Peters v. District of Columbia, 1105.

• Decision Date: 30 October 1951
• Docket Number: No. 1105.,1105.
• Citation: 84 A.2d 115
• Parties: PETERS v. DISTRICT OF COLUMBIA.
• Court: D.C. Court of Appeals

Page 115

84 A.2d 115

PETERS v. DISTRICT OF COLUMBIA.

No. 1105.

Municipal Court of Appeals for the District of Columbia.

Reargued September 24, 1951.

Decided October 30, 1951.

Franklin A. Higgs, Washington, D. C., with whom Ena M. St. Louis, Washington, D. C., was on the brief, for appellant.

Edward A. Beard, Asst. Corp. Counsel, Washington, D. C., with whom Vernon E. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, and James T. Brennan, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

By information filed in the Juvenile Court, appellant was charged with being the father of a child born out of wedlock. The complainant was a married woman who initiated the action pursuant to Public Law 917, Chapter 1225, 81st Congress, 2d Session, approved January 11, 1951.¹ A jury found appellant guilty of siring the child. His motions for new trial were overruled and the court entered an order requiring him to support the child. This appeal followed.

Complainant testified that she and her husband were separated in October 1948 and continued so until approximately one month after the child in question was born (on August 1, 1950). In September 1950 they resumed living together as husband and wife until shortly before the complaint was filed in this action, when they again separated. During the first period of separation, the husband visited her in her apartment about once a week for the purpose of giving her money for their children.

Complainant further testified she met the defendant in March 1949 and from then until some time after she became pregnant she had sexual relations with him in her apartment several times each week. When she became aware of her pregnancy in November 1949 she told defendant and they discussed abortion. Complainant said she did not see him again until March 1950 when he gave her $100 for an abortion (which money she instead spent for food.) The baby was born on August 1, 1950 and according to Government evidence was registered as Steven Louis Washington, (the surname being that of her husband). She did not see the defendant again until October 1950, after the baby was born and after she and her husband had resumed living together. She said that at that time he promised to give her some help but did not do so. Complainant also testified that defendant had admitted in the presence of her sister that he was the father of her child. Her sister, called as a witness for the Government, testified differently; she "said defendant did not in her presence admit his paternity.

Defendant took the stand and completely denied the possibility of paternity. He said that he had known the complaining witness and been "on friendly terms with her" from about March 1949 until he discontinued his association with her in August 1949. He said that he had heard no more from her until November 1950 and denied giving her money for any purpose.

Before discussing the merits of the appeal there is a jurisdictional question we must settle — one we raised of our own motion. After the appeal had been briefed and argued, our study of the case suggested (though appellant had not raised the question in the trial court or here) that we should inquire into the question as to whether the statute was being given a retrospective effect. As pointed out above the statute was approved January 11, 1951. This was more than a year after the child was conceived and more than five months after it was born. Prior to the passage of the Act, married women admittedly had no right to lodge a complaint of this kind in Juvenile Court. The Act removed such disability and expressly provided that "* * * any married woman * * * who has been delivered of a child born out of wedlock and who was not living with nor cohabiting with her husband during the period of time in which such child could have been conceived, may [within two years after the birth of the child] go before an Assistant Corporation Counsel for the District of Columbia at the juvenile court and accuse any man of being the father of `her child and request his arrest." We raised the question as to whether a putative father could be made answerable in a paternity proceeding under a statute which was not in existence at the time of the conception or birth of the child. Accordingly, under our order supplementary briefs were submitted on the question and the case was reargued. Our further study of the matter satisfies us that the Juvenile Court had jurisdiction to receive the complaint and maintain the proceedings against the appellant.

We recognize the established rule that ordinarily statutes operate prospectively only and that there is an "almost conclusive presumption against power to take retroactive action unless Congress plainly specifies such power." Transcontinental & West. Air v. Civil Aeronautics Bd., 83 U.S. App.D.C. 358, 359, 169 F.2d 893, 894, affirmed 336 U.S. 601, 69 S.Ct. 756, 93 L.Ed. 911. But it is also the rule that "A statute is not retroactive merely because it draws upon antecedent facts for its operation." Neild v. District of Columbia, 71 App.D.C. 306, 315, 110 F.2d 246, 255, (cited in Transcontinental & West. Air v. Civil Aeronautics Bd., supra), quoting from Lewis v. Fidelity & Deposit Co., 292 U.S. 559, 571, 54 S.Ct. 848, 78 L.Ed. 1425. See also United States v. Jacobs, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763; Home Indemnity Co. v. State of Missouri, 8 Cir., 78 F.2d 391.

The only "antecedent facts" involved in this case were the conception and birth of the child. The object of a statute like this is not to punish a putative father for fornication or adultery but to provide support for the child. Dicks v. United States, D.C.Mun.App., 72 A.2d 34, 35. There we said that "The moral obligation of the father to support his illegitimate child is converted by the statute into a legal obligation * * *" It was that legal obligation to support which was put into effect by the order entered in this case; and such order was entirely prospective.

It has been held, and we think correctly, that the obligation to support is a distinct and continuing duty. Richardson v. State, 7 Boyce, Del., 534, 109 A. 124, 125; Cummings v. Church, 50 R.I. 71, 145 A. 102; People v. Stanley, 33 Cal.App 624, 166 P. 596. It has also been held that it is immaterial when the child was begotten or born. State v. Parker, 209 N.C. 32, 182 S.E. 723; McLain v. Meadows, 44 Cal.App. 402, 186 P. 411. See also Commonwealth v. Callaghan, 223 Mass. 150, 111 N.E. 773, certiorari denied 241 U.S. 667, 36 S.Ct. 551, 60 L.Ed. 1229; Wamsley v. People, 64 Colo. 521, 173 P. 425; Libby v. State, 42 Okl. 603, 142 P. 406. The antecedent fact of defendant's paternity having been established, the Juvenile Court did no more than pass an order fixing the amount he was to pay for the support of the child in the future. In this there was nothing of a retroactive or ex post facto nature. "It is to enforce that present legal duty, and none other, that the action is brought." McClain v. Meadows, supra, 44 Cal.App. at page 403, 186 P. at page 412, and cases there cited. We think it clear that in this case a prospective statute has been given a prospective effect, and that the jurisdictional question must be decided adversely to appellant.

One of appellant's contentions is that the trial court erred in refusing to permit his counsel to cross-examine complaining witness concerning contents of the birth certificate filed with the Bureau of Vital Statistics, which tended to show that the child involved was considered and denominated legitimate by the mother at the time of its birth. We think there would be merit in the contention if the record supported it. If the mother of a child, designated as the "Informant" as to the facts in the certificate, recorded according to law,² had there made statements as to the paternity of her child which are at variance with statements she later makes in court to establish a different paternity, it is obviously a proper subject of cross-examination. But the record presented to us does not show that such cross-examination was attempted or refused.

Another error assigned relates to refusal to permit cross-examination of the complainant as to her association with other men. The trial judge ruled that any such association would have to fall within the period from October 4, 1949 to November 15, 1949 because that was the only period during which she could have conceived the child. This is in harmony with. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905, where it was held that the chastity of the mother is immaterial and that relations with other men must be limited to the period of possible conception. If upon the retrial similar cross-examination is attempted, its scope should be limited accordingly.

Appellant's principal arguments are based on the so-called "presumption of legitimacy," involved when the paternity of a child born to a married woman is questioned. Appellant says in effect that this presumption bars the prosecution. The presumption of legitimacy of a child born in wedlock has always been considered one of the strongest known to the law. In. England, unless a husband was impotent or "beyond the four seas," the rule was that the presumption was conclusive. Because of the obvious absurdities and injustices flowing from such a rule, the "ancient rigor" of the rule has been sensibly relaxed, and now this presumption, like many others, is held to be subject to rebuttal.³ The type and strength of evidence necessary to overcome the presumption has been stated in varied ways and prescribed in varying degrees. This variance of standards seems to be a reflection of the differing nature of the proceedings in which paternity has been questioned and what the effect of a finding of illegitimacy would mean to the child. But in several well-reasoned...