From: J. R. Molloy (jr@shasta.com)
Date: Thu Sep 16 1999 - 14:11:11 MDT
From: Robert J. Bradbury <bradbury@www.aeiveos.com>
>I doubt very much that any court would ever hold a man responsible for
>the support of a child produced in a situation where he was raped.
Doubt no longer (yes, we do live in a feminazi society):
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COPR. (C) WEST 1993 NO CLAIM TO ORIG. U.S. GOVT. WORKS
AUTHORIZED FOR EDUCATIONAL USE ONLY
(CITE AS: 1993 WL 57722 (KAN.))
STATE of Kansas, ex rel., Colleen HERMESMANN, Appellee,
v.
Shane SEYER, a minor, and Dan and Mary Seyer, his parents, Appellants.
No. 67,978.
Supreme Court of Kansas.
March 5, 1993.
Syllabus by the Court
*1 1. In an action for support of a minor child, the parents have a common-
law, as well as a statutory, duty to support their minor child. This duty
applies equally to parents of a child born out of wedlock.
2. In an action against a father for reimbursement to the State for support
furnished under the aid to families with dependent children program, the
fact
that the father was under the age of 16 when the child was conceived and
born
and that the mother may have been guilty of violating K.S.A.1992 Supp.
21-3503,
or some other criminal statute, cannot serve to relieve the father of his
legal
responsibilities towards his child.
3. The issue of consent to sexual activity under the criminal statutes is
irrelevant in a civil action to determine paternity and for support of a
minor
child born of such activity.
4. The State's interest in requiring minor parents to support their children
is superior to the State's competing interest in protecting juveniles from
their improvident acts, even when such acts may include criminal activity on
the part of the other parent.
5. In an action by the State against a minor father for reimbursement of
funds
paid for support of his child, the fault or wrongdoing of the mother at the
time of conception, even if criminal, has no bearing on the father's duty to
support such child.
HOLMES
Shane Seyer et al., appeal from an order of the district court granting the
Kansas Department of Social and Rehabilitation Services (SRS) judgment for
amounts paid for the birth and support of Seyer's daughter and ordering
Seyer
to pay monthly child support reimbursement to SRS.
The facts, as best we can determine them from an inadequate record, do not
appear to be seriously in dispute.
Colleen Hermesmann routinely provided care for Shane Seyer as a baby sitter
or
day care provider during 1987 and 1988. The two began a sexual relationship
at
a time when Colleen was 16 years old and Shane was only 12. The
relationship
continued over a period of several months and the parties engaged in sexual
intercourse on an average of a couple of times a week. As a result, a
daughter, Melanie, was born to Colleen on May 30, 1989. At the time of the
conception of the child, Shane was 13 years old and Colleen was 17. Colleen
applied for and received financial assistance through the Aid to Families
with
Dependent Children program (ADC) from SRS.
On January 15, 1991, the district attorney's office of Shawnee County filed
a
petition requesting that Colleen Hermesmann be adjudicated as a juvenile
offender for engaging in the act of sexual intercourse with a child under
the
age of 16, Shanandoah (Shane) Seyer, to whom she was not married, in
violation
of K.S.A.1992 Supp. 21-3503. Thereafter, Colleen Hermesmann entered into a
plea agreement with the district attorney's office, wherein she agreed to
stipulate to the lesser offense of contributing to a child's misconduct,
K.S.A.1992 Supp. 21-3612. On September 11, 1991, the juvenile court
accepted
the stipulation, and adjudicated Colleen Hermesmann to be a juvenile
offender.
*2 On March 8, 1991, SRS filed a petition on behalf of Colleen Hermesmann,
alleging that Shane Seyer was the father of Colleen's minor daughter,
Melanie.
The petition also alleged that SRS had provided benefits through the ADC
program to Colleen on behalf of the child and that Colleen had assigned
support
rights due herself and her child to SRS. The petition requested that the
court
determine paternity and order Shane to reimburse SRS for all assistance
expended by SRS on Melanie's behalf. On December 17, 1991, an
administrative
hearing officer found Shane was Melanie's biological father. The hearing
officer further determined that Shane was not required to pay the birth
expenses or any of the child support expenses up to the date of the hearing
on
December 17, 1991, but that Shane had a duty to support the child from the
date
of the hearing forward.
Shane requested judicial review of the decision of the hearing officer,
contending that the hearing officer "should have found a failure of consent
would terminate rights." SRS sought review, asserting that the hearing
officer
correctly ruled that the issue of consent was irrelevant, but erred in
allowing
Shane to present evidence pertaining to the defense of consent. SRS also
alleged that the hearing officer's denial of reimbursement to the State for
funds already paid was arbitrary and capricious and contrary to the mandates
of
K.S.A.1992 Supp. 39-718b.
The district judge, upon judicial review of the hearing officer's order,
determined that Shane was the father of Melanie Hermesmann and owed a duty
to
support his child, stating:
"Okay. I'm ready to rule. It's my view in this case that the Hearing
Officer's ruling, which essentially is that a minor may be held legally
liable
to provide reimbursement to the State of Kansas under K.S.A. 39-701 et seq.,
is
a correct ruling of law and that the issues of consent and the criminal case
and so forth are not really relevant in a paternity proceeding, which we're
talking about, civil liability to support a child.
"Second, I'm going to hold that the State, by proceeding under 39-701 et
seq., that there is no discretion in the Court regarding liability. The
courts, I believe, are ministerial at that point and are the vehicle for SRS
to
collect the support and it was error for the Hearing Officer not to assess
all
of the monies paid jointly and severally liable against both of the parents
of
this child.
"And so I would enter a judgment for all of the SRS reimbursement against
Colleen Hermesmann and Shane Seyer jointly and severally for the six
thousand
plus."
The court found that the issue of Shane's consent was irrelevant and ordered
Shane to pay child support of $50 per month. The court also granted SRS a
joint and several judgment against Shane and Colleen in the amount of
$7,068,
for assistance provided by the ADC program on behalf of Melanie through
February 1992. The judgment included medical and other birthing expenses as
well as assistance paid after Melanie's birth. Shane appeals the judgment
rendered and the order for continuing support but does not contest the trial
court's paternity finding. SRS has not cross-appealed from any of the
orders
or judgment of the district court.
*3 This case was transferred from the Court of Appeals by this court's own
motion. K.S.A. 20-3018(c).
Shane has designated three issues on appeal, which he states as follows:
"I. Can a minor, who is a victim of the crime of indecent liberties with a
child, be responsible for any children conceived of the criminal union?
"II. Is it sound public policy for a court to order child support when the
order creates a clash of one minor's right to protection from being the
victim
of a crime with another minor's right to parental support?
"III. Can a judgment ordering joint and several liability for child support
be an adequate remedy when it fails to account for the wrongdoing of
Plaintiff-
appellee Hermesmann?"
Shane's argument on appeal is based on three basic premises. (1) Shane
Seyer,
as a minor under the age of 16, was unable to consent to sexual intercourse.
(2) Because he was unable to consent to sexual intercourse, he cannot be
held
responsible for the birth of his child. (3) Because he cannot be held
responsible for the birth, he cannot be held jointly and severally liable
for
the child's support.
Shane asserts as his first issue that, because he was a minor under the age
of
16 at the time of conception, he was legally incapable of consenting to
sexual
intercourse and therefore cannot be held legally responsible for the birth
of
his child. Shane cites no case law to directly support this proposition.
Instead, he argues that Colleen Hermesmann sexually assaulted him, that he
was
the victim of the crime of statutory rape, and that the criminal statute of
indecent liberties with a child should be applied to hold him incapable of
consenting to the act.
What used to be commonly called "statutory rape" is now included in the
statutory crime of indecent liberties with a child. The statute, K.S.A.1992
Supp. 21-3503, reads in pertinent part:
"(1) Indecent liberties with a child is engaging in any of the following
acts
with a child who is under 16 years of age:
(a) Sexual intercourse."
Both the administrative hearing officer and the district court determined
that
whether Shane consented to sexual intercourse was not a relevant issue in a
civil paternity and child support proceeding.
SRS maintains that Shane was not the victim of the crime of statutory rape.
SRS points out that while Colleen was originally charged in juvenile
proceedings with a violation of K.S.A.1992 Supp. 21-3503, she later
stipulated
to a lesser charge of contributing to a child's misconduct, K.S.A.1992 Supp.
21-3612. While SRS is technically correct in asserting that Colleen was
never
found guilty of violating 21-3503, its entire case is based upon the fact
that
Shane is the father of the child. As it is undisputed that Shane was under
the
age of 16 when conception occurred, and throughout the entire time the
sexual
relationship continued, the argument of SRS is specious at best. The
admitted
facts established, without doubt, all of the elements necessary to prove a
crime under K.S.A.1992 Supp. 21-3503(1)(a), and the fact that Colleen was
able
to plea bargain for a lesser offense does not preclude Shane from alleging
he
was a "victim" of statutory rape.
*4 Although the issue of whether an underage alleged "victim" of a sex
crime can be held liable for support of a child born as a result of such
crime
is one of first impression in Kansas, other jurisdictions have addressed the
question.
In > In re Paternity of J.L.H., 149 Wis.2d 349, 441 N.W.2d 273 (1989),
J.J.G.
appealed from a summary judgment in a paternity proceeding determining that
he
was the father of J.L.H. and ordering him to pay child support equal to 17
percent of his gross income. J.J.G. was 15 years old when the child was
conceived. On appeal, he asserted that the child's mother, L.H., sexually
assaulted him, contrary to Wis. Stat. s 940.225(2)(e) (1979) (the Wisconsin
statutory rape statute in effect at the time), and that, as a minor, he was
incapable of consent under the sexual assault law. The court rejected this
argument and stated:
"The assumption underlying appellant's opposition to the motion for summary
judgment is that a putative father in a paternity action has a defense if
the
sexual intercourse occurred without his consent. The amended civil
complaint
which his opposing affidavit incorporates alleges that the child born to
L.H.
was 'the result of nonconsensual sexual assault in violation of sec.
940.225(2)(e), Wis. Stats.'.... That statute provides that it is a felony
for
a person to have 'sexual intercourse with a person who is over the age of 12
years and under the age of 18 years without consent of that person, as
consent
is defined in sub. (4).' Subsection (4) provides:
'Consent' as used in this section, means words or overt actions by a person
who is competent to give informed consent indicating a freely given
agreement
to have sexual intercourse or sexual contact. A person under 15 years of
age
is incapable of consent as a matter of law. The following persons are
presumed
incapable of consent but the presumption may be rebutted by competent
evidence,
subject to the provisions of s. 972.11(2):
(a) a person who is 15 to 17 years of age....'
"We reject appellant's assertion that because he was fifteen years old when
he had intercourse with L.H., he was incapable of consent. The assertion
rests
on the argument that sec. 940..225(4)(a), Stats.1979, created a rebuttable
presumption to that effect. That statute pertains to the guilt of a
criminal
defendant, not to the civil rights or duties of the victim. Paternity
actions
are civil proceedings. > State ex rel. Lyons v. DeValk, 47 Wis.2d 200,
203,
177 N.W.2d 106, 107 (1970). The presumption created by sec. 940.225(4)(a)
does
not apply in this proceeding." 149 Wis. 2d at 355-57.
The court then goes on to state:
"If voluntary intercourse results in parenthood, then for purposes of child
support, the parenthood is voluntary. This is true even if a fifteen-year
old
boy's parenthood resulted from a sexual assault upon him within the meaning
of
the criminal law.11 149 Wis. 2d at 360.
Although the question of whether the intercourse with Colleen was
"voluntary,"
as the term is usually understood, is not specifically before us, it was
brought out in oral argument before this court that the sexual relationship
between Shane and his baby sitter, Colleen, started when he was only 12
years
old and lasted over a period of several months. At no time did Shane
register
any complaint to his parents about the sexual liaison with Colleen.
*5 In > Schierenbeck v. minor, 148 Colo. 582, 367 P.2d 333 (1961),
Schierenbeck, a 16-year-old boy, appealed the adjudication in a dependency
proceeding that he was the father of a child born to a 20-year-old woman.
On
appeal, Schierenbeck cited a Colorado criminal statute which defined rape in
the third degree by a female of a male person under the age of 18 years. In
discussing the relevance of the criminal statute, the court stated:
"Certain it is that [Schierenbeck's] his assent to the illicit act does not
exclude commission of the statutory crime, but it has nothing to do with
assent
as relating to progeny. His youth is basic to the crime; it is not a
factor
in the question of whether he is the father of [the child].
" 'The putative father may be liable in bastardy proceedings for the support
and maintenance of his child, even though he is a minor....' Bastards, 10
C.J.S. 152, s 53. If Schierenbeck is adjudged to be the father of [the
child]
after a proper hearing and upon sufficient evidence, he should support [the
child] under this fundamental doctrine." > 148 Colo. at 586.
The trial court decision was reversed on other grounds not pertinent to the
facts of our case and remanded for further proceedings.
The Kansas Parentage Act, K.S.A. 38-1110 et seq., specifically contemplates
minors as fathers and makes no exception for minor parents regarding their
duty
to support and educate their child. K.S.A. 38-1117 provides, in part:
"If a man alleged or presumed to be the father is a minor, the court shall
cause notice of the pendency of the proceedings and copies of the pleadings
on
file to be served upon the parents or guardian of the minor and shall
appoint a
guardian ad litem who shall be an attorney to represent the minor in the
proceedings."
K.S.A.1992 Supp. 38-1121(c) provides, in part:
"Upon adjudging that a party is the parent of a minor child, the court shall
make provision for support and education of the child including the
necessary
medical expenses incident to the birth of the child. The court may order
the
support and education expenses to be paid by either or both parents for the
minor child.
If the legislature had wanted to exclude minor parents from responsibility
for support, it could easily have done so.
As previously stated, Shane does not contest that he is the biological
father
of the child. As a father, he has a common-law duty, as well as a statutory
duty, to support his minor child. > Keller v. Guernsey, 227 Kan. 480, 486,
608 P.2d 896 (1980); > Strecker v. Wilkinson, 220 Kan. 292, 298, 552 P.2d
979 (1976); > Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 (1956).
This
duty applies equally to parents of children born out of wedlock. > Huss v.
DeMott, 215 Kan. 450, 524 P'.2d 743 (1974); Doughty v. Engler, 112 Kan.
583, 585, 211 Pac. 619 (1923).
Under the statutory and common law of this state, Shane owes a duty to
support
his minor child. K.S.A.1992 Supp. 21-3503 does not apply to a civil
proceeding
and cannot serve to relieve Shane of his legal responsibilities towards his
child. Shane relies upon six cases to support his position: > State v.
Fike,
243 Kan. 365, 757 P.2d 724 (1988); > State v. Hutchcraft, 242 Kan. 55, 744
P.2d 849 (1987); > State v. Lilley, 231 Kan. 694, 647 P.2d 1323 (1982);
> State v. Price, 215 Kan. 718, 529 P.2d 85 (1974); State v. Eberline, 47
Kan. 155, 27 Pac. 839 (1891); > State v. Fulcher, 12 Kan.App.2d 169, 737
P.2d
61 (1987). Each of these cases involves the age of consent issue under the
Kansas statutory rape law and its present equivalent. We conclude that the
issue of consent to sexual activity under the criminal statutes is
irrelevant
in a civil action to determine paternity and for support of the minor child
of
such activity. Consequently, Shane's reliance on the foregoing criminal
cases
is misplaced.
*6 For Shane's next issue, he asserts that it is not sound public policy
for a court to order a youth to pay child support for a child conceived
during
the crime of indecent liberties with a child when the victim was unable to
consent to the sexual intercourse. He claims that while the Kansas
Parentage
Act creates a State interest in the welfare of dependent relatives, the
policy
behind the Parentage Act is not to force a minor, who is unable to consent
to
sexual intercourse, to support a child born from the criminal act.
Shane provides no case law specifically on point, but once again relies upon
the Kansas cases involving statutory rape. He also refers the court to
K.S.A.
39-718a, which authorized the Secretary of SRS to collect child support from
an
absent parent. Shane suggests that underlying K.S.A. 39-718a is the
presumption that a parent consented to the conception, and argues that the
proper remedy for SRS in this case is to seek support exclusively from
Colleen
Hermesmann, as she was the only parent legally able to consent to the
conception of the child. What Shane has failed to recognize, however, is
that
K.S.A. 39-718a was repealed by the legislature in 1988. L.1988, ch. 218, s
6.
Any argument based upon a statute which was repealed five years ago is
obviously without merit.
However, the argument of two allegedly conflicting public policies of this
state does merit consideration. Other jurisdictions have recognized the
conflict between a State's interest in protecting juveniles and a State's
interest in requiring parental support of children. In In re Parentage of
J.S., > 193 Ill.App.3d 563, 550 N.E.2d 257 (1990), the trial court ordered a
minor father to pay child support for his illegitimate son. The minor
father
appealed the order, but did not contest the trial court's paternity finding.
In affirming the trial court's decision ordering support, the court stated:
"The respondent initially argues that he should not be required to support
his child, because he was a 15-year-old minor when the child was conceived.
He
contends that Illinois public policy protects minors from the consequences
of
their improvident conduct.
"We note that contrary to the respondent's position, Illinois public policy
has never offered blanket protection to reckless minors. [Citations
omitted.]
At the same time, Illinois public policy has recognized the blanket right of
every child to the physical, mental, emotional, and monetary support of his
or
her parents. (Ill. Rev. Stat.1987, ch. 40, par. 2501.1.) The public has an
interest in protecting children from becoming wards of the State. In re
Petition of Sullivan (1985), > 134 Ill. App. 3d 455, 480 N.E.2d 1283.
"In the instant case, we find that the public policy mandating parental
support of children overrides any policy of protecting a minor from
improvident
acts. We therefore hold that the trial court properly found that the
respondent was financially responsible for his child." (Emphasis added.)
193
Ill. App. 3d at 565.
*7 In > Commonwealth v. A Juvenile, 387 Mass. 678, 442 N.E.2d 1155 (1982),
a 16-year-old father was ordered to pay child support of $8 a week toward
the
support of his child born out of wedlock. The minor father admitted his
paternity, but appealed the support order. On appeal, the court affirmed
the
judgment of the lower court and said:
"The defendant's claim rests on an assertion that a support order is
inconsistent with the statutory purpose of treating a juvenile defendant as
a
child 'in need of aid, encouragement and guidance., [Citation omitted.]
Although we acknowledge that purpose, we see no basis, and certainly no
statutory basis, for concluding that a juvenile should be free from any duty
to
support his or her illegitimate child. The illegitimate child has
interests,
as does the Commonwealth." > 387 Mass. at 680.
This State's interest in requiring minor parents to support their children
overrides the State's competing interest in protecting juveniles from
improvident acts, even when such acts may include criminal activity on the
part
of the other parent. Considering the three persons directly involved,
Shane,
Colleen, and Melanie, the interests of Melanie are superior, as a matter of
public policy, to those of either or both of her parents. This minor child,
the only truly innocent party, is entitled to support from both her parents
regardless of their ages.
As his third issue, Shane asserts that the district court erred in finding
he
and Colleen were jointly and severally liable for the child support. He
argues
that, as Colleen was the perpetrator of the crime of statutory rape, she
alone
should be held responsible for the consequences of the act, and he requests
this court to remand the case to the district court with instructions to
order
Colleen solely responsible for the support pursuant to K.S.A. 39-718a. He
states that K.S.A. 39-701 et seq. does not require a judgment ordering joint
and several liability for child support.
Once again, Shane's reliance upon K.S.A. 39-718a is improper. This statute
was repealed in 1988. L.1988, ch. 218, 6. The controlling statute, as SRS
points out, is K.S.A.1992 Supp. 39-718b, which explicitly requires a court
to
order joint and several liability, with some exceptions not applicable here,
when more than one person is legally obligated to support the child. SRS
correctly notes that the mother's conduct has no bearing upon the parties'
respective obligations to support their child. Other courts have so held.
In
> Weinberg v. Omar E., 106 App. Div.2d 448, 448, 482 N.Y.S.2d 540 (1984),
the
court held:
"[T]he mother's alleged fault or wrongful conduct is irrelevant under
section
545 of the Family Court Act [citation omitted]. The primary purpose of a
paternity proceeding is to protect the welfare of the illegitimate child
and,
accordingly, the mother's conduct should have no bearing on the father's
duty
of support nor upon the manner in which the parents' respective obligations
are
determined [citation omitted).
*8 SRS also notes that Shane cites no authority in support of his
contention. Nowhere does the law in this state suggest that the mother's
"wrongdoing" can operate as a setoff or bar to a father's liability for
child
support. Under the facts as presented to this court, the district court
properly held that Shane owes a duty of support to Melanie and properly
ordered
that Shane and Colleen were jointly and severally liable for the monies
previously paid by SRS.
While the foregoing disposes of the issues on appeal, we would be remiss if
we
did not comment upon various other facets of this appeal. This court was
not
supplied with any meaningful record in this case. The only record supplied
by
counsel was a portion of the pleadings in the district court. No transcript
or
other evidence of the proceedings before the hearing officer was included in
the record, and the facts, while apparently not disputed, have been gleaned
from the pleadings, briefs, arguments before this court, and a transcript of
the arguments before the district judge which this court felt compelled to
obtain. The appellants' brief does refer to two exhibits, allegedly
attached
to their brief, in support of some of their statements of fact. However,
such
exhibits were not made part of the record on appeal, nor were they attached
as
exhibits to the brief. Neither parties brief could be considered adequate,
let
alone a model, for appellate procedure.
Additionally, counsel for SRS joined the parents of Shane as parties
defendant, although no relief was sought against those defendants. At oral
argument, appellate counsel had no explanation for joining Shane's parents,
but
it appears trial counsel may have done so under some mistaken idea that it
was
necessary to obtain valid service on Shane.
Finally, we call attention to the fact that no issue was raised as to the
propriety of the judgment against a youngster who was still a full-time
student
when these proceedings were commenced. When questioned in oral argument
about
the policy of SRS in seeking a judgment in excess of $7,000, counsel replied
with the surprising statement that SRS had no intention of ever attempting
to
collect its judgment. Under such circumstances, the reason for seeking that
portion of the judgment still eludes us.
The judgment of the district court is affirmed.
Kan.,1993.
STATE of Kansas, ex rel., Colleen HERMESMANN, Appellee, v. Shane SEYER, a
minor, and Dan and Mary Seyer, his parents, Appellants.
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