Pierson v. Pierson , 124 Wash. 319 ( 1923 )

Fullerton, J.

— The respondent brought this action for a divorce, basing her cause of action upon the grounds of desertion and nonsupport. The appellant, in his answer, denied these allegations and filed a cross-complaint asking for a decree in his favor upon the grounds of adultery. From a judgment awarding respondent a divorce, awarding to her the custody of the minor child of the parties, and $25 monthly alimony, this appeal is prosecuted.

The parties were married at Everett on June 26, 1919, and went to the home of appellant’s parents in Snohomish county to live. At some date between August 18th and 25th of the same year, respondent, at the request of appellant’s parents, left their home and went to Everett, appellant promising to join her. This he failed to do, but, through the intervention of the prosecuting attorney of Snohomish county and later of King county, was compelled to contribute to her support. Following the birth of the child, he refused to contribute further, claiming that he was not the father of the child.

The respondent produced abundant evidence to support the charges made in her complaint. The appellant, in the court below and again in this court, based his entire cause for relief upon the claim that the child was born some 336 days from the time the parties ceased to cohabit, and from this argues that this period is so greatly in excess of the ordinary period of gestation as to conclusively establish the fact that the respondent was guilty of adultery at some time after separation from him.

No principle of law is more firmly established than the principle that every child born in wedlock is presumed to be legitimate. 7 Corpus Juris 940; 3 R. C. L. 726; Powell v. State ex rel. Fowler, 84 Ohio St. 165, 95 N. E. 660, 36 L. R. A. (N. S.) 255; Canaan v. Avery, 72 N. H. 591, 58 Atl. 509; Gordon v. Gordon, (1903) 89 Law T. (N. S.) 73; Cope v. Cope, 1 Moody and R. 269; Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375.

In 7 C. J. 940, it is sai<I:

" The presumption .of tbe fact of legitimacy is one of the strongest known to tbe law, and it cannot be overthrown except by evidence which is stronger.”

In some jurisdictions tbe old common and civil law rule that such a presumption is conclusive is followed, but perhaps tbe better rule is that tbe presumption of legitimacy is rebuttable. Powell v. State ex rel. Fowler, 84 Ohio St. 165, 95 N. E. 660, 36 L. R. A. (N. S.) 255, and cases discussed in note.

Tbe record in tbe case is entirely barren of evidence of misconduct on tbe part of respondent subsequent to tbe separation of tbe parties, nor is there any evidence that conclusively establishes that there was no intercourse between them after the-wife left tbe home of her husband’s parents. Conceding, however, that there bad been none, we are not willing to say, as a matter of law, that tbe period elapsing between that date and tbe date of the birth of tbe child is so far excessive as to conclusively show illegitimacy. Tbe medical authorities on tbe subject, cited in tbe arguments of counsel, disclose that, while such an extended period is exceedingly rare, yet there are well authenticated cases of even longer periods.

A court will not by its judgment brand an innocent child with tbe bar sinister unless tbe record is so far conclusive as to leave room for no other course. Tbe present record is not thus conclusive, and our order will be that tbe judgment of tbe court below stand affirmed.

Main, C. J., Parker, Tolman, and Pemberton, JJ., concur.