639 N.E.2d 848 | Ohio Ct. App. | 1994
This is an appeal from a decision of the Cuyahoga County Court of Common Pleas, Juvenile Division, which entered a final judgment denying a motion for arrearage of child support filed by plaintiff-appellant, Barbara E. Lewis (hereinafter "appellant") and joined in by Lewis's minor son, plaintiff-appellant, Alexander Joseph Lewis Chapin (hereinafter "minor appellant").
On July 31, 1991, appellant and minor appellant initiated the present action by filing an application to determine custody, a motion to set support, and a motion for arrearage against defendant-appellee, Michael G. Chapin, the minor appellant's natural father. Chapin had previously filed an acknowledgment, consented to by appellant, in the Cuyahoga County Court of Common Pleas, Probate Division, admitting that he is the minor appellant's natural father. Consequently, the probate court filed an entry legitimating the father-child relationship on September 2, 1980. However, in the present case, appellee filed no pleadings and otherwise failed to make an appearance.
On October 3, 1991, a hearing was held wherein the juvenile court granted custody of the minor appellant to appellant and ordered appellee to pay child support in the amount of $190 per month.
On March 4, 1992, counsel for the minor appellant filed a motion for a further hearing on the matter of child support arrearages. The matter came on to be heard on April 28, 1992. In an entry dated July 14, 1992, the juvenile court, however, found that there "exists no statutory basis for a finding of arrearage in support or for the payment of attorney fees under R.C.
Appellant and minor appellant timely appeal from the July 14 decision. Appellant raises the following sole assignment of error, which is joined in by the minor appellant:
"Did the trial court err in dismissing the motion for arrearage and in failing to extend jurisdiction pursuant to Ohio Revised Code, Section 3111, et seq.?"
The present case raises unique issues of law which appear to be of first impression in Ohio. Appellant and minor appellant (born March 6, 1975) are *698
attempting to bring an action to recover child support arrearages1 by invoking Ohio's Uniform Parentage Act as codified in R.C.
The juvenile court apparently decided the issue on authority of Gilbraith v. Hixson (1987),
"The doctrine of res judicata can be invoked to give conclusive effect to a determination of parentage contained in a dissolution decree or legitimation order, thereby barring a subsequent paternity action brought pursuant to R.C. Chapter 3111."
However, as will be seen, the Gilbraith decision does not bar a subsequent parentage action in the case sub judice.
Appellant raises three arguments in support of her assignment of error. First, appellant argues that the juvenile court possesses jurisdiction pursuant to R.C.
Jurisdiction in the juvenile courts is conferred by R.C.
"(A) The juvenile court has exclusive original jurisdiction under the Revised Code:
"* * *
"(2) To determine the custody of any child not a ward of another court of this state[.]
"* * *
"(B) The juvenile court has original jurisdiction under the Revised Code:
"* * *
"(2) To determine the paternity of any child alleged to have been born out of wedlock pursuant to sections
"* * *
"(4) To hear and determine an application for an order for the support of any child, if the child is not a ward of another court of this state[.]"
Appellants do not contest the juvenile court's orders concerning current child support and custody of the minor appellant. Appellants only contest the juvenile court's order dismissing their motion for arrearages in child support. As *700
previously stated, appellants argue that R.C.
R.C.
Appellants argue that the establishment of the parent-child relationship can be accomplished in a variety of ways and that a parentage action is just one way of establishing such a relationship. At the time of the hearing, R.C.
In re Custody of Davis, supra, involved an action for custody and child support against the alleged father. The juvenile court issued an order for custody, support and visitation. The Court of Appeals for Guernsey County affirmed and held that an action for custody and support can be based upon an R.C.
The Ohio Supreme Court's decision in Gilbraith, supra, gives additional support to appellants' contention that paternity can be established through a legitimation order pursuant to R.C.
In Gilbraith, supra, the Supreme Court noted that "under the doctrine of res judicata * * * `[a] final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them.'"Gilbraith, supra,
"Our starting point here is the recognition that the doctrine itself has deep roots in the policy considerations that have shaped the operation of this country's legal system. As the United States Supreme Court has said, `* * * "[the] doctrine ofres judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, `of public policy and of private peace,' which should be cordially regarded and enforced by the courts * * *."' * * *
"Simply put, the doctrine serves vital public interests by assuring that all litigation has a reasonable ending point and by preventing a party from having to contest the same issue or cause more than once. * * * `"[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be *702 bound by the results of the contest, and that matters once tried shall be considered forever settled as between the parties."' * * * In achieving precisely these ends, the doctrine effectively promotes stability, certainty, respect, consistency and finality, both in individual judicial determinations and in the legal system as a whole.
"In our estimation, the same considerations underpinningres judicata as a doctrine of general significance apply with equal force in parentage actions, and there is, accordingly, no sound policy reason for denying effect to the doctrine in such cases. The establishment and maintenance of the various aspects of the relationship between parent and child is a particularly intricate, sensitive and emotional process with which courts should be reluctant to interfere. In those cases where, by force of events, judicial intervention occurs, where the matter of parentage is determined with finality and in the absence of fraud, and where that determination is not later vacated, either on direct appeal or pursuant to a recognized legal remedy such as that set forth in Civ.R. 60(B), the policy of this state requires, in sum, that the parent-child relationship be shielded from the unsettling effects of further judicial inquiry, and that relitigation of parentage be barred, as a general rule, in any subsequent actions, including those initiated under R.C. Chapter 3111." (Citations omitted). Id.,
In Gilbraith, the public policy concerns weigh heavily in favor of the doctrine of res judicata. By applying the doctrine in Gilbraith, the court ensured "a reasonable ending point" to litigation so as to promote stability, certainty, respect, consistency and finality in judicial determinations and in the legal system as a whole. Thus, the parent-child relationship remained shielded from further judicial inquiry. In the present case, however, the policy considerations are outweighed when considered against the importance of providing for the health, maintenance, welfare and well-being of the children of this state. Public policy dictates that parents remain responsible for their children's well-being. R.C.
"`A father's natural duty to support his children is generally recognized. In Ohio, this duty is enjoined by both statute and common law. * * *' Kulcsar v. Petrovic (1984),
Thus, this court concludes that application of the doctrine of res judicata in the case sub judice would violate this state's strong public policy favoring the protection of children and their support, health, maintenance and welfare. Moreover, we note that the issue of parentage is not being relitigated; rather, it is the issue of child support arrearages which is the subject of litigation. Thus, the issue of parentage is not being contested, and the parent-child relationship is shielded from the unsettling effects of further judicial inquiry.
Application of the doctrine of res judicata in the casesub judice would also violate the Equal Protection Clauses of both the United States Constitution4 and the Ohio Constitution.5 Allowing the doctrine of res judicata to bar an action for child support arrearages on the basis that appellee's and minor appellant's father-child relationship and all the rights attendant thereto have been conclusively established by an acknowledgment and legitimacy order filed in the probate court would deny appellant and minor appellant child support from the date of birth up to the filing of the instant action for child support, while allowing child support arrearages for those pursuing a parentage action where such issues have not already been established through a legitimacy filing. The result, in effect, would punish those who, in an attempt to take responsibility for their children, consent to a legitimacy filing.
Section
In McQueen, the Lucas County Court of Appeals held that the failure of the legislature to include in Ohio's adoption of the Uniform Parentage Act a provision for the payment of attorney fees as costs denies the mother equal protection of law where a mother is allowed attorney fees in a child support award in a divorce proceeding. Likewise, we hold that it is a violation of the Equal Protection Clauses of the United States and Ohio Constitutions to apply the doctrine of res judicata to bar a mother or a child in a parentage action from recovering child support arrearages on the basis that the parent-child relationship and all rights attendant thereto have been conclusively established in a legitimacy filing in a probate court. There does not appear to be any rational reason for allowing a party in a parentage action child support arrearages when the party has not consented to the filing of a legitimacy order while barring child support arrearages to a party in a paternity action who has consented to the filing of a legitimacy order.
The minor appellant's assertion that he is not barred under the doctrine of res judicata from pursuing a parentage action on the basis that appellee acknowledged the existence of the parent-child relationship and that appellant consented to the filing of a legitimacy order is also well taken. It is well settled that in order for a judgment to be res judicata, there must be an identity of parties and identity of issues. Rees v.Heimberger (1989),
Finally, we agree with appellants' argument that the defense of res judicata is an affirmative defense which must be raised in the pleadings; otherwise it is waived. State ex rel. Freemanv. Morris (1991),
This court, having previously determined that application of the doctrine of res judicata to the present proceedings would violate public policy as well as the Equal Protection Clauses of the United States Constitution and the Ohio Constitution, must next consider appellants' contention that R.C.
R.C.
Appellee failed to make an appearance personally or through counsel at any stage of the litigation. Moreover, the record does not reveal whether a pretrial conference was scheduled or conducted pursuant to R.C.
If satisfied with the truth of the statements in the complaint, the juvenile court may then enter judgment in accordance with R.C.
"(C) The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. The judgment or order shall direct the father to pay all or any part of the reasonable expenses of the mother's pregnancy and confinement. * * *" *706
We therefore hold that R.C.
Based on the foregoing, appellants' sole assignment of error is sustained.
The judgment of the common pleas court, juvenile division, overruling appellants' motion for child support arrearages is reversed and the cause remanded for further proceedings in accordance with this opinion.
Judgment reversedand cause remanded.
NAHRA, P.J., and BLACKMON, J., concur.
"The natural father of a child may file an application in the probate court of the county in which he resides, in the county in which the child resides, or the county in which the child was born, acknowledging that the child is his. If an application is filed, upon consent of the mother or, if she is deceased, incompetent, or has surrendered her parental rights and responsibilities for the care of the child and her right to have the child live with her and to be the legal guardian of the child, upon consent of the person or agency having custody of the child or of a court having jurisdiction over the child's custody, the probate court, if satisfied that the applicant is the natural father and that establishment of the relationship is for the best interest of the child, shall enter the finding of fact upon its journal. Thereafter, the child is the child of the applicant, as though born to him in lawful wedlock, and, if the mother is unmarried, the applicant, the parents of the applicant, any relative of the applicant, the parents of the mother, and any relative of the mother may file a complaint pursuant to section
"* * * The parent and child relationship between a child and the natural father of the child may be established by a probate court entering an acknowledgment upon its journal as provided in section
See, also, amended R.C.
"* * * nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly."