444 N.E.2d 58 | Ohio Ct. App. | 1981
This cause came to be heard upon an appeal from the Court of Common Pleas, Juvenile Division, Hamilton County.
On April 30, 1980, plaintiff-appellant, Barbara Baugh, filed the instant complaint against defendant-appellee, John M. Carver, alleging that appellee was the father of her illegitimate child, born March 20, 1980. On August 21, appellee entered a plea in open court admitting the allegations of the complaint, and at a subsequent hearing appellant was awarded a lump sum of $3,142.27 for expenses related to pregnancy and childbirth, and $35 per week commencing from August 21 and continuing until the child's eighteenth birthday. Thereafter, appellant filed a motion for a new trial, alleging that the judgment was grossly inadequate and otherwise contrary to law, which motion was overruled. From the court's overruling of the motion for a new trial, appellant has taken this timely appeal.
In her first assignment of error, appellant asserts, for a variety of reasons, that the trial court erred in overruling her motion for a new trial. In the first instance, appellant asserts that the award denies her the equal protection of law. Specifically, appellant asserts that the *140
support award of $35 per week is arbitrary and capricious in that it is substantially less than the "reasonable" sum for support and maintenance normally awarded legitimate children under similar circumstances. We disagree. While we take no issue with appellant's proposition that illegitimate children are entitled to the same considerations and protections as legitimate children under the
Appellant also challenges that portion of the judgment which orders the support payments of $35 per week to commence with the date of adjudication, asserting that the court erred in not ordering the support award to commence with the date of the child's birth. We agree. Under the relevant provisions of R.C.
Appellant, on the other hand, urges this court to adopt the reasoning contained in Weaver v. Chandler (1972),
Our review of the statute and the decisional law related thereto convinces us of the validity of the Weaver, supra, andRaible, supra, holdings. While the awarding of a monetary amount for child support is a matter generally within the discretion of the trial court, this does not *141
permit it to ignore the fact that, under R.C.
Appellant further challenges the court's refusal to grant her attorney's fees incurred in prosecution of the instant action. We disagree. It is well-established that in the absence of a specific statutory entitlement to attorney's fees, the traditional rule of not awarding such fees or damages applies.E.g., Euclid v. Vogelin (1950),
Appellant next challenges the trial court's refusal to order that appellee give surety for payment of the child support. This position is predicated upon R.C.
"* * * 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." (Emphasis added.)
Appellant misconstrues the applicability of this mandate. As this court held in State, ex rel. Adkins, v. Mefford (1944),
Appellant also contends that the trial court erred to her prejudice in not awarding damages for lost wages or her support and maintenance during pregnancy. We disagree. The awarding of damages is a matter clearly within the discretion of the trial court under R.C.
Finally, appellant contends that the trial court erred to her prejudice in failing to include in the award of damages an amount representing the value of the custodial care provided by her as mother to the child. We disagree. Aside from the fact that appellant has failed to demonstrate on the record that such an amount was not, in fact, included either in the general award or the child support, we note that appellant failed to raise this issue in the trial court. As such, appellant has waived her right to challenge the award based upon this argument. E.g., StoresRealty Co. v. Cleveland (1975),
In her second and third assignments of error, appellant contends that the trial court erred in not properly ruling on her motion to compel discovery of certain income tax data of appellee and in not imposing any sanctions under Civ. R. 37. Appellant, however, did not raise these issues in her motion for a new trial. Since her appeal is taken from the denial of that motion, she must be held to have waived any alleged errors not complained of therein. E.g., Cincinnati v. Means (App. 1974), 71 O.O. 2d 285; Motorists Mut. Ins. Co. v. Auto Owners Mut. Ins. Co. (App. 1955), 73 Ohio Law Abs. 71; Hallam v. Kauffman (App. 1954), 66 Ohio Law Abs. 255. Appellant's second and third assignments of error are not well-taken and are accordingly overruled.
The judgment of the trial court is, therefore, affirmed in part and reversed in part and the cause remanded for the sole purpose of awarding child support payment for the period from the date of birth to the date of adjudication.
Judgment accordingly.
BLACK, P.J., SHANNON and PALMER, JJ., concur.