Lori Lee Lemons v. Dale Wiseman, 83-LW-0899

• Decision Date: 23 May 1983
• Docket Number: 83-LW-0899,486
• Parties: Lori Lee Lemons, Plaintiff-Appellee v. Dale Wiseman, Defendant-Appellant
• Court: Ohio Court of Appeals

Lori Lee Lemons, Plaintiff-Appellee v. Dale Wiseman, Defendant-Appellant

No. 486.

83-LW-0899 (4th)

Court of Appeals of Ohio, Fourth District Highland

May 23, 1983

COUNSEL FOR APPELLANT: Jon C. Hapner, 100 South High Street Hillsboro, Ohio 45133.

COUNSEL FOR APPELLEE: Kevin Greer, 146 1/2 East Main Street Hillsboro, Ohio 45133.

OPINION

GREY J.

This is an appeal from the Highland County Juvenile Court. Appellant Wiseman was named as the Defendant in a paternity action filed by Appellee Lemons.

At the examination of Complainant Lemons, Wiseman appeared without counsel. After a routine examination of Lemons, Wiseman pleaded not guilty and the following transpired.

"WHEREUPON: The complaining witness, Lori Lemons, then returned to her chair at counsel table.

THE COURT: Now, the Defendant, of course, is entitled to a jury trial or a trial to be tried before the Court. It is necessary that you - if the cause is to be continued for a hearing, that you either put up a $500.00 bond or be remanded to jail until the time of the hearing. This is a civil complaint; it is not a criminal complaintg it is one in which you have to provide your own attorney if you're going to have an attorney. - You don't have to have one, but you are entitled to have one but not by Court appointment.

What are your wishes in that matter? Are you going to have an Attorney, or do you want one or -

DEFENDANT WISEMAN: I want one but I cannot afford one.

THE COURT: Well, we can't provide you one in this type of case. This is not a criminal case, this is a civil proceeding. Are you in a position to put up a $500.00 bond?

DEFENDANT WISEMAN: At this moment, right now?

THE COURT: Yes.

DEFENDANT WISEMAN: No.

THE COURT: Well, of course you will have to be committed to jail until the time of the hearing unless you're ready to proceed with the hearing at this juncture. Do you have witnesses that you want to call?

DEFENDANT WISEMAN SHOOK HIS HEAD NO.

THE COURT: Or will you have witnesses to call?

DEFENDANT WISEMAN: No. - Go ahead and go on with it then.

THE COURT: All right. Do you wish to return the witness to the stand or present further testimony?

MR. GREER: Not at this point, Your Honor. We would reserve the right to recall her though.

THE COURT: Do you want to testify yourself concerning this matter?

DEFENDANT WISEMAN: No.

THE COURT: Do you have any evidence or any other witnesses that you want to present at this time concerning this matter?

DEFENDANT WISEMAN: No.

THE COURT: Well now on the basis of - since you are without an Attorney, I will explain that on the basis of what has been presented, the Complainant having indicated that you are the Father of the child which shes given birth, and even though you have denied that, in the absence of any evidence to the contrary, a judgment is highly likely based upon the preponderance of the evidence of a judgment against you of being the Father of the child.

Now, if you want to make any statement or give any evidence the Court will be glad to hear anything you have to say.

DEFENDANT WISEMAN: Well, all I can say is that it could be and it could not be, I'm not really sure. So I'd have to say no, because I don't know if it is or not."

After listening to a short statement from the Prosecutor, the Court found Wiseman to be the father of Lemons' child. The Court then inquired into Wiseman's ability to pay support, and ordered $25.00 per week.

Wiseman then obtained counsel who filed a motion for a new trial. The motion was denied and Wiseman appeals, designating four assignments of error.

Assignments of error 1, 2 and 3 shall be treated jointly.

"ASSIGNMENT OF ERROR NUMBER ONE."

Defendant was denied due process and a fair trial due to the coercion by the Court and Prosecutor and the lack of an attorney.

A. The defendant was denied a lawyer by reason of a 'civil proceedings'threatening the defendant with imprisonment if he did not post bond, which is contrary to the civil rules of procedure.

B. The denial of a lawyer by reason of a 'civil case', then threatening the defendant with imprisonment if he did not post bond constituted a denial of due process.

C. The denial of an attorney was unconstitutional if the defendant was to be imprisoned for lack of bond upon the charge.

ASSIGNMENT OF ERROR NUMBER TWO.

Defendant did not obtain notice of the trial and was not prepared for trial, and submitted to trial only under the threat of imprisonment.

ASSIGNMENT OF ERROR NUMBER THREE.

The judgment is against the weight of the evidence in that in fact there was no trial."

These assignments of error are well taken inasmuch as the record before us demonstrates a failure of due process of law.

Paternity actions under R.C. 3111 are civil cases. St. ex rel Wise v. Chand (1970), 21 Ohio St.2d 113; Taylor v. Scott (1951), 168 Ohio St. 391. Nonetheless, because of the threat of incarceration for failure to post bond, as happened here, certain due process standards must be met. See Walker v. Stokes (1975), 45 O. App.2d 275 and Stokes v. Walker II (1977), 54 O. App.2d 119, which held that since paternity actions are quasi criminal different treatment based on economic status is unconstitutional. As noted in Walker I, "...the defendant's ability to pay in advance bears no rational relationship to his guilt or innocence, and to discriminate upon this basis constitutes invidious discrimination ..."

In Sheppard v. Mack (1980), 68 O. App.2d 95, the Eighth District Court of Appeals again addressing the question of the quasi-criminal nature of paternity actions, noting at page 101:

"Finally, R.C. chapter 3111 provides for the commitment to jail of the accused for the neglect or refusal to provide bail for his appearance at trial, R.C. 3111.08, or for the neglect or refusal to provide security for the payment of support, maintenance, and necessary expenses of the complainant caused by the pregnancy and childbirth upon the adjudication of the accused's paternity, R.C. 3111.17 and 3111.18.

But this court eliminated the threat of incarceration for indigent fathers under R.C. 3111.17 and 3111.18 in the case of Walker v. Stokes (1977), 54 Ohio App.2d 119 known popularly as ' Walker v. Stokes II, 'where we held as follows:

'*** (A)nd we hold that provisions of R.C. 3111.17 and 3111.18 are unconstitutional as a denial of equal protection insofar as they allow for the imprisonment of indigent reputed fathers solely because they are unable to pay the support and maintenance adjudged as necessary by the court.' Id., at 126.

This same reasoning must be applicable to R.C. 3111.08 which provides for the imprisonment of the accused for failure to provide sufficient security to assure his appearance to answer the accusation.

Therefore, under the paternity statutes, there is no chance of incarceration for indigent accused fathers on the basis of

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