440 N.E.2d 1232 | Ohio Ct. App. | 1981
Lead Opinion
Appellant, Paul Rimelspach, appeals the lower court's judgment, which dismissed his application under R.C.
The mother married Paul Rimelspach *125
(second husband) on August 14, 1980. On August 29, 1980, the second husband filed an application, pursuant to R.C.
Under appellant's first assignment of error we limit our analysis to the applicability of the doctrine of res judicata to the second husband's application. The probate court judgment entry reads, in part:
"4. That the subject of this Application is the child Christina and as to her the determination of the Lorain County Court of Common Pleas, Domestic Relations Division, that she is the issue of the marriage of Nicholas D. Mancini and Toni Mancini, is binding upon this Court, and that in view of that fact this Court does not have jurisdiction to entertain an application or to find that Paul Rimelspach is the father of Christina."
The essence of this conclusion is that the prior divorce decree is res judicata as to any action by the second husband challenging the paternity of Christina.
The Ohio Supreme Court has continually held that there must be an identity of parties or persons in privity with the parties and an identity of issues for a decree to be res judicata or to operate as estoppel. Whitehead v. Genl. Tel. Co. (1969),
"2. A final judgment or decree in an action does not bar a subsequent action where the causes of action are not the same, even though each action relates to the same subject matter. However, a point of law or a fact which was actually and directly in issue in the former action, and was there passed upon and determined by a court of competent jurisdiction, may not be drawn in question in a subsequent action between the same parties or their privies. The prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action. (Paragraphs Nos. 2 and 3 of syllabus of Norwood v. McDonald,
Clearly, any attempt by the mother or the first husband to relitigate the issue of Christina's parentage could be barred byres judicata (collateral estoppel) predicated on the divorce decree. However, nothing indicates that the second husband was in any fashion a party or in privity with a party to the divorce action between the mother and her first husband. Therefore, the probate court erred in finding the prior divorce decree a bar to the second husband's application, which, *126 in effect, challenged Christina's paternal parentage.
We note that three other jurisdictions have specifically dealt with the issue of the finality of a finding of paternity in a divorce decree. State, ex rel. Bentley, v. Frenger (1930),
"* * * The finding that the child `was born as the issue of this marriage' amounts to no more than a finding that he was born to the wife during the marriage, a fact not in dispute in the instant case, nor in the divorce case, so far as the record here reveals. * * *"
This statement is equally apposite in the instant appeal.
Having concluded that the prior divorce decree between the first husband and the mother is not res judicata as to the second husband, regarding the issue of paternity, we are faced with the issue of whether appellant can utilize R.C.
"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, and upon consent of the mother, or if she is deceased or incompetent, or has surrendered custody, upon the 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, and thereafter the child is the child of the applicant, as though born to him in lawful wedlock."
We do not deny that the second husband has complied with the requisites of the quoted provision. We find however, that this section was not intended to provide an individual the means to resolve the issue of paternity.
R.C.
The second husband argues that case law and the wording of the statute allow for legitimation of a child born to a *127
woman who was married to another at the time of the birth of the child. It is clear that the revision of R.C.
However, the procedure established in the second paragraph of R.C.
"A child conceived during the existence of a lawful marital relation is presumed in law to be legitimate — a procreation of the husband and wife." State, ex rel. Walker, v. Clark, (1944),
See, also, State v. Carter (1963),
This court must interpret and apply validly enacted statutes and amendments thereto, so as to give them effect. In light of our determination that appellant's action is not properly brought under R.C.
Assuming, arguendo, that the second husband's action was allowed to proceed to a final determination of whether he was the natural father, that judgment would have no binding effect on the child or the first husband. It would bind only the second husband and, arguably, the mother because of her consent. As evidenced by his motion to dismiss in the trial court, the first husband does not concede that the second husband is the natural father of Christina. Neither has he relinquished any of his paternal rights or obligations.
As noted above, the law, under the circumstances before us, presumes the first husband to be the father of the child. State,ex rel. Walker, v. Clark, supra; State v. Carter, supra; Garrett
v. Garrett, supra. This strong presumption can be overcome only by a showing of clear and convincing evidence to the contrary.Ibid. Christina's paternal parentage could be properly challenged in an adversary proceeding, such as a declaratory judgment action, where all parties with an interest in the suit are represented. See A.B. v. C.D., supra, and O.F.L. v. M.R.R.,supra. In this fashion the question of the child's paternity could be settled. R.C.
Judgment affirmed.
BELL, J., concurs.
QUILLIN, J., concurs in part and dissents in part. *128
Dissenting Opinion
I concur in the court's disposition of Assignment of Error no. I, but must dissent from its disposition of Assignment of Error no. II.
The majority, in effect, is saying that under no circumstances can a natural father of a child born to a woman who is married to another at the time of the birth of the child, utilize R.C.
Suppose the first husband is deceased, missing or otherwise unavailable, e.g., Succession of Mitchell (La. 1975),
Although the majority is laudably troubled by public policy considerations, such considerations lie primarily within the province of the General Assembly. When the General Assembly amended the statute in 1976 to broaden its application to include births by married as well as unmarried women, it was a policy statement which binds the court absent constitutional infirmities, none of which is suggested.
The observation by the majority that a finding under the statute might not bind parties not privy to the proceedings goes more to the utility of the statute than to its validity or applicability to the instant facts. *129