Jackson v. Jackson
| Decision Date | 08 February 1938 |
| Docket Number | 27828. |
| Citation | 76 P.2d 1062,182 Okla. 74,1938 OK 85 |
| Parties | JACKSON et al. v. JACKSON et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Under section 1682, O.S.1931, 10 Okl.St.Ann. § 2, all children of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage.
2. The divorce of the husband and wife prior to the birth of a child does not necessarily destroy the presumption of its legitimacy if it were begotten before the date of the decree of divorce, though husband and wife were separated and divorce proceedings were pending at the time the child was begotten.
3. Such presumption of legitimacy may be overcome by evidence of such facts and circumstances as are sufficient to prove to the satisfaction of those who are to decide the question that copulation did not take place between husband and wife at any time when by such intercourse the husband could, by the laws of nature, be the father of the child whose legitimacy is in question.
4. Where the question of differences in race or color, impotency of the husband, or his entire absence from the wife during the entire period within which the child must have been begotten are absent, then, in order to overcome the presumption of legitimacy, it must be satisfactorily made to appear that the husband was present with the wife under circumstances such as afford clear and satisfactory proof that there was no copulation.
5. Where presence together of husband and wife affording opportunity for sexual intercourse during the period of possible conception clearly appears, the presumption of legitimacy of a child conceived during such period may be overcome only by evidence, strong and satisfactory, so as to clearly disprove every reasonable possibility of such intercourse.
6. Where the evidence is such as to point with equal degree of certainty to either husband or a man other than the husband as the father of a child whose legitimacy is in question, the presumption of legitimacy is not overcome.
7. A valid common-law marriage may result from an actual agreement between parties competent to contract marriage, entered into in good faith. The divorce of a husband and wife does not render them incompetent to consummate a common-law marriage with each other during the six-month period following the date of the decree of divorce.
8. The burden is upon the person relying upon a common-law marriage to establish same.
9. The judgment of a trial court against the claim of the consummation of a common-law marriage will not be reversed where it appears that the evidence does not preponderate in favor of such claim.
Appeal from District Court, McCurtain County; George R. Childers Judge.
Action to determine the heirs of Semean Jackson, deceased, by Sissie Jackson and Vinita Agnes Jackson against Semean Jackson, Jr. and another. From an adverse judgment, plaintiffs appeal.
Judgment reversed in part and affirmed in part.
Lee & Allen and Finney & Cook, all of Idabel, for plaintiffs in error.
Sprague & Childers and Bascom Coker, all of Idabel, for defendants in error.
This action to determine heirs of Semean Jackson, deceased, was commenced in the county court of McCurtain county by plaintiffs in error, Sissie Jackson for herself, and Vinita Agnes Jackson, a minor, by Sissie Jackson, her mother, as next friend and legal guardian, against Semean Jackson, Jr. and Vera Bell Jackson, minors, and the unknown heirs, if any, of Semean Jackson, deceased.
Sissie Jackson claims to be the widow of Semean Jackson, deceased. The claim on behalf of Vinita Agnes Jackson is that she is a child of Semean Jackson, deceased. Semean Jackson, Jr., and Vera Bell Jackson are conceded to be and are the children of Semean Jackson, deceased, and Sissie Jackson.
Hearing in the county court resulted in a judgment in favor of plaintiffs. Appeal was taken to the district court resulting in a judgment declaring Semean Jackson, Jr., and Vera Bell Jackson as the only heirs of Semean Jackson, deceased.
From this judgment, Sissie and Vinita Agnes appeal. Since the appeal was perfected, Semean Jackson, Jr., died and the cause as to his interest has been revived in the name of Vera Bell Jackson.
Semean Jackson had allotted to him as such Choctaw Indian, land in McCurtain county as his homestead allotment and other land in Carter county as his surplus allotment. Semean and Sissie were married in 1920. Of this marriage it is conceded six children were born. Four of the children died long before this controversy arose. The two living were Semean, Jr., and Vera Bell. The home of the Jacksons until about December, 1930, was near Bethel in McCurtain county. About the latter date Semean and Sissie with their two children moved to Idabel. Differences arose between Semean and Sissie about February 14, 1931. On the next day Sissie filed a suit against Semean for divorce, alimony, and a division of property, resulting September 4, 1931, in a decree of divorce without alimony or division of property. About January 20, 1932, before the decree of divorce would become absolute, Semean Jackson died in McCurtain county. Barnett v. Frederick, 33 Okl. 49, 124 P. 57. The noneffectiveness of the divorce decree applies only to appeals and remarriage rights. On April 17, 1932, Sissie Jackson gave birth to a child, Vinita Agnes Jackson.
Plaintiff in error, admitting the decree of divorce, claims that about November, 1931, she and Semean Jackson agreed to and did resume the marital relation and consummated a common-law marriage so that from that time to the death of Semean she was his lawful wife, and that she is therefore his widow, and, as such, she claims the right to participate in his estate as his widow.
The claim of Sissie is resisted, and, this, of course, is based upon a denial of the resumption of the marital relation between Sissie and Semean after the decree of divorce was granted and a denial that a common-law marriage was ever consummated.
The claim as to Vinita Agnes is that she is a child and heir of Semean Jackson, and is entitled to share in his estate on equal terms with the other two children.
The claim of Vinita Agnes is resisted upon the sole ground that she is not the child of Semean Jackson.
We consider first the question presented as to the paternity of Vinita Agnes Jackson.
It is, and must be, conceded that Sissie, the mother of Vinita Agnes Jackson, was the wife of Semean Jackson at the time Vinita Agnes was conceived.
Section 1682, O.S.1931, 10 Okl.St.Ann. § 2, provides:
Section 1683, O.S.1931, 10 Okl.St.Ann. § 3, provides:
The divorce of husband and wife prior to the birth of a child does not destroy the presumption of its legitimacy if it were begotten before date of the decree of divorce. Here, however, the parents were separated and the action for divorce was commenced more than four months before the child, according to the laws of nature, must have been conceived. But this fact as we view the law does not of necessity destroy the presumption of legitimacy. It is now quite generally held that the presumption of legitimacy as is provided in section 1682, supra, may be overcome by evidence of such facts and circumstances as are sufficient to prove to the satisfaction of those who are to decide the question that copulation did not take place between the husband and wife at any time when by such copulation the husband could, by the laws of nature, be the father of the child whose legitimacy is in question.
Excepting a difference in race or color between the child and the husband of its mother, evidence satisfactorily showing any one of the following facts is sufficient to overcome the presumption of legitimacy: (1) That the husband was impotent; or (2) that he was entirely absent from his wife during the entire period within which the child must have been begotten; or (3) that he was present with his wife only "under circumstances 'such as afford clear and satisfactory proof that there was no sexual intercourse."' In re Walker's Estate, 180 Cal. 478, 181 P. 792, 794.
In the instant case, there is no claim or suggestion of impotency of the husband. There is likewise no substantial claim that the husband was entirely absent from the wife's presence so as to afford no opportunity for copulation during the entire period within which the child could have been conceived.
Therefore, the judgment of the trial court in so far as it affects the status of Vinita Agnes Jackson can be sustained only upon the theory that the evidence was sufficient to establish presence of the husband with the wife only "under circumstances as afford clear and satisfactory proof that there was no sexual intercourse." Or, as said by Justice Battle in the case of Morris v. Davies, 3 C. & P. 215, 14 E.C.L. 275: "It matters not that the general camp, pioneers and all, had tasted her sweet body, because the law fixes the child to be the child of the husband." At least this presumption is to be resolved affirmatively in view of the statutes and facts herein disclosed, and in the absence of contrary scientific proof.
Semean Jackson, being a full-blood restricted Choctaw Indian, had a considerable sum of money held for him by the Interior Department or Indian Agency...
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