State v. Coliton

• Decision Date: 08 February 1945
• Docket Number: 6953.
• Citation: 17 N.W.2d 546,73 N.D. 582
• Parties: STATE v. COLITON.
• Court: North Dakota Supreme Court

17 N.W.2d 546

73 N.D. 582

STATE v. COLITON.

No. 6953.

Supreme Court of North Dakota

February 8, 1945

Syllabus by the Court.

A child born to a married woman, but begotten during the continuance of the marriage status by one other than her husband, is a child 'born out of wedlock,' within the purview of our Uniform Illegitimacy Act.

O B. Benson, of Bottineau, for plaintiff and respondent.

W H. Adams, of Bottineau, for defendant and appellant.

BURR, Judge.

The complainant sets forth:

'That near Westhope in Bottineau County, North Dakota, she gave birth to an illegitimate child on the 23rd day of July, 1942 and that the father of said child is Alan Coliton. That the act of intercourse which caused her pregnancy and childbirth occurred at Westhope in Bottineau County, North Dakota on or about October 23, 1941.

'Wherefore Affiant prays that the said Alan Coliton may be arrested and declared to be the father of said child and liable for its support and care.

'Affiant further states that for a period of more than four years prior to the birth of her child she was and still is married but was not living with or cohabiting with her husband during any of that time.'

The defendant demurred, alleging:

'* * * that it (the complaint) does not state that the child therein alleged to have been born to the complaining witness, Myrtle Rosendahl, was born out of wedlock, but, on the contrary alleges that said child was conceived and born while a state of wedlock existed between said complaining witness and one, Neil Rosendahl, who is now, and at all the times in the complaint mentioned was, her husband.'

The trial court overruled the demurrer and the defendant appeals.

The statute involved, section 10500a1 of the Supplement, (being Sec. 32-3601 of the Revised Code of 1943) provides, among other things: 'The parents of a child born out of wedlock and not legitimated * * * owe the child necessary maintenance, education and support.'

For the purposes of the demurrer, the defendant admits the complainant is a married woman and that he is the father of her child, begotten and born while she was married to another. It becomes necessary therefore to determine the scope of the phrase, 'a child born out of wedlock.' Under the statute cited, may a child, born as stated, be said to be 'born out of wedlock'?

The gist of appellant's argument is that owing to the existing marriage relations a child born to the wife during that time can not be said to be 'born out of wedlock.'

Such contention unduly extends the meaning of the term 'wedlock.' Much of the confusion arises because of the presumption of legitimacy where the mother is married and the difficulty in obtaining proof to dispute this presumption as well as the statutory limitations as to who may raise the question. So far as the child is concerned, it is immaterial whether it is designated as illegitimate, or bastard, or born out of wedlock. In all such cases, it is illegitimate.

The extreme difficulty of rebutting this presumption and its transition from that of a practical conclusiveness to the modern trend toward a sane and reasonable ascertainment of facts is clearly set forth in the opinion of the New York Court of Appeals--In re Findlay, 253 N.Y. 1, 170 N.E. 471--written by Judge Cardozo. Therein, the court reviewed the history of the application of this presumption and in a rather exhaustive opinion traced the history of the change in the quantum of proof necessary to rebut it. Throughout the decision runs the undisputed theory the presumption never was or is conclusive.

In harmony with American jurisprudence, this state has always held that 'all children born in wedlock are presumed to be legitimate' (Sec. 4420, C.L., and 14-0901, Revised Code 1943) as is also a child born to a married woman within ten months of the dissolution of the marriage (Sec. 4421, C.L., 14-0902, Revised Code 1943). This is a presumption which may be rebutted, but this 'presumption of legitimacy can be disputed only by the husband or wife or the descendant of one or both of them. Illegitimacy in such case may be proved like any other fact.' Section 4422, C.L., 14-0903, Revised Code 1943. The status of wedlock exists between them. The presumption is that it is their child and therefore born in wedlock. See State v. Fury, 53 N.D. 333, 205 N.W. 877, 878. But it may be shown that the child was not born to them in the status of wedlock that existed between them and is therefore illegitimate.

To protect society, this limitation on the attack of presumption is made:

'If neither the husband nor the wife to an existing marriage desires to raise any question of the legitimacy of a child born during its existence, the best interests and welfare of society will be promoted if the state likewise declines to intervene in raising that question.' Ex parte Madalina, 174 Cal. 693, 164 P. 348, 350, 1 A.L.R. 1629.

In the case at bar, the legitimacy is disputed by the wife, the mother of the child. While under the common law, neither husband nor wife could bastardize a child born during wedlock, the statute removes this difficulty. As said in Vincent v. Koehler, 284 N.Y. 260, 30 N.E.2d 587, in the absence of statute, neither husband nor wife was a competent witness in such case, whatever would be the form of the legal proceedings or whoever would be the parties. Our statute already quoted changes this, but limits this power to husband, wife, or any descendant of either. Such was our statute when the Uniform Illegitimacy Act, Comp.Laws Supp.1925, § 10500a1 et seq., was adopted and the term 'born out of wedlock' used.

There has never been any question but what a married woman may give birth to an illegitimate child which is therefore termed bastard. People v. Gleason, 211 Ill.App. 380; Stripe v. Meffert et al., 287 Mo. 366, 229 S.W. 762. This applies also to cases where the parents of the child have living spouses. Lewis v. Crowell, 210 Ala. 199, 97 So. 691; McLoud v. State, 122 Ga. 393, 50 S.E. 145. In Jones v. State, 11 Ga.App. 760, 76 S.E. 72, the court states:

'Both at common law, as it was interpreted in England at the time of our adopting statute, and under the statute of this state, a child of a married woman, begotten by one who is not the husband of the mother, is a bastard. While there is a strong presumption that a child born during wedlock is legitimate, this presumption is not conclusive, and will be held to have been rebutted, where the proof to the contrary is clear.'

'A child born out of wedlock is an illegitimate child.' Sweet v. Hamilothoris, 84 Cal.App. 775, 258 P. 652, 655. 'In common parlance 'illegitimate child', 'natural child' and 'bastard' are interchangeable terms connoting a child born out of wedlock.' This is so even if a state makes distinctions between natural children and bastards 'with regard to their status and capacity to inherit.' Lathan v. Edwards et al., 5 Cir., 121 F.2d 183, 185. As a married woman may have an illegitimate child, the child perforce must have been born while the relation of wedlock existed between her and her husband and not between her and the father of her child.

Wedlock means the ceremony or state of marriage. It is equivalent to what we term matrimony and that is the relation which is derived from marriage. Where the man and the woman are thus married to each other so that the status of wedlock exists between them, then this matrimonial relationship is established. The law, for the protection of society, assumes that any child thus born to the wife is born in wedlock and is therefore legitimate; but because of the peculiar interests which exist between this husband and wife, or any descendant of this husband or of this wife, this presumption that the child was born in wedlock--that is, that the child is legitimate--may be overthrown.

The terms 'lawful matrimony' and 'unlawful matrimony' are confusing. Matrimony is defined by Webster as 'the union of man and woman as husband and wife; * * * the married state; marriage; wedlock.' While this exists, the state of matrimony exists. Where this status exists and the wife gives birth to an illegitimate child, it is because of an unlawful assumption of matrimonial relations. This socalled 'unlawful matrimony' is a violation of the mutual rights of each and therefore that term, as used in such statute as is considered in Vincent v. Koehler, supra, is simply synonymous with 'born out of wedlock.'

Many courts use the term 'born out of lawful wedlock.' This is recognition of the fact that though husband and wife live in lawful wedlock--lawful because they are legally married to each other--yet a child may be born to her that is not the fruit of this wedlock; and therefore the child is born out of wedlock, out of lawful wedlock. There can be no wedlock that is not lawful wedlock.

The term 'out of wedlock' used in the Uniform Illegitimacy Act, arises because of the presumption which attaches to children born to a man and woman married to each other. Where a man and woman are legally married, and thereafter during the existence of the marriage relation the woman has a child the very strong presumption is that it was born in wedlock, and not born out of wedlock; that is, that it is a legitimate child, not illegitimate. The term 'wedlock' refers to the status of the man and his wife, not the status of the woman and her paramour. As to the latter, there is no wedlock and the child born to them is born out of wedlock. Because it is thus born out of wedlock and is therefore illegitimate, the natural father can be required to support it. The fact that there may be difficulty in proving the child was born out of wedlock--that is, that it is the illegitimate child of the mother, the child of one to whom ...