In Re the Marriage of Schneckloth

320 N.W.2d 535, 1982 Iowa Sup. LEXIS 1407
CourtSupreme Court of Iowa
DecidedJune 16, 1982
Docket66107
StatusPublished
Cited by32 cases

This text of 320 N.W.2d 535 (In Re the Marriage of Schneckloth) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Schneckloth, 320 N.W.2d 535, 1982 Iowa Sup. LEXIS 1407 (iowa 1982).

Opinion

McCORMICK, Justice.

In this appeal and cross-appeal from a dissolution decree, we review de novo the sufficiency of evidence to establish respondent Michael Schneckloth’s paternity of a child born to petitioner Elizabeth Schneck-loth during the marriage. Because we find the evidence insufficient on the paternity issue, we reverse on Michael’s appeal. This moots Elizabeth’s cross-appeal from the child support award, and the cross-appeal is therefore dismissed.

The record shows that the trial court exercised its authority to appoint an attorney for the minor child pursuant to section 598.12, The Code. We commend this procedure because we believe it is vital that the interests of a child be vigorously represented in any dispute concerning its legitimacy. In this case, the child’s attorney made a thorough investigation but was excused from participating in the trial after concluding that his efforts would merely duplicate those of counsel for the parties. Even though he may have been right, the issue is of sufficient importance that we believe the child’s attorney should have participated actively as an advocate for the child through the entire proceeding.

In according de novo review, this court disregards evidence to which meritorious objection was made and considers all admissible evidence. State ex rel. Buechler v. Vinsand, 318 N.W.2d 208, 210 (Iowa 1982). This principle is important in the present case because two issues affecting the weight of the evidence of paternity were decided against Michael. One concerns the admissibility of his evidence of nonaccess to Elizabeth during the time of the child’s conception. The other relates to the persuasive force to be given a blood grouping test purporting to negate Michael’s paternity.

These issues must be addressed against the background of the general principles governing burden of proof in paternity contests. Paternity must be shown by a preponderance of the evidence. Moody v. Christiansen, 306 N.W.2d 775, 777 (Iowa 1981). The law, however, presumes the legitimacy of a child born in wedlock. The presumption is rebuttable by clear, strong and satisfactory evidence. Kuhns v. Olson, 258 Iowa 1274, 1276, 141 N.W.2d 925, 926 (1966). Although it is theoretically merely an aid to the party with the burden to prove paternity, its practical effect is to place the burden of proving nonpaternity on the putative father. See State v. Romaine, 58 Iowa 46, 11 N.W. 721 (1882).

I. Evidence of nonaccess. This court has previously adhered to a rule that a spouse will not be permitted to deny having had access to the other spouse in order to establish nonpaternity of a child born in wedlock. See Craven v. Selway, 216 Iowa 505, 508, 246 N.W. 821, 823 (1933); Wallace v. Wallace, 137 Iowa 37, 45, 114 N.W. 527, 530 (1908). The rule did not prevent proof of nonaccess through other witnesses or proof of illegitimacy by other means such as evidence of the wife’s sexual relations with other men. See Craven, 216 Iowa at 511-12, 246 N.W. at 824; Wallace, 137 Iowa at 46-47, 114 N.W. at 531.

Elizabeth contends Michael did not object to the trial court’s application of the rule. The record shows, however, that the *537 issue was raised by her motion in limine asking the court to apply the rule. The court reserved ruling, permitting Elizabeth to interpose a standing objection to Michael’s testimony concerning nonaccess. After trial, the court entered an order sustaining the motion, thus effectively striking Michael’s nonaccess testimony. Thus, even though Elizabeth took the initiative, Michael’s offering of nonaccess testimony in the face of her motion and objection squarely presented the issue to the trial court. Error was clearly preserved.

The rule originated with dictum by Lord Mansfield in Goodright v. Moss, 98 Eng.Reg. 1257 (K.B.1777), in furtherance of the concept that “decency, morality, and policy” militate against branding a child born in wedlock as illegitimate. Id. at 1258. Neither Lord Mansfield nor the cases adopting the rule explain why the same reasoning would not exclude other evidence of illegitimacy, making the presumption of legitimacy conclusive. The history of the rule is traced in VII J. Wigmore, Evidence in Trials at Common Law § 2063 (Chadbourne rev. 1978). It has been uniformly criticized by commentators as illogical, unsound, misguided, unwarranted, and unjust. See id. at §§ 2063-64; Clark, The Law of Domestic Relations in the United States § 13.7 at 398 (1968); J. Maguire, Evidence: Common Sense and Common Law 91 (1947); C. McCormick, Handbook of the Law of Evidence § 67 at 146 (2d ed. E. Cleary 1972).

Even though the rule was generally followed in other jurisdictions at the time of this court’s 1908 decision in Wallace, the vast majority of jurisdictions that have examined it in recent years have rejected it. See Coffman v. Coffman, 121 Ariz. 522, 591 P.2d 1010 (Ariz.Ct.App.1979); Vasquez v. Esquibel, 141 Colo. 5, 346 P.2d 293 (1959); Hartford National Bank & Trust Co. v. Prince, 28 Conn.Supp. 348, 261 A.2d 287 (Super.Ct.1968); In re Estate of Jerrido, 339 So.2d 237 (Fla.Dist.Ct.App.1976), cert. denied, 346 So.2d 1249 (Fla.1977); Gibbons v. Maryland Casualty Co., 114 Ga.App. 788, 152 S.E.2d 815 (1966); Alber v. Alber, 93 Idaho 755, 472 P.2d 321 (1970); Ventresco v. Bushey, 159 Me. 241, 191 A.2d 104 (1963); Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977); Moore v. Smith, 178 Miss. 383, 172 So. 317 (1937); In re L, 499 S.W.2d 490 (Mo.1973) (en banc); Loudon v. Loudon, 114 N.J.Eq. 242, 168 A. 840 (1933); Melvin v. Kazhe, 83 N.M. 356, 492 P.2d 138 (1971); Wake County ex rel. Manning v. Green, 53 N.C.App. 26, 279 S.E.2d 901 (1981); Yerian v. Brinker, 33 Ohio L.Abs. 591, 35 N.E.2d 878 (Ct.App.1941); Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 344 A.2d 624 (1975); Davis v. Davis, 521 S.W.2d 603 (Tex.1975); Peters v. District of Columbia, 84 A.2d 115 (D.C.App.1951). The rule was abrogated by statute in England in the Law Reform Act of 1949. See VII J. Wigmore, supra, § 2063 at 472-73.

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