Bigsby v. Bates

• Decision Date: 05 December 1978
• Docket Number: No. 333830,333830
• Parties: , 11 O.O.3d 262, 13 O.O.3d 260 Cindy BIGSBY, Plaintiff, v. Cedric BATES, Defendant.
• Court: Ohio Court of Common Pleas

Page 51

59 Ohio Misc. 51

391 N.E.2d 1384, 11 O.O.3d 262, 13 O.O.3d 260

Cindy BIGSBY, Plaintiff, v. Cedric BATES, Defendant.

No. 333830.

Court of Common Pleas of Ohio, Cuyahoga County, Juvenile Division.

Dec. 5, 1978.

Syllabus by the Court

1. The ruling that R.C. 3111.17 and 3111.18 are unconstitutional as a denial of the equal protection clause of the Fourteenth Amendment to the United States Constitution insofar as the sections provide for the imprisonment of an indigent defendant adjudged to be the reputed father of plaintiff's illegitimate child solely because of his inability to pay the award ordered by the court (Walker v. Stokes [1977], Court of Appeals, Eighth District, No. 286,868, Unreported) removed the last vestige of a criminal or quasi-criminal case from paternity proceedings.

2. Actions under R.C. 3111.01 to 3111.24 relating to paternity proceedings are, unless specified otherwise therein, governed by the Rules of Civil Procedure.

3. A paternity proceeding being neither a criminal nor a quasi-criminal action it is not a denial of due process or equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution to require by rule of court that the defendant pay in advance for the costs of blood grouping tests granted pursuant to the defendant's motion.

4. The language of R.C. 3111.17 providing that the defendant shall be jailed if he "neglects or refuses" to pay the award ordered by the court does not authorize the jailing of an indigent defendant. Before the defendant can be jailed because he "neglects or refuses" to pay or secure the award ordered by the court, he must be accorded the opportunity to prove that he is unable to pay or secure the award.

Kenneth P. Petrey, Cleveland, for plaintiff.

Stephen McGowan, Cleveland, for defendant.

WHITLATCH, Judge.

This matter comes before the Court on the motion of the defendant, by and through his counsel, for blood grouping tests and for such tests to be taxed as costs and on the memorandum in opposition to the defendant's motion submitted by counsel for the complainant.

Counsel for the defendant alleges that the defendant is indigent and that he does not have nor can he obtain the necessary costs of blood tests which are required to be paid in advance to the Court by the movant pursuant to Rule 11 of the Rules of the Common Pleas Court, Juvenile Court Division of Cuyahoga County, Ohio. Counsel for complainant accepts as fact the allegation that the defendant is indigent and that he has no means to pay the costs of a blood grouping test. Counsel for defendant contends that the blood tests are a vital part of a paternity proceeding and that the requirement of prepayment of costs under Rule 11 denies the defendant a vital defense because of his status as an indigent person. Counsel for the defendant contends that Rule 11 is unconstitutional in its application to the defendant and others similarly situated because it fails to meet the tests of due process established in Boddie v. Connecticut (1971), 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113. Counsel further contends that the requirement of prepayment costs under Rule 11 is patently unfair to this defendant and does not provide equal protection guaranteed by the Fourteenth Amendment to the United States Constitution. Walker v. Stokes (1975), 45 Ohio App.2d 275, 344 N.E.2d 159. Counsel for complainant while admitting that blood tests which exclude the defendant as being the father of the complainant's child are weighty evidence, maintains that the requirement of prepayment of costs by the defendant does not deny an indigent a defense or the right to be heard on the issue but only denies a discovery procedure which may or may not produce evidence to be produced at trial.

Rule 11 of the Rules of the Cuyahoga County Court of Common Pleas, Juvenile Court Division, provides as follows:

"Motions for an order of Court requiring blood tests must be filed within thirty (30) days after the preliminary examination or within thirty (30) days after the birth of the child, whichever is later. The costs of such tests shall be paid by the movant except as otherwise herein provided. Motions for blood tests must be accompanied by payment of current cost, plus poundage, as posted in Clerk's Office at the Court. When the first blood test or tests excludes the accused as being the father of the child in question and the mother of the child desires a test by another serologist, the costs of such second test shall be paid by the mother. The mother must file a Motion (accompanied by the required cost) for the second test within thirty (30) days after she has been notified of the exclusion. All tests shall be performed by experts selected by the Court and shall be conducted under such regulations as the Court may prescribe."

The "movant" in this cause is the defendant. This is always so as to the first motion for blood grouping tests in paternity proceedings for the very good reason that, pursuant to R.C. 3111.16, the results of the blood test are only admissable in evidence in cases where "by the use of such tests, the defendant can be determined Not to be the father of the child." (Emphasis added.) Hence, where these tests are admissible, they are evidence only for the defendant. Under Rule 11, supra, in the event of an exclusion, the complainant may move for blood grouping tests to check the accuracy of the first test. Note that Rule 11 provides that the complainant is required to pay for these tests. Rule 11 was promulgated by the judges of the Cuyahoga County Common Pleas Court, Juvenile Court Division. The power of the judges to promulgate such a Rule is authorized by R.C. 3111.16 which we quote in its entirety:

"Whenever it is relevant to the defense in a paternity proceeding under Sections 3111.01 to 3111.24 of the Revised Code, the trial court, on motion of the defendant, shall order that the complainant, her child, and the defendant submit to one or more blood-grouping tests to determine whether, by the use of such tests, the defendant can be determined not to be the father of the child. The tests shall be made by qualified physicians or other qualified persons, not to exceed three, selected by the court, and under such restrictions and directions as the court or judge deems proper. In cases where exclusion is established, the results of the tests together with the finding of the expert of the fact of nonpaternity shall be receivable in evidence. The blood test experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings. If either of the parties refuses to submit to the test, that fact shall be disclosed upon the trial unless good cause is shown to the contrary. In the event the tests have been made prior to the trial, the results shall be receivable in evidence. The court shall determine how and by whom the costs of the tests shall be paid." (Emphasis added).

Note the emphasized portion of the statute; clearly the legislature had no problem with the question as to who should be required to pay the costs this was simply a procedural matter for the court to decide. However, counsel for the defendant contends that Rule 11 is unconstitutional and it follows therefore, according to defendant's counsel, that the part of the above quoted statute which gives the court the authority to determine "how and by whom the costs shall be paid" is likewise unconstitutional.

Counsel for defendant cites Boddie v. Connecticut, supra (401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113), in support of the unconstitutionality of Rule 11 (supra ). Boddie is easily distinguishable from the case at bar. In Boddie the court held that a Connecticut statute which required advance payment of court costs and service of process fees as a prerequisite to filing a divorce action was unconstitutional because it denied indigent persons access to the courts and thus was a denial of due process under the 14th Amendment to the Constitution of the United States. The court carefully limited its ruling to the circumstances in Boddie. That is, where the state requires individuals to resort to the judicial process of divorce to terminate marriage, the state may not, consistent with the obligation imposed on it by the 14th Amendment, preempt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.

There is no denial of access to the courts in the instant case. The defendant will have a full opportunity to be heard on the merits of his case. Palpably, the requirement that a party make advance payment for an exploratory evidentiary procedure which may or may not produce evidence in the form of expert testimony is not a denial of access to the court and thus not a denial of due process under Boddie.

Under Civ.R. 35 the court may order a party to submit to a physical or mental examination or a blood grouping test. It is the practice in the General Division of the Cuyahoga County Court of Common Pleas to require the movant to pay for the costs of the examinations ordered pursuant to Civ.R. 35 and this is the general rule in such matters. See 27 C.J.S. Discovery § 38, p. 120.

Rule 16 of the Cuyahoga County Court of Common Pleas, Juvenile Court Division, adopts Rule 7 of Cuyahoga County Court of Common Pleas, General Division, as to a cash deposit for costs. Rule 16 provides that a poverty affidavit may be filed in lieu of a cash deposit. Note however that the list of costs contained in Rule 7 are for services that can be Performed by the court. It was the requirement for advance payment for such services, with no provision for a poverty affidavit, that constituted a denial of due process in Boddie.

It is significant that there is no provision in the Rule 7 (Cuyahoga County Common Pleas Court, General Division) schedule for a poverty affidavit in lieu of cash deposits for the...