Opinion
March 4, 1964 —
March 31, 1964.
APPEAL from an order of the county court of Taylor county: PETER J. SEIDL, Judge. Affirmed.
For the appellant there was a brief by Nikolay, Jensen Scott of Colby, and oral argument by Frank L. Nikolay.
For the respondent there was a brief by Giles Krug of Medford, and oral argument by Charles G. Giles.
The plaintiff appeals from an order sustaining a demurrer to the complaint. In her complaint, the plaintiff makes a claim against the estate of Donald Dassow, deceased, defendant-respondent. The facts as alleged in the complaint are as follows. The plaintiff is a housewife residing in Spencer, Marathon county. The deceased resided in Taylor county at the time of his death on November 19, 1962, and his estate is being administered in the county court of Taylor county. During the month of November, 1961, the plaintiff and Mr. Dassow commenced having sexual intercourse, and in April, 1962, as a result of such intercourse, a child was conceived. The plaintiff was subsequently delivered of this child on January 12, 1963, at Marshfield.
The complaint further alleges that the deceased was advised by the plaintiff during the month of June, 1962, that she was pregnant with his child. At that time he admitted paternity and promised to pay for the lying-in expenses, prenatal and postnatal care, and for the support of the child to be born until such time as the plaintiff and the deceased could be married. The deceased agreed in June, 1962, and a number of times thereafter that he would pay for the support of the child to be born and that such support money would be in a sum sufficient to pay for the clothing, housing and feeding of the child, and that payments would be made on a weekly basis.
On November 15, 1962, the deceased again made a promise to the plaintiff to buy clothing for the child and agreed at that time to bring the plaintiff the sum of $25 or $30 so that the plaintiff could purchase baby clothes. Such money was to be delivered to the plaintiff on November 17, 1962.
The plaintiff and the deceased further mutually agreed that the deceased was to pay a "reasonable" sum for the support of the child after the child was born and until the plaintiff and the deceased could be married. The plaintiff incurred certain medical expenses in connection with the birth of the child in the sum of $207.05, and such amount was paid by the Marathon county public welfare department.
Other allegations of the complaint include the averment that the deceased and the plaintiff were competent to contract at the time the mutual agreement was entered into and that there was a sufficient and legal consideration for the contract. The plaintiff further alleges that the reasonable cost of the support of the child until such child reaches the age of twenty-one years is $5,000. In addition, the plaintiff avers that the deceased had a further obligation to pay for the support of the child under the provisions of sec. 52.28, Stats., notwithstanding that paternity cannot be established to a certainty.
The complaint demanded judgment for $5,000. By an order dated July 22, 1963, the county court sustained the demurrer to the complaint for the reason that on its face it did not comply with the requirements of sec. 52.28, Stats. which requires, in part, that settlements in paternity proceedings must be approved by the court.
Statute Involved.
"52.28 SETTLEMENT AGREEMENTS. A Woman who has borne a child out of wedlock or who is pregnant with a child which is likely to be born, out of wedlock, may enter into an agreement with the person claimed by her to be the father of the child. Such agreement may be entered into at any time prior to final judgment, either before or after issuance of process, or at any time while said judgment is still in effect No agreement shall be entered into before the birth of the child unless the court finds that there are special circumstances making it advisable to do so. The agreement shall include a determination of all facts and orders which s. 52.37 requires the court to determine in its order for judgment, except that where the parties are unable to agree as to the paternity of the child, the alleged father may deny paternity in the agreement. By the terms of the agreement the defendant must submit personally to the jurisdiction of the court, and consent to entry of judgment in accordance with the terms of the agreement. Upon motion of the district attorney, the judge of a court of record having power to enter final judgment in paternity proceedings, being satisfied with the terms of the agreement, shall order judgment in accordance therewith if paternity of the child is admitted. Where the paternity of the child is not admitted, after said agreement is approved by the court, it shall be filed but judgment shall not be rendered until there is a default of the payments agreed upon, when, upon motion of the district attorney, judgment shall be rendered and entered forthwith. All agreements referred to in ss. 52.21 to 52.45 shall be drawn by the district attorney. No other agreement or settlement of any paternity proceeding shall be valid." (Emphasis added.)
In sustaining the demurrer to the complaint of Clara Smazal, the trial court determined that the alleged contract between Clara Smazal and the putative father did not conform to the provisions of sec. 52.28, Stats. We agree with that conclusion.
In the instant case, the alleged agreement was oral, and the putative father had died before Clara Smazal attempted to obtain legal enforcement of the alleged agreement. Nevertheless, we consider that the impact of sec. 52.28, Stats., would be applicable even if the agreement were in writing and even if the claimed father were alive. This is because sec. 52.28 by its own language is broad enough to cover all settlement agreements between an alleged father and the mother of an illegitimate child. The statute provides that "no other agreement or settlement of any paternity proceeding shall be valid," and we believe that the legislature intended thereby to bar enforcement of those arrangements which did not comply with the statutory plan.
There is a sound public policy behind a statutory plan which requires that all such agreements be drawn by the district attorney and approved by the court. In this manner the public interest is fully protected. This technique is the one which will best protect the illegitimate child. Compliance with the statute will prevent, on the one hand, any unreasonable imposition upon the putative father by a conniving mother; on the other hand, it will avoid the acceptance of an improvident financial arrangement on the part of a woman who may be as naive fiscally as she had been sexually. See Kenney, Illegitimacy Under the Children's Code, 14 Marquette Law Review (1929), 26, 27. We conclude that the legislature intended to make the settlement technique provided for under sec. 52.28, Stats., an exclusive remedy.
In State v. Olson (1929), 198 Wis. 197, 200, 223 N.W. 449, this court held that a payment made to the mother of an illegitimate child, which payment did not comply with the statute, did not relieve the father of his obligation to support the child.
The appellant suggests that there has been a waiver; she contends that by entering into the agreement both parties waived the provisions of sec. 52.28, Stats. In support of this theory, Clara Smazal relies on Meyer v. Meyer (1905), 123 Wis. 538, 102 N.W. 52. We consider that the Meyer Case is not controlling because the statute involved in that case was substantially different from the present statute, and the considerations which led the court to the waiver theory in the Meyer Case do not apply under the present statute. Furthermore, after exploring the overriding considerations of public policy which apply in connection with illegitimacy settlements, this court in Francken v. State (1926), 190 Wis. 424, 440, 209 N.W. 766, modified the Meyer Case insofar as it related to waiver.
The appellant also urges that she and Mr. Dassow had a constitutional right to enter into their contract and that if sec. 52.28, Stats., be construed as an exclusive remedy, such legislation, she contends, would be an unconstitutional impairment of their right to contract. The answer to this argument is that legislation which is grounded on important considerations of public policy may constitutionally circumscribe the right to contract. The paternity statutes are not unlike other modern social legislation such as the laws which are designed to promote industrial peace. See J. I. Case v. National L.R. Board (1944), 321 U.S. 332, 337, 338, 64 Sup. Ct. 576, 88 L Ed. 762. It has also been held that the legislature may modify existing remedies or prescribe new modes of procedure without impairing the obligation of contracts if a substantial remedy for enforcement remains, Onsrud v. Kenyon (1941), 238 Wis. 496, 500, 300 No W. 359. See also Conley v. Barton (1923), 260 U.S. 677, 681, 43 Sup. Ct. 238, 67 L. Ed 456.
Sec. 52.28, Stats., was already a part of the law of Wisconsin at the time Clara Smazal and Mr. Dassow allegedly entered into their agreement; the statute cannot be said to have impaired the obligation of their contract. Chippewa Valley Securities Co. v. Herbst (1938), 227 Wis. 422, 278 N.W. 872.
We conclude that the trial court properly sustained the demurrer since the alleged contract was not entered into in compliance with the statute which furnished the exclusive procedure for the creation of an enforceable contract for the support of an illegitimate child between the mother and the putative father.
By the Court. — Order affirmed.
I respectfully dissent. The majority holds that sec. 52.28, Stats., furnishes the exclusive procedure for a mother and putative father to contract for the support of an illegitimate child. In my view, the statute applies only to contracts intended to settle or bar paternity proceedings. I would draw a distinction between those contracts and the one before us, which was not made in consideration of an agreement to forbear from instituting paternity proceedings.
Such contracts have long been recognized in the law. See 10 Am. Jur.2d, Bastards, p, 897, sec. 70: "Contracts binding a putative father to provide for or support his illegitimate child do not offend public policy or good morals, but rather accord with the policy of the law, especially where the putative father is under a statutory duty to support his illegitimate child."
This case arises on demurrer. According to the old, familiar rule, facts pleaded in the complaint are admitted. Among these facts are that deceased admitted paternity of the child and promised to pay for its support until such time as he and plaintiff could be married. I see no reason in policy why the language of the statute should be extended beyond its clear application to proceedings instituted under secs. 52.21 to 52.45, Stats. No interest of the public, the mother, or the child is offended; paternity proceedings are not barred by the contract. An agreement for support of an illegitimate child by weekly payments until such time as the mother and putative father can be married does not raise a probable or even possible inference of blackmail.
At common law the mother, not the father, was responsible for the support of an illegitimate child. By statute, the father, if determined, is primarily responsible and the mother secondarily.
The purpose of ch. 52, Stats., is to assure, as its title states, "Support of Dependents." It was enacted to protect the child and to relieve the public of responsibility of support. For this purpose the agreement, in order to relieve the putative father, must be approved by the court and drawn by the district attorney.
"52.45 CONSTRUCTION OF SECTIONS 52.21 TO 52.45. Sections 52.21 to 52.45 shall be so interpreted and construed as to effectuate the protection and welfare of the child involved in any proceedings hereunder."
I cannot read into sec. 52.28, Stats., a prohibition preventing the mother from contracting with the putative father to protect herself against her liability for the support of the child. The state, through the district attorney, can insist upon a proceeding that will result in a contract or judgment to protect the interests of the child and the public which would supersede or supplement a contract between the mother and putative father, but in the absence of such statutory contract or judgment I see no reason of public policy prohibiting the enforcement of the contract between the mother and putative father.
The plaintiff may well have some difficult problems of proof at trial; we are not reviewing the trial but merely examining the complaint to determine whether it states a cause of action. I would hold it does and reverse the order of the trial court.
I am authorized to state that Mr. Justice HALLOWS joins in this dissent.