Martha I. Lent v. Warren Michael Stull

• Decision Date: 25 February 1982
• Docket Number: 82-LW-1006,81 X 7
• Court: Ohio Court of Appeals
• Parties: Martha I. Lent, Plaintiff-Appellee v. Warren Michael Stull, Defendant-Appellant

Martha I. Lent, Plaintiff-Appellee v. Warren Michael Stull, Defendant-Appellant

No. 81 X 7.

82-LW-1006 (4th)

Court of Appeals of Ohio, Fourth District Washington

February 25, 1982

COUNSEL FOR APPELLEE: Randall Porter, Assistant Prosecuting Attorney Washington County, Marietta, Ohio 45750.

COUNSEL FOR APPELLANT: Allan Sherry, 316 South Main Street Woodsfield, Ohio 43793.

OPINION

GREY P.J.

This is an appeal from the Juvenile Court in Washington County. On May 15, 1980, Appellee Martha Lent, filed a Complaint in paternity alleging that Appellant Warren Michael Stull, is the father of Appellee's child, Shawn David Lent. This case came on for trial on January 21, 1981. At the beginning of the trial, counsel for Appellant objected to proceeding without a jury because Appellant had neither demanded nor waived a jury trial. The trial court overruled Appellant's objection on the basis that the Ohio Rules of Civil Procedure required Appellant to file a jury demand which Appellant had failed to do.

After hearing all the evidence, the trial court in an opinion filed January 26, 1981, found Appellant to be the father of Appellee's child. In a decision issued February 5, 1981, the trial court determined that Appellant should pay $30.00 a week for support of the child.

Appellant has timely appealed the trial court's decision and alleges two assignments of error.

"ASSIGNMENT OF ERROR ONE: The court erred in refusing to allow Defendant-Appellant a jury trial, over the timely objection of counsel for Defendant-Appellant."

Appellant's counsel requested a jury trial on the day of trial. The trial court found that no jury demand had been served, therefore Appellant had waived a jury trial. Appellant begins his argument by citing R.C. 3111.15 which states:

"If the accused pleads not guilty to the charge before the court to which he is recognized, to appear, or after furnishing recognizance, fails to appear, the Court shall order the issue to be tried. Either party shall be entitled to a trial by jury or jury trial may be waived pursuant to Section 2315.20 of the Revised Code."

R.C. 2315.20 reads:

"In actions arising in contract, trial by jury may be waived by the parties, and in other actions with the assent of the court as follows:

(A) By consent of the parties appearing, when the other party fails to appear at the trial, in person or by attorney;

(B) By written consent, in person or by attorney, filed with the clerk;

(C) By oral consent in open court entered on the journal."

R.C. 2315.20 was repealed due to a conflict with Ohio Civil Rule of Procedure 38. Appellant argues that R.C. 2315.20 was the exclusive vehicle for waiving a jury trial in paternity proceedings, and that since its repeal, there has been no other provision of the Code enacted or revised to provide for waiving a jury trial. Appellant contends that absent such a provision, there can be no waiver because paternity proceedings are statutory and therefore the civil rules are inapplicable regarding the waiver or demand of a jury trial. We disagree with Appellant's contention.

The first paragraph of the syllabus of Sheppard v. Mack (1980), 68 Ohio App.2d 95, 427 N.E.2d 522, states:

"Paternity proceedings brought under R.C. Chapter 3111 are civil in nature and are neither criminal nor quasi-criminal proceedings."

Therefore, it appears clear that actions relating to paternity proceedings are, unless otherwise specified, governed by the rules of civil procedure. See Bigsby v. Bates (1978), 59 Ohio Misc. 51, 391 N.E.2d 1384. It therefore appears clear to the court that Civil Rule 38 regarding jury demands and waiver are applicable to paternity proceedings, due to the repeal of R.C. 2315.20. Civil procedures control in bastardy proceedings unless otherwise specified in special statutes applicable thereto. See Taylor v. Scott (1959), 168 Ohio St.2d 391, 155 N.E.2d 884; O.C.R.P. 1 C (7).

Civil Rule 38(B) and (D) read:

"(B) Demand. Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party. Unless the demand specifies a lesser number the jury shall be composed of twelve members. In the event of

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