Koffman v. Koffman

• Decision Date: 03 January 1907
• Citation: 193 Mass. 593,79 N.E. 780
• Parties: KOFFMAN v. KOFFMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 593

79 N.E. 780

KOFFMAN v. KOFFMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1907

COUNSEL

Hiram P. Harriman and Wm Charak, for libelant.

Dewey & Allen, for libelee.

OPINION

BRALEY J.

At the trial of the libel the defense of condonation by a single act of cohabitation was not sustained upon the evidence, and a decree nisi was entered.Before the time was ripe for making this decree absolute a daughter was born to the libelee, and it was within the scope of her objections not only to introduce this fact, but in connection therewith to review the former evidence upon this issue for, until final decree the divorce was not absolute, nor the marriage contract dissolved, and as the parties legally remained husband and wife the entire proceedings could be reviewed for the purpose of determining what should be the final disposition of the case.Pratt v. Pratt,157 Mass. 503, 505, 32 N.E 747, 21 L. R. A. 97;Moors v. Moors,121 Mass. 232 233;Cook v. Cook,144 Mass. 163, 10 N.E. 749;Chace v. Webster,168 Mass. 228, 46 N.E. 705.The only additional testimony seems to have been the birth of the child, and upon further consideration of this event with the former evidence, the presiding judge declined to reverse his finding, although correctly ruling as requested that if condonation were found the libel would have to be dismissed.But this finding does not as contended by the libelee tend to bastardize the child as it is well settled that the declarations of either parent are inadmissible to show that children born after marriage are illegitimate.The issues were distinct, and if in the attempt to show condonation the evidence tended to prove her adultery, although the daughter was born within the natural period from the time of the alleged act of intercourse this would not be competent evidence to prove her illegitimate.Canton v Bentley,11 Mass. 441, 443;Hemmengway v Towner,1 Allen, 209;Phillips v. Allen, 2 Allen, 453;Sullivan v. Kelly, 3 Allen, 148, 150;Haddock v. Boston & Maine Railroad, 3 Allen, 298, 300, 81 Am. Dec. 656;Abington v. Duxbury,105 Mass. 287, 290;Chamberlain v. People,23 N.Y. 88, 80 Am. Dec. 255;Tioga County v. South Creek Township,75 Pa. 433, 437;Egbert v. Greenwalt,44 Mich. 245, 248, 6 N.W. 654, 38 Am. Rep. 260;Mink v. State,60 Wis. 584, 19 N.W. 445, 50 Am. Rep. 386;Parker v. Way,15 N.H. 45;Bowles v. Bingham, 2 Munf. (Va.) 442, 5 Am. Dec. 497;Goodright v. Morse, 2 Cowper, 591;Murray v. Milner,12 Ch. D. 845;Dysart Peerage Case, 6 A. C. 489.The twelfth request therefore was rightly refused, nor could the remaining requests properly be given.Upon evidence not...