Hudson v. Hudson
| Decision Date | 14 April 1949 |
| Docket Number | 32567. |
| Citation | 36 N.W.2d 851,151 Neb. 210 |
| Parties | HUDSON v. HUDSON. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Marriage is a civil contract which, if procured by fraud may, under certain conditions, be set aside. Sections 42-101 42-118, and 42-119, R.S.1943.
2. A child born in wedlock is presumed to be the legitimate offspring of the husband and wife, and this is so even though the birth of the child happens so soon after the marriage as to render it certain that it was the result of coition prior thereto.
3. This presumption of legitimacy may be rebutted by competent proof that the husband had no access to the wife, or that he was absent at such time as in the course of nature the child was begotten; that he was impotent, or other circumstances showing that he could not have been the father of the child.
4. The wife is not permitted to testify to facts which would bastardize her child and her declarations cannot be used in evidence to prove the same fact.
5. When a husband admits he has had intimate relations with his wife before their marriage and within the probable period of gestation of a child which was conceived before but born after the marriage and he is informed of the pregnancy prior thereto he cannot deny its paternity but must submit to the marriage and the presumed paternity of the child.
6. The trial court is vested with sound discretion in determining whether a divorce from bed and board or an absolute divorce should be granted, but ordinarily an absolute divorce is to be preferred.
Towle Young & Mattson, of Lincoln, for appellant.
Merril R. Reller, Gerald W. Davis and John McArthur, all of Lincoln, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
DeLone Rae Hudson commenced this action in the district court for Lancaster County on November 6, 1947, against Marvin DeLyle Hudson. The purpose of the action is to obtain an absolute divorce, custody of their minor son, and an allowance for his support. The basis of the action is extreme cruelty.
The defendant, by his father and next friend, filed a cross-petition. The purpose thereof is to obtain an annulment of their marriage. The basis on which he seeks annulment is that he was induced to enter into the marriage through fraud practiced upon him by the plaintiff. This alleged fraud relates itself to the paternity of the unborn child which plaintiff was carrying at the time of their marriage.
On May 28, 1948, the trial court entered its decree wherein it dismissed defendant's cross-petition; denied plaintiff a divorce; awarded custody of the minor child, Kim DeLyle Hudson, to plaintiff with defendant given the right to visit the son at reasonable times and places; directed defendant to pay $25 a month for the care and maintenance of the son; and taxed costs, including $100 additional attorney's fee, to defendant.
From the overruling of his motion for new trial the defendant appeals and plaintiff cross-appeals.
The record discloses that the parties started going together in the early part of 1946 while attending high school. Appellee was then apparently about 16 years of age and appellant 17 years of age for the record discloses she was 17 and he was 18 at the time of their marriage. By Christmas of that year they had become sweethearts and were going steady. They were married on July 12, 1947, and, for a short time thereafter, lived with his parents. About the first of August they established a home of their own at 525 South 25th Street in Lincoln, Nebraska. They lived in this home until shortly after the baby was born. The baby was born in St. Elizabeth's Hospital on October 24, 1947. Appellee never returned to their home thereafter except on November 3, 1947, when she returned for the purpose of getting her apparel and other personal things. This action was instituted shortly thereafter.
As to the appeal from the dismissal of his cross-petition the appellant states the question involved to be, is a man entitled to an annulment of a marriage into which he enters because of the fraudulent representations by the woman that the child of which she is pregnant is his, when in fact it is the child of another?
Marriage is a civil contract which, if procured by fraud, may, under certain conditions, be set aside. See sections 42-101, 42-118, 42-119, R.S.1943.
The difficulty with appellant's position in this regard is that no such factual situation exists. The record discloses that appellee and appellant were sweethearts and going together steady. That during this period, and within the probable period of gestation, they became intimate. The admitted intimacy occurred on February 4, 1947, and the baby was born on October 24, 1947. See Souchek v. Karr, 78 Neb. 488, 111 N.W. 150. There is no evidence that appellee was ever intimate with anyone else. Subsequently, when appellant was informed by appellee of her then condition he recognized himself as the father of their unborn child. Later, in the forepart of July 1947, after she had gone to Spokane in the state of Washington to give birth to the child, he asked her, by telephone, to come back and be married. This she did and they were married on July 12, 1947. The record shows he had full knowledge of all the facts, which were of his own making, and with such knowledge he entered into the marriage. We find no fraudulent misrepresentations on the part of the appellee to induce the marriage.
However, appellant calls our attention to certain declarations made by appellee, after the birth of the child, to the effect that appellant was not the father of the child and she married him only for the purpose of giving the child a name. This evidence, denied by appellee, relates itself to statements she is purported to have made first, on October 29, 1947, to appellant alone, and thereafter, on November 3, 1947, to appellant in the presence of others. If it were competent for us to consider this evidence which was admitted without objection, which it is not for the reasons as hereinafter set forth, we do not think the facts disclosed by the record are sufficient to sustain appellant's position under the rule that: "Where a trial is had to the court, and the evidence on a particular point is in irreconcilable conflict, the court will, in its determination of that question, consider the findings of the trial court, although it is required by statute to try the case on the record de novo.' Greusel v. Payne, 107 Neb. 84, 185 N.W. 336; see Magill v. Magill, 114 Neb. 636, 209 N.W. 241; In re Estate of Waller, 116 Neb. 352, 217 N.W. 588; Jones v. Dooley, 107 Neb. 162, 185 N.W. 307; Corn Exchange Nat. Bank v. Jansen, 70 Neb. 579, 97 N.W. 814.' Allen v. Allen, 121 Neb. 635, 237 N.W. 662, 663.
There is another reason why the evidence contained in the record, if competent, would be insufficient. Section 42-335, R.S.1943 requires: 'No decree of divorce and of the nullity of a marriage shall be made solely on the declaration, confessions or admissions of the parties, but the court shall, in all cases, require other satisfactory evidence of the facts alleged in the petition for that purpose.' Appellee denied that she had ever made such statements but even had these conversations occurred and such admissions made, under the provisions of the foregoing statute, such evidence alone would not be sufficient to entitle the appellant to the annulment of the marriage contract, the record containing no other satisfactory evidence...
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