Duke v. Duke
| Decision Date | 22 October 1962 |
| Docket Number | No. 19482,No. 1,19482,1 |
| Citation | 134 Ind.App. 172,185 N.E.2d 478 |
| Parties | Deloris DUKE, Appellant, v. Harlan C. DUKE, Appellee |
| Court | Indiana Appellate Court |
Curtis W. Roll, Kokomo, for appellant.
Gerald W. Rybolt, Kokomo, Rocap, Rocap & Reese, Indianapolis, for appellee.
Appellant filed her complaint for separation from bed and board from the appellee, and the appellee in turn filed his cross-complaint for divorce. Trial was had by the court and the court rendered a general judgment finding for the appellee on his cross-complaint and against the appellant on her complaint for separation from bed and board.
A motion for a new trial was filed, alleging that the decision of the court was not sustained by sufficient evidence and was contrary to law. The appellant now asserts as error in this court the overruling of the motion for a new trial.
The question as to the parentage of a child born during the period of marriage was put in issue by the pleadings, the appellee alleging in his cross-complaint that there were no children born to this union, and the appellant in her answer to the cross-complaint alleging specifically that she was pregnant and that the cross-complainant was the father of such unborn child. Such child was born in June of 1959, and the divorce was granted in November of the same year.
The evidence reflects that the appellee had access to the appellant from August of 1958. There was no showing that anyone else had. When the parties were married in January, 1959, the appellee knew that the appellant was enceinte. There was medical testimony to the effect that the appellee was sterile at the time of an examination in August of 1959, and that while in the opinion of the medical examiner the appellee was sterile in August of 1958, he could not state positively that the condition of sterility existed in July, August, or September of 1958.
When the question of legitimacy is raised, the burden generally is on the party who alleges the contrary to prove illegitimacy or to overcome the presumption. 5 I.L.E. Children Born out of Wedlock § 2. While the presumption that every child born during wedlock is legitimate is one of the most firmly established principles of common law, such presumption is not conclusive, and may be rebutted.
The rule was stated by this court in the case of Pilgrim v. Pilgrim (1947), 118 Ind.App. 6, at page 12, 75 N.E.2d 159, at page 162:
'* * * that the...
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R. D. S. v. S. L. S.
...This presumption is not conclusive although it may be rebutted only by direct, clear, and convincing evidence. Duke v. Duke, (1962) 134 Ind.App. 172, 185 N.E.2d 478. Uncontroverted evidence of non-access by husband at the time of conception will meet this high standard. Pilgrim v. Pilgrim, ......
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Beck v. Beck
...277 N.E.2d 599, 28 Ind.Dec. 523 (transfer denied); Profitt v. Profitt (1965), 137 Ind.App. 6, 204 N.E.2d 660; Duke v. Duke (1962), 134 Ind.App. 172, 185 N.E.2d 478. Although at common-law this presumption was conclusive, it is now well-established that it may be overcome by evidence which i......
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Hooley v. Hooley
...the most firmly established principles of common law, such presumption is not conclusive, and may be rebutted.' Duke v. Duke (1963), 134 Ind.App. 172, 174, 185 N.E.2d 478, 479 (Transfer However, such evidence to rebut the presumption must be direct, clear and convincing. Whitman v. Whitman ......
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Miller v. Robertson, 269A21
...affirmed. Costs taxed against the appellant. LOWDERMILK, C.J., and COOPER and SULLIVAN, JJ., concur. 1 See also: Duke v. Duke (1963), 134 Ind.App. 172, 185 N.E.2d 478 (Transfer denied); Phillips v. State ex rel. (1925), 82 Ind.App. 356, 145 N.E. ...