Feazel v. Feazel

• Citation: 62 So.2d 119,222 La. 113
• Decision Date: 10 November 1952
• Docket Number: No. 39420,39420
• Parties: FEAZEL v. FEAZEL et al.
• Court: Supreme Court of Louisiana

Page 119

62 So.2d 119

222 La. 113

FEAZEL v. FEAZEL et al.

No. 39420.

Supreme Court of Louisiana.

Nov. 10, 1952.

Raymond E. Shuler, Shreveport, for plaintiff-appellant.

Robert P. Hunter, Shreveport, curatorad-hoc, Charles M. Peters, Shreveport, tutor-ad-hoc, for defendant-appellee.

HAWTHORNE, Justice.

Plaintiff, Maurice Felton Feazel, has appealed from a judgment of the district court rejecting his demands for a divorce on the ground of adultery and for disavowal of the paternity of a child born during the existence of his marriage with the defendant, Bertha Aline Feazel.

This action was brought against plaintiff's wife as an absentee, and a curator ad hoc was appointed to represent her, and likewise a tutor ad hoc was appointed to represent the minor child, Pamela Marie Feazel.

Seeking to confirm a default previously entered, plaintiff adduced evidence to establish that he and the defendant were married in Shreveport on August 17, 1947, and resided together at their matrimonial domicile in Shreveport for a period of seven days, after which they separated, defendant returning to the home of her mother in Shreveport and plaintiff returning to the home of his family in the same city; that on December 5, 1947, his wife committed adultery in a hotel room in Shreveport with a man whose name was unknown to him; that about the middle of August, 1948, he was informed that his wife had left Shreveport in March of that year and gone to Salina, Kansas, and that she had there given birth to a child on August 5, 1948. To prove the birth of this child plaintiff offered in evidence a birth certificate, issued by the State Board of Health, Department of Vital Statistics, for the State of Kansas. According to his testimony, his wife concealed her pregnancy from him, and he never had sexual relations at any time with the defendant because during the entire period of time they lived together she was menstruating, and after their separation they lived separate and apart. He also testified that he had no knowledge of the birth of the child until the middle of August, 1948.

Plaintiff contends that he should be permitted to disavow the paternity of the child under the provisions of Articles 185 and 189 of the LSA-Civil Code. These articles provide:

'Art. 185. The husband can not by alleging his natural impotence, disown the child; he can not disown it even for cause of adultery, unless its birth has been concealed from him, in which case he will be permitted to prove that he is not its father.'

'Art. 189. The presumption of paternity as an incident to the marriage is also at an end, when the remoteness of the husband from the wife has been such that cohabitation has been physically impossible.'

Under Article 184 of the LSA-Civil Code, the law considers the husband of the mother as the father of all children conceived during the marriage, and it has been said in the jurisprudence of this court that the presumption created by this article is the strongest presumption known in law. In Dejol v. Johnson, Administrator, 12 La.Ann. 853, it was said that this legal presumption 'can only be rebutted in the mode and within the time prescribed by law. 'The right to disavow and repudiate a child born under protection of the legal presumption is peculiar to the father and can be exercised only by him, or his heirs, within a given time, and in certain cases. * * *'' The strength of this presumption was recognized by the court in the cited case by quoting with approval from Tate v. Penne, 7 Mart. (N.S.) 548, that "a child born during marriage cannot have its condition affected by the declaration of one or both of the spouses".

According to Article 189, this presumption may be rebutted when the remoteness of the husband from the wife has been such that cohabitation has been physically impossible.

In Tate v. Penne, supra, this court said:

'* * * The legal presumption of the husband being the father, and of access being presumed in cases of voluntary separation, can only be destroyed by evidence bringing the parties within the exception the law has created to the rule, namely the physical impossibility of connexion--moral will not do.

'Now that physical impossibility can only be shewn, by proving the residence of the husband and wife to be so remote from each other that access was impossible. * * *'

In Succession of Barth, 178 La. 847, 152 So. 543, 545, 91 A.L.R. 408, it was stated:

'* * * The Civil Code (in article 184) declares that the law considers the husband of the mother as the father of her children conceived during the marriage. In article 186 it is declared that a child born before the 180th day after the marriage, and capable of living, is not presumed to be the child of the mother's husband; which is the same as to say that the child was conceived before the marriage. But, in Harrington v. Barfield, 30 La.Ann. 1297, article 186 of the Civil Code was construed to mean that the converse of the proposition also is true, viz.: 'The child born after one hundred and eighty days after marriage is presumed to be the husband's child.' This presumption, according to article 189 of [222 La. 119] the Civil Code, cannot be overcome except by the proof that the husband was so far away from the wife, when the child was conceived, that cohabitation was 'physically impossible'; and such proof is admissible only in the cases where, according to articles 190 to 192, the husband may disavow the paternity of his wife's child. In such cases, in order to overcome the presumption of paternity, the proof must be, literally, that cohabitation between the husband and wife was, as the Code says, 'physically impossible.' * * *' (Italics ours.)

Plaintiff resided with defendant for a period of seven days after the marriage, and both lived in the same city, Shreveport, for several months after their separation, that is, until the middle of March, 1948. The child was born on August 5, 1948. Under these circumstances he has not shown or proved that cohabitation was physically impossible, or that their residences were so remote from each other that access was impossible. Plaintiff has therefore not overcome the presumption of paternity in the manner provided by Article 189 of the LSA-Civil Code.

The next question presented is whether the father in the instant case has overcome the strong presumption of paternity in the mode provided by Article 185 of the LSA-Civil Code; that is: Has he established, first, the adultery, and, second, that the birth of the child was concealed from him? If he has failed in either respect, his suit must fall.

According to Baudry-Lacantinerie, Traite de Droit Civil (3e ed. 1907), nos. 489, 490, pp. 412 et seq., in such a case the adultery of which the husband makes proof must coincide with, or be at about the time of, the conception of the child; for certainly an act of adultery would not be a cause for disavowal if it were committed at a time far removed from that of the conception, though the time of the adultery need not coincide exactly with that of the conception. According to this same author, it is also necessary in order that the disavowal be possible that the wife should have concealed the birth of the child, and, as for knowing what are circumstances from which results a concealment, that is but a question of fact, to be decided by the judge in case of contestation. The decisions of the courts, says Baudry-Lacantinerie, give a great number of examples of facts which constitute concealment of the birth of the child. One of the most significant is the registry of the child either as born of unknown father and mother, or under assumed names, or as a natural child, or as belonging to a father other than the husband. To constitute concealment as contemplated by the law, such declarations must have been made with the knowledge of the mother.

In the instant case, therefore, has it been proved that the wife as a matter of fact (it being a question of fact) concealed the birth...