State Ex Rel. Donovan v. Zajac ( 1998 )

It appears to me that both the trial court and the majority in this matter have failed to address the crucial underlying issue raised in this lawsuit. There were clearly two victims in this matter, and they continue to be the defendant and his daughter. They were both victimized by the actions of the mother, and implicitly, the state of Ohio. It is undisputed that an evening of casual sex resulted in the birth of a child. Since the child has now grown to adulthood, the prejudice to the father is complete and irreversible. He will never know the joy of this child falling asleep in his arms; he will not be present at her first basketball game; and he will not be a part of building and reinforcing her moral value system which she will carry for the rest of her life. In short, because of a decision made by the mother, with the unequivocal approval of the state of Ohio, he will remain forevermore a stranger in this child's life. There is no room for disagreement on the issue of loss to the father and child.

The situation this court is faced with is analogous to a mother and child dining in a fine restaurant and enjoying a sumptuous meal. At the end of the evening, when the bill is presented, the restaurant is told, "Oh, send this charge to my acquaintance, he will surely pay."

The trial court made a factual finding that when the mother waited until her child had reached adulthood before bringing this action for child support, she had in fact waited an "unreasonable" amount of time. This is true.

The Supreme Court of Ohio, in Wright v. Oliver (1988), 35 Ohio St.3d 10,12, 517 N.E.2d 883, 886, held that the doctrine of laches "may be applicable in parentage actions filed prior to the expiration of the statute of limitations, but only if the defendant can show material prejudice." This court has applied the doctrine of laches in back child support actions uniformly, particularly when it is apparent that the noncustodial parent would be prejudiced by a claim for support after the fact. SeeNelson v. Nelson (1991), 65 Ohio App.3d 800, 585 N.E.2d 502.

In a case which is strikingly similar to this matter, the Court of Appeals for Ross County got right to the heart of the matter in Park v. Ambrose (1993), 85 Ohio App.3d 179, 619 N.E.2d 469, where the court held:

"The record in this case makes it clear that Park wanted appellant to have no part in raising their daughter. She neither requested child support during Rairdon's minority nor did she establish any visitation schedule for appellant. To comply with Park's stated wishes, appellant did not try to contact either mother or daughter. All contact was initiated by Park or Rairdon. We view Park's failure to timely initiate a parentage action and request child support as a waiver of her right to support.

"Now, twenty years after her daughters birth, Park requests retroactive child support. The prejudice to appellant is patent. While R.C. 3111.13 permits a trial court to award child support which might have been paid in the past, it cannot rewrite the past. Although there are child support arrearages, there are no ``visitation' or ``custody' arrearages after the child has grown to adulthood." (Emphasis added.) Id. at 184, 619 N.E.2d at 473.

The fact pattern in the case sub judice is far more egregious than the facts in Park, supra. In Park, at least the father was offered the opportunity to participate in the decisionmaking process, and made a conscious decision to acquiesce in the mother's wishes that he have no part in his child's life. In the instant matter, defendant simply had no way of even knowing that he was the father. Consider for the moment the mechanisms which were utilized at the beginning of this sordid state of affairs. The plaintiff-mother, with the assistance of the state of Ohio, had the defendant-father arrested at his parents' home in 1977, on a "warrant in bastardy," and the court at that time ordered blood tests, which were performed at the Cleveland Clinic. For reasons that are totally unclear from the record, that matter was dismissed for "failure to prosecute" in 1978, and the trial court has found that the plaintiff-mother "made little, if any effort to pursue the matter further until 1992, when she made application to Cuyahoga County Child Support Agency for assistance in establishing a child support order."

From this recitation of facts, it is readily apparent the mother could have and probably should have enforced her claim for child support at a time when it would have made a difference. For whatever reason, she did not, and it is clear she has waived her rights to child support by her own actions.

An important distinction must be made between the mother and the other plaintiff, the state of Ohio. While the state clearly has an interest in this matter, it is peculiar indeed that it has not sought compensation in this matter. The trial court granted a monetary judgment to the mother and child only. It is well settled that the doctrine of laches will not apply to the state, for obvious reasons, but that concept is of but passing interest in this matter, since the state apparently never sought compensation in this matter as reflected by the final judgment entry. The final judgment entry in this matter does not award one thin dime to the state of Ohio.

For all the foregoing reasons, I would reverse the trial court's judgment and send the parties on their way to live separate and apart as they have for the past twenty years.