Buchanan v. Buchanan, 370S55
| Decision Date | 09 March 1971 |
| Docket Number | No. 370S55,370S55 |
| Citation | 256 Ind. 119,267 N.E.2d 155 |
| Court | Indiana Supreme Court |
| Parties | Dennis D. BUCHANAN, Appellant, v. Kathleen BUCHANAN, Appellee. |
John R. Dollens, Scottsburg, for appellant.
James D. Allen, William L. Thompson, Salem, for appellee.
This is an appeal from judgment of the Scott Circuit Court arising out of a divorce proceeding. The trial court awarded the decree of divorce to the plaintiff-appellant-husband and awarded custody of two minor children, a nine year old boy and a seven year old girl, to the defendant-appellee-wife, and further ordered the appellant to pay support and maintenance of the children at the rate of ten dollars per week per child.
Appellant filed a motion for new trial alleging that the trial court decision was not sustained by sufficient evidence and was contrary to law in that (1) the court erred in ordering ten dollars per week support payments for the eldest child, a nine year old boy, when in fact the appellee admitted that the appellant had not fathered the boy and that no evidence was offered to show that he had fathered the boy; and (2) the court erred in granting custody of the youngest child to appellee, a seven year old girl, alleging that appellee had admitted in reply to the appellant's pleadings that she was not fit to have custody of the child and the evidence conclusively showed that appellee was living in an adulterous relationship from the time of separation to date of trial. This motion for new trial was overruled which brings about this appeal.
We turn our attention to the first allegation of error. The appellant contends that the trial court's finding that the eldest child was born of this marriage and in consequently ordering the appellant to pay ten dollars a week support payments for the child was erroneous. In support of this contention appellant cites the appellee's admission in her answer to the appellant's complaint wherein she admitted that one child was born of this marriage, namely, the seven year old girl. Appellant further points to the appellee's own testimony wherein she declared in open court that the appellant had not fathered the boy in question. Appellant urges that this is conclusive proof that he was not the father of the boy and, therefore, the trial court erred in granting support payments for the child.
We cannot agree. On appeal, this Court is subject to the strong presumption of legitimacy and, the trial court having ruled in favor of the legitimacy of the child, we are confined to a review of the evidence most favorable to the ruling of the trial court. If sufficient evidence is in the record to support the decision of the trial court we must affirm the judgment.
The salient facts supporting the trial court's determination that appellant was the father are that the appellant and appellee were married on April 5, 1958. The child in question was born on November 1, 1958, some seven months later. Appellant testified that the appellee was with child at the time of marriage but denies that he was the father. Appellant further testified, however, that he did have access to and sexual intercourse with the appellee for approximately one year leading up to the date of marriage, which would include the time period of conception, allowing for natural gestation. Appellant does not contend that there was any fraud or deception practiced on him and admits he knew the appellee was pregnant at the time of the marriage. The child, born seven months after the date of marriage, of course, assumed the name of the appellant. For a period of ten years prior to this divorce action, the appellant, appellee and the boy lived together as husband and wife, father and son. No evidence was submitted that the appellant disclaimed being the father prior to this litigation.
The law indulges every presumption and charity in favor of the legitimacy of children and evidence repelling such a presumption must be conclusive. So it is in Indiana, that a child born to a married woman is presumed legitimate and that presumption can be overcome or rebutted only by irrefutable proof. Hooley v. Hooley (1967), 141 Ind.App. 101, 226 N.E.2d 344. In Whitman v. Whitman (1966), 140 Ind.App. 289, 215 N.E.2d 689, the Appellate Court, citing Phillips v. State ex rel. Hathcock (1925), 82 Ind.App. 356, 145 N.E. 895, said:
'* * * the presumption could be overcome by proof that the husband was impotent; or that he was entirely absent so as to have had no access to the mother; or was entirely absent at the time the child in the course of nature must have been begotten; or was present only under such circumstances as to afford clear and satisfactory proof that there was no sexual intercourse.' 82 Ind.App. at 360, 145 N.E. at 897.
Sterility of the father, if conclusively proven, might also rebut the presumption of legitimacy. Whitman v. Whitman, supra. The appellant cannot and does not rely on any of these logical exceptions to the presumption of legitimacy. Rather he relies on the statements and admissions of the mother as conclusive proof of the illegitimacy of the child.
These statements and admissions standing alone cannot be sufficient to overcome the strong presumption of legitimacy which the law imposes. Whitman v. Whitman, supra.
It is to be noted that the child has an interest here, and, although it was not a party to this action nor was it represented by counsel before the trial court, that court cannot, as an organ of the State, stand idly by and allow the parties before it to destroy that interest without clear and convincing proof. Therefore, the mere statements, admissions, allegations or agreements made by the parties to this divorce proceeding standing alone are not sufficient to rebut the strong presumption of legitimacy which runs in favor of this child.
Where a child is born in wedlock, a trial court cannot rule against legitimacy, except on facts which prove conclusively that the husband could not have been the father. The burden of proof, therefore, was on the appellant to prove that he could not have been the father of this child. Duke v. Duke (1962), 134 Ind.App. 172, 185 N.E.2d 478. Clearly, the appellant attempts to sustain that burden by merely relying upon the statements and admissions of the appellee, which we have held to be insufficient for that purpose.
To recapitulate, the child was born some seven months after the marriage of the appellant and appellee. The evidence shows that the appellant had access to and intercourse with the appellee during a time period when conception would have naturally occurred. The child took the name of the appellant and lived with him as father and son for a period of ten years. The strong presumption of legitimacy is not overborn by the statements of the appellee to the contrary.
We hold that there was sufficient evidence to support the judgment of the trial court and that the court did not err in declaring the child to be born of this marriage and ordering the support payment for the child.
We next consider the second allegation of error. Appellant contends that the trial court erred in granting custody of the second child, a seven year old girl born of this marriage, to the appellee.
Appellant points to allegation number four of his amended complaint wherein he alleged:
'There is one child born of this marriage, namely _ _ Buchana, age 7, that the defendant is not fit to have the care, custody or control of said child.'
Appellee's response admitted 'the allegations contained in Rhetorical Paragraph Number Four of plaintiff's complaint.'
Uncontroverted evidence was also introduced that the appellee was living in an adulterous state almost continually from the date of separation to the date of trial. The appellee admitted in her testimony in open court that she and the children had been living with a Mr. X whom she planned to marry as soon as the divorce was final.
This Court has repeatedly stated that in a divorce action the custody and care of the children must be awarded...
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