C-- S-- v. J-- W--
| Citation | 514 S.W.2d 848 |
| Decision Date | 07 October 1974 |
| Docket Number | W--,No. KCD,C---,J---,S--- and C---,S---,D---,A,KCD |
| Parties | , an infant, by, her mother and next friend, Respondents, v.ppellant. 26774. |
| Court | Court of Appeal of Missouri (US) |
James Wilson Spencer, Kansas City, for appellant.
Jerome T. Wolf, Kansas City, for respondents.
Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ.
This is an appeal from a judgment in an action which is basically a filiation proceeding wherein the plaintiff, C--- S---, a single woman, individually and as mother and next friend of C--- D--- S---, a female child born May 18, 1969, seeks to establish the fact that the defendant, J--- W---, is the natural father of said child and also seeks awards for support and maintenance from the said J--- W---.
Plaintiffs' petition was filed November 16, 1970, and is drawn in three counts. Count I alleges that the defendant is the natural father of the plaintiff, C--- D--- S---; that he acknowledged such paternity by written contract dated July 23, 1969, and agreed to support the child; and that the mother has made numerous demands that the defendant provide reasonable support and maintenance, which defendant has refused and failed to provide. The original prayer in Count I asked for a judgment for reasonable support and maintenance for the child, attorney's fees and costs.
Count II of the petition adopts the allegations of Count I by reference; alleges and adopts by reference the contract of July 23, 1969, wherein the defendant agreed to pay $25.00 per week for the support and maintenance of the child beginning September 1, 1969; that the defendant has failed to comply with and has breached such contract; and that under the terms thereof he owes $1450.00 to and including November 2, 1970. The prayer in Count II asks for a money judgment under the contract of $1450.00 and for such additional payments as may have accrued under the contract since November 2, 1970, and for costs.
Count III of the petition incorporates by reference all of the allegations of Counts I and II, and further alleges that the mother, C--- S---, has incurred expenses in connection with the birth of the child and providing the child with necessities since May 18, 1969, for which she has made demand upon the defendant for reimbursement; that defendant has refused reimbursement; and that to the date of filing of the action, such expenses amount to approximately $2500.00. The prayer in Count III asks for a judgment of $2500.00 for such expenses to November 2, 1970, together with cost of necessities for the child since November 2, 1970, attorney's fees and costs.
In answer to this petition, the defendant generally denied the allegations of Counts I, II and III. He further pleaded that the agreement of July 23, 1969 was obtained through 'coercion and duress and was not a voluntary act on the part of said defendant', and that plaintiffs' petition did not state a cause of action and should be dismissed.
The agreement of July 23, 1969, after identifying plaintiff C--- S--- as party of the first part, and the defendant as party of the second part, in pertinent part provides:
'WHEREAS the PARTY of the FIRST PART is unmarried and is the mother of C--- D--- S---, born out of lawful wedlock on the 18th day of May, 1969;
AND WHEREAS and PARTY of the SECOND PART acknowledges that he is the putative father of the said child of the PARTY of the FIRST PART;
AND WHEREAS the PARTIES are desirous of entering into the herein agreement in order to provide for the future care, maintenance, and education of the said child.
that in consideration of the premises and the covenants hereinafter expressed and contained, the PARTY of the FIRST PART and the PARTY OF THE SECOND PART do covenant, undertake and agree the one with the other as follows--
1. That PARTY of the SECOND PART shall pay to the PARTY of the FIRST PART on Monday of each week, an allowance of Twenty-five ($25.00) Dollars weekly, for the care, maintenance, and education of the child, C--- D--- S---, until the said child attains the age of 21 years, or until the PARTY of the FIRST PART and the PARTY of the SECOND PART are married to each other, whichever even shall first occur; the first of such payments to be made on the 1st day of September, A.D., 1969. * * *'
The contract further provided that the mother, C--- S---, should have sole custody of the child but reserved to the defendant the right of reasonable visitation. The contract was signed by the parties and their signatures notarized.
Before the start of the trial of this case in the court below, counsel for the plaintiffs asked for and was granted leave to amend the prayers to Counts I and II of the petition by interlineation to ask that the defendant, J--- W--- , be declared the natural father of the plaintiff C--- D--- S---. Counsel for the defendant orally objected to such amendment upon the ground that it would change the cause of action from one upon 'a simple contract' to a 'declaratory judgment' action. On the following day and before the start of the trial, counsel filed a written motion asking the court to set aside its order permitting plaintiffs to amend, which motion was overruled.
At no time, however, did the defendant make any oral or written request that the case be continued upon the basis of surprise or for any other reason.
A jury was impaneled to try the fact issues. At the close of the evidence, the court properly instructed the jury that if they believed that the defendant was the natural father of C--- D--- S---, the verdict must be for the plaintiffs as to Counts I and III. As to Count II, the court gave the following instructions:
Your verdict must be for plaintiffs on Count II of plaintiffs' Petition if you believe:
FIRST, defendant is the natural father of plaintiff C--- S---, and
SECOND, defendant entered into an agreement to make payments for the support of plaintiff C--- S---.
unless you believe plaintiffs are not entitled to recover by reason of Instruction No. 6.'
Your verdict must be for defendant on Count II of plaintiffs' petition if you believe that defendant J--- W--- was subjected to threats of plaintiff C--- S--- (and) that he did not voluntarily enter into the support agreement.'
The jury returned its verdict finding for the plaintiffs on Counts I and III and a separate verdict finding for the plaintiffs on Count II. The verdicts were received and the court, without a jury, thereupon heard additional evidence as to the various items of care, maintenance, expense for and needs of C--- D--- S--- and income of the parties, and entered its judgment adopting the findings of the jury as to paternity and the validity of the contract, and awarding the plaintiffs the sum of $5,361.50 on Count II, and on Count III up to July 21, 1972, and further ordering the defendant to pay the sum of $25.00 per week for the support of C--- D--- S--- beginning July 24, 1972. It is from this judgment that defendant appeals. The appeal was first lodged in the Supreme Court of Missouri but was transferred to this court by order dated May 22, 1973.
The defendant does not challenge the sufficiency of the evidence and no useful purpose would here be served by a statement thereof, but some preliminary observations are necessary to the decision of the issue before us.
The General Assembly of Missouri has never enacted the Uniform Illegitimacy Act and until recently compulsory filiation proceedings were unknown in this state. In fact, since the case of Easley v. Gordon, 51 Mo.App. 637 (1892) until 1968, there was no legally enforceable duty upon the natural father of an illegitimate child to furnish support and maintenance to such child, and that duty rested solely upon the mother. In 1968, the Supreme Court of the United States held that the Equal Protection Clause of the Fourteenth Amendment, United States Constitution, prohibited the states from discriminating between legitimate and illegitimate children. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436; Glona v. American Guarantee and Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441. Under the compulsion of Levy and Glona, the Supreme Court of Missouri, in the case of R--- v. R---, 431 S.W.2d 152 (1968), reversed and remanded a judgment of dismissal in a declaratory judgment action wherein plaintiffs sought a declaration of paternity and support and maintenance from the natural father of an illegitimate child. In so doing, the court said, l. c. 154:
(Emphasis supplied)
In R--- v. R---, the court concluded that 'prior cases to the contrary are no longer to be followed' and remanded the case for trial upon the issues raised in the declaratory judgment action. See also: In re L---, 461 S.W.2d 529, 531-532(1) (Mo.App.1970).
Thus, the legal disability of illegitimate children to seek support and maintenance from their natural father was firmly removed and no such harsh rule now exists in this state.
Another principle that merits our attention in this case is that Declaratory Judgment Acts (such as ours) afford a proper vehicle for the determination of the parentage and the legal status of a child with regard to a natural or adoptive parent. 26 C.J.S. Declaratory Judgments, § 37. p. 115; Keiser v. Wiedmer, 263 S.W.2d 63, 66 (Mo.App.1954); State ex rel. Anonymous v. Murphy, 354 S.W.2d 42, 43(2) (Mo.App.1962); In re L---, supra; R--- v. R---, supra. Our statute, Section 527.010 RSMo 1969, V.A.M.S., provides:
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