pursue an alleged father who has not consented to be bound.

If such a dramatic change in social pattern is to be espoused, it should be done by the General Assembly after due deliberation and debate, and operate prospectively.

Inasmuch as the appellee has no legal right upon which to base his action for a declaratory judgment, it follows that the demurrer was properly sustained, and that the Court of Appeals erred in reversing the judgment of the Court of Common Pleas.

Judgment reversed.

TAFT, C. J., and ZIMMERMAN and MATTHIAS, JJ., concur.


C. WILLIAM O'NEILL, Judge (dissenting).

I can not agree with the result reached by the majority in this case.

That result is reached, in my opinion, by approving an unconstitutional discrimination against innocent children who, through no fault of their own, are born out of wedlock. An unintended result is the discrimination against fathers of legitimate children. Relying upon this decision, thousands of fathers will escape from their responsibility and duty to support their children. The burden of supporting these children will then fall upon the...

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19 cases
  • Brookbank v. Gray
    • United States
    • Ohio Supreme Court
    • January 17, 1996
    ...death of his or her father. Nothing in this opinion shall be construed to change that result.5 In Baston v. Sears (1968), 15 Ohio St.2d 166, 168, 44 O.O.2d 144, 145, 239 N.E.2d 62, 63, at fn., the court stated that "[t]he rights announced in Levy were based on the intimate, familial relatio......
  • Secretary of Com. v. City Clerk of Lowell
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 4, 1977
    ...Cf. Zepeda v. Zepeda, 41 Ill.App.2d 240, 255-256, 190 N.E.2d 849 (1963) (statutory right to father's surname); Baston v. Sears, 15 Ohio St.2d 166, 239 N.E.2d 62 (1968), reversing 11 Ohio App.2d 220, 229 N.E.2d 847 (1967) (action for declaratory judgment against putative father dismissed). O......
  • Shan F. v. Francis F.
    • United States
    • New York City Court
    • September 14, 1976
    ...Matter of Estate of Jensen, 162 N.W.2d 861 (N.D., 1968); E.M.R. v. G.E.R., 431 S.W.2d 152 (Mo., 1968). But see Baston v. Sears, 15 Ohio St.2d 166, 239 N.E.2d 62 (1968) upholding statutes limiting right of suit for support of illegitimate child.9 In Petit v. Ratner, 551 P.2d 426 (1976) the h......
  • Butcher v. Pollard
    • United States
    • Ohio Court of Appeals
    • September 28, 1972
    ...for support. E. g., Furillio v. Crowther (K.B.1826), 7 Dow & Ry. 612; Moncrief v. Ely (N.Y.1838), 19 Wend. 405; Baston v. Sears (1968), 15 Ohio St.2d 166, 239 N.E.2d 62, overruled, Franklin v. Julian (1972), 30 Ohio St.2d 228, 283 N.E.2d 813; G. v. P. (Tex.Civ.App.1971), 466 S.W.2d 41, prob......
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