Walker v. Stokes

• Decision Date: 18 August 1977
• Citation: 8 O.O.3d 237,375 N.E.2d 1258,54 Ohio App.2d 119
• Parties: , 8 O.O.3d 237 WALKER, Appellee, v. STOKES, Appellant. *
• Court: Ohio Court of Appeals

Page 119

54 Ohio App.2d 119

375 N.E.2d 1258, 8 O.O.3d 237

WALKER, Appellee, v. STOKES, Appellant. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 18, 1977.

Syllabus by the Court

1. Whether an affidavit of disqualification is timely filed is an issue to be determined by the Chief Justice of the Ohio Supreme Court alone, pursuant to the authority contained in R.C. 2701.03. Until such determination is made and the issue of disqualification is passed upon, the trial judge is without authority to proceed with the case or to enter judgment therein. (Cuyahoga County Bd. of Mental Retardation v. Association (1975), 47 Ohio App.2d 28, 351 N.E.2d 777.)

2. The legislature cannot provide for different punishments in a bastardy action, which is quasi-criminal in nature, based solely upon the economic status of the defendant.

3. The provisions of R.C. 3111.17 and 3111.18 are unconstitutional as a denial of the Equal Protection Clause guaranteed by the Fourteenth Amendment to the United States Constitution insofar as these sections provide for the imprisonment of an indigent defendant adjudged to be the reputed father of the plaintiff's illegitimate child solely because of his inability to pay the support award ordered by the court.

Thomas E. Frye, Cleveland, for appellee.

Cornelius A. Manly and Franklin J. Hickman, Cleveland, for appellant.

JACKSON, Judge.

This controversy comes before us on appeal for a second time after more than four years of litigation. We find that for a second time we must reverse the decision of the Juvenile Court and remand for further proceedings. The appellee, Janice Walker, filed a complaint in bastardy against the appellant, Keith Stokes, in May of 1973. Prior to the first trial in this action the appellant filed a motion for blood tests to determine paternity, together with an affidavit of indigency, praying that the expense of the blood tests be taxed as costs. The motion was overruled by the lower court and no tests were taken. The appellant was subsequently found guilty by a jury and adjudged by the Juvenile Court to be the reputed father of the illegitimate child of the appellee.

On appeal, this court reversed the decision of the trial court and held that:

"Once the State of Ohio granted all defendants in bastardy proceedings, which are 'quasi criminal' in nature, the right to a blood test to determine paternity, it cannot deny this right to those defendants who are unable to pay the required fee in advance, without violating the equal protection clause of the United States Constitution, because such a defendant's ability to pay in advance bears no rational relationship to his guilt or innocence and to discriminate upon this basis constitutes that type of invidious discrimination which is constitutionally prohibited." Walker v. Stokes (1975), 45 Ohio App.2d 275, 278, 344 N.E.2d 159, 161.

On remand, but prior to the second trial, appellant properly filed with the Juvenile Court an affidavit of prejudice and disqualification. In the affidavit appellant sought the removal of the assigned trial judge, Angelo J. Gagliardo. The affidavit alleged that in an unrelated action Judge Gagliardo had signed, sworn and caused to be served on the appellant's attorney, Cornelius A. Manly, a motion to show cause why he should not be held in contempt for statements made by him in a petition for a writ of mandamus filed in the Court of Appeals. ¹

The record does not disclose that the affidavit of prejudice against Judge Gagliardo had been passed upon by the Chief Justice on the date scheduled for the trial, March 30, 1976, and the appellant, prior to the impaneling of the jury, moved the trial judge to disqualify himself. The motion was overruled and the trial proceeded. On March 31, 1976, the jury again returned a verdict of guilty and the appellant was adjudged by the court to be the reputed father of appellee's illegitimate child.

The day after the court entered this judgment, pursuant to R.C. 3111.17, the court ordered the appellant to pay the appellee for her support, maintenance and necessary expenses caused by the pregnancy and childbirth, as well as the costs of the action. The court further ordered periodic support payments for the continued support maintenance of the child.

The appellant failed to immediately pay this support award and he was ordered incarcerated by the trial court, pursuant to R.C. 3111.17. On April 8, 1976, the record reveals that the maternity expenses were paid into the court.

The appellant appeals the judgment of the trial court and assigns three errors:

"I. When an affidavit of prejudice has been properly filed with the clerk of courts, a trial judge is without authority to proceed with the case or to enter judgment therein, until the Chief Justice of the Ohio Supreme Court has passed upon the issue of disqualification.

"II. Sections 3111.17 and 3111.18 O.R.C. are unconstitutional on their face and/or as applied in the instant case since the statutes require that juvenile judges incarcerate indigent defendants in paternity proceedings for a minimum of three months solely because of their inability to post security for costs described in the statute.

"III. It is a jurisdictional prerequisite to a finding of guilt in a paternity action under R.C. 3111.01 that the complainant be found to be unmarried at the time of the filing of the complaint."

In Cuyahoga Co. Bd. of Mental Retardation v. Association (1975), 47 Ohio App.2d 28, 35, 351 N.E.2d 777, 783, this court determined, in the following language, the effects of the filing of an affidavit of disqualification on the authority of the trial court to proceed in the action:

" * * * (T)he 'mere filing' of such an affidavit does have at least a temporary effect; it deprives the trial judge of the power to proceed on the case until such time as the affidavit of disqualification has been ruled upon by the Chief Justice of the Supreme Court."

The appellee argues that our holding in Mental Retardation is inapplicable in the instant action as the affidavit of disqualification was not filed within the time prescribed by R.C. 2701.03. ² The time requirement of R.C. 2701.03 is not mandatory. If there appears reasonable cause for the failure on the part of the litigant filing the affidavit to observe the statute, the affidavit may still be found to be well taken by the Chief Justice, Wolf v. Marshall (1929), 120 Ohio St. 216, 165 N.E. 848; Cameron v. Gordon (1940), 33 Ohio Law Abs. 182, ³ 33 N.E.2d 1016.

Whether an affidavit of disqualification is timely filed is an issue to be determined by the Chief Justice alone, pursuant to the authority contained in R.C. 2701.03. Until such determination is made and the issue of disqualification is passed upon, the trial judge is bound by the holding in Mental Retardation and is without authority to proceed with the case or to enter judgment therein. ⁴

In the instant case as the affidavit was apparently not passed upon by the Chief Justice prior to or on the date of trial, every act of the trial judge subsequent to the filing of the affidavit was fatally defective. On that basis we find the appellant's first assignment of error is well taken.

In his second assignment of error appellant urges R.C. 3111.17 and 3111.18 are unconstitutional as a denial of equal protection of the laws. We agree.

R.C. 3111.17 provides, in part, that after the defendant has been adjudged the reputed father of the child:

" * * * If the child is alive, the court shall adjudge that he pay to the complainant such sum the court finds necessary for her support and maintenance, and the necessary expenses caused by pregnancy and childbirth, together with costs of prosecution, and that a reasonable weekly sum be paid complainant for support and maintenance of the child until he becomes eighteen years of age. * * * The court shall further require the reputed father to give security for the payment of support, maintenance, and necessary expenses of the complainant caused by the pregnancy and childbirth, together with the costs of prosecution. If the accused neglects or refuses to give such security, other than for the payment of costs, he shall be committed to the jail of the county, there to remain, except as provided in section 3111.18 of the Revised Code, until he complies with the order of the court." (Emphasis added.)

R.C. 3111.18 allows a reputed father to apply for release from jail on the basis of indigency only after three months incarceration. This statute provides in part:

"After having been confined in jail for three months for failure to comply with section 3111.17 of the Revised Code, the putative father, upon three days' notice to the complainant or her attorney, may apply to the trial judge for his release. After hearing, and upon a finding of such judge that the defendant is unable to pay or give the security for the payment of the support, maintenance, and necessary expense of the complainant caused by pregnancy and childbirth together with the costs of prosecution, such judge may order the putative father released without bond, upon condition that he pay a weekly sum on such expenses and court costs until they are paid in full. * * * " (Emphasis added.)

Pursuant to these statutes, after a defendant has been found to be the reputed father the court is under a mandatory obligation to assess the costs of support and maintenance against the defendant. If the defendant is indigent and therefore unable to pay the support, the court is under a further mandatory obligation to incarcerate him. No incarceration is provided in the statute for a defendant who is able to and does provide immediately the support adjudged by the court.

Release because of indigency can only occur after the defendant has served a minimum three months in jail. No maximum term is provided by the statutes and the defendant's release is discretionary with the court. ⁵ After his release from...