Smith v. Smith

• Court: Ohio Court of Common Pleas
• Writing for the Court: SWAIM
• Citation: Smith v. Smith, 11 Ohio Misc. 25, 224 N.E.2d 925 (Ohio Ct. Com. Pl. 1965)
• Decision Date: 30 December 1965
• Docket Number: No. 19054,19054
• Parties: , 40 O.O.2d 136 Bernice Leigh SMITH, Petitioner, v. Robert Lee SMITH, Respondent.

Page 25

11 Ohio Misc. 25

224 N.E.2d 925, 40 O.O.2d 136

Bernice Leigh SMITH, Petitioner, v. Robert Lee SMITH, Respondent.

No. 19054.

Court of Common Pleas of Ohio, Clinton County.

Dec. 30, 1965.

George Schilling, Jr., Pros. Attorney, for initiating State, West virginia.

Paul E. Riley, Wilmington, for respondent.

OPINION

SWAIM, Judge.

This action under the Uniform Support of Dependents Act (Chapter 3115 of the Revised Code of Ohio, 'Support of Dependents') is based upon the claim of support made by Petitioner, for her child, Jonathan Keith Smith, against Respondent, a resident of this County.

In her Affidavit, filed in proper Court of Initiating State, she states: 'We are not married', 'I was staying at the home of the respondent's parents when sex relations resulting in my pregnancy. He knew of my pregnancy, admitted the child was his and gave me money on infrequent intervals', that his last contribution of support was $180.00 on a named date, and that 'Respondent never lived with me.' Her verified Petition alleges that Respondent 'is the father of the following named Dependents: Jonathan Keith Smith, aged 1 1/2 years.' (At no place does Petitioner give any dates for the alleged sexual relations with Respondent, or for the birth of the child. At no place does Petitioner state that she is unmarried.)

Upon her Affidavit and her Petition, proper Reciprocal proceedings were completed in West Virginia and forwarded to this Court, where the case was docketed and hearing was had under Section 3115.08, Revised Code.

The pertinent parts of the Uniform Act, as enacted in Ohio, state:

3115.01. Definitions. As used in sections 3115.01 to 3115.22, inclusive, of the Revised Code: * * *

(F) 'Duty of support' means any duty of support imposed or imposable by law, court order, decree, or judgment, whether interlocutory or final, and whether incidental to a proceeding for divorce, legal separation, separate maintenance, or otherwise.

3115.10. Order of responding state court. When a court of this state, acting as a court of a responding state, finds a duty of support, it may order the defendant to furnish support or reimbursement for support and may subject the property of the defendant to the order. * * *

'3115.22. Remedies in addition to others. The remedies provided by sections 3115.01 to 3115.21, inclusive, of the Revised Code, are in addition to, not in substitution for, any other remedies.'

Respondent testified that the parties were first cousins, that they had had sexual relations only one time, that being at his parent's home, exact date not recalled, but this child was born roughly seven and one-half or eight months after this act. He denied paternity, stated that he had told her all along that this child was not his child, admitted he had sent her some money, and further stated that he had never admitted paternity and that there had been no suit to determine the paternity of the child.

Laws concerning support of illegitimate children have been in effect in this area since before the establishment of the State of Ohio.

The First General Assembly of the North-West Territory in 'An Act to provide for the maintenance and support of illegitimate children', T.L. II 47, 1 Chase's Stat. 292, c. 131, December 6, 1800, effective May 1, 1801, provided, among other things, for jury determination of question of paternity of such child, if denied. This was replaced by another act in 1805, by the Third General Assembly of the State of Ohio, 3 Ohio Laws 167, 1 Chase's Stat. 490, c. 76, that in turn was replaced in 1824 by another act, 29 Ohio Laws 423, 2 Chase's Stat. 1423, c. 629.

Each of these three acts required that the woman who was pregnant with, or had been delivered of, a bastard child, be a resident of the area, that is, the Territory in the Act of 1800, or of this State of Ohio, in the Acts of 1805 and of 1824.

These acts and all subsequent bastardy acts have provided that if the Jury find the defendant, the accused, guilty (of being the father of the child), or if he confess in court before the trial that the accusation is true, he should be judged the reputed father of such child, with orders accordingly.

The 1824 Act, as amended, was repealed and a new act enacted in 1873, 70 Ohio Laws 111, that eliminated the previous residence requirement, and since 1873, it has not been necessary for the woman in the matter to be a resident of the State of Ohio.

The present law, Chapter 3111, Revised Code, styled 'Bastardy' is applicable in...