Beam v. Ray

• Decision Date: 17 February 1960
• Parties: , 98 A.L.R.2d 253, 13 O.O.2d 404 Datha Lou BEAM, Complainant-Appellant, v. Glendell RAY, Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 341

111 Ohio App. 341

170 N.E.2d 844, 98 A.L.R.2d 253, 13 O.O.2d 404

Datha Lou BEAM, Complainant-Appellant, v. Glendell RAY, Defendant-Appellee.

Court of Appeals of Ohio, Second District, Montgomery County.

Feb. 17, 1960.

Beigel & Mahrt, Dayton, by Edward J. Duffy, Jr., Dayton, of counsel, for complainant-appellant.

Thomas D. Reilly, Dayton, for defendant-appellee.

WISEMAN, Presiding Judge.

This is an appeal on questions of law from the judgment of the Court of Common Pleas of Montgomery County, Ohio, dismissing a proceeding in bastardy.

In the affidavit complainant stated that 'she was an unmarried woman.' Upon trial it was conclusively shown that at the time of the conception and on the date of the birth of the child, the complainant was an unmarried woman, but six months subsequent to the birth of the child and two years prior to filing this action she married her present husband, who is not the alleged father.

At the close of complainant's case the court sustained defendant's motion to dismiss on the ground that the action could not be instituted by a married woman.

Section 3111.01, R.C., in part provides 'when an unmarried woman, who has been delivered of, or is pregnant with, a bastard child, makes a complaint in writing, * * *.'

The defendant contends that under this section the complainant must be an unmarried woman at the time the proceeding in bastardy is instituted. This was the view of the trial court.

The complainant cites the case of Kirkbride v. Eschbaugh, Ohio Juv., 147 N.E.2d 676 in support of the proposition that if the woman is unmarried at the time of the birth of the child, the action may be maintained even though the complainant was married at the time of the institution of the action. We respectfully differ from the learned judge of the Juvenile Court of Noble County. Whether a married woman should be given the right to institute an action in bastardy is a matter of public policy. An argument may be made for or against the right of a married woman to institute an action in a court of law charging a man other than her husband with being the father of her child. It is sufficient to state that the legislature has resolved the question of public policy against the right of a married woman to institute such proceedings.

In State ex rel. Simons v. Kiser, Ohio App., 98 N.E.2d 322, this Court held that the marriage of the complainant after the proceedings in bastardy are instituted does not deprive her of the right to prosecute the action to final determination. It does not follow that since she is not deprived of the right to continue to prosecute the action after marriage, she should be allowed the right to institute the action after marriage. The right to maintain the action is fixed and determined as of the time the action is instituted.

In State ex rel. Roden v. Cregar, 8 Ohio App. 138, this Court held that:

'Proceedings in bastardy cannot be maintained by a woman who, prior to the birth of her child, marries a man other than the putative father and is so married at the time the proceedings are instituted.'

In State ex rel. Fisher v. McKinney, 55 Ohio Law Abst. 190, 191, 85 N.E.2d 562, in the second case discussed in the opinion, this Court had the identical factual situation before it. In the opinion this Court, 55 Ohio Law Abst. on page 191, 85 N.E.2d on page 563, said:

'At the close of the...