State ex rel. J. L. K. v. R. A. I.

• Decision Date: 02 July 1982
• Docket Number: No. CC932,CC932
• Citation: 170 W.Va. 339,294 S.E.2d 142
• Parties: STATE of West Virginia ex rel. J. L. K. v. R. A. I., II.
• Court: West Virginia Supreme Court

Page 142

294 S.E.2d 142

170 W.Va. 339

STATE of West Virginia ex rel. J. L. K. v. R. A. I., II.

No. CC932.

Supreme Court of Appeals of West Virginia.

July 2, 1982.

Syllabus by the Court

A woman, who conceived a child while she was married, but gave birth to the child while she was unmarried, may not obtain a warrant, pursuant to W.Va.Code, 48-7-1 [1969], accusing a person other than her former husband of being the father of the child if she has not lived separate and apart from her former husband for a space of one year or more prior to the birth of the child.

Allen, Cline & Forbes and William C. Forbes, Charleston, for plaintiff.

Timothy N. Barber, Charleston, for defendant.

McHUGH, Justice:

This action is before this Court upon a certified question from the Circuit Court of Kanawha County, West Virginia. The certified question involves the right of J.L.K. to accuse the defendant, R.A.I., II, of being the father of her children. This Court has before it the order of the circuit court entered May 1, 1980, by which order the question was certified, all matters of record and the briefs and argument of counsel.

A magistrate issued two warrants against the defendant, one warrant (M-78-832) related to the birth of J.L.K. and another warrant (M-78-831) related to the birth of M.G.K. ¹ Pursuant to W.Va.Code, 48-7-1 [1969], the actions were then docketed before the Circuit Court of Kanawha County as Action No. AP-CRS-78-113 and Action No. AP-CRS-78-112, respectively.

By order entered on May 1, 1980, the trial court certified the following question to this Court:

Whether a woman has a right under West Virginia Law to bring a bastardy action as an unmarried woman where she delivers a child while unmarried but said child was conceived during a lawful marriage and said marriage was dissolved prior to the birth of the child, said child being born within less than one year of the last date of known cohabitation with her then husband.

The central issue is the interpretation of W.Va.Code, 48-7-1 [1969], which reads, in part:

If a married woman live separate and apart from her husband for the space of one year or more, and shall not at any time during such separation, cohabit with such husband she may, if she be delivered of a child at any time after such one year, and while such separation continues, accuse any person, other than her husband, of being the father of such child, in like manner, and the same proceedings shall thereupon be had, as if she were an unmarried woman.

However, three arguments are presented by J.L.K. First, the one-year requirement is an arbitrary rule which discriminates against illegitimate children, thus her child is "forever barred from the right to support, maintenance, inheritance and her father's good name." Second, the statute in question violates the equal protection clauses of both the State and Federal Constitutions. Finally, J.L.K. argues that, if W.Va.Code, 48-7-1 [1969], is held valid, her marital status at the time of birth of her child should be controlling. If so, her status as an unmarried woman applies and she would not be barred by the one-year separation requirement.

The facts in this action are not in dispute. On June 30, 1972, the appellant married S.B.K. On November 25, 1975, J.L.K. and S.B.K. began living separate and apart. On April 9, 1976, they were divorced. Since that divorce, the appellant has remained unmarried. On November 23, 1976, the appellant gave birth to twin children, J.L.K. and M.G.K.

Originally W.Va.Code, 48-7-1 [1969] ² merely codified the common law which allowed only an unmarried woman the right to bring a paternity action against the putative father. However, the West Virginia Legislature in Chapter 80 of the Code of 1868 amended the statute to enable a married woman, if the child was born one year or more after the mother and her husband began living separate and apart, to bring a paternity action as if she were an unmarried woman.

At common law a child born or conceived during marriage was conclusively presumed to be legitimate. Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224 (1941). The rule was recognized and applied in State v. Reed, 107 W.Va. 563, 149 S.E. 669 (1929), which quoted Lord Mansfield in the case of Goodright v. Moss, 2 Cowp. 591, 98 Eng.Reprints, 1257 (1777):

As to the time of the birth, the father and mother are the most proper witnesses to prove it. But 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; more especially, the mother, who is the offending party.

149 S.E. at 671.

The basis of the presumption "recognizes the legal burden and social stigma cast upon an innocent child when he is bastardized, as well as the responsibilities of two persons who have entered the state of marriage." ." State ex rel. Satterfield v. Sullivan, 115 Ohio App. 347, 185 N.E.2d 47, 49 (1962). The common law "presumption was so absolute that the doctrine of filiato non potest probaris ³ applied, and no proofs would be received to dispute the legitimacy of the child." Powell v. State, 84 Ohio St. 165, 95 N.E. 660, 661 (1911), overruled on other grounds, State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). The policy behind such a rationale is referred to in the often cited case of Powell v. State, supra :

Public policy requires that the status of a child born or begotten in lawful wedlock should be fixed and certain, and the immediate exigencies or even the apparent justice of any particular case will not justify a departure from the rule so necessary and salutary to the best interests of society. The law is not willing that a child shall be declared a bastard to suit the whims or purposes of either parent....

95 N.E. at 662.

The only defenses available to the husband at common law were impotency or that he was beyond the four seas. Ray v. Ray, supra. This reasoning is most ably expressed in Milone v. Milone, 290 N.Y.S. 863, 160 Misc. 830 (1936):

The child should not be punished for the misconduct of either its mother or its father ... whether the lawful husband or the paramour was the father of the child, resulting in a mark of illegitimacy to be stamped upon the child, would evidently be unjust to the child and contrary to public policy.

290 N.Y.S. at 867.

The common law rule can thus be viewed as a protective device for both the child and mother so that the label "bastard" would not stigmatize the child, nor would the mother's reputation be tarnished. Moreover, the common law rule upheld the integrity of the family because it was the family which was the basic social and economic fabric which bound society together.

However, as society became more industrialized, and thus fragmented, the family's importance as a unifying entity diminished. In response to this development, state legislatures altered the common law of illegitimacy. As a result of such changes many barriers were lifted, e.g., illegitimate children could rightfully inherit from their fathers. See W.Va.Code, 42-1-5 [1931] and Adkins v. McEldowney, 167 W.Va. 469, 280 S.E.2d 231 (1981). West Virginia, as evidenced by W.Va.Code, 48-7-1 [1969], is no different in this respect.

West Virginia is not alone in changing the common law in regard to allegations of paternity. Other legislatures such as California, ⁴ Louisiana, ⁵ Oklahoma, ⁶ North Dakota, ⁷ and New York, ⁸ have also enacted statutes which deem children born within a certain time period after the dissolution of a marriage to be legitimate, thus precluding the mother from accusing someone other than her former husband of paternity.

Three differences, however, do exist between the statutes in those states and the statute in West Virginia. First, those states require a time period of ten months instead of one year. Second, the time period in those states starts running from the date of divorce or legal separation, instead of the initial date of living separate and apart. Finally, a strong, yet rebuttable, presumption has been created in those states in lieu of an absolute one, except for nonaccess, as in West Virginia.

The first difference between West Virginia and the other states concerns the time period. The normal gestation period is, of course, nine months. It is common, however, for a pregnancy to last ten months. R. Benson, Handbook of Obstetrics and Gynecology 52 (6th ed. 1977). Thus, it is apparent that the states which adhere to the ten-month requirement follow the rule that a common gestation period may be ten months. However, pregnancies are on record as lasting much longer. In Ohio and Kentucky pregnancies which lasted 324 days were found to exist, and the children thus born were held to be legitimate. Powell v. State, supra; Ousley v. Ousley, 261 S.W.2d 817 (Ky.1953). In Washington a gestation period of 336 days occurred. Pierson v. Pierson, 124 Wash. 319, 214 P. 159 (1923). Furthermore, it is possible for a pregnancy to last up to 389 days. R. Benson, supra, at 52.

In West Virginia a child either born or conceived during marriage is a legitimate child. Worley v. Lavender, 147 W.Va. 803, 809, 131 S.E.2d 752, 756 (1963). ⁹ It is easy to determine when a child is born, we merely look to the date of birth. Determining the date of conception is not so exact. One cannot merely count back nine, or ten, months from the date of birth and arrive at the time of conception. Any such computation would be a mere approximation, nothing more.

It can, therefore, be readily assumed that the one-year statutory requirement is a compromise between the common law doctrine and a recognition of medical possibilities. The additional two months which the West Virginia statute requires can be properly viewed as a margin of safety regarding the conception date. W.Va.Code, 48-7-1 [1969] protects the interests of the child in statutorily deeming the child legitimate. It is...