Stone v. Stone

• Decision Date: 28 August 1969
• Docket Number: No. 40100,40100
• Citation: 76 Wn.2d 586,458 P.2d 183
• Court: Washington Supreme Court
• Parties: Susan A. STONE, Appellant, v. Norman L. STONE, Respondent.

Page 586

76 Wn.2d 586

458 P.2d 183

Susan A. STONE, Appellant, v. Norman L. STONE, Respondent.

No. 40100.

Supreme Court of Washington, Department 1.

Aug. 28, 1969.

Rehearing Denied Oct. 21, 1969.

Gibbon & Thoreson, Donald L. Thoreson, Seattle, for appellant.

Hohlbein, Church, Sawyer & VanDerhoef, Kenneth D. VanDerhoef, Seattle, for respondent.

McGOVERN, Judge.

The July 4, 1965, marriage of Susan and Norman Stone was dissolved by decree of divorce entered December 6, 1967. Appealing from that order, Mrs. Stone challenges the court's conclusion that a child born to her on December 6, 1966, is not the legitimate offspring of that marriage.

Connubial bliss was of short duration for the Stones--in fact, it lasted less than 1 year. Almost immediately they started quarreling; they argued about their in-laws and they bickered about her schooling; he physically abused her, frightened her with a gun and struck her on the head with a duffel bag. She carried on an illicit relationship with another young man.

It was the testimony of Mrs. Stone that her promiscuous conduct terminated in February, 1966, before her period of gestation began. She said that her child could not have been the result of the meretricious union because her usual monthly physical change commenced March 2, subsequent to the conclusion of that union. She testified that Mr. Stone is the natural father of her full-term baby conceived March 16 when he visited her at the apartment, and born December 6, 1966.

Mr. Stone, however, testified that he lived with his wife only until March 2, 1966, at which time he was arrested and charged in the municipal court of the City of Seattle with the crime of disorderly conduct. As a result of that charge, he claimed that the military authorities immediately confined him to the United States Coast Guard ship to which he was attached and that he remained confined to that ship until March 25 when his restriction was lifted. He testified that he left the ship during that period of time on only 3 occasions: once when he had to be in court; later when he had to appear at his attorney's office; and on the third occurrence when he and his attorney went to his apartment to retrieve his personal clothing. He further said that on each of those occasions he was at all times accompanied by an officer from the ship. He said he did not have marital relations with Mrs. Stone during either February or March, 1966.

From that paucity of evidence the trial court found that Mr. Stone did not have access to his wife during the critical period of time and therefore concluded that Mrs. Stone's young daughter is not the product of a legal relationship. It thus irrevocably tagged the child with the label of illegitimacy and with all of the serious disabilities that attend such status. We reverse because the evidence was not sufficient to support that conclusion.

We are firmly committed to the rule that a child born during wedlock is presumed to be legitimate. Pierson v. Pierson, 124 Wash. 319, 214 P. 159 (1923); State ex rel. Bentley v. Frenger, 158 Wash. 683, 291 P. 1089 (1930); In re a Minor, 29 Wash.2d 759, 189 P.2d 458 (1948); Carfa v. Albright, 39 Wash.2d 697, 237 P.2d 795, 31 A.L.R.2d 983 (1951). Equity, justice and common sense require that every reasonable presumption be made in favor of legitimacy and we place a heavy burden of proof on the person alleging illegitimacy. 10 Am.Jur.2d, Bastards § 10 (1963). The learned Justice Cardozo has said that the presumption of...