Wiczynski v. Maher

• Decision Date: 04 June 1976
• Citation: 356 N.E.2d 770,48 Ohio App.2d 224
• Parties: , 2 O.O.3d 186 WICZYNSKI et al., Appellants, v. MAHER, Appellee.
• Court: Ohio Court of Appeals

Page 224

48 Ohio App.2d 224

356 N.E.2d 770, 2 O.O.3d 186

WICZYNSKI et al., Appellants, v. MAHER, Appellee.

Court of Appeals of Ohio, Sixth District, Lucas County.

June 4, 1976.

Syllabus by the Court

1. When the mother of a child born out of wedlock withdraws her claim for the child's support against the father, in an action in which she acts for herself and the child, as its next friend, it is error for the court to dismiss the child's claim where a substitute guardian ad litem could be appointed.

2. A child has standing to bring an action against his alleged father for child support as the real party in interest and the necessity for a next friend is only to fulfill the requirement of capacity and to insure that there is someone to pay the costs, if necessary.

William J. Syring and James H. Hart, Toledo, for appellants.

Peter J. Wagner, Toledo, for appellee.

POTTER, Judge.

This cause comes to our court from a series of judicial entanglements in the court below. Essentially, Anna Marie Wiczynski alleges that she had a child, Delma Ann, as a result of sexual relations with the defendant, Francis X. Maher. During the period of conception and delivery Anna Marie Wiczynski was married and is still married to Joseph J. Wiczynski. In a separate action, Joseph J. Wiczynski sued the defendant, Maher, for alienation of affections and criminal conversation. In the cause sub judice, Anna Marie Wiczynski, on her own behalf (Count 1) and on behalf of Delma Ann (Count 2), brought an action for support of the child and expenses. Thereafter a motion was filed to join Joseph J. Wiczynski as a party and for intervention. An amended complaint, consisting of three counts, was filed on the same day. The frist count is on behalf of Anna Marie Wiczynski, wherein she prays for a monetary judgment for the support of Delma Ann, plus expenses for her birth and medical attention, and her costs and expenses of this suit.

The second count is on behalf of Delma Ann, a minor, by her mother and next friend, and prays for a monetary judgment for her care, support, education and welfare, if the plaintiff Anna Marie Wiczynski does not receive a like amount for such minor's benefit.

The third count is on behalf of Joseph J. Wiczynski, husband of Anna Marie Wiczynski, who alleges that he is not the natural father of Delma Ann. In this count, reference is made to an amount necessary to support the minor until she is 18 years of age. Also, it includes an individual prayer of the husband for $20,000 as compensation for damages from the defendant. Thereafter, it was represented to the court that Anna Marie Wiczynski has indicated a desire to 'drop the case' for the reason that she did not want to further 'hurt the defendant.' A motion was made to appoint Joseph J. Wiczynski herein, or some other disinterested and competent person, to protect the interest of the minor child, Delma Ann, in this case.

The defendant opposed the appointment of Joseph J. Wiczynski or some other suitable person to be 'a guardian ad litem,' or next friend of the minor plaintiff, Delma Ann. The trial court entered the following journal entry:

'This cause came on to be heard on the pleadings, motions, briefs, exhibits and papers filed herein and the court having made its decision, filed November 19, 1975, F. E. Warren, Judge, presiding, it is ordered in accordance with said decision that:

'The motion to join a party and for interjection is ordered dismissed. See C.R. 15.

'The motion for appointment of guardian ad litem is ordered dismissed.

'Motion to set this case for immediate trial is denied.

'Upon her request, on her own behalf and as next friend Delma Ann, a minor, plaintiff Anna Marie Wiczynski's complaint is dismissed. See C.R. 41(A)(1).

'Action dismissed at plaintiffs costs. Exceptions allowed plaintiffs.'

'F. E. Warren, Judge'

From this judgment, the plaintiffs have made two assignments of error. These are as follows:

'First Assignment Of Error: The trial court erred in filing its journal entry of dismissal on December 4, 1975 based upon the decision of F. E. Warren, Judge, entered November 19, 1975, which (1) dismissing (sic) the motion of plaintiff for appointment of guardian ad litem for the minor child, (2) denying (sic) plaintiffs motion to set the case for immediate trial, (3) dismissing (sic) plaintiff Anna Marie Wiczynski's complaint filed in behalf and as next friend of Delma Ann, a minor (without appointing a substitute next friend or guardian ad litem), basing dismissal upon C.R. 41(A)(1).

'Second Assignment Of Error: The trial court erred in filing its journal entry of dismissal on December 4, 1975 based upon the decision of F. E. Warren, Judge, entered November 19, 1975, which dismissed a motion of plaintiff to join a party and for interjection (sic) citing C.R. 15.'

We find the first assignment of error well taken and the second assignment of error not well taken for the reasons hereinafter stated.

The action on behalf of Anna Marie Wiczynski was dismissed by the trial court and no appeal is made from that judgment. That judgment thus eliminates the conflict of whether both the mother and the child could simultaneously maintain an action for child support from the putative father.

The first assignment of error presents the same question so scholarly considered in Baston v. Sears (1967), 11 Ohio App.2d 220, 229 N.E.2d 847. This question is whether a minor child born out of wedlock may, through his next friend, maintain an action to determine that he is the child of the defendant, and secure, by such declaration, an order for maintenance and support.

The question is resolved in the affirmative by the case of Franklin v. Julian (1972), 30 Ohio St.2d 228, 283 N.E.2d 813. Therein contained is an illuminating history of society's treatment of the alleged illegitimate child. As stated therein, the law formerly considered an illegitimate child the legal child of no one (filius nullius) and under the common law such a child had no cause of action against its progenitors for support. In this regard, the common law was evenhanded for legitimate children, likewise, had no common law cause of action for support in England and some states. See Doughty v. Engler (1923), 112 Kan. 583, 211 P. 619. As late as Baston v. Sears (1968), 15 Ohio St.2d 166, 239 N.E.2d 62, it has been held;

'Sec. 2151.42, Revised Code, which makes it a criminal offense for the father of an illegitimate child to fail to support such child, does not give rise to a civil action for support on behalf of such child. (Sec. 2151.42, Revised Code, construed.)' (Syllabus.)

Three judges of the Supreme Court dissented, saying that the result reached was an unconstitutional discrimination against innocent children, for the statute gives a legitimate child a right of support from his father, while the majority's action denied the same right to an illegitimate child. The minority concluded that it was invidious to discriminate against the illegitimate child. The minority opinion would have affirmed the Court of Appeals of Hamilton County in Baston v. Sears, wherein reference was also made to R.C. Chapter 2721, pertaining to declaratory judgments. Other lower court cases supporting the Court of Appeals decision in Baston v. Sears and the dissent in the Ohio Supreme Court, are: Wilson v. Early (1963), 23 Ohio Op.2d 440 and Maiden v. Maiden (1955), Ohio Com.Pl., 153 N.E.2d 460, 78 Ohio Law Abs. 551.

In Franklin v. Julian, supra, the Supreme Court reversed its position in Baston v. Sears, decided only 4 years earlier, and that case was overruled. In its opinion in Franklin v. Julian, the court noted, 30 Ohio St.2d at page 234, 283 N.E.2d at page 816:

'* * * (T)he support actions of a criminal nature ordained by R.C. 2151.42, 2903.08 and 3113.01 * * * give rise to a statutorily imposed duty of support enforceable in a civil action on behalf of the illegitimate child or on behalf of his mother for necessaries furnished to him.

'That those statutes are now a part of our Code and apply equally to illegitimate and legitimate children fortifies our decision today.'

The court further observed that the illegitimate child enjoys a statutory recognition and a status as nearly equal to that of his legitimate counterpart. The court in Franklin v. Julian then stated the following, at page 235, 283 N.E.2d at page 817:

'For it seems eminently sound to us that the same principle which furnishes a civil remedy on behalf of legitimate children supplementary to that provided them by statute in the case of the dissolution of the marriage of which they are the offspring suffices to furnish a similar remedy on behalf of illegitimate children to enforce the identical duty-a duty arising from fatherhood. The bastard need not be left with the criminal remedies.' ¹

The court made reference to annotation 13 A.L.R.2d 1142. (Maintenance of suit by children, independently of statute, against parent for support.) Further reference may also be made to annotation 30 A.L.R. 1069 (Nonstatutory duty of father to support illegitimate children), and annotation 34 A.L.R.3d 1357. (Right of child to enforce provisions for his benefit in parents separation or property settlement agreement.)

The Supreme Court of Ohio in Franklin v. Julian made a decision remarkably similar to the one in Doughty v. Engler (1923), 112 Kan. 583, 211 P. 619, wherein the Supreme Court of Kansas nearly fifty years earlier stated:

'The father of an illegitimate child too young to care for itself is under a nonstatutory obligation to support it, which may be enforced in an action brought by it through its next friend.' (Syllabus.)

At that time, the Kansas decision was looked upon as a distinct break from the general rule which then held that in the absence of statute the father was not bound to support his illegitimate child. The Kansas court noted therein, in 1923, that the common law is, in that court's opinion, unadapted to the needs...