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holding that no privity existed between child and mother, who had pursued a prior paternity action that was dismissed with prejudice
Summary of this case from Harris v. MitchellOpinion
No. 80-884
Decided May 20, 1981.
Paternity proceedings — Proper parties — Right of minor child to separate action for support and maintenance — R.C. Chapter 3111, construed.
1. The purpose of a paternity proceeding under R.C. Chapter 3111 is to provide a remedy for the unmarried mother of a minor child born out of wedlock, and the action may be commenced only by the unmarried mother or her legal representative. The child born out of wedlock is not a party to such action. (R.C. Chapter 3111 interpreted; Franklin v. Julian, 30 Ohio St.2d 228, followed.)
2. A minor child born out of wedlock has the same common law right to bring a civil action against his father for support and maintenance as does a legitimate child. Incident to the suit for maintenance and supprt, the court shall make a determination on the issue of paternity.
3. An unmarried mother's dismissal of her action under R.C. Chapter 3111 with prejudice is not a bar to her minor child's separate common law action for support and maintenance from his putative father.
APPEAL from the Court of Appeals for Muskingum County.
On October 7, 1974, Melanie Johnson brought a paternity action against appellant, Steven Norman, pursuant to R.C. Chapter 3111. In her complaint, Ms. Johnson alleged that she was an unmarried woman and that appellant was the father of her minor child, Steven Aldrich Johnson. Ms. Johnson dismissed this action eight days later. At her request, the dismissal was with prejudice.
On April 12, 1977, Ms. Johnson brought an action on behalf of herself, and as natural guardian and next friend of her minor child, Steven Aldrich Johnson. In the first count of the complaint, Steven Aldrich Johnson, appellee herein, alleged through Ms. Johnson that appellant was his father and that appellant was responsible for his support and maintenance Appellee sought a money judgment for past and future support. In the second count of the complaint, Ms. Johnson alleged that appellant was the father of Steven Aldrich Johnson, and that she was entitled to a money judgment for past support and necessities that she had provided the child.
In his amended answer, appellant denied that he was the father of Steven Aldrich Johnson. He also claimed that the issue of paternity had been decided in the earlier paternity action and was therefore res judicata in the present action.
The trial court found the defense of res judicata was meritorious and that it was a bar to further prosecution of the 1977 action. The case was dismissed as to both Ms. Johnson and her minor child.
An appeal was taken on behalf of only the minor child to the Court of Appeals for Muskingum County. Ms. Johnson did not appeal the dismissal of her cause of action. The Court of Appeals reversed the judgment of the trial court only as to the claim of the minor child. The majority found that the earlier dismissal with prejudice was res judicata only as to Ms. Johnson and not as to the minor child because he had not been a party to the earlier action brought under R.C. Chapter 3111. The majority determined that only an unmarried mother can maintain an action under R.C. Chapter 3111. The court, therefore, remanded the child's cause of action, which was brought pursuant to a common law right to support, to the trial court. The Court of Appeals also directed the trial court not allow the child's separate cause of action to be prosecuted by the mother unless she was appointed as guardian of the estate of the child by the trial court under whose supervision she would be adequately bonded. The court feared, based on Ms. Johnson's prior action, that she might fail to vigorously pursue the child's action on his behalf.
Judge Rutherford, concurred in part and dissented in part. Unlike the majority, who concluded that only the unmarried mother can maintain an action under R.C. Chapter 3111, Judge Rutherford believed that R.C. Chapter 3111 provides a statutory remedy for both the unmarried mother and the illegitimate child. Therefore, Judge Rutherford found that the child had been a party to the earlier paternity suit. He believed, however, that the mother's dismissal with prejudice constituted only a dismissal of her individual claims against the accused and did not act as a dismissal of the child's claim, including his right to have a determination of the paternity issue. He would have remanded the case to the trial court for further proceedings under R.C. Chapter 3111.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Zwelling, Benincasa, Baker Northrup and Mr. V.J. Benincasa, Jr., for appellee.
Messrs. Gottlieb, Johnston, Beam Joseph, Mr. Ross L. Johnston and Mr. Miles D. Fries, for appellant.
The issue presented in the instant cause is whether a minor child is barred from pursuing an action for support and maintenance when his mother has previously dismissed, with prejudice, a paternity suit against the putative father. For the reasons expressed below, we hold that such minor child is not barred from pursuing his own action for support and maintenance against the putative father.
A father at common law had a duty to support his legitimate children. He had no such common law duty to support his illegitimate children, however. In Franklin v. Julian (1972), 30 Ohio St.2d 228, this court held that dissimilar treatment of legitimate and illegitimate children would be a denial of equal protection. The court concluded, therefore, that an illegitimate child has the same right as a legitimate child to bring a civil action against his father for support and maintenance. Implicit in the Franklin decision is the notion that an illegitimate child may institute a civil action for the purpose of showing that the alleged father is his biological father and thus is under a duty to support him.
See, e.g., Pretzinger v. Pretzinger (1887), 45 Ohio St. 452; Hoard v. Gilbert (1931), 205 Wis. 557, 238 N.W. 371; 59 American Jurisprudence 2d 137, Parent and Child, Section 50.
See, e.g., State, ex rel. Griffin, v. Zimmerman (1941), 67 Ohio App. 272; McGregor v. Turner (1970), 205 Kan. 386, 390, 469 P.2d 324; Thut v. Grant (Me. 1971), 281 A.2d 1, 3; 7 Ohio Jurisprudence 2d Rev. 576, Section 44; 13 Ohio Prac. (Milligan), Family Law, Section 291.
Although in the early case of Carter v. Krise (1859), 9 Ohio St. 402, 405, this court stated that a statutory bastardy proceeding was essentially "a remedy to enforce the discharge of a civil and moral duty," the courts of Ohio have never recognized a common law duty of a father to support his illegitimate child. However, in 1972, in Franklin v. Julian, 30 Ohio St.2d 228, this court held, on equal protection grounds, that an illegitimate child is entitled to the same common law duty to support and maintenance as a legitimate child.
Subsequent to our decision in Franklin v. Julian, supra, the United States Supreme Court decided the case of Gomez v. Perez (1973), 409 U.S. 535. The issue before the court in Gomez, was whether Texas could constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers while denying the right to illegitimate children. The controlling law in Texas was the common law rule that a father was under a duty to support his legitimate children but was not under a duty to support his illegitimate children. The court, at page 538, held:
"* * * [A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. * * * We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Stanley v. Illinois, 405 U.S. 645, 656-657 (1972); Carrington v. Rash, 380 U.S. 89 (1965)."
This language from Gomez has been interpreted by courts to mean that an illegitimate child has the same common law right to support from his father as a legitimate child, e.g., J.M.S. v. Benson (App. 1979), 91 Wis.2d 526, 283 N.W.2d 465, 471; and that an illigitimate child has a right to bring an action to determine paternity regardless of the existence of an authorizing state statute, e.g., State v. Douty (1979), 92 Wn.2d 930, 934, 603 P.2d 373; Wynn v. Wynn (Tex.Civ.App. 1979), 587 S.W.2d 790, 793.
Therefore, in Ohio, there are two distinct proceedings in which to establish the paternity of an illegitimate child. One proceeding is a paternity action brought under R.C. Chapter 3111. The other is a finding of paternity incident to an illegitimate child's action for support and maintenance recognized in Franklin, supra.
In Franklin v. Julian, supra, the court, at page 235, stated, "[n]or let it be said that the bastardy statutes [R.C. Chapter 3111] provide the exclusive method for determining paternity." See, also, Wiczynski v. Maher (1976), 48 Ohio App.2d 224, wherein the court held that an illegitimate child, through his next friend or guardian ad litem, may maintain his own action against his father to prove paternity and for support and maintenance.
Statutory paternity proceedings under R.C. Chapter 3111 are designed to provide a remedy for the mother, not the child. The language of the statutes makes it clear that the General Assembly intended that only the mother and not the child be a party to an action brought under R.C. Chapter 3111. R.C. 3111.01 provides that a complaint alleging paternity be made in writing by "an unmarried woman." R.C. 3111.02 and 3111.03 provide for the substitution of the "mother's" or "unmarried woman's" legal representatives under certain conditions. R.C. 3111.07 provides that "both parties" to the proceeding may arrive at a compromise agreement whereby "the accused pays or secures to be paid to the complainant such amount of money or property as she agrees to receive in full satisfaction of all the claims she has individually against said accused arising out of said complaint * * *." (Emphasis added.) R.C. 3111.17 provides that the complainant be paid "the 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." (Emphasis added.)
See 13 Ohio Prac. (Milligan), Family Law, Sections 291, 321, 325 and 327.
Thus, it is clear that the child was not a party in the earlier action brought by his mother in 1974 under R.C. Chapter 3111. That action was solely between the unmarried mother and the putative father. The mother was suing on her own behalf for money to which she was statutorily entitled. "This court has consistently held that for a judgment or decree to be res judicata, or to operate as estoppel, there must be an identity of issues and an identity of parties or persons in privity with the parties. We have also held that the term `parties' includes those who are directly interested in the subject matter of a suit, who have a right to make a defense, or who control the proceedings." Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St.2d 108, 114. The minor child and the mother here clearly were not in privity. "[A] person is in privity with another if he succeeds to an estate or an interest formerly held by another." Whitehead, supra, at 115. Privity does not generally arise from the relationship between parent and child. Arsenault v. Carrier (Me. 1978), 390 A.2d 1048, 1051. The mother, in the instant cause, was suing on her separate claim, pursuant to the statutory remedy provided her. Although the mother's claim and the child's claim relate to the same subject matter, the claims are distinct. While the dismissal with prejudice barred the subsequent action of the mother, it in no way affected the child's separate action. Thus, the Court of Appeals correctly held that the trial court erred in dismissing the minor child's cause of action.
The dismissal by the mother of the 1974 action with prejudice would not have affected the child's action even if he had been a party to the suit. Civ. R. 41(A)(1) requires that a dismissal be signed by all parties who appeared in the action. The purpose behind this requirement is to ensure that no party's interests are prejudiced without his knowledge. Consistent with this policy, no mother should be permitted to dismiss her minor child's action for a determination of paternity and support. If the mother chooses to no longer maintain the child's action on his behalf as his next friend, the court should appoint a guardian ad litem to ensure that the minor child's interests are adequately represented.
We also agree with the Court of Appeals that on remand the trial court should not allow the mother of the child to prosecute the child's separate action unless she is appointed guardian of the estate of the child, with appropriate bond, in order to ensure her vigorous pursuit of the child's action.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Although the unmarried mother and her minor child have separate and distinct causes of action, both the mother's and the child's claims relate to the same subject matter, namely, whether the putative father is the biological father of the child. If at all possible, the mother and the child should bring their individual actions in one suit so that the putative father need only contest his paternity once.
A paternity proceeding is not one of the situations found in Civ. R. 19.1(A) that give rise to compulsory joinder. However, it is conceptually similar to fact situation (A)(3), which provides for compulsory joinder in the situation of a "[p]ersonal injury * * * to a minor and a claim of the parent or guardian of the minor for loss of services or expenses * * * if caused by the same wrongful act." Because of the conceptual similarity and the need to resolve all claims in one suit if possible, we suggest that a putative father be permitted to compel joinder as if under Civ. R. 19.1. Of course, the minor child and the unmarried mother should also be permitted the opportunity to show good cause for proceeding without joinder as if under Civ. R. 19.1(B).
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.