Haugen v. Swanson

• Decision Date: 29 December 1944
• Docket Number: 33800.
• Citation: 16 N.W.2d 900,219 Minn. 123
• Parties: HAUGEN v. SWANSON.
• Court: Minnesota Supreme Court

16 N.W.2d 900

219 Minn. 123

HAUGEN v. SWANSON.

No. 33800.

Supreme Court of Minnesota

December 29, 1944

Syllabus by the Court.

Absent a situation where all possibility or at least all reasonable probability of husband's parenthood of wife's child is excluded by proof of miscegenation, or of his impotency or of negative results of reliable blood tests by impartial physicians, presumption of legitimacy of child conceived during period in which husband and wife were occupying same dwelling house and were alone except for presence of minor children is conclusive, notwithstanding divorce proceedings are pending.

Appeal from District Court, Anoka County; Harold Baker Judge.

Walter P. Wolfe, of Minneapolis, for appellant.

Arthur E. Giddings, of Anoka, for respondent.

STREISSGUTH Justice.

This action was commenced in 1943 for the purpose of having defendant adjudged the father of Georgia Maude Swanson, a child born to the plaintiff on January 12, 1932, and to compel him to contribute to the future support and maintenance of said child and to reimburse plaintiff for moneys theretofore expended by her in its support and maintenance.

The parties were married in 1919 and were divorced on May 12, 1931. The divorce action was commenced in February 1930, but, notwithstanding its pendency, the parties continued to live together. At that time they were living on what was known as the Libby farm in Anoka county. The Libby farm dwelling was a small five-room house with only two bedrooms, one usually occupied by the defendant, the other by plaintiff and her younger son, while the older son usually slept on a couch in the dining room.

About March 1, 1931, plaintiff prepared to leave defendant, and in doing so moved some of her belongings from the farm. According to defendant's testimony, 'she was gone for about two weeks or two or three weeks, and she came back again and stayed for, well, within, about, around the first of April.' On April 1, defendant moved to another farm known as the Barrett farm, where he lived alone. He admits that on one occasion, about the middle of April, his wife and her son Harold, by a former marriage, then about 15 years of age came to the Barrett farm and stayed over night.

Plaintiff's testimony was to the effect that while she lived with defendant on the Libby farm he was having regular sexual relations with her 'nearly every night.' She also testified that she spent two nights with him (April 14 and 15, 1931) on the Barrett farm, during each of which defendant had sexual relations with her. The defendant positively denied such testimony on the part of his former wife, and stated that he had not had any sexual relations with her for several years prior to the divorce. He denied being the father of the child and offered considerable proof that his wife was going out with other men. In some instances during 1930 and the forepart of 1931, he testified, she was gone for several days, while she admitted that she had made four trips to Chicago, in 1931, unaccompanied by him. There was no positive proof, however, that she had ever had sexual relations with any of her alleged paramours or that she was caught occupying the same bedroom with any of them.

Seven witnesses were called by defendant, three of them members of the jury panel and one of them a court bailiff, to testify that the reputation of plaintiff for truth and veracity was bad and that they would not believe her under oath.

The court submitted one question to the jury, to-wit: 'Is the defendant, Oscar J. Swanson, the father of the child born to Eugenia H. Swanson on January 12, 1932?' It charged the jury on burden of proof and presumptions as follows: 'The burden of proof is upon the plaintiff to establish that the defendant is the father of this child, and plaintiff must establish this by a fair preponderance of the evidence. In establishing her case the plaintiff has the benefit of the presumption of legitimacy of any child conceived in wedlock. This presumption must be rebutted by the defendant. Access that is, an opportunity of sexual intercourse need not be shown to have been impossible. In other words, the defendant, to rebut this presumption, does not have to show that it was impossible for him to have access to the plaintiff and to have sexual intercourse. Where an opportunity for sexual intercourse is shown, the presumption favoring legitimacy, while very strong, is not conclusive...