L. F. R. v. R. A. R.

• Decision Date: 27 July 1978
• Docket Number: No. 778S141,778S141
• Citation: 378 N.E.2d 855,269 Ind. 97
• Parties: L. F. R., Appellant, v. R. A. R., Appellee.
• Court: Indiana Supreme Court

Page 855

378 N.E.2d 855

269 Ind. 97

L. F. R., Appellant, v. R. A. R., Appellee.

No. 778S141.

Supreme Court of Indiana.

July 27, 1978.

John D. Clouse and Michael C. Keating, Evansville, for appellant.

Gerald G. Fuchs, Evansville, for appellee.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Indiana Court of Appeals. The Vanderburgh Superior Court dissolved the marriage of petitioner L. F. R. and respondent R. A. R., retaining jurisdiction to determine the paternity of L. F. R.'s then unborn child. After the child's subsequent birth, the trial court heard the paternity issue and entered a judgment which declared that R. A. R. was not the father of the child born to L. F. R., his former wife. The Court of Appeals, First District, opinion by Robertson, C. J., Lowdermilk and Lybrook, JJ., concurring, affirmed the decision of the trial court. L. F. R. v. R. A. R. (1977), Ind.App., 370 N.E.2d 936.

The question presented for our review is whether the putative father, R. A. R., overcame the well-established presumption of legitimacy which applies when a child is conceived before the termination of the marital relationship.

The record in this case demonstrates that L. F. R. and R. A. R. were married in May of 1975, and separated sometime about the first week of July, 1975, with L. F. R. filing for dissolution of marriage contemporaneously. After a number of interim proceedings, the trial court dissolved the marriage on March 16, 1976, but retained jurisdiction to determine the paternity of L. F. R.'s then unborn child. L. F. R. had objected to the court's proceeding to a final hearing before the child was born, but the trial court overruled her objection. The child was born on June 26, 1976, and the trial court heard the paternity issue on October 19, 1976. R. A. R. admitted at this hearing that he had seen and talked with L. F. R. after their separation, but he testified that he had no sexual relations with her after July 8, 1975, when he left her home, not to return. L. F. R. testified that she had intercourse with R. A. R. during July, August, and twice during mid-September which was the probable period of conception. L. F. R. also had corroborating witnesses indicating that R. A. R. slept with her in mid-September at Kentucky Lake. R. A. R. did not deny his presence at Kentucky Lake. However, he stated this incident took place in July and not in September. In fact, the evidence showed that he lived in the same general area as L. F. R. all of this time, and had access to her all during this time. He testified that he saw her and talked with her from time to time during this period, but had not had intercourse with her. There was also evidence which indicated that L. F. R. was keeping company with another man during September. After hearing the above evidence, the trial court found in favor of R. A. R., and entered a judgment finding him not to be the father of L. F. R.'s child.

The law is clear in Indiana that a child born to a married woman is presumed legitimate, and that such presumption can be overcome or rebutted only by irrefutable proof. Hooley v. Hooley (1967), 141 Ind.App. 101, 226 N.E.2d 344. In Whitman v. Whitman (1966), 140 Ind.App. 289, 292, 215 N.E.2d 689, 690, the Court of Appeals, citing Phillips v. State ex rel. Hathcock (1925), 82 Ind.App. 356, 360, 145 N.E. 895, 897, stated:

"(T)he presumption could be overcome by proof that the husband was Impotent; or that he was entirely absent so as to have had No access to the mother; or was entirely absent at the time the child in the course of nature, must have been begotten; or was present only under such circumstances as to afford clear and satisfactory proof that there was no sexual intercourse."

As recently as 1971, this court said in Buchanan v. Buchanan (1971), 256 Ind. 119, 123, 267 N.E.2d 155, 157:

"The law indulges every presumption and charity in favor of the legitimacy of children and evidence repelling such a presumption must be conclusive. . . .

"It is to be noted that the child has an interest here, and, although it was not a party to this action nor was it represented by counsel before the trial court, that court cannot, as an organ of the State, stand idly by and allow the parties before it to destroy that interest without clear and convincing proof. Therefore, the mere statements, admissions allegations or agreements made by the parties to this divorce proceeding standing alone are not sufficient to rebut the strong presumption of legitimacy which runs in favor of this child."

The Court of Appeals in the present case based its decision on the idea that although R. A. R.'s evidence was not of the "qualitative equivalent" of that which was found adequate for the exceptions to overcome the presumption, it was nevertheless the function of the trial court, rather than the appellate court to determine the credibility...