Wake County ex rel. Manning v. Green

• Decision Date: 07 July 1981
• Docket Number: No. 8110DC14,8110DC14
• Citation: 53 N.C.App. 26,279 S.E.2d 901
• Parties: WAKE COUNTY, ex rel. Helen MANNING v. James GREEN.
• Court: North Carolina Court of Appeals

Page 901

279 S.E.2d 901

53 N.C.App. 26

WAKE COUNTY, ex rel. Helen MANNING v. James GREEN.

No. 8110DC14.

Court of Appeals of North Carolina.

July 7, 1981.

Asst. Wake County Attys. Shelley T. Eason and John C. Cooke, Raleigh, for plaintiff-appellant.

Earle R. Purser, Raleigh, and Becky I. Matthews, Raleigh, for defendant-appellee.

ARNOLD, Judge.

Plaintiffs contend that the trial court erred in concluding that the presumption of legitimacy required plaintiffs to prove that access between Helen Manning and her estranged husband was impossible at the time the child was conceived.

The presumption of legitimacy is an ancient English common law doctrine which, in its original form, conclusively presumed that a child born of a married woman was legitimate unless the husband was shown to be impotent or not within the four seas of England. This rule has given way to a less harsh rule which provides that access or nonaccess of the husband is a fact to be established by proper proof. Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224 (1941). In addition to evidence of impotency and nonaccess, evidence of blood grouping tests results and racial differences may be admitted to rebut the presumption. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972); 1 Stansbury's N.C. Evidence § 246 (Brandis rev. 1973).

In the case sub judice plaintiffs are relying on evidence of nonaccess. Our analysis of the North Carolina cases on point reveals a certain amount of confusion as to the quantum of evidence necessary to render the presumption permissive. Various standards for measuring the sufficiency of rebuttal evidence have been employed by the courts of this state. Many of the cases state the rule as follows: "... the presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife." (Emphasis added) Wright v. Wright, supra; Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968); State v. McDowell, 101 N.C. 734, 7 S.E. 785 (1888).

Other North Carolina cases state that nonaccess is sufficiently shown to render the presumption permissive if the evidence shows that the husband could not have been the father because he was impotent or did not have access to the mother at the time the child was conceived. State v. Bowman, 230 N.C. 203, 52 S.E.2d 345 (1949); Ray v. Ray, supra. These cases have generally involved fact situations where the husband did not live in the same county or state as the wife.

The distinction between these two standards has not been expressly recognized in the case law, and the courts that have cited the stricter "could not have had access" standard actually have not required a showing of impossibility. The fact that the wife is notoriously living in adultery has long been recognized as a "potent circumstance" tending to show nonaccess, even though the husband resided in the same community and had the opportunity of access. Ray v. Ray, supra; Ewell v. Ewell, 163 N.C. 233, 79 S.E.2d 509 (1913). Absence of the husband from the place where the wife was also has been recognized as proof that the husband is not the father. State v. Pettaway, 10 N.C. 623 (1825).

In the most recent North Carolina Supreme Court decision dealing with the presumption of legitimacy, State v. White, 300 N.C. 494, 268 S.E.2d 481 (1980), the child was conceived while defendant and her mother lived together as husband and wife. White held that to require a defendant-husband to offer evidence of the physical impossibility of his fatherhood in order to rebut the presumption of paternity places upon him a burden of production so stringent that, in effect, it unconstitutionally shifts the burden of persuasion to him on that issue. The court found that due process precluded requiring the defendant to do more than offer evidence (1) that he could not be the father because, for example, he did not in fact have sexual relations with his wife at a time when conception could have occurred; or (2) that even if defendant could be the father, some other man also could be the father because that other man had sexual relations with the mother at a time when conception could have occurred.

While the same due process considerations may not apply in civil proceedings, we believe that an examination of the presumption and the quantum of evidence necessary to rebut it is necessary in this case. As previously discussed, proving literal impossibility of access never has been required, and any such statement of the rule in terms which mislead judges and jurors should not be adhered to any longer. Considering the available modes of modern transportation, if a plaintiff is required to negate every possibility of access, the presumption, in effect, reverts to being a conclusive one. We do not go so far as to hold that evidence that another man, as well as the husband, had sexual relations with the mother is sufficient by itself to rebut the presumption in a civil action. A plaintiff is not required, however, to show that the husband could not have had access, but that he did not have access. Where, as in this case, the spouses are living apart, the presumption will be rebutted unless there is a fair and reasonable basis in light of experience and reason to find that they have engaged in sexual relations.

Related to the issue of the quantum of evidence necessary to rebut the presumption of legitimacy is the question of whether the testimony of plaintiff Helen Manning concerning the exclusivity of her sexual relations with defendant during the period when conception occurred should have been excluded.

The trial court excluded this evidence as violative of the established rule in North Carolina that neither a husband nor a wife can bastardize a child by testifying to the nonaccess of the husband at the time the child was conceived. Eubanks v. Eubanks, supra; Ray v. Ray, supra; State v. Pettaway, supra. This rule, which originated in dictum by Lord Mansfield in a 1777 ejectment case, has come under serious attack in recent...