State v. Sax, 34891

CourtSupreme Court of Minnesota (US)
Citation231 Minn. 1,18 A.L.R.2d 929,42 N.W.2d 680
Decision Date21 April 1950
Docket NumberNo. 34891,34891
Parties, 18 A.L.R.2d 929 STATE v. SAX et al.

Syllabus by the Court.

1. The mother of an illegitimate child has a definite personal financial interest in the amount of the award of support made by the court under M.S.A. § 257.23 and therefore may appeal therefrom as an aggrieved party under § 605.09.

2. In a proceeding to adjudicate a support order for an illegitimate child, due process requires that the court shall afford the interested parties an opportunity to be heard and to present evidence in support of their rights. Denial of the mother's request to present competent and relevant evidence, on the ground that the trial court had already informed itself thereof, is a denial of due process.

3. Under the facts of the instant case, the mother of an illegitimate child does not waive her rights to present her case and to appeal by requesting and holding an informal conference with the trial judge.

4. This court disapproves of the informal conference as a method of determining an award of support. Absent a stipulation as to the terms of the award by all parties interested, a hearing should be held at which all interested parties should be heard and a record made of the testimony.

5. A lump-sum settlement is authorized by statute.

6. Since the law imposes upon the father of an illegitimate child the same primary duty of support that it imposes upon the father of a legitimate child, the court, in adjudicating the support order in a paternity proceeding, should inquire into the financial status of defendant and his ability to support his child. The ability of the mother to support the child is secondary to the responsibility of the father and is irrelevant to the issue of the extent of the father's liability.

7. Basing the amount of a lumpsum settlement authorized by statute on the assumption that the father is liable to support his child only to the age of 16 is error, since the father's responsibility continues through minority.

William E. Tracy, Duluth, for appellant.

Thomas J. Naylor, W. F. Dacey, and John B. Arnold, Jr., Duluth, for State.

Fryberger, Fulton & Boyle, Duluth, and Morris H. Greenberg, Eveleth, for defendant-respondent.

LORING, Chief Justice.

This action, under M.S.A. c. 257, was to determine defendant's paternity of an illegitimate female child born to complainant, Bertha Selin. A jury rendered a verdict of guilty. Miss Selin comes here on appeal from the support order of the court which followed the verdict. 1

February 16, 1944, complainant, Bertha Selin, gave birth to an illegitimate child in the city of Ironwood, Michigan. She later brought the matter to the attention of the county attorney of St. Louis county, Minnesota, where defendant resided, but the county attorney was of the opinion that he should not take any action. Therefore, she filed a complaint in her own behalf in the municipal court of Duluth, Minnesota, under M.S.A. c. 257, § 257.19, charging defendant with being the father of her child. At this point, the county attorney entered the proceedings and prosecuted the trial in the district court. A verdict of guilty was returned by the jury, and judgment was entered on March 31, 1948, pursuant to the verdict.

Subsequently, the court ordered defendant to pay complainant $317 for lying-in expenses; $1,000 for the support and maintenance of her child from the date of birth to the date of the judgment; and $35 a month thereafter; but, in lieu of the $1,000 and the monthly payments of $35, the court ordered that he pay, in addition to the $317, the sum of $4,500 to be paid to the director of social welfare in full settlement of all obligations for care, maintenance, and education of the child. Defendant petitioned the court for an order confirming the $317 item, approving the $4,500 lump-sum payment, and discharging him from further liablity. The director of social welfare consented to the lump-sum payment. A hearing was held August 2, 1948, to consider defendant's petition, at which time complainant, without objection by the county attorney, appeared and estimated the cost of support for her daughter and asked the court for permission to cross-examine defendant with reference to his financial situation or that she be furnished with reliable information in reference thereto. This was refused, and the court entered an order approving defendant's petition.

1. The right of the mother to appeal is challenged by the dissent. We take the view that she has a definite personal financial interest in the amount of the award for support, and therefore that she is an aggrieved party entitled to appeal, under M.S.A. § 605.09. She has a right in the proceeding to recover her lying-in expenses and the expense of support of the child prior to the judgment. Her secondary responsibibility for support gives her a direct interest in the amount of the award against the father, whose responsibility is primary. Should the award be insufficient for the child's support, the burden of her secondary responsibility would be correspondingly increased, and, as natural guardian of her child, she is the person most interested in protecting its rights and interests.

In most states, as in this, illegitimacy proceedings are civil in nature and are governed by the rules of procedure applicable to civil actions. 10 C.J.S., Bastards, § 32; State v. Jeffrey, 188 Minn. 476, 247 N.W. 692. In a few jurisdictions they are considered to be criminal in nature. 2 This is usually because the statute creating the particular proceeding provides for the punishment of the putative father. In some states, the proceeding is neither civil nor criminal, but partakes somewhat of the nature of both. 10 C.J.S., Bastards, § 32. Usually, the mother institutes the proceeding by a complaint, see M.S.A. § 257.19, but statutes often provide that if she refuses or neglects to prosecute public authorities liable for the support of the child can prosecute. 10 C.J.S., Bastards, § 52. See, M.S.A. § 257.18. In Rhode Island and New Jersey, the proceeding can Only be instituted by a public agency. 3

In the majority of jurisdictions, the mother is a party by express provision 4 or by implication from the context of the statute. 5 An exhaustive examination of the cases from the states which have statutes similar to the majority discloses no holding at present in force that the mother is not a party. On the contrary, the cases hold either expressly or by implication that the proceeding is for the mother's benefit and that she is a party. 6 Moreover, eight states having statutes 7 providing for prosecution by the state's attorney fall within this group.

In this state the proceeding is civil in nature--'the state merely loans its name to be used as plaintiff.' State v. Jeffrey, 188 Minn. 476, 477, 247 N.W. 692, 693; State v. Hansen, 187 Minn. 235, 244 N.W. 809; State v. Thompson, 193 Minn. 364, 258 N.W. 527; State v. Wenz, 41 Minn. 196, 42 N.W. 933. In general, our provisions, c. 257, are Similar to those states forming the majority group, but our statute is more liberal toward the child and more comprehensive as to the responsibilities of the adjudged father than that of any other states. With the exception of the immunity afforded by an award under § 257. 28, the statute completely supersedes the primitive common- law rules with reference to illegitimate children and their fathers. Even that immunity seems to be somewhat qualified by the last sentence of § 257.23. The terms of the statutes evince a purpose to place the illegitimate father in as responsible a position toward the child as if the child were legitimate. There are other provisions which, as in most of the jurisdictions, indicate an intention that the proceedings are for the benefit of the mother as well as the child and the public, and which give her sufficient interest to be a party.

Section 257.23 provides in part: '* * * If he is found guilty, or admits the truth of the accusation, he shall be adjudged to be the father of such child and Thenceforth shall be subject to all the obligations for the care, maintenance and education of such child, and to all the penalties for failure to perform the same, which are or shall be imposed by law upon the father of a legitimate child of like age and capacity.' (Italics supplied.) As we said in State v. Jeffrey, 188 Minn. 479, 247 N.W. 693:

'* * * The statute imposes a natural and moral duty--a threefold duty:

'(1) The father's duty to the mother to whom he owes more than gratitude, since by his conduct he has in a measure contributed to her social ostracism and the impairment of her earning power; (2) The father's duty to his own child; and (3) The father's duty to protect the public against the child's becoming a public charge.'

Early in the jurisprudence of this state, it was held that proceedings under the illegitimacy statutes were 'also for the protection and benefit of the mother.' State v. Zeitler, 35 Minn. 238, 240, 28 N.W. 501, 502; State ex rel. Schumacher v. Hausewedell, 94 Minn. 177, 102 N.W. 204; State v. Nestaval, 72 Minn. 415, 75 N.W. 725; see, State v. Dougher, 47 Minn. 436, 50 N.W. 475; State v. Jeffrey, supra; Ladd v. Martineau, 205 Minn. 129, 285 N.W. 281; see, M.S.A. § 257.33. In State v. Zeitler, 35 Minn. 238, 239, 28 N.W. 501, 502, we quoted with approval the following passage from the case of Hoffman v. State, 17 Wis. 596, 597 (Reprint pages 615, 616): '* * * 'The maintenance of a child includes its entire maintenance from its birth onward. It was the design of the statute to compel the father to bear this burden, not only for the protection of the public, But also for the protection and benefit of the mother, whom he had brought into a condition which, to a certain extent, drives her from society and renders it difficult for her to support either herself or her child." (Italics supplied.)

Our view that the mother i...

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