E--- S--- v. G--- M--- S---
| Decision Date | 03 March 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 520 S.W.2d 652 |
| Parties | E_ _ S_ _, Respondent, v. G_ _ M_ _ S_ _, Appellant. 26770. |
| Court | Missouri Court of Appeals |
Michael J. Albano, Independence, for appellant; Graham, Paden, Welch, Martin & Title, Independence, of counsel.
Lee S. Shapiro and Dale L. Schulte, Kansas City, for respondent; Shapiro, Polsinelli, Waldo & Schulte, Kansas City, of counsel.
Before SOMERVILLE, P.J., and TURNAGE, J., and PRITCHARD, C.J.
The issue is whether the trial court erred in finding in the face of the presumption of legitimacy of a child born during wedlock, that respondent could not have been the father of a male child born to appellant wife during her marriage to respondent. Implicit in the court's finding on that issue is the second issue of whether respondent should have been granted the divorce upon the alleged ground that the wife was pregnant 'although plaintiff now is and has been sterile.'
The parties were married on August 10, 1968, and were separated on March 16, 1972. The husband had previously been married for 25 years, and had four children by his first wife. In 1956 before the youngest daughter was born of that marriage, the husband went to a Doctor Brown in Kansas City and He had never had any kind of operation to undo that operation. After the operation he continued to have normal intercourse with his first wife for around 10 years, during which time there were no birth control devices of any kind used for probably 5 to 8 years, and she did not conceive any other children, but after the divorce from him and her remarriage, she had one baby.
The husband learned that the wife was pregnant in March, 1972. Thereafter a semen sample was taken by the husband, the wife going with him, to a laboratory where it was tested. The wife was given a pregnancy test in Hickman Mills. According to the husband, they tested the sample in the laboratory, 'and said that my operation was still good; that I'm sterile and she was pregnant.' The wife discussed with the husband as to when she became pregnant, and it was his understanding that it was in the latter part of December, 1971. During that month she was away for a weekend, and he visited his folks for a week in Pittsburg, Kansas. Up to the time the husband learned that the wife was pregnant, he had been sleeping with her and had intercourse with her two or three times a week, including the month of December, 1971. The husband was unable to say definitely that the wife in fact had intercourse with another man.
The medical records of the husband's bilateral vasectomy in 1956 show 'no sperm seen.' On March 10, 1972, the record of the sperm count check showed 'no sperm seen.' On March 15, 1972, the records show On the same date the wife's UCG pregnancy test showed positive.
Dr. Andrew D. Mitchell, a physician-urologist, examined the husband on April 2, 1973, and examined a fresh specimen of semen which the husband gave him. He found no sperm, the reason for which was, 'Well, the--subjectively Mr. S_ _ and Mr. Hickman had indicated that he had had a vasectomy and the only objective evidence other than the absence of sperm was that I could feel the defect in the vas on each side where he had had the operation.' From his examination, Dr. Mitchell could tell that the husband had a vasectomy, a cutting and tying. In answer to a question hypothesizing the facts, Dr. Mitchell gave his opinion to a reasonable degree of medical certainty that the husband could not have fathered the child in question, and further, The longer the time after the vasectomy the less chance there would be of even surgically hooking the ends of the vas back together so that the operation restores fertility. The doctor did testify further on cross-examination that if there were any surgical devices used after December (1971) or January, 1972, it would change the results of the test: He acknowledged that he ran no test on the husband in December (1971) or January, 1972.
The wife testified that she had been faithful to the husband during the marriage, denied that she had any relations with other men, and testified that she had intercourse with the husband a couple of times a week up to the time of the separation. Prior to the marriage, the wife was aware that the husband had a vasectomy, and to her knowledge he never did have any kind of operation to repair it.
The court entered a decree of divorce for the husband, found that there were no children born of the marriage, and specifically found that the child in question was not fathered by the husband.
Appellant argues that the trial court erred and abused its discretion in finding for respondent because respondent husband's evidence failed to overcome the strong presumption of legitimacy of children born in wedlock, and that the finding had the effect of bastardizing the child in question.
It is true, as appellant states and as is set forth in F_ _ v. F_ _, 333 S.W.2d 320, 326(9) (Mo.App.1960), It was there noted that the severity of the common law rule of conclusiveness of the presumption had been modified so that the presumption may be rebutted, that being the law today in Missouri. ...
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B. S. H. v. J. J. H., WD
...onerous burden requires a quantum of evidence such that no conclusion other than that of illegitimacy can be reached. S______ v. S______, 520 S.W.2d 652, 654 (Mo.App.1975). When the party against whom the presumption operates presents substantial evidence to rebut the presumption, the issue......
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...citing F___ v. F___, 333 S.W.2d 320 (Mo.App.1960). That language from F___ v. F___, supra, was repeated in E. S. v. G. M. S., 520 S.W.2d 652, 654 (Mo.App.1975), and paraphrased and restated in B. S. H. v. J. J. H., 613 S.W.2d 453 (Mo.App.1981), which also cites E. S. v. G. M. S., supra. It ......
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