Allen ex rel. Allen v. Hunnicutt, 230 N.C. 49 (1949)

March 2, 1949 · Supreme Court of North Carolina

230 N.C. 49

JUDY MAE ALLEN, by Her Next Friend, AGNES ALLEN, v. HILLIARD HUNNICUTT.

(Filed 2 March, 1949.)

1. Parent and Child § 5—

An illegitimate child may not maintain an action against its father to require its father to provide for its support.

2. Bastards § 11—

G.S. Chap. 49 and G.S. 7-103 provide an exclusive remedy to compel a father to provide for the support of his illegitimate child, and the statutes do not authorize the child to maintain a civil action to compel its father to provide for its support.

3. Parent and Child § 9—

G.S. 14-322 relates only to legitimate children and an illegitimate child is not protected thereby.

4. Administrative Law § 5—

The remedy provided by statute for the enforcement of a right created by statute is exclusive, and a party asserting such right must pursue the prescribed remedy.

5. Bastards § 1—

G.S. Chap. 49 was enacted to prevent illegitimates from becoming public charges, and benefit to the child is incidental to such social purpose, and such rights as the child may have must be enforced under the statute and in accord with the procedure therein prescribed.

Appeal by defendant from Nettles, J., December Term, 1948, Buncombe.

Civil action to establish the paternity of an illegitimate child and for support.

Plaintiff is an illegitimate infant. She alleges that defendant is her putative father and prays an order (1) declaring that defendant is her father, and (2) requiring defendant to provide her with reasonable and adequate support.

Defendant denied that he is the father of plaintiff, pleaded a judgment of the domestic relations court of Buncombe County, and prayed that he go hence without day.

Tbe cause came on to be beard before Clement, J., at tbe September Term, 1948, and issue of paternity was submitted to and answered by tbe jury in favor of plaintiff. Clement, J., departed tbe county without having signed judgment. Thereafter, at tbe December Term, 1948, Nettles, J., on motion of plaintiff, signed judgment on tbe verdict nunc pro tunc, decreeing that tbe defendant is tbe father of plaintiff and ordering and directing that be make certain monthly payments for her support and maintenance until she reaches tbe age of eighteen. Defendant excepted and appealed.

Don C. Young for plaintiff appellee.

George Pennell for defendant appellant.

BaeNhill, J.

Tbe defendant’s exception to tbe refusal of tbe court to dismiss tbe cause as in case of nonsuit presents for decision this question : May an illegitimate child maintain a civil action to establish its paternity and compel its putative father to furnish it support when tbe right of action is based solely upon the alleged relationship? Tbe answer is no.

Under tbe common law an illegitimate child is nullius flius, and its putative father is under no obligation to support or contribute to its support. It has no father known to tbe law, no distinction being made between a reputed father and an admitted father. 7 A.J. 627. Accordingly, tbe courts in states which have adopted the common law have held in almost every case in which the question has been raised that without legislation the father of an illegitimate child cannot be required to provide for its support. Kimbrough v. Davis, 16 N.C. 71; S. v. Boston, 102 P. 2d 889 (Okla.); Brown v. Brown, 32 S.E. 2d 79; Beebe v. Cowley, 156 NE 214 (Ohio); Hoffer v. White, 4 NE 2d 595 (Ohio); S. v. Lindskog, 221 NW 911 (Minn.); Law v. S., 191 So. 831 (Ala.); Carlson v. Bartels, 10 NW 2d 671 (Neb.); Kordoski v. Belanger, 160 A. 205 (B.I.); Kessler v. Anonymous, 18 N.Y.S. 2d 278; Anno., 30 A.L.R. 1069; 7 A.J. 673.

“It is universally held that a statute must be found imposing the obligation on the putative father before he can be charged with the child’s support.” Hurst v. Wagner, 43 P. 2d 964 (Wash.).

This does not mean that an action based on contract may not be maintained in the absence of a statute. In such case the right of action is bottomed on the obligation of the contract and not on the moral or natural obligation to support. Kimbrough v. Davis, supra; Burton v. Belvin, 142 N.C. 150; Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A.L.R. 428, Anno. p. 434; Bedmon v. Roberts, 198 N.C. 161, 150 S.E. 881; Conley v. Cabe, 198 N.C. 298, 151 S.E. 645; Hyatt v. McCoy, 195 N.C. 762, 143 S.E. 518; Green v. Green, 210 N.C. 147, 185 S.E. 651.

But the plaintiff insists that we have said in at least two cases that “there is a natural obligation to support even illegitimate children which the law not only recognizes, but enforces.” So we have. Sanders v. Sanders, supra; Green v. Green, supra. But in each of those cases the action was being prosecuted by a legitimate child. Furthermore, we did not say and have not said the obligation may be enforced in an action instituted and maintained by an illegitimate child. As stated in Burton v. Belvin, supra, the natural obligation of the father to support will he enforced under the statute recognizing the obligation and imposing the duty. G.S. Chap. 49; G.S. 7-103.

G.S. 14-322 relates only to legitimate children. An illegitimate child is not protected thereby. S. v. Gardner, 219 N.C. 331, 13 S.E. 2d 529.

The remedy provided by statute for the enforcement of a right created by statute is exclusive. A party asserting such right must pursue the prescribed remedy. R. R. v. Brunswick County, 198 N.C. 549, 152 S.E. 627; Bar Asso. v. Strickland, 200 N.C. 630, 158 S.E. 110; Maxwell, Comr. v. Hinsdale, 207 N.C. 37, 175 S.E. 847; Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24; Padgett v. Long, 225 N.C. 392, 35 S.E. 2d 234; Moose v. Barrett, 223 N.C. 524, 27 S.E. 2d 532; S. v. Boston, supra; Kordoski v. Belanger, supra; Carlson v. Bartels, supra; Anno. 30 A.L.R. 1070.

“Where a right is given and a remedy provided by statute, the remedy so provided must he pursued.” Moose v. Barrett, supra.

The duty of a putative father to support his illegitimate child was not created primarily for the benefit of the child. The legislation is social in nature and was enacted to prevent illegitimates from becoming public charges. The benefit to the child is incidental. Such rights as it may have must he enforced under the statute and in accord with the procedure therein prescribed. G.S. Chap. 49, G.S. 7-103.

The judgment below is

Eeversed.