Hartley v. Hartley ( 1988 )

In my judgment, the decision of the majority ignores one of the most fundamental tenets of appellate review. The Ohio Supreme Court, in the case of Humphrys v. Winous Co. (1956), 165 Ohio St. 45,49, 59 Ohio Op. 65, 67, 133 N.E.2d 780, 782-783, has said:

"The primary duty of a court in construing a statute is to give effect to the intention of the Legislature enacting it. In determining that intention, a court should consider the language used and the apparent purpose to be accomplished, and then such a construction should be adopted which permits the statute and its various parts to be construed as a whole and gives effect to the paramount object to be attained. * * *"

The First District Court of Appeals in Commonwealth Loan Co. v.Downtown Lincoln Mercury Co. (1964), 4 Ohio App. 2d 4, 33 Ohio Op. 2d 6, 211 N.E.2d 57, stated in paragraph two of its syllabus:

"In the construction of a statute it is the duty of the court to breathe sense and meaning into it, to give effect to all its terms and provisions and to render it compatible with other and related enactments whenever and wherever possible."

In blandly applying the words of R.C. 2151.421 to the facts of this case, the majority has failed, in the first instance, to give consideration to the purpose which the statute intends to accomplish. The very significant public policy considerations of this statute are set forth in subdivision (A)(1) where the individuals who are required to report suspected child abuse appear. Thereafter, in subdivisions (A)(2) and (A)(3), specific exemptions are listed. At no point in the statute does the word "parent" appear. Finally in subdivision (G), "[a]nyone or any hospital * * *" is granted immunity from any civil or criminal liability that otherwise might be incurred or imposed as a result of making a report of suspected child abuse.

It almost goes without saying, and sadly so, that the actions of many former spouses as they relate to one another are motivated by hatred, ill will, and a desire to hurt; and that too often children of a former marriage become the pawns with which hurt is inflicted. What better way to inflict harm on a former spouse than to wrongfully accuse him or her of having abused their child?

I am certainly well aware that R.C. 2151.421(G) utilizes the term "anyone" and that that can be interpreted to mean just what it says. I am also aware of this court's holding in Bishop v.Ezzone, supra, granting total immunity from liability as a result of a report involving suspected child abuse. The facts of that case are absolutely distinguishable from the facts in the case before us.

If we, as a court of appeals, are to breathe life into a statute, then we must consider the individual facts before us and apply the rule of law set forth in the statute to those specific facts on a case-by-case basis. It is difficult to imagine that the legislature intended to preclude a lawsuit under facts such as these. Nowhere in the statute is the word "parent" used when speaking of those who are required to report suspected child abuse. The word "parent" is not used when referring to those who receive immunity for making a report except that a parent may be lumped into the all-encompassing "anyone" in subdivision (G).

Can the legislature have intended to include a parent? No Ohio case has yet answered this question, and the public policy for cloaking all others with immunity is clear. But in an era where it is commonplace for parents who are divorced to use their children as tools to hurt one another, or to be spiteful, should they, if motivated by ill will to file false reports, be shielded from ultimate responsibility by this statute? Certainly no one knows if this report was motivated by ill will, hatred, or by honest intention. Appellant should, under the unique facts of this case, be granted his day in court to prove what he can. Twelve years as a judge has allowed me the unique and sometimes sordid opportunity to delve into the ugly corners of the human mind. From the pit of human emotions spilled on the floor of the domestic relations battlefield I have seen too many nasty examples of man's inhumanity to his fellow man. I cannot believe the legislature intended this statute to be used as a shield by one former spouse who may have willfully inflicted harm on another in the manner suggested herein. In this instance, having no idea whether appellant can prevail or not, he should at least be given his day in court. I, therefore, dissent.