McGlohon v. Harlan

• Decision Date: 25 May 1970
• Docket Number: No. 19054,19054
• Citation: 254 S.C. 207,174 S.E.2d 753
• Court: South Carolina Supreme Court
• Parties: Sharon McGLOHON, Respondent, v. Sammy HARLAN, Appellant.

Page 753

174 S.E.2d 753

254 S.C. 207

Sharon McGLOHON, Respondent, v. Sammy HARLAN, Appellant.

No. 19054.

Supreme Court of South Carolina.

May 25, 1970.

Richard T. Townsend, Laurens, for appellant.

W. Paul Culbertson, Laurens, for respondent.

MOSS, Chief Justice.

Sharon McGlohon, the respondent herein, instituted this action against Sammy Harlan, the appellant herein, in the Laurens County Civil and Family Court, alleging in her complaint that he was the father of her illegitimate child, and asking for an order of the court requiring him to contribute to the support of said child and reimburse the respondent for hospital and medical expenses in connection with the birth of said child.

Based upon the verified complaint, the judge of the lower court issued a rule against the appellant requiring him to show cause, if any he could, why he should not contribute to the support of his illegitimate child and to reimburse the respondent for medical and hospital expenses in connection with the birth of said child. The appellant made a special appearance and contested the jurisdiction of the lower court to determine the paternity of this illegitimate child. He asserted that a jury trial in the Court of General Sessions, under Section 20--303 of the Code, as amended, was the exclusive remedy for determination of paternity. The lower court held that it had jurisdiction to determine, without a jury, the question of the paternity of an illegitimate child and, after making such determination, to require the father thereof to support such child. The trial judge found that the appellant was the father of the illegitimate child and fixed a weekly payment for the support thereof, and required the appellant to reimburse the respondent for a portion of the medical and hospital expenses incurred in connection with the birth of said child.

The sole question for determination here is whether the trial court had jurisdiction to determine, without a jury, the paternity of an illegitimate child or whether a jury trial in the Court of General Sessions, under Section 20--303 of the Code, as amended, was the exclusive remedy for the determination of such paternity.

Family Courts in this state were created by an Act of the General Assembly, approved May 22, 1968, 55 Stats., page 2718, and such is now codified in the 1969 Cumulative Supplement to the Code, as Sections 15--1095 et seq.

In Section 15--1095.24, the Family Court was given jurisdiction '(1) To hear and determine proceedings within the county to compel the support of a wife or child, whether legitimate or illegitimate.'

In Section 15--1095.24(b)(2), the court was authorized 'To include in the requirements of an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, both before and after the birth, * * *.'

In Section 15--1095.24(b)(17), the Family Court was given authority 'to make any order necessary to carry out and enforce the provisions of this chapter, and to hear and determine any questions of support, custody, separation or any other matter over which the court has jurisdiction, without the intervention of a jury.'

In Section 15--1095.37, it is provided 'The court shall have all the power and authority and jurisdiction by law vested in the circuit courts of the State in actions * * * (3) to determine the legitimacy of children.'

The Civil and Family Court of Laurens was established by an Act of the General Assembly, approved on June 19, 1969, 56 Stats., page 410, and now codified as Sections 15--1650 et seq., as is contained in the 1969 Cumulative Supplement to the Code, with all the powers and jurisdiction throughout Laurens County as prescribed in the Family Court Act of 1968.

The primary rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. It is clear to us that the Legislature, in the Act establishing a Family Court, gave to it jurisdiction to determine the question of the paternity of an illegitimate child and to compel the support thereof by the father and such was to be done without the intervention of a jury. It follows that the judgment of the lower court in the instant case should be affirmed unless the appellant was entitled to a jury trial upon the question of the paternity of the said child.

The common law recognized no legal duty on the part of a father to provide for the support of an illegitimate child. Her was said to be a Filius nullius, the child of nobody. There was no procedure for determining paternity. An illegitimate child had no rights against an asserted parent that could be enforced in court.

The provincial General Assembly of South Carolina, by an Act ratified September 17, 1703, 2 Stats. 224, undertook to deal with the paternity of bastards and providing for proceedings against the mother of a bastard child and to enforce the obligation of the father to provide support, it being recited that 'great charges ariseth upon many places in this Province by reason of Bastardy, besides the great dishonor to Almighty God, and the evil encouragement of lewd life'. It was further provided in said Act that:

'* * * if the woman be presented or indicted for having had a bastard child, and shall be convicted thereof by confession or verdict of the jury, such woman so offending, for the first offence shall be fined not exceeding ten pounds, and not less than five pounds, to be paid within twenty days after judgment given, and in case of failure of payment shall be publickly whipped on the bare back, in the usual places in Charlestown, not exceeding thirty one stripes and for the second offence, upon conviction thereof, shall be fined not exceeding fifteen pounds, and not less than ten pounds, to be paid in twenty days after judgment given, and in case of failure of payment shall be publickly whipped as aforesaid, not exceeding thirty nine stripes; and for the third offence shall be tied to the tail of a cart, and publickly whipped as aforesaid, through Charlestown, through so many streets as shall be ordered by the Chief Judge of the General Sessions, and the like punishment shall be for every time she shall again offend in the like kind.'

The aforesaid Act provided penalties upon the mother of a bastard child for refusing to disclose to a justice of the peace the name of the father of her child or for not disclosing such until the father had gone out of the province and for falsely accusing any man of being the father of her said child.

The aforesaid Act also provided for the proceedings against the father of a bastard child, as follows:

'* * * That he that is accused by any woman to be the father of a bastard child begotten of her body, she continuing constant in such accusation being examined upon oath and put upon the discovery of the truth in the time of her travail, be adjudged the reputed father of such child, notwithstanding his denial, unless the pleas and proofs made and produced on the behalf of the man accused, and other circumstances, be such as the Chief Judge of the General Sessions shall see reason to judge him innocent, and acquit him thereof, but if the said Chief Judge of the General Sessions shall adjudge him to be the reputed father of the bastard child, then the said Judge shall set a fine upon him not exceeding ten pounds, and not less than five pounds, to be paid within twenty days after judgment given, and in case of failure of payment, shall be publickly whipped as aforesaid, not exceeding thirty-one stripes.'

The Act of 1703 was the law in South Carolina, as it relates to bastards, until the General Assembly of this state, on December 19, 1795, 5 Stats., 270, repealed said Act and passed 'An Act to provide for the maintenance of illegitimate children.' Under this Act the reputed father of the bastard child was bound to support it, he being required to enter into a recognizance, with sureties thereon, in the penal sum of sixty pounds, conditioned for the annual payment of five pounds for the maintenance of the child until such child reached the age of twelve years. It was further provided that:

'* * * should he deny that he is the father of the said child or children, then, and in that case, a jury shall be charged, either in the court of sessions or common pleas, or in the court of the county where the woman resides, to try the question whether the person so accused is or is not the father of such child or children; and should the jury be of opinion that he is not the father of such child or children, then and in that case he shall be discharged; but should the jury be of opinion the charge is well founded, and that he is the father of such child or children, then, should he not give the security herein before required, the court shall bind him out to service for any time not exceeding four years, and the proceeds of his labor shall be applied by the court to the purposes aforesaid.'

The procedure set forth in the Act of 1795, hereinabove quoted, with slight modifications and changes in phraseology, was incorporated in 'An Act concerning the office and duties of Magistrates' and adopted by the General Assembly of this State on December 21, 1839, 11 Stats., page 13. This Act was amended by the General Assembly of this State on December 17, 1847, 11 Stats., page 436, by repealing the provision that the court shall bind the father of a bastard child out to service for any term not exceeding four years, and providing that a defendant hereafter convicted of bastardy and failing to give the security aforesaid shall be liable to execution as defendants convicted of misdemeanors now are, and, providing further that on an annual payment of the sum of Twenty-five & 00/100 Dollars, the execution shall be stayed until another installment falls due.

The provisions, with reference to bastardy, contained in the Act of 1795, the Act of 1839 and the Act of 1847, were codified as Sections 379--383 of the...