Underwood v. Underwood
| Citation | 399 S.W.2d 635 |
| Decision Date | 07 February 1966 |
| Docket Number | No. 24343,24343 |
| Parties | Layton E. UNDERWOOD, Jr., Plaintiff-Appellant, v. Ruth Marie UNDERWOOD, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
John R. Moore, Miller & Moore, Platte City, for appellant.
Robert P. C. Wilson, III, Platte City, for respondent.
SPERRY, Commissioner.
The real issue in this case is the legitimacy of a child born to defendant during the existence of the legal marriage between her and plaintiff. This appeal is from that portion of a decree of divorce wherein the court found and decreed that Johana Rae Ella Underwood, a child born to defendant, was also the child of plaintiff, and awarding defendant a judgment against plaintiff in the sum of $5.00 per week for support and maintenance of the child.
Our review will be both upon the law and the evidence, as in suits of an equitable nature. Boudinier v. Boudinier, 240 Mo.App. 278, 203 S.W.2d 89, 97 (K.C.App.). It follows that we will determine the sufficiency of the evidence to support the judgment. We will make our own finding of facts and conclusions, but where such findings rest upon contradictory oral testimony we will, ordinarily, defer to the judgment of the trial court, unless it is overwhelmingly contrary to the evidence.
This divorce suit was filed by plaintiff September 10, 1963. Plaintiff's testimony was to the effect that he and defendant were married May 29, 1961; that they finally separated June 29, 1962; that there was born of the marriage a girl named Shawndel Lyn, January 30, 1962; that, after separation, the parties never again lived together or cohabitated as man and wife; that defendant visited him at his apartment, occupied by plaintiff alone, several times in July and August, of 1962; that, in September, 1962, defendant telephoned him from Waynesville, Missouri, and requested that he bring her to Kansas City; that he went after her and, eventually, found her in company with a soldier; that she was intoxicated; that he took her to his own home in Platte County, Missouri; that, later, he took her to Kansas City. His testimony is replete with instances when, he stated, that he found her with other men, at times in bed with a man, at various hotels in Kansas City. He admitted that, after one or more such incidents, he went back and lived with her, in August of 1962; that she had been treated for a venereal disease. At one time, in his testimony, he stated that he cohabitated and resided with her in June of 1963, but he later claimed that he had made a mistake as to the year. His testimony indicates a vagueness as to various important dates that have to do with his relations with defendant.
It was established that defendant gave birth to Johana on January 6, 1964. Plaintiff contends that he never had sexual intercourse with defendant after their separation, June 29, 1962, and that Johana is not his child. It is not in dispute that defendant was pregnant a third time, in October of 1964, and there is no contention made that that child was sired by plaintiff. There is, on the contrary, testimony to the effect that defendant stated to a relative that plaintiff was not the father and named another as the sire of the then unborn child. There was also testimony to the effect that defendant stated to various witnesses that, at some time during the period herein covered, she had contracted a venereal disease, but there is no suggestion as to the source of the contagion. Plaintiff admitted that he had been convicted of the crime of theft and was sentenced to two years in prison, with probation.
In the trial of this case defendant was not present personally and did not testify. However, she was represented by counsel who caused to be introduced in evidence testimony which defendant had previously given in this case, in connection with a motion filed by her. At that time she testified to the effect that she and plaintiff separated in June, 1962; that...
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JD v. MD
...the plaintiff (Clapper v. Lakin, 343 Mo. 710, 723(2), 123 S.W.2d 27, 33(4)), that the presumption is rebuttable (Underwood v. Underwood, Mo.App., 399 S.W.2d 635, 637(2)), and 'dropped from the case when defendant offered substantial evidence contradicting paternity.' He also urges that unai......
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Claude T. v. Claire T., 39328
...where evidence to rebut the presumption of legitimacy rested solely upon the husband's unsupported testimony, the court in Underwood v. Underwood, 399 S.W.2d 635 (2, 3) (Mo.App.1966), held it was insufficient in view of the entire record and the immoral activity of both parties. Reversible ......