Gustin v. Gustin

• Decision Date: 19 September 1958
• Citation: 108 Ohio App. 171,161 N.E.2d 68
• Parties: , 9 O.O.2d 204 GUSTIN, a Minor, Appellee, v. GUSTIN, a Minor, Appellant.
• Court: Ohio Court of Appeals

Page 171

108 Ohio App. 171

161 N.E.2d 68, 9 O.O.2d 204

GUSTIN, a Minor, Appellee, v. GUSTIN, a Minor, Appellant.

Court of Appeals of Ohio, Montgomery County.

Sept. 19, 1958.

Syllabus by the Court.

1. Where a man marries a woman with full knowledge that she is pregnant by another, and the child is born during their marriage, and subsequently the woman obtains a divorce, the divorced husband may be ordered to support such minor child.

2. In such case, the husband has elected, by his marriage under such circumstances, to put himself in loco parentis to such child.

3. By such marriage, the husband deprives the wife of the right to institute a bastardy action against the child's natural father (Section 3111.01, Revised Code), and the husband thereby voluntarily assumes the burden instead and must, therefore, continue to meet such obligation.

Herbert M. Eikenbary, Dayton, for appellant.

John E. Cumming, Dayton, for appellee.

CRAWFORD, Judge.

The plaintiff wife, appellee herein, obtained a decree of divorce against the defendant husband, appellant herein, which decree ordered defendant to support the minor child. Defendant contends that this order is contrary to law.

The facts are simple and undisputed. Prior to marriage, plaintiff informed defendant that she was pregnant by another. Nevertheless, the parties married on November 5, 1955, and the child was born during the marriage.

Thereafter, on May 16, 1957, plaintiff began her action for divorce. The decree was granted, and the order complained of was made on February 28, 1958.

Defendant recognizes the principle established by the case of Miller v. Anderson, 43 Ohio St. 473, 3 N.E. 605, 54 Am.Rep. 823, as the lodestar on this subject. The first two paragraphs of the syllabus read:

'1. The natural father of a child can not be held for its support, under the statutes of this state, if the mother, after the child was begotten, and during pregnancy, contracts a marriage with another man, who marries her with full knowledge of her condition.

'2. By such marriage, the man so marrying, consents to stand in loco parentis to such child, and is presumed in law to be the father of the child, and this presumption is conclusive.'

Defendant contends that there have been philosophical changes in the law which would mitigate his burden. Yet none of the cases cited or known to the court has overturned the basic concepts upon which the present order for support is based.

Whitecotton v. Whitecotton, 103 Ohio App. 149, 144 N.E.2d 678, was a divorce case in which the wife alleged, and the husband denied, his paternity of a child conceived during wedlock. The essence of the decision (at page 153 of 103 Ohio App., at page 682 of 144 N.E.2d) is:

'We hold, therefore, that the finding of the trial court, that the evidence was insufficient to prove that the plaintiff was not the father of the child, was a determination, in effect, that the child was conceived by the parties as husband and wife, and that, by reason of such determination, it became the duty of the court to make an order for the disposition, care and maintenance of the child.'

State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773, 774, was a bastardy action. The child was conceived while complainant was married to a husband from whom she was divorced before instituting the bastardy action. The sixth paragraph of the syllabus reads 'In a case of this kind, it is incumbent on plaintiff to prove by clear and convincing evidence that the child is not attributable to her former husband. If she does, the issue of the guilt of the accused under the bastardy complaint may by reasolved against him by a preponderance of the evidence.'

Powell v. State ex rel. Fowler, 84 Ohio St. 165, 95 N.E. 660, 36 L.R.A., N.S., 255, was an action in bastardy wherein the first paragraph of the syllabus reads:

'Every child begotten in lawful wedlock is presumed in law to be legitimate.'

The second paragraph of the syllabus in the Powell case declared that, before such a child could be adjudged a bastard, proof of the husband's nonpaternity must be 'clear, certain and conclusive,' but it was overruled by State ex rel. Walker v. Clark, supra, 144 Ohio St. 305, 58 N.E.2d 773, which held that such proof must be simply 'clear and convincing.'

Perhaps the case which comes closest to being contrary to Miller v. Anderson is State v. Oldaker, 28 Ohio Law Abst. 495. Yet the decision in that case carefully and effectively...