Core, David L.

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Volume 71 Issue 3 Issues 3 & 4 Article 22 June 1969 Domestic Relations--Constitutionality of the West Virginia Nonsupport Statute David L. Core West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Family Law Commons Recommended Citation David L. Core, Domestic Relations--Constitutionality of the West Virginia Nonsupport Statute, 71 W. Va. L. Rev. (1969). Available at: https://researchrepository.wvu.edu/wvlr/vol71/iss3/22 This Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. CASE COMMENTSwith the Workman rationale to conclude that a juvenile cannot bewaived to an adult court any time such waiver will subject thejuvenile to adult punishment. If this is so, the extent of the waiverconcept is impliedly limited to this extent.Roy Franklin LaymanDomestic Relations-Constitutonality Of TheWest Virginia Nonsupport StatuteDewey Bragg was indicted for failure to support two children bornin 1950 and 1952. He was convicted on the theory that the childrenwere legitimate because they were born as a consequence of whatwould have been a common-law marriage if such marriages wererecognized in West Virginia.' Bragg stipulated the existence of theessential of a common law marriage but appealed on the groundthat the statute which declares that the issue of marriages null inlaw are legitimate' is ambiguous and is not applicable to a nonsupportaction. Held, judgment affirmed. The provisions of the statute inquestion are clear and unambiguous, and no limitations or qualifica-tions may be read into it. State v. Bragg, 163 S.E.2d 685 (W. Va.1968).1 Common-law marriages contracted in West Virginia are null and of noeffect so far as the husband and wife are concerned. Cf. W. VA. CoDE ch.48, art. 1, § 5 (Michie 1966); Kester v. Kester, 106 W. Va. 615, 618, 146S.E. 625, 626 (1929); Beverlin v. Beverlin, 29 W. Va. 732, 736, 3 S.E.36, 38 (1887). However, common-law marriages contracted in a state whichrecognizes the validity of such marriages will be given recognition in WestVirginia. Meade v. Compensation Comm'r, 147 W. Va. 72, 82, 125 S.E.2d771, 777 (1962); Jackson v. Compensation Comm'r, 106 W. Va. 374, 375,145 S.E. 753, 754 (1928). There has been much controversy as to whatelements are requisite to a common-law marriage. In one West Virginiacase the elements were stated to be "lawful capacity to contract a marriage,and matrimonial intent, bona fides, on the side of at least one of the parties."Luther v. Luther, 119 W. Va. 619, 621, 195 S.E. 594, 595 (1938). In thesame case, the court stated the requirements to be "an understanding in thepresent tense that the parties are husband and wife, and they must . . . ingood faith assume such relation . . . and believe in good faith that theyare husband and wife." Id. at 621-22, 195 S.E. 595.2 W. VA. CODE ch. 42, art. 1, § 7 (Michie 1966), which reads, "Theissue of marriages deemed null in law, or dissolved by a court, shallnevertheless be legitimate." This Code section will be referred to hereinafteras the "legitimation" statute for brevity. It should be kept in mind thatlegitimation may also take place by virtue of intermarriage of the parentssubsequent to the birth of their children. W. VA. CODE ch. 42, art. 1, § 6(Michie 1966).196911Core: Domestic Relations--Constitutionality of the West Virginia NonsupDisseminated by The Research Repository @ WVU, 1969WEST VIRGINIA LAW REVIEWThe nonsupport statute3 under which the defendant was convictedprovides in part that "any parent who shall . . . desert or wilfullyneglect or refuse to provide for the support and maintenance of hisor her legitimate or illegitimate child or children, under the age ofeighteen years, is destitute and necessitous circumstances, shall beguilty of a misdemeanor ... ."' However, the West Virginia SupremeCourt of Appeals has held that the nonsupport statute, insofar asit pertains to illegitimate children, is in par! materia5 with the bastardystatute, which provides that a proceeding under the bastardy statutecan not be instituted if the child is three years of age or older.'The result of construing the nonsupport and bastardy statutestogether is that a prosecution for nonsupport of an illegitimate childcan not be maintained unless: 1) The child is under three years ofage; or (2) the paternity is admitted; or (3) the defendant admittedthe paternity before the child reached three years of age; or (4) thepaternity has been judicially determined in a bastardy proceedingor nonsupport prosecution commenced within three years after thebirth of the child.' In the Bragg case, both of the children wereover the age of three years and none of the other criteria notedabove had been met. Therefore, action could be maintained only ifthe children were found to be legitimate.There has been no prior case in West Virginia construing the"legitimation" statute in conjunction with the nonsupport statute.Therefore, the defendant's contention that the "legitimation" statutehad the effect of legitimating the children of null marriages for thepurpose of descent only,8 and not for all purposes, presented a caseof first impression.This issue was, however, before the Virginia Supreme Court ofAppeals in the case of McClaugherty v. McClaugherty.9 In that casethe court held a father had a duty to support his child which hadbeen legitimated by virtue of a "legitimation" statute,"0 identical to3 W. VA. CODE ch. 48, art. 8, § 1 (Michie 1966).41d.5 State v. Richmond, 124 W. Va. 777, 780, 22 S.E.2d 537, 538 (1942);State v. Hoult, 113 W. Va. 587, 588-89, 169 S.E. 241, 242 (1933); Statev. Reed, 107 W. Va. 563, 565, 149 S.E. 669, 670 (1929).6 W. VA. CODE ch. 48, art. 7, § 1 (Michie 1966).7 Holmes v. Clegg, 131 W. Va. 449, 453, 48 S.E.2d 438, 441 (1948);State v. Mills, 121 W. Va. 205, 207, 2 S.E.2d 278, 279 (1939); State v. Hoult,113 W. Va. 587, 588-89, 169 S.E. 241, 242 (1933).8 Brief for Appellant at 9, State v. Bragg, 163 S.E.2d 685 (W. Va. 1968).9 180 Va. 51, 21 S.E.2d 761 (1942).'°VA. CODE ANN. § 64 1-7 (Repl. 1968).[Vol. 712West Virginia Law Review, Vol. 71, Iss. 3 [1969], Art. 22https://researchrepository.wvu.edu/wvlr/vol71/iss3/22CASE COMMENTSthe one in West Virginia. In construing the "legitimation" statutein a later case, the same court stated:The language of our statute is clear, sweeping and direct.There are no words of limitation or qualification. The issueof marriages decreed null in law . . . are legitimated. Theyare consequently endowed with all the rights of legitimate issuefor all purposes .... '.. (Emphasis added).Legitimacy is a status, and to confer this status upon a child forsome purposes but not for others would indeed seem to reflect adegree of legislative inconsistency not apparent from the wording ofthe statute. In the Bragg case, the court did no more than holdthat no such incongruity was intended by the Legislature in theabsence of express language so indicating. While this decision is notnovel, it is important in that it clarifies the scope of the "legitimation"statute in West Virginia.A point of equal or possibly greater significance was raised bythe court's reference to the nonsupport statute being in par! materiawith the bastardy statute with respect to illegitimate children. Whilethis statement was dictum in the Bragg case because the childrenwere found to be legitimate, such an approach has been the basisfor holdings in prior decisions.2 As noted earlier, the effect ofconstruing the two statutes together is the establishment of a threeyear statute of limitations for nonsupport actions with respect toillegitimate children, while no such limitation exists if the child islegitimate. This differentiation may pose a constitutional issue underthe equal protection clause of the fourteenth amendment.States have wide latitude in making classifications,13 but theymay not draw a line which constitutes invidious discriminationagainst a particular class. 4 The test is whether the statutory dis-crimination is based on differences that are reasonably related tothe purpose of the statute."5 It is therefore necessary to analyze the" Henderson v. Henderson, 187 Va. 121, 129, 46 S.E.2d 10, 14 (1948).S2 State v. Richmond, 124 W. Va. 777, 780, 22 S.E.2d 537, 538 (1942);State v. Mills, 121 W. Va. 205, 207, 2 S.E.2d 278, 279 (1939); State v.Hoult, 113 W. Va. 587, 588-89, 169 S.E. 241, 242 (1933).'"Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. LeeOptical Co., 348 U.S. 483, 488-89 (1955); Day-Brite Lighting Inc. v. Missouri,342 U.S. 421, 423 (1952).14 Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942); Gaines v. Canada,305 U.S. 337, 350 (1938); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).'5Morey v. Doud, 354 U.S. 457, 465 (1957); Smith v. Cahoon, 283U.S. 553, 567 (1931); Louisville Gas Co. v. Coleman, 277 U.S. 32, 37(1928).1969]3Core: Domestic Relations--Constitutionality of the West Virginia NonsupDisseminated by The Research Repository @ WVU, 1969WEST VIRGINIA LAW REVIEWpurpose of the bastardy and nonsupport statutes and the rationaleupon which the limitation in the former statute has been appliedto the latter.The main purpose of the bastardy statute is to prevent the childfrom becoming a charge upon the public. This end is accomplishedby compelling the father to bear the burden of its support.'" Thepurpose of the nonsupport statute is "to prevent deserted andabandoned persons from becoming a charge upon the public."' 7Thus, although the former statute is criminal in form but civil insubstance and the latter is criminal, it is apparent that both wereenacted primarily for the benefit of the public. 8The three year limitation in the bastardy statute was imposedto prevent the danger of fraud that would exist if the question ofpaternity of illegitimate children were left open for an indefiniteperiod. 9 Since the paternity of an illegitimate child may be deter-mined in a non-support action,2° the limitation in the bastardy statutewas logically extended to the nonsupport statute.2'If the sole purpose of these statutes is the protection of the public,it is difficult to see how illegitimate children would be injured by thethree year limitation. In the absence of injury, they would haveno basic upon which to claim that the statutes in question constitutean invidious discrimination.It is arguable, however, that the bastardy and nonsupport statutesestablish a duty of support. The West Virginia Supreme Court ofAppeals took this view in Criukshank v. Duffield.2 In that case,the court talked of the right of a wife and minor children to supportas arising from the husband's or father's duty to support them." On16State v. Easley, 129 W. Va. 410, 415, 40 S.E.2d 827, 830 (1946).7 Davis v. Prunty, 114 W. Va. 285, 286, 171 S.E. 644 (1933).18 Holmes v. Clegg, 131 W. Va. 449, 453, 48 S.E.2d 438, 441 (1948).19State v. Hoult 113 W. Va. 587, 589, 169 S.E. 241, 242 (1933).20State ex. rel. Wright v. Bennett, 90 W. Va. 477, 480, 111 S.E. 146,147 (1922).21 State v. Hoult, 113 W. Va. 587, 589, 169 S.E. 241, 242 (1933).22 138 W. Va. 726, 77 S.E.2d 600 (1953).23 d. at 733-34, 77 S.E.2d at 604, where the court stated:"IT]he nonsupport statute not only provides for criminal prosecution ofa defendant who has violated the provisions thereof, but also providescivil procedure for the enforcement of the right of a vife, or minorchildren to support. The court, in its discretion, may enforce either thecriminal or civil liability, or both, as to a defendant convicted there-under." (Emphasis added).The civil procedure for enforcement is that the court may:(1) direct that the husband or parent work on the public highways of this[Vol. 714West Virginia Law Review, Vol. 71, Iss. 3 [1969], Art. 22https://researchrepository.wvu.edu/wvlr/vol71/iss3/22CASE COMMENTSthis theory, it can be seen that an illegitimate child for whom anonsupport action has not been commenced before the statutoryperiod has elapsed"4 can, through no fault of his own, be denied acivil right solely because of his illegitimacy.In Levy v. Louisiana" the United States Supreme Court held thatthe equal protection clause of the fourteenth amendment prohibiteddiscrimination by the states between legitimate and illegitimate chil-dren, with respect to the right of illegitimate children to recoverfor the wrongful death of their mother. In a companion case, thecourt reached the same decision in an action by a mother for thewrongful death of her illegitimate child.'" The Supreme Court ofWashington had only a few weeks earlier reached the same decisionin a case in which an action was brought on behalf of a illegitimatechild for the wrongful death or her father.'Subsequent to the Levy and Glona cases, the Supreme Court ofMissouri held that those decisions required that state statutes relatingto the obligations and rights of parents" be construed to affordillegitimate children a right equal with that of legitimate children incompelling support by their fathers.' 9 In this decision the highestcourt of Missouri specifically overruled prior cases which had im-posed no civil liability on the father for nonsupport of his illegitimatechild or children.3 oIn principle, the prior Missouri law denying minor illegitimatechildren a civil remedy for nonsupport is difficult to differentiateState or where he can obtain employment, and order such payments to bemade to the wife, guardian, custodian, or trustee of such minor child orchildren as may be necessary for their maintenance under the circumstances;or (2) if the husband or parent be regularly employed or obtain regularemployment, the court may order that such employment be continued, thatthe husband or parent be confined in jail between hours of employment,and that the sheriff collect the earnings, deduct reasonable expenses of thehusband or parent, and pay the balance to the wife, guardian, custodian ortrustee of such minor child or children. W. VA. CODE ch. 48, art. 8 § 1(Michie 1966).241Te rationale and purpose of the three-year statute of limitations maybe valid, but the question remains as to whether they are of sufficient im-portance to override a constitutionally guaranteed right."5 391 U.S. 68 (1968). See 71 W. VA. L. REV. 52 (1968).26 Glona v. American Guarantee and Liab. Ins. Co., 391 U.S. 73 (1968).27 Armijo v. Wesselius, 73 Wash. Dec.2d 721, 440 P.2d 471 (1968)."8Mo. Rnv. STAT. §§ 452.150, 452.160 (1952); Mo. REv. STAT. §559.353 (Supp. 1968).29 R- v. R , 431 S.W.2d 152, 154 (Mo. 1968)."Heembrock v. Stevenson, 387 S.W.2d 263 (Mo. 1965); State v. White,363 Mo. 83, 248 S.W.2d 841 (1952).196915Core: Domestic Relations--Constitutionality of the West Virginia NonsupDisseminated by The Research Repository @ WVU, 1969WEST VIRGINIA LAW REVIEWfrom the present three year statute of limitations for nonsupportactions with respect to minor illegitimate children in West Virginia.It might therefore be reasonably argued in the future that thenonsupport statute and bastardy statute, when read together, denycertain illegitimate children equal protection of the laws.David L. CoreElections-The Use of Certificates of NominationPrior to the 1968 West Virginia primary election, the AmericanIndependent Party circulated a certificate of nomination, as pre-scribed by the West Virginia Code in an attempt to have the nameof its presidential candidate appear on the ballot in the general elec-tion. Pursuant to the statutory provisions, the party filed thesecertificates with the Secretary of State of West Virginia. The DailyGazette Company requested a list of these names in order to publishthem in its newspaper. Apparently, its purpose in so doing was todiscourage other voters from signing similar certificates circulated bythe party. Upon the refusal of the Secretary of State to comply withthis request, the Daily Gazette Company sought a writ of mandamusfrom the West Virginia Supreme Court of Appeals. Held, writrefused. The Legislature has provided by statute that those voterswho sign a certificate of nomination shall not be allowed to votein the next primary election to be held where a candidate for thesame office is to be nominated. Even if the certificate is not a votein its usual sense, it is so analogous to voting as to be entitled to thesame consideration. The act of signing the certificate did not consti-tute a change of party registration. Even if it did, the Daily GazetteCompany would still be denied the privilege of inspection becausethe object of their inspection was for an improper purpose. Stateex rel. Daily Gazette Co. v. Bailey, 164 S.E.2d 414 (W. Va. 1968).Normally, candidates for public office are nominated by primaryelection or party convention. However, as an alternate method ofnomination, the certificate of nomination has been provided by statutein West Virginia.' In the Daily Gazette case the certificate was usedto nominate a candidate for president. In subsequent litigationinvolving the certificate the West Virginia Supreme Court of Appeals'W. VA. CODE ch. 3, art. 5, § 23 (Michie 1966).416 [Vol. 716West Virginia Law Review, Vol. 71, Iss. 3 [1969], Art. 22https://researchrepository.wvu.edu/wvlr/vol71/iss3/22

Domestic Relations--Constitutionality of the West Virginia Nonsupport Statute

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Domestic Relations--Constitutionality of the West Virginia Nonsupport Statute

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