Opinion
Docket No. 67, Calendar No. 46,005.
Decided June 6, 1955.
Appeal from Oakland; Holland (H. Russel), J. Submitted April 14, 1955. (Docket No. 67, Calendar No. 46,005.) Decided June 6, 1955.
Bastardy proceedings against Archie Bedell resulted in court's decision of guilty and order for expenses and maintenance. Defendant appeals. Reversed and new trial granted.
Thomas M. Kavanagh, Attorney General, Frederick C. Ziem, Prosecuting Attorney, for plaintiff.
William A. Welsh, for complaining witness.
Tilden M. Gallagher, for defendant.
On leave granted the defendant appeals from a verdict and judgment of guilty in a bastardy proceeding heard in the circuit court in Oakland county without jury. The question here for decision is whether the testimony of the complaining witness was admissible, under the circumstances of the case.
CL 1948, § 722.601 et seq. (Stat Ann and Stat Ann 1953 Cum Supp § 25.451 et seq.).
The complaining witness was granted an interlocutory decree of divorce November 27, 1950. There being children of the marriage under 17 years of age, the decree did not become final until May 27, 1951. The child in the case was born September 29, 1951. The complaining witness testified that the child was conceived by sexual intercourse with the defendant in January, 1951, which the defendant denied. Was her testimony admissible?
CL 1948, § 552.9 (Stat Ann 1951 Cum Supp § 25.89).
Obviously, the inevitable result of a finding, in a bastardy case, that the defendant (not the husband) is the father of the child would have to be that it is an illegitimate child. Otherwise, the so-called bastardy law would not apply.
In January, 1951, the complaining witness had a husband living. Their marital relation was not terminated until May 27, 1951. During that period of time she became pregnant. This exact situation came before us in a case decided March 9th of the present year. After referring to the statute and the Court Rule, this Court said:
CL 1948, § 552.9 (Stat Ann 1951 Cum Supp § 25.89).
Court Rule No 51, § 6, as adopted October 13, 1947 (318 Mich xli).
"Under the specific provisions of the statute, as implemented by the rule, the marital relation between the parties to the divorce suit cannot be regarded as terminated until the interlocutory decree becomes final by the expiration of the 6-months period or by specific order of the court as in the present instance. Therefore, at the time plaintiff indulged in the misconduct admitted by her with the man whom she has since married she was legally the wife of the defendant." Linn v. Linn, 341 Mich. 668, 671.
In that case we set aside the decree of divorce, on a petition filed by the husband after the decree had become final, on the ground that a fraud had been perpetrated on the court when the plaintiff petitioned the court to order that the decree become final.
See, also, Allen v. Allen, 341 Mich. 543, wherein under somewhat comparable circumstances we set aside a decree of divorce on a petition filed more than 3 years after the decree was granted, on the ground of fraud on the court by concealment from the court, by the wife, that she was pregnant by one not her husband.
In the case at bar the complaining witness and her husband were together frequently, after the interlocutory divorce decree was granted and before it became final. He took her to the defendant's office several times. In her testimony there was proof of her husband's access and opportunity for sexual intercourse and no proof of his absence or impotence during that period of time. Except for her testimony there was no proof to overcome the presumption that the child was legitimate. While it is true that the child, born after the decree became final, was not actually "born in lawful wedlock" under some of our earlier decisions, the more recent statutory and rule provisions apparently afford opportunity for unusual circumstances to arise where, for a period of time after an interlocutory decree of divorce has been granted, and before it becomes final, the marital status continues. This sometimes occasions confusion and doubt as to the effect of the delay, for all purposes and under all the circumstances that may arise. The extent to which our earlier decisions may be said to apply, as to whether the child is "born in lawful wedlock" must be considered under recent conditions which now arise since the interlocutory decree was inserted into some divorce cases by statute and court rule.
In Falconer v. Falconer, 330 Mich. 532, this Court held that during the period while the decree was only interlocutory neither party had the right to appeal therefrom, without leave, until the decree had become final. The marital status was still in effect, at least to that extent.
To the same effect, see Court Rule No 51, § 6(d) (318 Mich xlii).
In King v. Peninsular Portland Cement Co., 216 Mich. 335, on appeal in a proceeding wherein the widow and children of an employee whose death was caused by a compensable accident sought compensation as his dependents, this Court held that the mother could not testify that the posthumous child was illegitimate, therefore a child born after his death was entitled to compensation. We held (syllabus):
"In proceedings under the workmen's compensation act, admissions of the widow that a son born during wedlock and a daughter born about 3 months after the death of the husband were not the children of the deceased, were properly rejected by the board, since the presumption of legitimacy may not be overcome by the testimony of the mother to the contrary."
In Yanoff v. Yanoff, 237 Mich. 383, this Court held (syllabus):
"When the legitimacy of a child born in lawful wedlock is involved, no matter what the form of action, the husband and wife are barred from testifying to access or nonaccess of the husband, antenuptial or postnuptial."
See, also, People v. Case, 171 Mich. 282; Bassil v. Ford Motor Co., 278 Mich. 173 (107 ALR 1491).
Assuming but not necessarily deciding that the testimony of the wife in the case at bar would establish or disclose adultery, the concluding sentence in CL 1948, § 617.67 (Stat Ann 1953 Cum Supp § 27.916), would then seem to bar her from testifying. It reads:
"In any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify."
In the instant case the complaining witness testified that she had sexual intercourse with the defendant on January 3, 1951. She also testified to frequent access and opportunity for intercourse with her husband during the period of time before the decree became final. She could not testify against the defendant in this bastardy case that the child was the defendant's child, unless it meant that the child was illegitimate.
Public policy and precedent do not favor the admission of such testimony by a party to the marital relation. It was reversible error to admit the testimony of the complaining witness. The case is reversed and new trial granted.
CARR, C.J., and BUTZEL, SMITH, SHARPE, REID, DETHMERS, and KELLY, JJ., concurred.