287 N.E.2d 917 | Ohio Ct. App. | 1972
This is an appeal from a judgment of the Franklin County Court of Common Pleas, division of domestic relations in a bastardy action.
Complainant filed her complaint on May 6, 1970, alleging that she was delivered of an illegitimate child on May 16, 1968, of which the defendant is the father. Preliminary proceedings were had and the defendant pleaded not guilty. The case was tried to a jury and conflicting evidence presented. The jury returned a verdict of guilty, finding the defendant to be the father of the illegitimate child. The court, thereafter, held a hearing to determine the amount that the defendant should pay to the complainant for the support of the child. The court ordered defendant to pay complainant $663.42 as expenses, of which $200 had already been paid, and to pay $12.50 per week for the support of the child until the child reaches majority. A judgment was entered for the balance of the expenses and for the support from the date of birth of the child to June 11, 1971, which the court ordered paid at the rate of $5 per week until fully paid.
Defendant appeals and proposes six assignments of error, as follows:
"1. The Trial Court erred in ruling that the marital status of complainant was an issue only in so far as complainant was or was not married at the time the child was conceived and born.
"2. The Trial Court erred in questioning and commenting upon whether or not defendant's witnesses, Vincent Chandler and Otis Glover, claimed to be the father of the child.
"3. The Trial Court erred in making a series of comments before the jury which reflected on the weight, veracity, or other considerations of the testimony and evidence.
"4. The Trial Court erred in admitting inflammatory and prejudicial testimony, over defendant's objection, that *245 defendant was living with a woman not his wife at the time of the trial.
"5. The Trial Court erred in restricting closing argument to fifteen (15) minutes for defendant.
"6. The Trial Court erred in rendering a support order effective from the date of birth of the child."
Defendant complains because the trial court limited inquiry into the marital status of complainant as to the time that the child was conceived and born. The only other crucial time, under R. C.
While the action cannot be maintained unless the mother was unmarried at the time of the birth of the child, an action is not necessarily precluded if the mother was married at the time of conception, but not at the time of birth. See State, ex rel.Walker, v. Clark (1944),
Furthermore, the comment was interjected by the trial court only after the complainant had twice testified she was not married, and stated she never had been married, and never told anyone that she was married. This following a question by counsel for defendant as to whether complainant had ever told anyone that she was going to get married. Thereafter, upon further cross-examination, complainant again testified that she had never been married, not even under a common-law marriage. No evidence whatsoever was offered by defendant to indicate or suggest that complainant had ever been married at any time. Defendant contends that a photograph of complainant wearing a wide band ring on the third finger of her left hand suggests that she was married. Complainant testified *246 that this was a friendship ring and that the photograph was taken in 1964.
The first assignment of error is not well taken.
In addition to denying having had sexual relations with complainant during the period of conception, defendant offered in defense the testimony of his brother and a friend, both of whom testified to having had sexual relations with the complainant during the period of conception. Complainant testified that she and defendant had had sexual relations on defendant's birthday in the apartment of another brother of defendant. Defendant's brother testified that he had sexual relations with complainant at the third brother's apartment on about the occasion of the defendant's birthday. The trial court did inquire as to whether the testifying brother claimed to be father of the child. The question was not answered at that time but, subsequently, the witness stated he was not claiming to be the father but that he could be. At the request of counsel for defendant, the jury was permitted to view the child with defendant's brother.
The trial court also inquired as to whether defendant's friend claimed to be the father of the child when counsel for defendant requested that the child be brought in "to compare features between this man and the child." The response of the friend was "By no means." Although the complainant denied ever having had sexual relations with either defendant's brother or his friend, predicated upon their testimony the jury was permitted to view the child with each of them. Obviously, it was the intent of defendant to convince the jury that not he, but rather, either his brother or his friend was the father of the child. The comment of the trial court did not constitute prejudicial error. The second assignment of error is not well taken.
While the trial court did make certain statements in ruling upon objections and in limiting testimony to relevant issues, we find no prejudicial error. The comments were not of the nature or degree involved in State, ex rel. Wise, v. Chand (1970),
The fourth assignment of error, likewise, is not well taken. While testimony was admitted that defendant was living with a woman not his wife, the evidence also indicated, through testimony of defendant and the woman involved, that defendant had fathered a child by this woman. We find no prejudicial error in admitting the testimony complained of.
Counsel for defendant first asked for unlimited time for closing argument. The court limited closing arguments to 15 minutes. Counsel for defendant then asked for 30 minutes, indicating that he would try not to use that much time. The court indicated the limit would be 15 minutes. Following a recess, counsel for defendant stated: "In the interest of expediting the proceedings, we both agree to waive closing argument." Defendant relies upon Dille v. State (1878),
"In Weaver v. The State,
It is quite apparent that the Dille case was decided in an era when lengthy closing arguments were the vogue of counsel. Trial counsel today no longer utilize such *248 lengthy closing arguments. Whether a limitation upon closing argument by the court constitutes prejudicial error can only be determined by an examination of the record and the argument made. Had counsel for defendant utilized the 15 minutes allotted and, at that point, been interrupted by the trial court and not allowed to finish his argument, an issue would arise as to whether there had been an abuse of discretion. However, counsel chose to waive argument entirely. Although counsel now contends that he waived argument because of the limitation of time, he did not so state at the time but, instead, stated that he waived argument "in the interest of expediting the proceedings." The fifth assignment of error is not well taken.
In support of his sixth assignment of error, defendant advances five specific grounds. Defendant contends (1) that there is no statutory authority for ordering support to be paid for a period between the birth of the child and the date the complaint was filed; (2) that even if there were such statutory authority, the trial court abused its discretion in ordering support effective as of the date of birth; (3) that the order of the court is against the manifest weight of the evidence; (4) that complainant is estopped from claiming support for the period prior to the filing of the complaint; and (5) that complainant's failure to bring her action for two years after birth of the child constitutes laches as to the period of time prior to filing of the complaint.
In State, ex rel. Beebe, v. Cowley (1927),
"* * * If the child is alive, the court shall adjudge that he [the accused] pay to the complainant such sum as 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. * * *" *249
In State, ex rel. Griffin, v. Zimmerman (1941),
Such certificate of conflict was made and the Supreme Court considered the issue in State, ex rel. Gill, v. Volz (1951),
R. C.
With regard to defendant's contentions of an abuse of discretion by the court and that the verdict is against the manifest weight of the evidence, R. C.
Likewise, the claims of estoppel and laches are not well taken. There is no indication that any of the elements *251 of estoppel are present. There is no indication of any change in position, reliance, or prejudice to defendant from the delay in filing the complaint. It is true that, upon the jury trial, complainant testified that she delayed bringing the proceedings because as she stated: "When I asked Wallace for money for Jeffrey for certain reasons, for anything, he always gave it to me." Complainant further testified that these payments were made in 1968 and 1969, and when asked about the amount, said: "Not very much. At times maybe $10 or $15 at one time." Defendant, however, denied making such payments. In the absence of the transcript of proceedings for the hearing before the court on June 11, 1971, we are unable to ascertain what was presented to the court with regard to support, and whether or not the issues of estoppel and laches were raised with the trial court. Accordingly, the sixth assignment of error is not well taken.
For the foregoing reasons, all six assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas, division of domestic relations, juvenile branch, is affirmed.
Judgment affirmed.
TROOP, P. J., and HOLMES, J., concur. *252