Burrell v. BurrellBurrell v. Burrell
The trial court rendered judgment in favor of plaintiff “declaring the marriage ceremony performed in Orleans Parish, Louisiana, March 18, 1960, between petitioner and Nona Mae Brown to be null, void and of no force and effect“. Defendant‘s reconventional demand for maintenance and support of the three children was rejected and from said adverse judgment defendant has appealed.
The facts giving rise to this action are not in dispute between the parties and may be briefly summarized as follows: Appellant was lawfully married to one Ovie Harris Daniel on June 19, 1946, in East Baton Rouge Parish. On an undisclosed date in 1950, defendant and her said husband, Ovie Harris Daniel, became estranged and during said same year appellant and appellee commenced living together, holding themselves out as man and wife. In 1951, appellant, to the knowledge and with the assistance of appellee, instituted action for divorce against her said husband but the matter was never prosecuted to final judgment and no decree of divorce or separation was ever rendered therein. From the commencement of their relationship in 1950, appellant and appellee lived together as man and wife in the Parish of East Baton Rouge and on March 18, 1960, said parties entered into a marriage ceremony in Orleans Parish, notwithstanding defendant‘s marriage to Daniel had never been dissolved by divorce or otherwise. Of the aforesaid union between appellant and appellee the three hereinabove named children were born, their respective births being recorded and registered as though they were issue of a lawful marriage between plaintiff and defendant. During the time plaintiff and defendant
Learned counsel for appellant maintains the trial court erred (1) in granting judgment annulling “the marriage ceremony” between the parties at bar because our law makes no provision for such a decree but permits only rendition of judgments “annulling marriages“; (2) permitting plaintiff to maintain the present action considering the right to annul a bigamous marriage is, by virtue of Article 116 LSA-C.C., limited and restricted to the spouse of the prior marriage aggrieved thereby; (3) declining to hold that plaintiff, by entering into a ceremony of marriage with defendant legitimated the three children of the union between the parties before the court and is therefore precluded from taking any action to bastardize his own legal issue; and (4) rejecting appellant‘s contention that by virtue of plaintiff‘s relationship with and marriage to defendant, and his acknowledgment of the children involved, plaintiff should be decreed the natural father of said minors and, as such, condemned to pay the support due by a parent to his natural children.
We find no merit in appellant‘s contention a bigamous marriage may be annulled only upon application of the spouse of the former marriage prejudiced thereby. LSA-C.C. Article 90, found in Chapter 2, Marriages, provides in essence the law considers marriage in no other view except that of a civil contract and sanctions all marriages contracted by parties willing to contract, able to contract and who do contract marriage pursuant to the formalities and solemnities prescribed by law. Article 113 LSA-C.C., Chapter 4, Marriages, expressly provides all marriages contracted under the incapacities enumerated in Chapter 2, (including Article 90 LSA-C.C.) may be impeached either by the married persons themselves or by any interested party. It is clear that in the case at bar the parties were aware of their inability to contract marriage considering the record clearly shows both plaintiff and defendant were fully cognizant of appellant‘s prior undissolved marriage. Under circumstances identical to those herein involved, the “wife” was held entitled to judgment declaring the nullity of such a marriage in Mounier v. Coutejean, 45 La.Ann. 419, 12 So. 623.
Although esteemed counsel for appellant forcefully maintains Article 116 LSA-C.C. grants the right to annul a bigamous marriage only to the spouse of the prior marriage prejudiced thereby, able counsel cites no authority in support of such position and our own research has failed to disclose such precedent. Granted, the Article gives the prejudiced spouse of a prior marriage the right to sue to annul a bigamous second marriage of his marital partner, we detect no language therein indicative of legislative intention to restrict such action solely to such prejudiced spouse. Nor do we detect in the cited article any provision calculated to restrict the provisions of LSA-C.C. Article 113 which grants the married persons themselves and any interested party the right to impeach a marriage contracted in violation of law.
Appellant‘s contention the law permits of no decree “annulling the marriage ceremony” is begging the question within the literal meaning of the phrase considering the status of legitimate marital relationship is subject to the indispensable
The contention of esteemed counsel for appellant that the marriage ceremony performed between the parties at bar constitutes the children in question legal issue of plaintiff and defendant thereby rendering appellant liable for their support as their legitimate father is predicated upon two premises. First, it is contended the marriage itself was never annulled since the judgment of the trial court did not annul the marriage but merely the ceremony of marriage. From this counsel argues the marriage was never dissolved and is therefore still in existence, consequently, children born of the marriage are the legitimate offspring of the parties to the marriage. Secondly, it is contended plaintiff‘s admitted acknowledgment of the children by registering their births in his name and openly living with defendant as man and wife constituted acknowledgment within the meaning and contemplation of Articles 198 and 199 LSA-C.C. so that the marriage performed subsequent to their birth legitimated them making plaintiff liable for their support as their lawful father.
We have hereinbefore disposed of the contention the decree of the trial court was without legal effect because it assertedly did not dissolve the marriage itself but merely the marriage ceremony.
The marriage with which we are herein concerned is patently a bigamous marriage admittedly contracted by parties both of whom were fully aware and cognizant of the impediment which barred the reputed wife from entering into a binding contract of marriage. Under such circumstances the marriage was an absolute nullity producing no civil effects with respect to either the parties thereto or issue thereof. LSA-C.C. Articles 117 and 118; Succession of Navarro, 24 La.Ann. 298; Succession of Virgin, 24 La.Ann. 485. The marriage between plaintiff and defendant being an absolute nullity producing no civil effect whatsoever, it follows that at the time of conception and birth of the children in question, appellant was the lawful wife of Ovie Harris Daniel considering appellant‘s admission her marriage to Daniel was never dissolved by divorce or otherwise.
It is the well settled jurisprudence of this state that the husband of the mother is considered the father of all children conceived during the marriage. LSA-C.C. Article 184. The husband cannot by alleging his natural impotence, disavow a child born during the marriage nor can he disown such child for cause of adultery, unless its birth has been concealed from him. LSA-C.C. Article 185.
Under certain circumstances the husband of the mother may contest paternity of children of the marriage. LSA-C.C. Article 191. The right to contest paternity, however, rests solely and exclusively in the husband and (in certain circumstances not pertaining to the case at bar) in the heirs of the husband. Ducasse‘s Heirs v. Ducasse, 120 La. 731, 45 So. 565. Children born during the existence of a lawful marriage are presumed legitimate issue of the marriage in the absence of the father‘s
On prior occasions the presumption of legitimacy accorded a child born during the existence of a marriage has been declared one of the strongest presumptions known to law. Indeed, the presumption is so strong and conclusive, even the mother is precluded from stigmatizing such a child as illegitimate by contending her lawful husband is not the child‘s father. In this regard we cite with approval the following language appearing in State v. Randall, 219 La. 578, 53 So.2d 689:
“In interpreting these codal provisions this court has held on numerous occasions that the right to contest the legitimacy of a child born during marriage is strictly personal to the husband and can be exercised by him only during a fixed period (with the right reserved to his heirs in the event of his death within the delay). When he fails to institute timely the disavowal action such right is extinguished; it can subsequently be exercised by no one; and the presumption of his paternity is absolute. Eloi v. Mader, 1 Rob. 581; Dejol v. Johnson, 12 La.Ann. 853; Succession of Saloy, 44 La.Ann. 433, 10 So. 872; Ezidore v. Cureau‘s Heirs, 113 La. 839, 37 So. 773; Kuhlman v. Kuhlman, 137 La. 263, 68 So. 604; Succession of Flynn, 161 La. 707, 109 So. 395; Beard v. Vincent, 174 La. 869, 141 So. 862; Evans v. Roberson, 176 La. 280, 145 So. 539; Smith v. Smith, 214 La. 881, 39 So.2d 162.”
Admittedly the Randall case, supra, involved interpretation of the penal statute of this state defining the offense of criminal neglect of family. There appears, however, no valid reason for differentiation between the obligation of an alleged parent to support his children predicated upon whether the duty of maintenance is sought to be enforced by civil or penal procedural devices. The reasons for applying the well established presumption of legitimacy of children born during a lawful marriage are neither altered, changed or affected in the slightest degree by the means through which enforcement of the obligation of support is sought to be accomplished.
For reasons which should appear obvious, a child can have but one legitimate father. The presumption of legitimacy resulting from birth during the existence of a lawful marriage is absolute and irrefutable (excepting only the right of disavowal under proper circumstances) and precludes application of any rule, principle or theory which would admit of proof that such a child is the offspring of anyone other than the lawful husband of the mother which bore such child. It follows, therefore, that insofar as the present matter is concerned, the children in question are legally presumed to be issue of the undissolved marriage between appellant and Ovie Harris Daniel.
There remains to be disposed of the contention that the marriage between the parties at bar legitimated the children in question by virtue of the provisions of Articles 198 and 199 LSA-C.C. In support of this position learned counsel has cited Green v. Green, 14 La.App. 39, which we find clearly distinguishable from the case at bar. We note the Green case, supra, involved acknowledgment of a child born of an illicit relationship between plaintiff‘s mother and the defendant, the distinguishing feature being plaintiff‘s conception and birth at a time when plaintiff‘s mother was unmarried. In the case at bar all children involved were born during the existence of a lawful marriage of the mother consequently, for the reasons hereinabove set forth, they are conclusively presumed to be children of the lawful husband of the mother who bore them.
Articles 198 and 199 LSA-C.C., relied upon by astute counsel for appellant in
The alleged marriage between the litigants at bar was neither lawful nor putative. Both parties to the marriage in question having been shown to be in bad faith, the purported marriage was absolutely null and void and produced no civil effects as to either the parties thereto or the issue thereof. LSA-C.C. Articles 117 and 118.
It follows that the utterly null and void marriage contracted by the parties at bar did not legitimate the children in question pursuant to the provisions of LSA-C.C. Articles 198 and 199.
It likewise follows the judgment of the trial court is correct in every respect and its affirmation is in order.
Affirmed.