Franklin v. Julian

Decision Date07 June 1972
Docket Number71-668 and 71-669,Nos. 71-633,s. 71-633
Citation283 N.E.2d 813,30 Ohio St.2d 228
Parties, 59 O.O.2d 264 FRANKLIN, Appellant, v. JULIAN, Appellee. TRUAX, Appellee, v. HALL, Appellant (two cases).
CourtOhio Supreme Court

Syllabus by the Court

1. An adulterine bastard is one begotten of the mother's adulterous intercourse and the proceedings ordained by R.C. 3111.01 et seq. (bastardy proceedings) are available to such a child and its mother regardless of the marital status of the mother at delivery. (Haworth v. Gill, 30 Ohio St. 627, and State, ex rel. Hoerres, v. Wilkoff, 157 Ohio St. 286, 105 N.E.2d 39, overruled.)

2. Proceedings upon a complaint filed by a married woman alleging that she has delivered a bastard child by a man other than her present husband will be arrested from the operation of R.C. 3111.01 et seq. (bastardy proceedings), but may be maintained in the Court of Common Pleas as an action for necessaries furnished the child or for future support or both. (Baston v. Sears, 15 Ohio St.2d 166, 239 N.E.2d 62, overruled.)

Certified by the Court of Appeals for Belmont County as in conflict with Beam v. Ray (1960), 111 Ohio App. 341, 170 N.E.2d 844 (Nos. 71-668 and 71-669).

In No. 71-633, the complainant in bastardy was unmarried when she instituted the proceeding but it developed upon the preliminary examination that the child involved was conceived and born during her previous coverture. The trial court dismissed the complaint and the Court of Appeals affirmed.

Nos. 71-668 and 71-669 involve two bastard children of the same mother, conceived and born when she was unmarried. At the preliminary hearing, the complainant admitted that she subsequently married one other than the putative father and was still married at the time of the execution and filing of the complaint. The trial court dismissed the proceedings but the Court of Appeals reversed and remanded for trial under R.C. 3111.01 et seq.

Dagger & Johnston and William C. Dagger, Lancaster, for appellant in case No. 71-633.

Jackson & Kellner, Baltimore, for appellee in case No. 71-633.

Lancione, Lancione & Lancione and Richard L. Lancionc, Bellaire, for appellee in cases Nos. 71-668 and 71-669.

Malik, Malik & Knapp and Edward G. Sustersic, Bellaire, for appellant in cases Nos. 71-668 and 71-669.


The history of the human race is, in part, the effect of prejudice upon motives and purposes. Nowhere is this more sharply illustrated than in the treatment of the illegitimate child. Over the centuries he has been the innocent object of prejudice transferred from the guilt of his conception. As a consequence of the sin of his parents, he was legally the child of no one. As his and his mother's needs for care and maintenance became an increasing charge upon society, statutes were adopted to shift that burden to the natural father.

So it was that one of the first acts of the Third General Assembly in 1805 was entitled 'An Act, for the Maintenance and Support of Illegitimate Children.' (3 Ohio Laws 167.) It was plainly designed for the protection of the single woman as well as her child, who could be legitimated upon the marriage of the parents, at least under the civil law, the common law of Scotland, and by statute in this state. See Ives v. McNicoll (1898), 59 Ohio St. 402, 413, 53 N.E. 60.

But the offspring of a mother's adulterous connection, the adulterine bastard, carried an even greater stigma. He could not be legitimated under any law of Western Europe and his mother's sin was so gross it could not even be admitted under the common law of England unless her husband was proved to have been beyond the seas during all the period in which it was possible for her to have become pregnant or unless it could be shown beyond question that her husband had no powers of procreation. Powell v. State, ex rel. Fowler (1911), 84 Ohio St. 165, 168, 95 N.E. 660. And this was so even though the mother's marriage was subsequently dissolved.

These considerations may well have dictated the result in Haworth v. Gill (1876), 30 Ohio St. 627, the first case decided by this court involving a construction of the scope of the bastardy statutes in the context of the situation presented by the first of these cases. The Act involved in Haworth (70 Ohio Laws 111) was a substantial successor to the Act of 1805. The facts were identical to case No. 71-633.

The statute was not dissimilar in effect from the present form. It commenced: 'When any unmarried woman, who has been delivered of or is pregnant with a bastard child, shall make complaint thereof in writing. . . .' R.C. 3111.01 commences: 'When an unmarried woman, who has been delivered of, or is pregnant with, a bastard child, makes a complaint in writing. . . .'

Haworth denied relief, saying that the statutes were 'not intended to invite or authorize an inquiry into the legitimacy of children begotten and born in lawful wedlock, whenever a heartless mother might desire to bastardize them at the expense of her own infamy.' (30 Ohio St. 628.)

Quoting Blackstone and Kent, the court defined a bastard as one that is begotten and born out of lawful matrimony, and thus conception and delivery, as well as the filing of the complaint, were 'predicated of an unmarried woman.' (Ibid.)

When Powell, supra, was considered in 1911, Ives, supra, had already recognized an adulterine bastard as one 'begotten of an adulterous connection between a man and woman who at that time could not make a valid contract of marriage.' (59 Ohio St. 413, 53 N.E. 61). Thus, by recognizing the presumption of legitimacy of a child conceived during wedlock to be rebuttable, Powell inferentially confirmed the Ives recognition of an adulterine bastard and rejected the conclusive presumption foundation of Haworth.

By 1944, when State, ex rel. Walker, v. Clark (1944), 144 Ohio St. 305, 58 N.E.2d 773, came to this court, blood-grouping tests had been developed which can positively disprove paternity. Thus, that decision modified the Powell rule of proof but otherwise reaffirmed the rule that an adulterine bastard was included within the protection of a bastardy action.

Eight short years later, State, ex rel. Hoerres, v. Wilkoff (1952), 157 Ohio St. 286, 105 N.E.2d 39, by a remarkable inversion of philosophy, denied a mother the opportunity to rebut the presumption of legitimacy of her child simply because it was born as well as conceived during her marriage which was dissolved prior to the commencement of the action, as were the marriages in Haworth and Powell. 1

Hoerres emphasized the 'statutory' and 'penal' nature of the proceeding (ignoring Carter v. Krise (1859), 9 Ohio St. 402, holding the essential character of the proceedings to be civil), repeated a slur against an adulteress similar to that quoted hereinabove from Haworth as one who would 'place in issue the legitimacy of offspring according to her whim or fancy' (157 Ohio St. 287, 105 N.E.2d 39), beclouded the meaning of the statutory word, 'unmarried,' by applying it to the 'time of the delivery of the child involved' (ibid.), and reaffirmed Haworth.

In our present opinion, Hoerres and Haworth were actuated by those ancient passions and prejudices to which reference has heretofore been made, disregarded the correct definition of an adulterine bastard as stated in Ives by placing an arbitrary and unrealistic line of demarcation between 'begotten' and 'born,' are regressive in both thought and principle and, finally, should be and are hereby overruled. To the same effect, see State, ex rel. Sprungle, v. Bard (1950), 59 Ohio Law Abst. 129, 98 N.E.2d 63 and State v. Hunt (1962), 13 Utah 2d 32, 368 P.2d 261. See, also, Illegitimacy Proceedings in Ohio, 37 Cincinnati L.Rev. 594.

Therefore, the judgment of the Court of Appeals in case No. 71-633 is reversed and the cause is remanded for further proceedings consistent herewith.

Having established that 'unmarried' relates not to the time of conception or birth, as we turn to the second situation presented by cases Nos. 71-668 and 71-669, we are confronted with that word as relating to the time of commencement of a bastardy action, thus barring a married woman from its benefits of support of herself both before and after delivery and the expenses thereof. R.C. 3111.17. 2 Having voluntarily abandoned the single state and chosen to marry one upon whom she may depend for maintenance other than the putative father of her children, her claim for her own support does not merit our further attention.

But is this so of the unfortunate children who may look to no other man for support except their natural father? May the action proceed for their benefit and for necessaries furnished by their mother, if any, in the past? We think that it may.

As early as Carter v. Krise, supra, 9 Ohio St. 402, this court declared that 'the essential nature, aim and object' of a bastardy proceeding was 'a remedy to enforce the discharge of a civil and moral duty . . . of every man who becomes the father of a child to contribute to its support, and to save the public from the burden of its maintenance.' (9 Ohio St. 406.)

Nearly 30 years laters, in Pretzinger v. Pretzinger (1887), 45 Ohio St. 452, 15 N.E. 471, that 'duty of the father to provide reasonably for the maintenance of his minor children, if he be of ability,' was said to be an 'obligation(s) to support them, not only by the laws of nature, but by the laws of the land.' Furthermore, '(i)t is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties, or to enable the father to convert his own misconduct into a shield against parental liability.' (45 Ohio St. 458, 15 N.E. 473.)

The latter case, of course, was concerned with a legitimate child for whose support the divorce decree of his parents made no provision, and the rule announced was that the mother, to recover against the father for necessaries...

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