Maxwell v. Maxwell

• Decision Date: 30 January 1969
• Docket Number: No. 1,Docket No. 3711,1
• Citation: 167 N.W.2d 114,15 Mich.App. 607
• Parties: Truman F. MAXWELL, Plaintiff-Appellant, v. Sandra T. MAXWELL, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 114

167 N.W.2d 114

15 Mich.App. 607

Truman F. MAXWELL, Plaintiff-Appellant, v. Sandra T. MAXWELL, Defendant-Appellee.

Docket No. 3711.

Court of Appeals of Michigan, Division No. 1.

Jan. 30, 1969.

Leave to Appeal Denied April 15, 1969.

Released for Publication May 1, 1969.

Robert P. Tremp, Livonia, for appellant.

Levine & Benjamin, Detroit, for appellee.

Before LESINSKI, C.J., and LEVIN and ANDREWS, ^* JJ.

LEVIN, Judge.

Plaintiff Truman F. Maxwell appeals a supplemental judgment of divorce granting defendant Sandra T. Maxwell $35 per week support for a child born to her after the parties were divorced. ¹

The full-term baby was born October 13, 1963. This was some 15 months after the parties separated (July 18, 1962), 11 months after plaintiff filed his complaint for divorce (September 12, 1962) and nearly 7 months after the judgment of divorce was entered (March 19, 1963).

At the hearing on defendant's petition that plaintiff be required to support the child, witnesses testified that during the time the child presumably was conceived the defendant was living with a boyfriend in her parents' apartment. A number of witnesses testified that the defendant told them the boyfriend was the child's father. The defendant testified, the plaintiff denied, that they had sexual intercourse together after the complaint for divorce was filed.

After completion of the testimonial hearing and the submission of briefs on the law, the trial judge delivered his opinion finding that the plaintiff was the child's father. The judge carefully reviewed the testimony and decisions of the Michigan Supreme Court and then explained in detail the reasons for his decision.

The judge stated that he considered himself bound by Michigan Supreme Court decisions to exclude from consideration all testimony of the plaintiff husband and the defendant wife regarding the plaintiff's access or nonaccess to the defendant and all the testimony concerning extrajudicial statements by the defendant as to who fathered the child. This left only the evidence that the defendant was carrying on a steady, intimate relationship with another man during the period when the child was conceived. ² In the trial judge's opinion the possibility that the child was conceived in that union was not enough to overcome the presumption that a child conceived in wedlock is the legitimate issue of the marriage.

On this appeal no claim is made that the judge's finding that plaintiff fathered the child was, as such, clearly erroneous. The only question before us is whether the judge correctly refused to consider in deciding the dispute the testimony of the plaintiff husband and defendant wife and of those who claimed to have heard her say that the boyfriend was the father.

The rule of law applied by the trial judge in excluding from consideration the judicial and extrajudicial declarations of the parties is known as Lord Mansfield's rule--to its critics as Lord Mansfield's dictum. Described by Professor McCormick as a rule of 'eccentric incompetency' ³ and generally condemned by most writers, ⁴ Mansfield's famous declaration was made in 1777 in an ejectment case where the issue of legitimacy of the claimant was raised:

'the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage. * * *

'it is a rule founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious.' Goodright v. Moss (1777), 2 Cowp. 591 (98 Eng.Rep. 1257).

Dean Wigmore tells us that the rule traveled to the United States in the treatises of the early 1800s and was accepted by most courts unquestioningly. ⁵

It made its debut in Michigan in Egbert v. Greenwalt (1880), 44 Mich. 245, 248 6 N.W. 654, 655, 38 Am.Rep. 260 and, despite its having barely passed the century mark, was described as 'an ancient rule of the common law.' The rule has been applied in Michigan in a variety of cases. ⁶

The rule as enunciated by Mansfield literally barred only testimony proving 'no connection,' I.e., nonaccess by the husband to the wife, and did not preclude testimony showing that a husband did in fact have access to his wife or that she had access to another man.

In Yanoff v. Yanoff (1927), 237 Mich. 383, 211 N.W. 735, the Michigan Supreme Court ruled that Mrs. Yanoff could not testify that she had intercourse with her husband prior to their marriage and that Mr. Yanoff could not testify that there was no premarital connection. The Yanoff Court declared (p. 389, 211 N.W. p. 737):

'When the legitimacy of a child born in lawful wedlock is involved, no matter what the form of action, the rule of law bars the husband and wife from testifying to Access or nonaccess of the husband antenuptial or postnuptial.' ⁷ (Emphasis supplied.)

In Bassil v. Ford Motor Co. (1936), 278 Mich. 173, 180, 270 N.W. 258, 107 A.L.R. 1491, the Court ruled that the presumption of legitimacy could not be 'met or overcome by the testimony of either of the parents,' and reasoned that the prohibition applied not only to their judicial statements but as well to repetition of their out-of-court declarations. Similarly, see King v. Peninsular Portland Cement Co. (1921), 216 Mich. 335, 339, 185 N.W. 858; Magarell v. Magarell (1950), 327 Mich. 372, 376, 41 N.W.2d 898.

Later in People v. Bedell (1955), 342 Mich. 398, 70 N.W.2d 808, the Court ruled that the wife may not testify that a man other than her husband was the father of the child. This ruling was preceded by King v. Peninsular Portland Cement Co., Supra, where the Court sustained the lower tribunal's refusal to consider the wife's extrajudicial or judicial declaration that the husband was not the father and by Zakrzewski v. Zakrzewski (1927), 237 Mich. 459, 462, 212 N.W. 80, where the Court stated that Mansfield's rule prohibits the husband from repeating the wife's alleged statement that another man fathered the child.

Thus, the rule barring either husband or wife from saying that the wife did not have or could not have had intercourse with her husband was expanded to prohibit their testimony that she did have intercourse with her husband or with another man. ⁸

We recognize that in some, mostly early, cases the Supreme Court acknowledged that Mansfield's rule does not prevent testimony that the wife had relations with another man (Rabeke v. Baer (1897), 115 Mich. 328, 331, 332, 73 N.W. 242, 69 Am.St.Rep. 567; People v. Case (1912), 171 Mich. 282, 285, 137 N.W. 55) or repetition of her extrajudicial declarations as to who was the father (In re Wright's Estate (1927), 237 Mich. 375, 382, 211 N.W. 746). ⁹ We might possibly distinguish or reconcile some of the earlier with the later pronouncements. ¹⁰ But whether we could or not, we must follow the more recent declarations of our Supreme Court which seem clear enough on the issue which faces us today.

We are also aware that other State courts have construed general statutes abolishing the incompetency of witnesses as legislatively overruling Mansfield's rule. ¹¹ However, the Michigan Supreme Court expressly declined so to interpret our corresponding legislation. ¹² The rule in Michigan has also survived presentation and consideration of Dean Wigmore's vigorous criticisms. In re Wright's Estate, Supra, p. 381, 211 N.W. 746; Yanoff v. Yanoff, Supra, p. 389, ¹³ 211 N.W. 735.

While some State courts have refused to adopt ¹⁴ or have overruled their earlier decisions adopting the Mansfield rule, ¹⁵ there is as yet no clear trend of decision and, most important, the arguments against the rule have been considered and rejected by our Supreme Court.

Truman Maxwell's counsel suggests that the rule should at least be abolished where the time of conception of the child can be established to have been subsequent to the separation of the husband and wife or at least for those cases, such as this one, where conception followed the filing of a complaint for divorce. Controlling precedent precludes us from making such an exception. ¹⁶

Today divorce is more prevalent and a decree more readily obtainable than in Mansfield's time. ¹⁷ The Maxwells separated 9 months after they were married and were divorced 8 months later. Almost half their formal married life followed their separation. Yet, since neither blood tests nor physical impotency acquitted Truman Maxwell, he was, for all practical purposes, the guarantor of his wife's chastity during the period his complaint for divorce was pending even though his ability to supervise his wife's conduct was nil and, as the record suggests, her personal life was fully occupied although the bonds of matrimony remained unservered.

There are frequent statements in the cases to the effect that the rule barring admission of spousal testimony is based on considerations of public policy, ¹⁸ but there is little or no discussion in the cases of what policy considerations might be involved.

While there is a policy which favors legitimation of children conceived or born in wedlock, that policy is adequately expressed in the presumption of legitimacy. That presumption is not irrebutable. Magarell v. Magarell, supra; Wechsler v. Mroczkowski (1958) 351 Mich. 483, 489, 88 N.W.2d 394. Thus, there is no absolute rule or policy against the receipt of evidence inconsistent with the presumption. If the purpose of retaining Mansfield's rule is to prevent overcoming the presumption by spousal declarations alone, then the rule should be modified to say just that, and should no longer prevent consideration of spousal declarations together with other evidence which together might be enough to overcome the presumption.

If it be said that the policy involved is the policy which favors preservation of marriage, then that would be a good reason for continuation of the Mansfield rule, modified so as to bar only declarations during the marriage. Such a modification of the rule...