122 Ind. App. 98 | Ind. Ct. App. | 1952
Lead Opinion
The appellee instituted these proceedings under the provisions of Burns’ 1946 Replacement, §3-623, et seq., to establish the paternity of a child with which she was then pregnant. Her petition is short and reads as follows:
“The plaintiff, Lora Mae Beatrice, suing by her next friend, Milton Louck, complains of the defendant, Loyd Crawford, and alleges that the plain*100 tiff is a minor, under the age of twenty-one years, and avers:
“1. That defendant is also under the full age of twenty-one years.
“2. The plaintiff and defendant reside in Jay County, State of Indiana.
“3. That plaintiff is pregnant with child of the defendant, and that said embryonic child will be born on or about the first part of the month of May, 1950.
“4. That plaintiff is not now married nor was plaintiff married at the time that said embryonic child was begotten.
“WHEREFORE,
The appellant joined issue on the facts alleged in rhetorical paragraphs 3 and' 4 and the case was submitted to the court for trial which found “for the plaintiff that the allegations of her complaint are true and that the defendant is the father of her child born April 21, 1949.” By nunc pro tunc order the court later changed the date of the child’s birth, as shown in the decree, to April 21, 1950, and such proceedings were brought into the record through a writ of certiorari issued by us. The appellant questions the power of the trial court to alter its findings and decree after it had lost jurisdiction through the appeal of the case to this court. The date of the child’s birth, as shown in the orderbook before the change, is so palpably a mere inadvertence when the entire record is considered, that we will read the correct date, concerning which there is no dispute, into the order in the first instance.
The appellant next complains that the court, by finding that the allegations of the appellee’s complaint are true, in legal effect found that the appellee was not married at the time the child in question was begotten. That the undisputed evidence shows
The evidence most favorable to the appellee supports the following facts: At one time the appellee was married to one Charles Beatrice. They separated in December, 1948, and the appellee filed suit for divorce which was granted on September 9, 1949. After their separation they had no sexual relations with one another. The appellee became acquainted with the appellant early in June, 1949, and thereafter they went together quite steadily. She first had- sexual intercourse with the appellant about July 1, 1949, and thereafter such act occurred as often as once a week throughout the following summer and fall. The appellee became pregnant in the forepart of August, 1949. She was divorced from her husband on September 9, 1949, and her child was born April 21, 1950, some seven months after the divorce. For a time during the summer of 1949 the appellee’s husband, Charles Beatrice, worked for her grandfather in Redkey, Indiana, and while so employed he boarded and roomed in the grandfather’s home. On one occasion the appellee stayed overnight at her grandfather’s house when Beatrice was there. It also appears that for a time after their separation and divorce Beatrice lived with his parents near the
The appellant contends that this evidence shows conclusively that at the time the child in controversy was begotten the appellee was a married woman to whom her husband had access at the time of conception and therefore the presumption that the husband is the child’s father cannot be rebutted. We recognize the rule which confers legitimacy upon children born in wedlock when access of the husband at the time of conception, was not impossible and that there is a powerful presumption that a child so born is the child of the husband. We consider this a most salutary rule and one that should be relaxed only under the most compelling circumstances. Phillips v. State, ex rel. (1925), 82 Ind. App. 356, 145 N. E. 895, and cases cited. As far as we have been able to learn, however, this rule has never been applied in Indiana to a situation such as we have before us.
The child, whose paternity these proceedings seek to determine, was born after the divorce of the mother and her husband and was begotten after the divorce proceedings were commenced and while the parties were separated and living apart. The divorce proceedings were prosecuted with apparent good faith to a conclusion wherein it was adjudicated that the parties had not cohabited — a term that includes sexual intercourse — from the date of their separation in December, 1948, to the date of the divorce on September 9, 1949. Both the wife and her paramour frankly admitted frequent acts of intimacy during the
Judgment affirmed.
Concurrence Opinion
CONCURRING OPINION
I concur in the result reached by the majority opinion and in the reasons assigned therefor. As an additional reason for affirming the judgment, I desire to point out that appellant has not presented any question concerning the propriety of the nunc pro tunc entry. Any error in the auxiliary proceedings to correct the trial court’s record in aid of an appeal must be challenged by an additional assignment of errors, and this was not done. Adler and Others v. Sewell and Others (1868), 29 Ind. 598; Hannah et ux. v. Dorrell (1881), 73 Ind. 465; Williams et al. v. Henderson (1883), 90 Ind. 577; Walker v. The State (1885), 102 Ind. 502, 1 N. E. 856; Ferris v. State (1901), 156 Ind. 224, 59 N. E. 475; Pittsburgh, etc., R. Co. v. Lamm
Note. — Reported in 102 N. E. 2d 915.