L v. L
| Decision Date | 23 July 1973 |
| Docket Number | No. KCD26232,KCD26232 |
| Citation | 497 S.W.2d 840 |
| Parties | L . . ., Plaintiff-Appellant, v. L . . ., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
C. B. Fitzgerald, Warrensburg, for plaintiff-appellatn.
Ike Skelton, Jr., Lexington, for defendant-respondent.
Before WASSERSTROM, P.J., and SHANGLER and SWOFFORD, JJ.
In this divorce suit, the wife was granted a divorce, custody of a minor child, and an award of $50.00 per month child support. The husband appeals, with his sole point of error being the contention that no child support should have been awarded because he concededly was not the biological father.
These two young people met in California in February, 1968, while the husband was in active Navy service. Within a week thereafter, on February 10, 1968, they were married. At the time they first met, the wife was four to five months pregnant by another man, and her abdomen was visibly protruding. The husband was fully aware of that state of pregnancy, and this was a matter of discussion between them. When the husband proposed marriage, the wife brought up the question very pointedly, the discussion between the parties according to her testimony being as follows: The wife further testified that the husband at that time promised that 'he would recognize the child as his' and he further said both before and after the marriage that 'he would treat the child as his'. The husband admitted in his testimony that he made this promise both before and after the marriage.
The child was born July 16, 1968. Pursuant to prior conversation between the parties, the child was given the husband's name and the husband was shown as the father on the birth certificate. The husband knew that this would be done, he made no objection, and indeed, after the birth he introduced the child to others as his daughter.
Shortly after the marriage and until either immediately before or immediately after the birth, the husband had been transferred in the couse of his Naval service to Philadelphia. However, he came back to California at about the time of the birth and visited both his wife and the child in the hospital. Thereafter, the parties lived together in California as husband and wife at interrupted intervals, the interruptions being caused by the husband's sea duty.
The husband was released from active service in October, 1970, and he insisted on returning to his family's home in Missouri. The wife followed shortly thereafter in November, 1970. The husband appeared resistent to taking a regular job, he was not interested in establishing a home for his wife, and he stated to her that he did not want to be married. He went out on dates with other women and freely admitted that to the wife. Within a short time the parties separated, and the situation eventually resulted in the filing of this divorce action.
No Missouri appellate court has passed upon the question of whether a husband in a divorce suit under these circumstances may be ordered to support a child born during the marriage, but concededly not fathered by him. However, there have been a number of decisions on this problem in other jurisdictions, with conflicting results. The cases on the subject are collected in an annotation 'Liability of mother's husband, not the father of her illegitimate child, for its support', 90 A.L.R.2d 583. On one side of the issue are decisions from Ohio and Iowa holding that in order for the husband to be bound to support the child, it is only necessary to show that he entered into the marriage with knowledge that his prospective wife was at that time pregnant by another man. Gustin v. Gustin, 108 Ohio App. 171, 161 N.E.2d 68 (1958); State v. Shoemaker, 62 Iowa 343, 17 N.W. 589 (1883). Cf. Belk v. Belk, 13 Ohio App.2d 212, 235 N.E.2d 530 (1968). On the other hand, that view has been expressly rejected in North Dakota, Illinois, Oregon and Washington. Kucera v. Kucera, 117 N.W.2d 810 (N.D.1962); People v. Gleason, 211 Ill.App. 380 (1918); Burke v. Burke, 216 Or. 691, 340 P.2d 948 (1959); Farris v. Farris, 58 Wash.2d 837, 365 P.2d 14 (1961); Taylor v. Taylor, 58 Wash.2d 510, 364 P.2d 444 (1961).
A particularly careful study of this subject was made by a California court in Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707 (1961), reaching an attractive intermediate position. The court started with what may be called a general rule that a husband does not assume a continuing and irrevocable obligation to support another man's child merely by entering...
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