State v. Carter

Decision Date26 June 1963
Docket NumberNo. 37719,37719
Citation191 N.E.2d 541,175 Ohio St. 98
Parties, 23 O.O.2d 390 The STATE of Ohio, Appellee, v. CARTER, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. A man can be convicted under Section 2151.42, Revised Code, for failing to support a child although there has been no previous judicial determination that he is the father of such child. It is sufficient if such determination is made for the first time in the proceeding in which he is convicted.

2. Where the mother of a child was lawfully married at the time the child must have been conceived, a man other than her husband connot be convicted under Section 2151.42, Revised Code, for failing to support that child unless there is clear and convincing evidence that the child is not attributable to the mother's husband; and, even if there is such evidence, the state must prove such man's guilt beyond a reasonable doubt. (State ex rel. Walker v. Clark (1944), 144 Ohio St. 305, 58 N.E.2d 773, followed.)

This proceeding originated with the filing in 1961 of an affidavit charging defendant under Section 2151.42, Revised Code, with being the father of an 11-year-old child and failing to support that child.

Section 2151.42 reads so far as pertinent:

'No person charged with the care, support, maintenance, or education of a legitimate or illegitimate child under eighteen years of age shall fail to care for, support, maintain, or educate such child * * *.'

The trial court found defendant guilty of nonsupport of his minor child as charged and rendered judgment, sentencing defendant to 90 days in county jail but suspending that sentence upon condition that defendant make certain weekly payments for support of the child.

That judgment was affirmed by the Court of Appeals.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

Cherpas, Manos & Syracopoulos, Akron, for appellant.

John S. Ballard, Pros. Atty., and Richard B. Kirk, Akron, for appellee.

TAFT, Chief Justice.

Defendant's principal contention is that he cannot be convicted under Section 2151.42, Revised Code, for failing to support a child since there has been no previous judicial determination that he is the father of that child. State v. Parker (1948), 82 Ohio App. 235, 78 N.E.2d 427, and State, ex rel. Fisher, v. McKinney (1949), 55 Ohio Law Abs. 190, 85 N.E.2d 562, seem to require such a conclusion. However, in State v. Snyder (1952), 157 Ohio St. 15, 104 N.E.2d 169, which involved a prosecution under the same statute (then Section 1639-46, General Code), paragraph two of the syllabus reads:

'In a prosecution * * *, the state must show beyond a reasonable doubt that the accused comes within the class of persons charged by statute with such duty. The record of a judgment in an action for divorce, wherein the mother of such child was plaintiff and the accused was defendant and wherein such child was found to be the issue of the marriage, is not admissible to establish that the accused was 'charged by law' with the care and support of such child.'

It necessarily follows that one can be convicted under Section 2151.42, Revised Code, for failing to support a child although there has been no previous judicial determination that he is the father of such child. See Gee v. State (1899), 60 Ohio St. 485, 55 N.E. 48; Ogg v. State, 73 Ohio St. 59, 75 N.E. 943; State v. Schwartz, 137 Ohio St. 371, 30 N.E.2d 551. It is sufficient if such determination is made for the first time in the proceeding in which he is convicted.

A more serious problem is presented by defendant's contention that he cannot be convicted under the foregoing statute because the mother of the child involved has been married to another man since sometime prior to the child's conception and still is married to than man.

In State, ex rel. Walker, v. Clark (1944), 144 Ohio St. 305, 58 N.E.2d 773, the syllatus reads in part:

'2. A child conceived during the existence of a lawful marital relation is presumed in law to be legitimate--a procreation of the husband and wife.

'3. Such presumption is not conclusive and may be rebutted by evidence, which must be clear and convincing, that there was no sexual connection between husband and wife during the time in which the child must have been conceived.

* * *

* * *

'6. In a case of this kind, it is incumbent on plaintiff to...

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10 cases
  • Gray v. Richardson
    • United States
    • U.S. District Court — Northern District of Ohio
    • 28 Febrero 1972
    ...husband could not be the father of the child. State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944); State v. Carter, 175 Ohio St. 98, 191 N.E.2d 541 (1963); 7 Ohio Jur. 2d § 60; also Rose v. Rose, 16 Ohio App.2d 123, 242 N.E.2d 677 (1968); Quasion v. Friedman, 110 Ohio App.......
  • Franklin v. Julian
    • United States
    • Ohio Supreme Court
    • 7 Junio 1972
    ...paternity. The same principle which permits that issue to be decided in the first instance in a criminal proceeding (State v. Carter (1963), 175 Ohio St. 98, 191 N.E.2d 541) suffices to permit the same issue to be decided in a civil action for support and necessaries furnished. See, also, S......
  • People v. Askew
    • United States
    • United States Appellate Court of Illinois
    • 31 Julio 1979
    ...held that a determination of paternity may be made for the first time in criminal prosecutions for nonsupport. (State v. Carter (1963), 175 Ohio St. 98, 191 N.E.2d 541, 542; State v. Medley (1960), 111 Ohio App. 352, 172 N.E.2d 143, 145-146.) It has also been held that paternity is an issue......
  • Custody of Davis, In re, 87-CA-1
    • United States
    • Ohio Court of Appeals
    • 6 Julio 1987
    ...4, 51 O.O.2d 2, 257 N.E.2d 396, acknowledges that paternity may be proved in a criminal nonsupport action. (State v. Carter [1963], 175 Ohio St. 98, 23 O.O.2d 390, 191 N.E.2d 541.) Further authority for the proposition that an R.C. 2105.18 acknowledgement of paternity is not simply a descen......
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