Whitecotton v. Whitecotton

• Citation: 103 Ohio App. 149,144 N.E.2d 678
• Parties: , 3 O.O.2d 210 WHITECOTTON, Appellant, v. WHITECOTTON, Appellee.
• Decision Date: 12 December 1955
• Court: United States Court of Appeals (Ohio)

Page 149

103 Ohio App. 149

144 N.E.2d 678, 3 O.O.2d 210

WHITECOTTON, Appellant, v. WHITECOTTON, Appellee.

Court of Appeals of Ohio, Lucas County.

Dec. 12, 1955.

Syllabus by the Court.

1. A child conceived during the existence of a lawful marriage is presumed to be the procreation of the husband and wife and is legitimate.

2. In a husband's action for divorce, in which the wife's cross-petition raises the issue of the paternity of her child, a finding by the trial court that the evidence is insufficient to prove that the husband is not the father of the child is a determination that the child was conceived by the parties as husband and wife, and it is the duty of such court to make an order for the disposition, care and maintenance of the child.

3. In an action for divorce or alimony where there are children involved who are the issue of the marriage relation, the duty imposed on the trial court as to such children is determined by the provisions of Sections 3105.21 and 3109.04, Revised Code, which sections provide for the disposition of such children.

4. In such case, it is error for the trial court to fail to make an order in compliance with the mandatory requirement of Section 3105.21, Revised Code, for the disposition, care and maintenance of such children.

M. J. Britz and A. M. Steinberg, Toledo, for appellant.

Chester R. Early, Toledo, for appellee.

DEEDS, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, Division of Domestic Relations, of Lucas County. The plaintiff appellant, will be referred to herein as the plaintiff, and the defendant, appellee herein, as the defendant, as the parties appeared in the trial court.

The case was presented in the trial court upon the petition of the plaintiff, the amended answer and cross-petition of the defendant and the reply of the plaintiff. The petition of the plaintiff is for a divorce. The cross-petition of the defendant is for a divorce, alimony and for the support of a minor son, and, also, presents as an issue the paternity of the child.

Omitting the formal allegations of the petition, the plaintiff alleges that 'there are no children born as the issue of said marriage' and, further, that defendant has been guilty of gross neglect of duty and willful absence; and the prayer of the petition is for a divorce and further relief as is just and equitable.

The defendant, by her amended answer, admits the marriage as alleged and the formal allegations relating to the residence of the plaintiff and denies that she has been guilty of gross neglect of duty or willful absence and, specifically, that there have been no children born as the issue of the marriage.

Defendant alleges further in her amended answer 'that she advised him from the outset that he is the father of their child and is responsible for her pregnancy, which resulted in the birth of their son, Timothy Whitecotton, on the 18th day of August, 1954.'

Defendant denies all other allegations contained in the petition.

By her cross-petition, omitting the formal allegations thereof, the defendant alleges in a first cause of action that plaintiff has been guilty of gross neglect of duty, that defendant has been compelled to seek employment for the purpose of providing food and clothing for herself, and that plaintiff has spent his earnings in drinking, gambling and in company with other women and has frequently remained away from their place of residence for several nights in succession without advising defendant concerning his absence.

In a second cause of action, defendant alleges that plaintiff has been guilty of extreme cruelty, in that plaintiff had an antisocial disposition, and, in substance, defendant alleges further that by plaintiff's conduct and attitude toward her, plaintiff has caused her to suffer embarrassment, worry and mental anguish, and further, that, upon being advised by the defendant that she was pregnant, the plaintiff commenced the action for divorce against her.

By the prayer of her cross-petition, the defendant prays for a divorce, custody of the infant son, support and maintenance for the child, alimony and other and further relief to which she may be entitled in law or equity.

By his reply to the answer and crosspetition of the defendant, the plaintiff admits the marriage and denies all other allegations contained in defendant's answer and cross-petition 'not herein admitted to be true.'

That part of the journal entry recording the judgment of the trial court, deemed pertinent by this court in a consideration and determination on this appeal, is as follows: 'The court further finds that the plaintiff is guilty of gross neglect of duty, beginning soon after marriage, as the cause of their living separate and apart. The court further finds that there has been misconduct on the part of the defendant.

'The court further finds the testimony fails to establish by the proper degree of proof, either that the plaintiff is or is not the father of said minor child. The court finds that neither party is entitled to a divorce as prayed for. The court finds that the defendant is entitled to alimony as prayed for in her amended cross-petition. It is, therefore, ordered, adjudged and decreed upon the above findings that both the plaintiff and the defendant be denied a divorce. It is further ordered, adjudged and decreed that plaintiff pay to the defendant as alimony the sum of ten dollars per week, beginning June 11, 1955, and continuing for a period of ten years, or until defendant remarries, whichever is the shorter.

'It is further ordered, adjudged and decreed that no decree be made relative to the maintennace support of said minor child. The court makes no order as to the parenthood of said minor child, and all matters pertaining to said minor child are transferred to the Juvenile Court for further proceedings.'

It is undisputed that the parties were married on July 22, 1951, and that they lived and cohabited together as man and wife until July 7, 1952, at which time they separated and thereafter lived at separate places of residence until some time in the month of December 1952, when they were reunited and continued to live together until they separated again on March 17, 1953, after which the plaintiff filed his petition for a divorce on February 1, 1954.

It is disclosed by the record, and not disputed, that the infant son was born on August 18, 1954, during the lawful wedlock of the parties.

It is disclosed by a consideration of the evidence in the record relating to the issue of paternity, that the parties were living at separate places of residence when the child was conceived. Nevertheless, there is also evidence in the form of testimony in the record that the parties met frequently, slept together during the time of their separation and had sexual intercourse on a number of occasions and at various times, as a result of which the child may have been conceived, notwithstanding the parties were residing at separate places of residence.

The plaintiff denies that he had sexual intercourse with the defendant during the time of their separation and contends that he is not the father of the child, although there is no direct evidence in the record that defendant had sexual intercourse with any other person.

In further support of his contention that he is not the father of the child, the plaintiff called a...