Smazal v. Dassow's Estate

• Decision Date: 31 March 1964
• Citation: 127 N.W.2d 234,23 Wis.2d 336
• Parties: , 20 A.L.R.3d 493 Clara SMAZAL, Appellant, v. ESTATE of Donald DASSOW, Respondent.
• Court: Wisconsin Supreme Court

Page 234

127 N.W.2d 234

23 Wis.2d 336, 20 A.L.R.3d 493

Clara SMAZAL, Appellant, v. ESTATE of Donald DASSOW, Respondent.

Supreme Court of Wisconsin.

March 31, 1964.

Rehearing Denied June 2, 1964.

Nikolay, Jensen & Scott, Colby, for appellant.

Giles & Krug, Medford, for respondent.

GORDON, Justice.

In sustaining the demurrer to the complaint of Clara Smazal, the trial court determined that the alleged contract between Clara Smazal and the putative father did not conform to the provisions of sec. 52.28, Stats. We agree with that conclusion.

In the instant case, the alleged agreement was oral, and the putative father had died before Clara Smazal attempted to obtain legal enforcement of the alleged agreement. Nevertheless, we consider that the impact of sec, 52.28 Stats., would be applicable even if the agreement were in writing and even if the claimed father were alive. This is because sec. 52.28 by its own language is broad enough to cover all settlement agreements between an alleged father and the mother of an illegitimate child. The statute provides that '[n]o other agreement or settlement of any paternity proceeding shall be valid,' and we believe that the legislature intended thereby to bar enforcement of those arrangements which did not comply with the statutory plan.

There is a sound public policy behind a statutory plan which requires that all such agreements be drawn by the district attorney and approved by the court. In this manner the public interest is fully protected. This technique is the one which will best protect the illegitimate child. Compliance with the statute will prevent, on the one hand, any unreasonable imposition upon the putative father by a conniving mother; on the other hand, it will avoid the acceptance of an improvident financial arrangement on the part of a woman who may be as naive fiscally as she had been sexually. See Kenney, Illegitimacy Under the Children's Code, 14 Marquette Law Review (1929), 26, 27. We conclude that the legislature intended to make the settlement technique provided for under sec. 52.28, Stats., an exclusive remedy.

In State v. Olson (1929), 198 Wis. 197, 200, 223 N.W. 449, this court held that a payment made to the mother of an illegitimate child, which payment did not comply with the statute, did not relieve the father of his obligation to support the child.

The appellant suggests that there has been a waiver; she contends that by entering into the agreement both parties waived the provisions of sec. 52.28, Stats. In support of this theory, Clara Smazal relies on Meyer v. Meyer (1905), 123 Wis. 538, 102 N.W. 52. We consider that the Meyer case is not controlling because the statute involved in that case was substantially different from the present statute, and the considerations which led the court to the waiver theory in the Meyer case do not apply under the present statute. Furthermore, after exploring the overriding considerations of public policy which apply in connection with illegitimacy settlements, this court in Francken v. State (1926), 190 Wis. 424, 440, 209 N.W. 766, modified the Meyer case insofar as it related to waiver.

The appellant also urges that she and Mr. Dassow had a constitutional right to enter into their contract and that if sec. 52.28, Stats., be construed as an exclusive remedy, such legislation, she contends, would be an unconstitutional impairment of their right to contract. The answer to this argument is that legislation which is grounded on important considerations of public policy may constitutionally circumscribe the right to contract. The paternity statutes are not unlike other modern social legislation such as the laws which are designed to promote industrial peace. See J. I. Case Co. v. National Labor Relations Board (1944), 321 U.S. 332, 337, 338, 64 S.Ct. 576, 88 L.Ed. 762. It has also been held that the legislature may modify existing remedies or prescribe new modes of procedure without impairing the obligation of contracts if a substantial remedy for enforcement remains. Onsrud v. Kenyon (1941), 238 Wis. 496, 500, 300 N.W. 359. See also Conley v. Barton (1923), 260 U.S. 677, 681, 43 S.Ct. 238, 67 L.Ed. 456.

Sec. 52.28, Stats., was already a part of the law of Wisconsin at the time Clara Smazal and Mr. Dassow allegedly entered into their agreement; the statute cannot be said to have impaired the obligation of their contract. Chippewa Valley Securities Co. v. Herbst (1938), 227 Wis. 422, 278 N.W. 872.

We conclude that the trial court properly sustained the demurrer since the alleged contract was not entered into in compliance with the statute which furnished the exclusive procedure for the creation of an enforceable contract for the support of an illegitimate child between the mother and the putative father.

Order affirmed.

BEILFUSS, Justice (dissenting).

I respectfully dissent. The majority holds that sec. 52.28 Stats., furnishes the exclusive procedure for a mother and putative father to contract for the support of an illegitimate child. In my view, the statute applies only to contracts intended to settle or bar paternity proceedings. I would draw a distinction between those contracts and the one before us, which was...