Heath v. Heath

• Decision Date: 17 November 1936
• Docket Number: 43546.
• Citation: 269 N.W. 761,222 Iowa 660
• Parties: HEATH v. HEATH.
• Court: Iowa Supreme Court

269 N.W. 761

222 Iowa 660

HEATH v. HEATH.

No. 43546.

Supreme Court of Iowa.

November 17, 1936

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Suit for divorce. Trial court dismissed plaintiff's petition and granted defendant decree of divorce on cross-petition. Plaintiff appeals.

Affirmed.

George Wrightman, of Des Moines, for appellant.

T. H Haynes, of Des Moines, for appellee.

HAMILTON, Justice.

The youthful husband, plaintiff herein, charges his young bride with being pregnant by another, of which he says he had no knowledge at the time of marriage. He bases this on the alleged fact that he never met his wife until " about May 15, 1934," and that she was delivered of a normal full-time child on December 24, 1934. The doctor attending her testified that normally the child would have been conceived about March 17, 1934. The girl testified she first met the plaintiff about the middle of April, 1934. Each of these parties was corroborated to some extent by other witnesses.

When a child is born in wedlock, the law presumes legitimacy. This court said in Craven v. Selway, 216 Iowa 505, 508 246 N.W. 821, 823:

" This rule is founded on decency, morality, and public policy. By that rule, the child is protected in his inheritance and safeguarded against future humiliation and shame. Likewise, under the rule, the family relationship is kept sacred and the peace and harmony thereof preserved. No one, by incompetent evidence, can malign the virtue of the mother, and no one, by such evidence, can interrupt the harmony of the family relationship and undermine the sanctity of the home. Wallace v. Wallace (137 Iowa 37, 114 N.W. 527 14 L.R.A.(N.S.) 544, 126 Am.St.Rep. 253, 15 Ann.Cas. 761), supra; Bruner v. Engeles, 88 Okl. 277, 213 P. 307; Sergent v. North Cumberland Mfg. Co., 112 Ky. 888, 66 S.W. 1036; Cross v. Cross, 3 Paige (N.Y.) 139, 23 Am.Dec. 778.

Such presumption of legitimacy may be rebutted by showing: First, That the husband is impotent; second, that the husband was entirely absent so as to have no access to the mother; third, that the husband was entirely absent at the period during which the child, in the course of nature, must have been begotten; and, fourth, that the husband was present only under circumstances which afford clear and satisfactory proof that there was no sexual relationship between him and his wife. Wallace v. Wallace (137 Iowa 37, 114 N.W. 527, 14 L.R.A.(N.S.) 544, 126 Am.St.Rep. 253, 15 Ann.Cas. 761), supra; Riley v. State (187 Wis. 156, 203 N.W. 767), supra; Phillips v. State ex rel. Hatchcock, 82 Ind.App. 356, 145 N.E. 895; In re Lewis' Estate, 207 Wis. 155, 240 N.W. 818; Taylor v. Whittier, 240 Mass. 514, 138 N.E. 6; Saunders v. Fredette, 84 N.H. 414, 151 A. 820. These propositions must be established by clear, satisfactory, convincing, and competent evidence."

Plaintiff's case is based on nonaccess. On this point the evidence is in conflict. Counsel for plaintiff in argument contends evidence of defendant bearing on this question of access or nonaccess was inadmissible. The record shows all this testimony went in without objection. After the evidence was closed, plaintiff moved that the testimony of defendant, Louise Heath, in regard to access of the plaintiff to her, be stricken. The trial court evidently considered the same came too late, made no ruling, and the evidence remains in the record.

The first meeting of these young litigants took place at school. Plaintiff says it was some time in the month of May. No record was kept. The other school children called as witnesses for plaintiff fix the date of the first introduction of these parties in May, because they say it was " about" three weeks before school was out, and school was out June 8th. This trial took place more than a year later. Plaintiff freely admits he married the defendant to avoid prosecution for statutory rape. His story is that in the first instance the girl enticed him, that she was the aggressor, and that he yielded...