Simeonides v. Zervis

• Citation: 127 Ga.App. 506,194 S.E.2d 324
• Decision Date: 17 October 1972
• Docket Number: No. 47161,No. 2,47161,2
• Parties: Perikles SIMEONIDES et al. v. Demetrius J. ZERVIS
• Court: United States Court of Appeals (Georgia)

Page 324

194 S.E.2d 324

127 Ga.App. 506

Perikles SIMEONIDES et al. v. Demetrius J. ZERVIS.

No. 47161.

Court of Appeals of Georgia, Division No. 2.

Oct. 17, 1972.

Rehearing Denied Nov. 7, 1972.

Adams, Adams, Brennan & Gardner, Edward T. Brennan, John W. Minor, Savannah, for appellants.

Friedman, Haslam & Weiner, Erwin A. Friedman, Aron G. Weiner, Savannah, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

The factual situation is stated in the case of Simeonides v. Zervis, 120 Ga.App. 883, 172 S.E.2d 649. Following that case, trial was held and a verdict rendered in behalf of the appellee, Zervis. This is an appeal from a judgment of the Superior Court of Chatham County overruling a motion for judgment notwithstanding the verdict, and a motion for new trial.

The appellant's enumeration of errors contains nine grounds filed within the time for filing specified by this court. Two additional grounds filed too late for consideration are variations of grounds stated in the timely enumeration.

The appeal presents the following legal issues: (1) The general grounds, (2) the standard of proof to rebut the presumption of legitimacy, (3) the standard of proof of a common-law marriage, (4) the admissibility of evidence consisting of (a) the appellee's testimony, that his father was Gavriel Simeonides, in effect charging his mother with adultery; (b) Anthony Zervis' testimony that G. F. Zervis indirectly indicated that he was not the father of Jimmy Zervis, the child of Martha Zervis; (c) a bank passbook with the name 'Martha Simeonides' for which no foundation was laid; (d) K. Z. Meritt's testimony that her mother, Martha Zervis, inferred or suggested that her husband was not the father of her child.

1. Motion for judgment notwithstanding the verdict. On the denial of such motion this court has held that 'an appellate court must affirm the trial court if there is any issue to be submitted to the jury and any evidence to sustain the verdict.' Massachusetts Bonding & Insurance Co. v. Bins & Equipment Co., 100 Ga.App. 847, 112 S.E.2d 626. 'If the evidence presents jury questions on material issues a motion for judgment n.o.v. will not lie.' Mississippi Tank Co. v. White, 108 Ga.App. 609, 134 S.E.2d 66. In this case there were jury questions on material issues and evidence to sustain the verdict on those issues. The trial court did not err in denying the motion for judgment n.o.v.

2. Standard of proof to rebut presumption of legitimacy. This standard was set for appellants in their prior appeal to this court, where the court quoted: "When sexual intercourse is once proved, nothing short of impossibility in such case, should impugn the legitimacy of the off-spring. But where sexual intercourse is presumed, merely from the propinquity of the parties, slighter proof is required to repel the presumption of paternity.' Wright v. Hicks, (15 Ga. 160) (9) . . . The appellants . . . have submitted no evidence that at or near the time of appellee's conception, his mother and his presumptive father in fact engaged in sexual intercourse so as to require application of the harsher rule of impossibility to rebut the presumption of legitimacy. The fact that four other children previously were born of this marriage shows no more than a presumption of sexual intercourse between the parties and a lesser degree of proof is required to rebut paternity. The declarations of the deceased made prior to this controversy are admissible on this issue. Estill v. Estill, 149 Ga. 384(2), 100 S.E. 365. Consequently, a genuine issue of material fact is present for resolution by a jury. . . .' Simeonides v. Zervis, 120 Ga.App. 883, 884, 172 S.E.2d 649, 651, supra. At the trial of this case, appellants presented no evidence that at or near the time of appellee's conception, his mother and his presumptive father in fact engaged in sexual intercourse, so as to require application of the harsher rule of impossibility to rebut the presumption of legitimacy. The statements and actions of the mother and the putative father, both of whom were deceased prior to the action, having been placed in evidence, there is evidence to support the finding of the jury, under proper instructions, that appellee had successfully rebutted the presumption of legitimacy.

3. The standard of proof of a common-law marriage. Common-law marriage is recognized in Georgia, Allen v. State, 60 Ga.App. 248, 3 S.E.2d 780; Steed v. State, 80 Ga.App. 360, 56 S.E.2d 171, and the Supreme Court has clearly stated the criteria for determining the existence of a common-law marriage to be: 'Marriage may be inferred from proof of cohabitation, and that the parties held themselves out to the world as husband and wife, and such proof may be made by general repute among neighbors and others in a position to know the facts. In 1 Andrews' Am.L., (2d Ed.) § 486, it is said: 'Where the only proof in the case is of continuous cohabitation, the presumption is that it was lawful. Where to this proof is added some affirmative proof of holding themselves out as man and wife, it adds so much to the force of presumption, and length of time strengthens the probative force of the presumption. This presumption of marriage from connubial habit is one of the strongest known to the law, and is to be repelled only by clear evidence. . . . '' Brown v. State, 208 Ga. 304, 306, 66 S.E.2d 745. The undisputed evidence of record here is that the putative father, Gavriel Simeonides and appellee's mother, Martha Zervis lived together after appellee's birth, after Martha Zervis' divorce from her husband and unto her death, Gavriel Simeonides consistently introduced the appellee's mother as 'my wife' or 'my wife, Martha,'...