JD v. MD

• Citation: 453 S.W.2d 661
• Decision Date: 06 April 1970
• Docket Number: No. 8945,8945
• Parties: JD, Plaintiff-Respondent, v. MD, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 661

453 S.W.2d 661

JD, Plaintiff-Respondent, v. MD, Defendant-Appellant.

No. 8945.

Springfield Court of Appeals, Missouri.

April 6, 1970.

Motion for Rehearing or to Transfer to the Supreme Court

Denied April 23,

1970.

Keith V. Williams, Springfield, for plaintiff-respondent.

Turner White, III, White & Dickey, Springfield, for defendant-appellant.

TITUS, Presiding Judge.

The parties were divorced January 13, 1967, and 219 days later on August 20, 1967, a daughter was born to the plaintiff who thereafter filed a motion to modify the decree to include an allowance for maintenance of the child. Rules 88.03 and 88.07; §§ 452.070 and 452.110. ¹ The sole question on appeal is whether the evidence is sufficient to support that portion of the trial court's decree adjudging defendant to be the father of the child, a fact he disavows. As iterated multitudinously, our duty is to effect a de novo review of the record upon both the law and evidence to determine what the decree of the trial court should have been, subject to the injunction that the 'judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' ²

Courts may not feign ignorance of matters known by the general public and every back-fence twaddler. Elder v. Delcour, 364 Mo. (banc) 835, 838, 269 S.W.2d 17, 19(2), 47 A.L.R.2d 370, 372(2). Ergo, we may judicially note that the normal period of human gestation is 280 days or ten lunar months ³ and from there calculate that the child in question was begot during wedlock. All of which brings us to the curial commandment that a child conceived in marriage is presumed to be legitimate, notwithstanding it was born after termination of the bonds of matrimony. ⁴ Defendant states in his brief that this presumption did not shift the burden of proof from the plaintiff (Clapper v. Lakin, 343 Mo. 710, 723(2), 123 S.W.2d 27, 33(4)), that the presumption is rebuttable (Underwood v. Underwood, Mo.App., 399 S.W.2d 635, 637(2)), and 'dropped from the case when defendant offered substantial evidence contradicting paternity.' He also urges that unaided by the presumption, the evidence was not sufficient to support the judgment because plaintiff's 'admitted perjury * * * deprived her testimony of credibility' and her 'testimony in the divorce action, which contradicted her testimony on the motion to modify, was substantial proof that defendant was not the father of her post-divorce born child.'

When a rebuttable presumption arises, the person against whom the presumption operates is confronted with a rule of law which casts upon him the burden of producing substantial evidence to controvert the presumed fact (Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, 316(4)), and upon the introduction of such substantial evidence, the existence or nonxistence of the fact once presumed is to be determined from the evidence as if no presumption had ever been operative in the case. In other words, if defendant had produced substantial evidence that he was not the father of the child, then the presumption would have vanished from the case (but not the evidence which gave rise to the presumption or that contrary thereto) and the question of whether defendant was the father vel non would be determined from the evidence offered by both parties. ⁵

The term 'substantial evidence' alludes to the quantum of the evidence required to overcome the presumption. As the presumption was concocted and is invoked to protect the innocent child from bastardy, it is said that in order to qualify as being 'substantial' the evidence must amount to clear, convincing and satisfactory proof that no copulation occurred or was possible between the husband and wife during the conception period or must equate to proof so strong and persuasive as to leave no reasonable room for doubt. Other comments on the quantum of the evidence needed to overcome the presumption are collected in Simpson v. Blackburn, Mo.App., 414 S.W.2d 795, 801 and 10 Am.Jur.2d, Bastards, § 19, pp. 858--859. Under Lord Mansfield's rule neither the husband nor the wife may testify to nonaccess between them when the legitimacy of a child born or conceived in wedlock is in issue. ⁶ We are not confronted with the task of determining whether this rule is the law in Missouri. But assuming, though not deciding, defendant's testimony regarding nonaccess may have been subject to objection for this reason, we do not necessarily consider it shorn of all probative value as no complaint thereto was made by the plaintiff. Cf. Conlon v. Roeder, Mo., 418 S.W.2d 152, 159(5).

Because defendant was in the military service when the parties were married, they never lived 'together in the same established home.' A child (not the one in dispute) was born of the marriage and when defendant left the service in June 1965 he and the plaintiff stayed at her parents' home 'for two or three days.' It was then, according to plaintiff, that defendant advised her 'he did not want the responsibility of being married and having a home;' according to defendant, it was then that 'it came up that I wanted a divorce.' Defendant left to reside with his parents and subsequently 'lived in several apartments around town.' Plaintiff testified 'this (separation) did not exclude any sexual relationships however,' that she continued 'to see or visit' defendant 'three or four times a month' and that they had intercourse on most of these occasions. This visiting and coition plaintiff related, continued into January 1967, the month the divorce decree was entered. Plaintiff moved into a house across the street from her parents' home in August 1966 and she stated that defendant visited her there 'between ten and fourteen times' in September and October 1966 and 'five or six times' in November and December 1966 and that they had intercourse most every time. ' (D)uring the month of November, 1966, or December, 1966,' plaintiff's brother-in-law observed defendant's automobile parked near plaintiff's house on 'approximately three occasions;' her mother saw the car there once and at another time observed the defendant's coat and shoes 'in the front room' when she went to the house at 9 p.m. to see her daughter. The 'child was conceived some time around the middle of November of 1966.' The petition for divorce was filed November 14, 1966, and plaintiff said it was 'late November or early December (1966) when we found out that I was pregnant.' By plaintiff's account, defendant acknowledged to her that he was the father of the child when informed of the situation but 'said he was having strained relations with his family at that time,' urged her 'to go ahead with the divorce,' asked her not to tell her parents or counsel about the pregnancy, and assured her that 'within a month or so (after the divorce) we would be remarried.' When defendant was reminded of this last subject 'during the summer of 1967,' plaintiff recalled that defendant told her 'he didn't want to be remarried. * * * He said that he did not want to pay child support for the child but he would be willing to pay the hospitalization, but he did not want to pay the child support, and if I tried to get it that he wouldn't pay it (and) that he would take away the name from the child.' Although plaintiff agreed that defendant had frequently lied to her, she stated 'I wanted to believe (what he said about remarriage) so I guess what you want to believe you do believe.' ⁷

Blood tests of the parties and the child were received into evidence as showing the possibility of defendant being the father was not excluded. Plaintiff vowed she had not had intercourse with anyone other than defendant during the times in question. Defendant did not directly suggest plaintiff had been intimate with another, but did testify that he did not have intercourse with the plaintiff after June 1965 and denied he had fathered the child born to plaintiff subsequent to the divorce. Likewise, defendant denied he had ever acknowledged parenthood or had promised to rewed the plaintiff. Defendant admitted having seen the plaintiff after July 1965 and having 'been in that house' where plaintiff resided across the street from the home of her parents. He said the only purpose for these visits was to deliver support payments for the first child. Defendant agreed he had knowledge that plaintiff was pregnant before the divorce was granted and had indicated to plaintiff 'I would give her some financial assistance' towards defraying the expenses attending the birth of the second child, but asseverates this offer should not be interpolated into an admission of his paternity.

Although defendant did not literally contest the divorce, he and his attorney appeared at the hearing and admitted to the court that plaintiff possessed good character. Plaintiff's verified petition for divorce alleged the parties had separated in June 1965, that defendant had abandoned plaintiff and their child for a period in excess of one year and that defendant had become cold and lost all love and affection for her. At the divorce hearing plaintiff answered 'Yes' to the conclusional inquiries of her counsel if the petition averments were correct and testified she had not 'been with the defendant at all since June of 1965.' Plaintiff conceded at the trial on the motion to modify that she had testified in the divorce case as indicated and defendant's counsel elicited from her the explanation that she had selected June 1965 as the date of separation because that was when the defendant moved to the home of his parents. She stated that the defendant's abandonment of her was '(f)inancially only' and when asked if it was true that defendant had become cold and lost all love and affection for her prior to the divorce, plaintiff responded 'Emotionally, yes; physically, no.' Plaintiff admitted her prior testimony that she...