Aversman v. Danner

• Decision Date: 04 May 1981
• Docket Number: No. WD,WD
• Citation: 616 S.W.2d 117
• Parties: Ellen A. AVERSMAN (Bartoszkiewicz), Parent and Legal Guardian of the Deceased, Steven Eugene Aversman, Plaintiff-Appellant, v. Larry Wayne DANNER, Defendant-Respondent, Leland Aversman, Next Friend for The Unborn Child of Steven Eugene Aversman, Intervenor-Respondent. 31851.
• Court: Missouri Court of Appeals

Page 117

616 S.W.2d 117

Ellen A. AVERSMAN (Bartoszkiewicz), Parent and Legal Guardian of the Deceased, Steven Eugene Aversman, Plaintiff-Appellant, v. Larry Wayne DANNER, Defendant-Respondent, Leland Aversman, Next Friend for The Unborn Child of Steven

Eugene Aversman, Intervenor-Respondent.

No. WD 31851.

Missouri Court of Appeals, Western District.

May 4, 1981.

George Lehnen, III, Richmond, for plaintiff-appellant.

Willim Aull, Aull, Sherman & Worthington, Lexington, for respondent Leland Aversman.

Before DIXON, P. J., and KENNEDY and NUGENT, JJ.

DIXON, Presiding Judge.

The issue on this appeal is whether or not the trial court properly determined the paternity of an illegitimate child. The underlying dispute which gave rise to the paternity issue is the determination of the proper party plaintiff in a wrongful death action to recover damages for the death of the putative father.

Steven Aversman, the decedent, was killed in a motorcycle-automobile accident. Decedent's mother and father had been divorced and the decedent lived in his father's home. On September 2, 1975, eighteen days after his death, his mother brought a wrongful death action. On October 3, 1975, the decedent's father was appointed guardian ad litem for an alleged unborn illegitimate child of decedent. Permission to intervene was granted on motion, and the decedent's mother appealed. That appeal was dismissed because of a lack of finality, 577 S.W.2d 910 (Mo.App.1979). The child was born in early 1976 and in May, 1980, the guardian filed a motion to dismiss the decedent's mother's petition on the ground that the cause of action for the decedent's death was vested in the illegitimate child. Section 537.080(2) RSMo Supp.1980. There was an evidentiary hearing, the trial court ordered dismissal and designated the order of dismissal a final appealable order.

The parties concede that if the child is the illegitimate child of the deceased, the action is properly brought on behalf of the child. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Annot., 38 A.L.R.3d 613 (1971).

The dispute then centers on whether the child, Eric, born on February 23, 1976, was the illegitimate child of the decedent. That question is made more complex by reason of the fact that Judy Long nee Rogge, the mother of the child, married Gary Long some 37 days prior to the birth of the child.

Based upon that marriage, the decedent's mother argues that the presumption obtains that the child born in wedlock is the legitimate child of July Long and Gary Long and that the evidence presented is insufficient to overcome the presumption.

That contention requires a statement of the evidence presented on the issue at the trial court hearing.

Judy Long, the natural mother, testified that Steven Aversman, who died August 15, 1975, in a motorcycle accident, was the father of the child, and she was 21/2 months pregnant at the time of his death. She had been dating the decedent since November of 1974. She asserted it was impossible for anyone else to have been the father of the child. She unequivocally denied sexual relations with Gary Long in 1975, but admitted she had been engaged to him for a week or two in the latter part of 1974. She asserted she had sexual relations with decedent in May and July, but she could not recall whether they had intercourse in June, since they had not dated each other that month. They resumed dating in July, a month or six weeks before his death. She denied sexual contact with anyone else in 1975. Aside from the two week engagement to Gary Long in December, 1974, she had dated decedent continuously from 1974.

Judy Long also testified to conversations with decedent's mother and grandmother which, at least by inference, showed that the decedent's mother and grandmother were aware of her pregnancy and volunteered assistance to her which implies they believed decedent was the father.

A stepsister of the decedent testified decedent told her that Judy Long was pregnant with his child and of decedent's intent to marry her. Similar admissions were made by decedent to his father of the tenor that decedent had "thought he had her pregnant." These admissions were two or three months before decedent's death. The stepmother of decedent also related similar admissions by the decedent in June and July. The foregoing constitutes all of the evidence offered on behalf of the intervenor.

The plaintiff, who did not live in the same area as the decedent, testified in her own behalf and offered the testimony of her mother, decedent's grandmother. This evidence consisted primarily of recitals of questions to Judy Long as to the paternity of the child and a claim that Judy Long made no response to the questioning. This occurred at decedent's funeral. The plaintiff also claimed the decedent was dating another girl in May and disclaimed interest in Judy in May. This information was based on phone calls made about every two weeks between May and June between the plaintiff-mother and decedent.

The plaintiff attacks the trial court order on the ground that the evidence is insufficient to overcome the presumption of legitimacy of the child arising from the postpregnancy marriage of Judy to Gary Long and the subsequent birth in wedlock of the child who seeks intervention as plaintiff.

The parties agree that this court-tried matter is subject to review under Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), but they part company on the issue of the question and quality of proof necessary to support the finding.

To facilitate analysis of the precise issue in this case, certain undisputed principles need statement. First, a child born in wedlock is presumed to be legitimate irrespective of whether the conception of the child may be calculated to have occurred before or after the marriage. Bernheimer v. First National Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745 (banc 1949). Second, a party asserting illegitimacy of a child bears the burden of proof on that issue. J. M. L. v. C. L., 536 S.W.2d 944 (Mo.App.1976).

It is in the statement of the force and effect of the presumption of legitimacy and the quantum and quality of proof necessary to overcome the presumption in which the variations and contradictions appear. It is now generally agreed, contrary to an earlier day, that the presumption is one of fact and that once overcome, it passes from the case. In stating the quantity and quality of proof necessary to overcome the presumption, there has been a wide variation in the language of the cases. Such expressions have been used as the quantum of evidence needed to rebut the presumption must not only be clear and convincing, Stripe v. Meffert, 287 Mo. 366, 229 S.W. 762 (1921), but must be such that no conclusion other than illegitimacy can be reached. Brown v. Brown, 609 S.W.2d 223 (Mo.App.1980); citing F___ v. F___, 333 S.W.2d 320 (Mo.App.1960). That language from F___ v. F___, supra, was repeated in E. S. v. G. M. S., 520 S.W.2d 652, 654 (Mo.App.1975), and paraphrased and restated in B. S. H. v. J. J. H., 613 S.W.2d 453 (Mo.App.1981), which also cites E. S. v. G. M. S., supra. It has also been said that the quantum of proof required to overcome the presumption must be "strong and persuasive" and "leave no room for reasonable doubt." J. M. L. v. C. L., 536 S.W.2d 944, 947 (Mo.App.1976), citing Jackson v. Phalen, 237 Mo. 142, 140 S.W. 879 (1911); J. D. v. M. D., 453 S.W.2d 661 (Mo.App.1970). However, none of these later cases utilizing such strong language to describe the quality and quantum of proof required have cited the latest controlling decision of the Supreme Court of Missouri dealing with the question. The Supreme Court of Missouri, in a case styled In re L___, Part II, 499 S.W.2d 490 (Mo.banc 1973), stated the rule as follows:

We are presented in this case with the ancient presumption that a child born in wedlock is presumed to be legitimate, which defendant is asserting for his own purposes rather than those of the child. At common law the presumption was conclusive and therefore a rule of substantive law. Today the presumption is rebuttable, an evidentiary presumption, and is overcome by a showing of substantial evidence (" 'clear, cogent and convincing proof' ") to the contrary. In re L___, supra, l.c. 532-533. Upon presentation by the party against whom the presumption of substantial evidence to rebut the presumption, the existence or nonexistence of the fact once presumed is to be determined from the evidence as if no presumption had ever been operative in the case.

499 S.W.2d at 492 (citations omitted).

Both the language and the holding of In re L___, Part II are persuasive in the instant case. In that case, which is a sequel to In re L, 461 S.W.2d 529 (Mo.App.1970), the court was confronted with the following situation. A married woman who was living with her husband brought an action against another man for a child conceived and born during the marriage and asserted the defendant was the father. Testimony of the wife and the husband was that they had not had sexual intercourse during the period of conception. The wife asserted she had had sexual intercourse with the defendant. There was proof by the wife that the defendant had admitted paternity. The Springfield Court of Appeals had reversed the trial court decision which found the child illegitimate. The Supreme Court on transfer affirmed the judgment of the trial court, holding that the evidence was sufficient to rebut the presumption of legitimacy and to carry the burden of proof in favor of illegitimacy.

In Claude T. v. Claire T., 579 S.W.2d 141 (Mo.App.1979), the court cited and followed the rule set forth in In re L___, Part II and upheld a trial court determination of illegitimacy. L___ v. R___, 518 S.W.2d 113 (Mo.App.1974), also cited In re L___, Part II and agreed with the trial court's finding of illegitimacy, although the court remanded on other...