DeCoster v. Chandler

385 A.2d 1079, 136 Vt. 70, 1978 Vt. LEXIS 687

• Court: Supreme Court of Vermont
• Decided: April 4, 1978
• Docket: No. 87-77
• Status: Published

Opinion

Per Curiam.

The trial court found that the plaintiff, then Susan Welch, a single person, was delivered of a child fathered by the defendant, that she has since married, and that she brought this bastardy action as a married woman. Defendant claims that the plaintiff’s subsequent marriage bars her from bringing this action and cites 15 Y.S.A. § 331. In the case of Sisco v. Harmon, 9 Vt. 129 (1837) at 135, this Court held:

[I]f a single woman has been delivered of a bastard child, there is nothing which requires that she should remain such, when the oath is made, and the proceeding is taken.

■ The statute was' the same then as it is now. This Court is being asked to overrule the holding in Sisco. Absent compelling reasons of policy, we decline to do so.

Defendant also argues that the plaintiff is estopped from proceeding with this action. Estoppel is an affirmative defense and must be pleaded. V.R.C.P. 8 (c). Even if this were a valid defense, the defendant did not so plead.

Lastly, defendant claims error in the court’s finding of the child’s birth by the testimony of the mother and the attending physician. He claims that under 12 V.S.A. § 1695 a plaintiff must introduce a printed birth certificate to prove the birth. 12 V.S.A. § 1695 has been superseded by V.R.C.P. 44(a), which merely permits the fact of birth to be proved by the official record of birth. It does not preclude the proof of birth by other means.

Judgment affirmed.