S.C.V., In Interest of

• Decision Date: 23 June 1987
• Docket Number: No. 05-86-00691-CV,05-86-00691-CV
• Citation: 735 S.W.2d 874
• Parties: In the Interest of S.C.V., a Child.
• Court: Texas Court of Appeals

Page 874

735 S.W.2d 874

In the Interest of S.C.V., a Child.

No. 05-86-00691-CV.

Court of Appeals of Texas Dallas.

June 23, 1987.

Rehearing Denied Sept. 11, 1987.

Lee Clemens, Dallas, for appellant.

Douglas W. Brady, Dallas, for appellee.

Before STEPHENS, BAKER and McCRAW, JJ.

McCRAW, Justice.

L.D.V., the mother of S.C.V., ¹ sued J.Y.W. under Chapter 13 of the Family Code to establish paternity. At the time of birth and at the possible time of conception, L.D.V. was married to J.L.V. ² She alleged, however, that J.Y.W. is the biological father of her child. In response to a single special issue, the jury found that J.Y.W. is the natural father of S.C.V. Although J.Y.W. requested an issue on nonaccess the court denied his request. J.Y.W. contends that the evidence is legally and factually insufficient to rebut the statutory presumption that S.C.V. is the legitimate child of J.L.V., the husband of L.D.V. We agree that there is no evidence rebutting this threshold presumption; accordingly, we reverse and render.

A child born or conceived during a lawful marriage is presumed to be the legitimate child of the husband. Tex.Fam.Code Ann. § 12.02(a) (Vernon 1986); Clark v. Clark, 643 S.W.2d 795, 797 (Tex.App.--Fort Worth 1982, no writ); Joplin v. Meadows, 623 S.W.2d 442, 443 (Tex.App.--Texarkana 1981, no writ). This presumption is one of the strongest known to the law and can be rebutted only by clear and convincing evidence showing nonaccess by or impotency of the husband. ³ D.W.L. v. M.J.B.C., 601 S.W.2d 475, 477 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.); Wedgman v. Wedgman, 541 S.W.2d 522, 523 (Tex.Civ.App.--Waco 1976, writ dism'd). The burden rests upon the mother to rebut the presumption. See D.W.L. v. M.J.B.C., 601 S.W.2d at 477. The question of paternity is never reached until and unless the presumption of legitimacy is rebutted.

In this case, there was no evidence that J.L.V. was impotent. In addressing the sufficiency of the evidence of nonaccess, we must first define nonaccess. The parties have not cited, and we have been unable to find, any Texas Supreme Court case defining nonaccess. Intermediate appellate courts have attempted to apply the term without a concrete definition. One appellate court approved the following definition of access given in the court's charge to the jury: "such access as affords an opportunity for sexual intercourse." Zimmerman v. Zimmerman, 488 S.W.2d 184, 185 (Tex.Civ.App.--Houston [14th Dist.] 1972, no writ). In Zimmerman, the jury found that the husband had access to his wife at the time the child was conceived although he moved to Nevada some time during August 1968 and the child was born May 18, 1969. In Joplin v. Meadows, the court refused to accept allegations in a mother's divorce petition that her husband had abandoned her twenty-five months before the child was born, stating, "Those recitations and allegations, even if probative, would not conclusively negate the possibility of access between [husband] and [wife] at some time consistent with the conception of [the child]." Joplin, 623 S.W.2d at 444.

In Blacksher v. Blacksher, 575 S.W.2d 105, 106 (Tex.Civ.App.--Waco 1978, no writ), the court upheld a finding of nonaccess where the mother testified that her husband was overseas and had no access to her during all times pertinent to the birth of the two children involved. A court also upheld a finding of nonaccess when the husband was in prison when two of the three children born during the marriage were conceived. Young v. Young, 545 S.W.2d 551, 552 (Tex.Civ.App.--Houston [1st Dist.] 1976, writ dism'd). In D.W.L. v. M.J.B.C., the mother testified that there had been no contact whatsoever with her husband during the possible time of conception. Such testimony constituted sufficient evidence of nonaccess. D.W.L. v. M.J.B.C., 601 S.W.2d at 477.

It seems, then, that Texas courts require the mother to rebut the presumption by showing by clear and convincing evidence that there was no opportunity for sexual intercourse with her husband at the possible time of conception. The clear and convincing standard of proof is an intermediate one, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex.1980). The standard of appellate review is likewise an intermediate one. See Neiswander v. Bailey, 645 S.W.2d 835, 835 (Tex.App.--Dallas 1982, no writ). See also Turner v. Lutz, 685 S.W.2d 356, 359 (Tex.App.--Austin 1984, no writ) (where standard of proof is by clear and convincing evidence, the scope of appellate review is expanded); Hellman v. Kincy, 632 S.W.2d 216, 218 (Tex.Civ.App.--Fort Worth 1982, no writ) (scope of review is expanded). In reviewing the sufficiency of the evidence it is the duty of the appellate court to determine not whether the fact-finder could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable. Neiswander, 645 S.W.2d at 836; Wetzel v. Wetzel, 715 S.W.2d 387, 389 (Tex.App.--Dallas 1986, no writ).

In reviewing J.Y.W.'s no evidence point, we examine the evidence tending to support a finding of nonaccess, viewing it in the light most favorable to the finding and disregarding all contrary or conflicting evidence, Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986), to determine whether the trier of fact could reasonably conclude that the existence of the fact of nonaccess is highly probable.

L.D.V. married J.L.V. on May 20, 1982. She testified that, although newly married, she dated J.Y.W. between June 23, 1982 and July 23, 1982. During that time she had sexual intercourse with J.Y.W. on several occasions. Her ovulation date was July 16 and she engaged in sexual intercourse with J.Y.W. on July 15 and 16. She further testified that she did not engage in sexual intercourse with her husband five days before or five days after her ovulation date. During May, June and July, however, she was living with her husband in Dallas, Charleston and Washington, D.C.

On July 23, L.D.V. and her husband left Dallas to drive to Washington, D.C. They were together during the two-day trip, and then stayed together at L.D.V.'s mother's house near Washington, D.C. until July 28. J.L.V. left L.D.V. in Washington and returned to Dallas. L.D.V. testified that she did not recall whether she and her husband had engaged in sexual relations during this time, but they might have. L.D.V.'s next ovulation date was August 9. J.Y.W. came to Washington, D.C. on August 7 and left August 9. L.D.V. and J.Y.W. engaged in sexual intercourse on August 7, 8 and 9. L.D.V. left Washington on August 15 or 16 to rejoin her husband in Dallas. She testified that she and her husband engaged in sexual intercourse on August 15 or 16. After flying to Dallas, she and her husband drove to Wichita and then returned to Dallas. There is no testimony concerning how long the two stayed together after the trip to Wichita. L.D.V. did testify, however, that at the time of trial she and J.L.V. were living at her mother's house.

In Wedgman v. Wedgman, 541 S.W.2d 522 (Tex.Civ.App.--Waco 1976, writ dism'd), the court stated, "If the wife is living with the husband as here, at a time when by the laws of nature the husband might be the father of the child, the presumption is conclusive in favor of legitimacy." Id. at 523. See also D.W.L. v. M.J.B.C., 601 S.W.2d at 477 (the court states in dicta that where any contact between husband and wife is shown during the time period in question the presumption would not be overcome). In this case, L.D.V. testified she lived with her husband from May 20 to July 28, while having sexual intercourse with J.Y.W. between June 23 and July 23. She and her husband lived apart from July 28 to August 15, and during that time she engaged in sexual intercourse with J.Y.W. The child was born May 1, 1983 and weighed seven pounds, eight and one-half ounces. There is no testimony as to whether the child was born prematurely or carried full term. The testimony does not pinpoint when the child was conceived, although the evidence seems to indicate that the mother believed that the child was conceived in July or August.

We hold that there is no evidence from which a trier of fact could reasonably conclude that the existence of the threshold fact of nonaccess, defined as the opportunity for sexual intercourse during the possible time of conception, is highly probable. Neiswander, 645 S.W.2d at 836. In this case, the husband and wife lived together during all of June and July. Although they were apart for approximately 17 days in August, the "time when by the laws of nature the husband might be the father of the child," Wedgman, 541 S.W.2d at 253, encompasses a greater period of time. The testimony indicates that L.D.V. believed the date of conception to be either on or around July 16 or on or around August 9. There is no evidence that the only possible period of conception was the 17-day period L.D.V.'s husband was out of town. Absent such testimony, we must look to general case law for its understanding of the possible time of conception.

In Ousley v. Ousley, 261 S.W.2d 817 (Ky.1953), the Kentucky court pointed out that a woman ordinarily carries a child 280 days after conception, but that the period of gestation sometimes varies, lasting from 220 to 330 days. In Ousley, the child was born 324 days after its mother had sexual intercourse with her husband, and the parents separated the day after the claimed day of conception. The court held the separation did not constitute proof of nonaccess at a possible time of conception, because conception could have occurred 324 days before the birth of the child. See also Pierson v. Pierson, 124 Wash. 319, 214 P. 159 (1923) (child born 336 days after wife...