State v. CaseyState v. Casey
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The State of Washington, on the complaint of Karen Stinehart, brought a filiation proceeding against the defendant, Everett Dale Casey, to establish the paternity of her child born out of wedlock. At the conclusion of the evidence, the trial court ruled against the defendant who appeared pro se. Thereafter, before findings of fact, conclusions of law and judgment were entered, the defendant obtained counsel who successfully secured an order granting a new trial. This is an appeal from that order.
Two questions are presented: (1) Can an unwed mother appeal in a filiation proceeding initiated by the prosecuting attorney on her complaint under
On December 9, 1970, after a hearing, the trial judge made a minute entry noting a finding of paternity against the defendant, directing payment of certain support monies and of hospital and doctor bills, and directing that findings be prepared and presented. Thereafter, defendant obtained counsel and moved for dismissal, or in the alternative, for a new trial. In support of this motion, he filed affidavits of two men who stated they had each engaged in sexual intercourse with the complainant during April and May 1968, the general period of conception. These affidavits contradicted complainant’s testimony at a preliminary hearing before a justice of the peace and later in superior court where she said that between March 1968 and the time she became pregnant in May 1968, she had not engaged in sexual intercourse with anyone other than the
Based upon this record, on January 19, 1971, the same day the affidavit of the deputy prosecuting attorney was filed, the superior court judge who heard the filiation proceeding cited her for contempt of court and issued a bench warrant for her arrest. Thereafter, an additional affidavit was filed by the officer who administered the polygraph test stating the complainant admitted to him that she had not testified truthfully in court because she had engaged in sexual intercourse with a man other than defendant during the months of March and April 1968.
On September 17, 1971, the superior court judge who presided over the filiation proceeding heard the contempt proceeding as well as defendant’s motion to dismiss or, in the alternative, for a new trial. On October 8, 1971, orders were entered dismissing the contempt citation and granting defendant’s motion for a new trial. Thereafter, on November 8, 1971, the complainant through her personal attorney filed a notice of appeal from the order granting a new trial. It was not until November 18, 1971 that the deputy prosecuting attorney filed a similar notice of appeal.
Defendant has moved the court to dismiss this appeal upon the ground that complainant does not have an appeal-able interest and that the state’s notice of appeal was not timely‘filed, i.e., within 30 days, under CAROA 33. Whether the complainant in a filiation proceeding under
Some courts have held that the mother may not appeal since she is not an interested or aggrieved party under statutes giving such persons a right of appeal, but in most jurisdictions the mother may appeal under authority explicitly granted by statute or as an aggrieved party under a general statute.
In our state an unmarried woman who has a child that is not the issue of lawful wedlock may file a complaint in writing, accusing a person of being the father of such child.
It is evident that in a filiation proceeding the real parties in interest are the mother and her child who seek a determination of paternity and to establish the father’s obligation for support. Without that determination, the complainant mother would be obligated to bear the total costs of support, together with the hospital and doctor bills at
Generally, an aggrieved party has a right of appeal from an order granting a new trial. CAROA 14. A party is said to be an aggrieved party if he has a direct pecuniary interest that will be affected by the final judgment or order. In re Avery, 117 Conn. 201, 167 A. 544, 88 A.L.R. 1154 (1933); Hartford Nat’l Bank & Trust Co. v. Malcolm-Smith, 129 Conn. 67, 26 A.2d 234, 140 A.L.R. 805 (1942); 4 C.J.S. Appeal & Error § 177 (1957). In State v. Sax, 231 Minn. 1, 42 N.W.2d 680, 18 A.L.R.2d 929 (1950), the Minnesota court upheld the mother’s right of appeal in a filiation proceeding on the basis that the unwed mother was an aggrieved party because she had a definite personal financial interest in the amount of the award for support, a right to recover expenses incident to the birth of the child, and was the natural guardian of the child. See also 10 C.J.S. Bastards § 129 (1938). We adopt this view.
The necessity for this result is pointed up more sharply in the instant case than in the Minnesota decision. Here, the deputy prosecuting attorney who had been representing the complainant in the filiation proceeding, subsequent to the trial court’s oral ruling, caused a citation of contempt to issue against her. At that point, his interest became adverse to the complainant and he could no longer carry out the duty imposed upon him to represent her under
It is urged that the order for new trial should be reversed because the trial court in its order failed to state any definite reasons of law or facts as required by CR 59(f):
In all cases where the trial court grants a motion for a new trial, it shall, in the order granting the motion, state whether the order is based upon the record or, upon facts and circumstances outside the record which cannot be made a part thereof. If the order is based upon the record, the court shall give definite reasons of law and facts for its order. If the order is based upon matters outside the record, the court shall state the facts and circumstances upon which it relied.[ 3 ]
It is pointed out that in Christy v. Davis, 71 Wn.2d 81, 426 P.2d 493 (1967), the court, in reversing an order granting a new trial said:
Because reasons “of law ‘and facts” were not stated in the order granting a new trial in this case, the order and judgment granting a new trial is reversed and the case remanded for the entry of a judgment upon the verdict.
In reaching that result, the court quoted from Durban v. Leicester, 62 Wn.2d 77, 81, 381 P.2d 127 (1963), wherein the court said:
Although scholars have been critical of the implications arising from too rigid an adherence by courts of review to the rule requiring a statement of reasons, i.e.,, facts, incidents, circumstances, occurrences (see Traut-man, New Trials for Failure of Substantial Justice, 37 Wash. L. Rev. 367 (1962)), we think it is a sound one. By means of this rule, it is hoped that objective criteria will take the place of subjective impressions, and we adhere to it, notwithstanding our respect for the learning and broad experience of the trial judges who sometimes find it difficult to apply.
However, before applying this rule and reversing the order granting a new trial, the court in Bjork v. Bjork, 71 Wn.2d 510, 429 P.2d 234 (1967), reviewed the record and said:
The record of the 4-day trial which culminated in the order modifying the decree fully supports the trial judge’s conclusion that respondent was not a fit and proper person to have the custody of the children.
Even in Durkan v. Leicester, supra, after using the strict language quoted above, the court said at page 81:
The record of trial here discloses substantial evidence from which the jury could have found the impact between the two cars ranged from slight to moderate in degree, and the personal injuries ranged from trifling headaches for a period of 4 days to those severe enough to materially affect respondent’s auditory system. Nothing in the record of trial or recitation of the court’s conclusions as to the inadequacy of the verdict permits us to invade the province of the jury by affirming the annulment of its verdict.
Again in Johnson v. Marshall Field & Co., 78 Wn.2d 609, 611, 478 P.2d 735 (1970), the court avoided the strict language of CR 59 (f) when it said:
While the order of October 24, 1967, which granted the defendants a new trial on the second cause of action did not specifically state whether the order was based “upon the record or upon facts and circumstances outside the record which cannot be made a part thereof”, as required by CR 59(f), the record otherwise indicates that it was based upon matters in the record. We treat it accordingly and find that the assignment of error has merit.
As in
Johnson v. Marshall Field & Co., supra,
we cannot ignore facts appearing in the record that make evi
The order granting new trial is affirmed.
Munson, C.J., and Edgerton, J., concur.
Petition for rehearing denied January 15, 1973.
Review denied by Supreme Court March 6, 1973.
Notes
These questions are presented to us on the clerk’s transcript of the record without benefit of a statement of facts.
Pursuant to this statute, the complainant signed the complaint accusing defendant in the instant case.
Lawyers should exercise caution in preparing their orders for new trial to be sure they comply with CR 59(f), and trial judges should exercise similar caution when signing such orders. If such care is. exercised, issues such as this one would not arise on appeal.