WAKE COUNTY CHILD SUPPORT, ETC. v. Matthews

244 S.E.2d 191 (1978)

36 N.C. App. 316

WAKE COUNTY CHILD SUPPORT ENFORCEMENT ex rel. Rebecca BAILEY v. Art McGuinness MATTHEWS.

No. 7710DC449.

Court of Appeals of North Carolina.

May 16, 1978.

*193 E. Gregory Stott, Raleigh, for plaintiff-appellant.

A. R. Edmonson, Raleigh, for defendant-appellee.

MITCHELL, Judge.

The plaintiff assigns as error the trial court's order granting the involuntary dismissal. The plaintiff contends that its evidence, if believed, was sufficient to show a right to relief upon the facts and the law. We do not agree.

The trial court properly found from uncontested evidence that the minor child in question was born during the existence of the marriage between James and Rebecca Bailey. When a child is so born during wedlock, it is presumed to be legitimate. State v. McDowell, 101 N.C. 734, 7 S.E. 785 (1888). The presumption can be rebutted only by proof that the husband could not have been the father. Such proof may be by a showing that he was impotent, could not have had access to the mother during the period when conception must have occurred, or that the results of blood-grouping tests show impossibility of the husband's paternity. Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972) (blood-grouping tests); State v. Rogers, 260 N.C. 406, 133 S.E.2d 1 (1963); State v. Pettaway, 10 N.C. 623 (1825).

In the case sub judice, the plaintiff, in attempting to prove the paternity of the defendant, relied solely upon lack of access by the husband during the period of conception. The plaintiff first offered as evidence of lack of access the testimony of Rebecca Bailey that, during the period of possible conception, she did not have sexual intercourse with her husband. In State v. Green, 210 N.C. 162, 163, 185 S.E. 670, 671 (1936), the Supreme Court of North Carolina indicated by way of dictum that such testimony is "proffered evidence of nonaccess." If testimony by a wife is testimony of lack of access or other testimony tending to bastardize her child, it is incompetent. It was error for the trial court to fail to exclude this testimony by the wife as violative of the confidential relations existing between husband and wife and pursuant to sound public policy prohibiting a parent from bastardizing her own issue. Ray v. Ray, 219 N.C. 217, 220, 13 S.E.2d 224, 226 (1941). See also, State v. Hickman, 8 N.C. App. 583, 174 S.E.2d 609, cert. denied, 277 N.C. 115 (1970).

Evidence from any source tending to show that the relatrix, Rebecca Bailey, did not have sexual intercourse with her husband during a period in which he had actual access to her would have been, at best, irrelevant. When a husband has actual access to his wife during the period of conception, *194 the law conclusively presumes he has exercised that access and establishes the child as his absent proof that the wife was living in open and notorious adultery. Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224 (1941); State v. Green, 210 N.C. 162, 185 S.E. 670 (1936); Rhyne v. Hoffman, 59 N.C. 335 (1862).

Although this evidence should have been excluded, its admission was clearly favorable to the plaintiff. The plaintiff may not, therefore, properly complain of its admission. The plaintiff was not, however, entitled to have evidence drawn from an incompetent witness considered relative to its contention of lack of access by the husband. The trial court's apparent refusal to treat the testimony of Rebecca Bailey, as to lack of sexual intercourse with her husband, as sufficient to overcome the motion for dismissal was not error. The trial court was required to ignore this incompetent evidence.

Where, as here, the trial court admits both competent and incompetent evidence, it is presumed that the findings of fact of the court were in no way influenced by hearing the incompetent evidence. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668, cert. denied, 358 U.S. 888, 3 L. Ed. 2d 115, 79 S. Ct. 129 (1958). Here, the presumption is born out by the fact that the trial court seems to have ignored the incompetent evidence.

The testimony of Gertha Mae Dickson showed, at most, that the husband and wife were not together in her presence during the period of conception. This evidence was totally insufficient to prove lack of access by the husband. It was uncontested that, during the period of conception, both the husband and wife resided in Wake County. The trial court properly concluded that all of the evidence revealed access in fact by the husband during the crucial period.

The plaintiff contends, however, that the trial court erred in finding as a fact that the husband exercised this access to the wife during the period of possible conception. This contention is correct, as there was no evidence tending to support the finding. This error was clearly harmless. If access in fact is proven, whether proven to have been exercised or not, "there is a conclusive presumption that the child was lawfully begotten in wedlock." Ray v. Ray, 219 N.C. 217, 219, 13 S.E.2d 224, 226 (1941). The finding by the trial court that there was access in fact was supported by the evidence, and its erroneous finding that the access was exercised was, at worst, harmless surplusage restating a presumption of law arising from the facts.

The plaintiff next contends that evidence was admitted tending to show that Rebecca Bailey was living in open adultery during the period of possible conception. The plaintiff asserts that such evidence tended to show nonaccess and made dismissal by the trial court erroneous. We do not agree.

In a proper case a wife may be permitted to testify involving her illicit relations with a man other than her husband during the period of possible conception, as proof of such relations would frequently be impossible except through the testimony of the woman involved. State v. Rogers, 260 N.C. 406, 408, 133 S.E.2d 1, 2 (1963). This was not, however, evidence of "open and notorious adultery." That term has generally been held to encompass only cases in which the parties engaging in adultery reside together publicly as if a marital relationship existed between them, and this as well as the fact that they are not husband and wife are both known in the community of their residence. Black's Law Dictionary 72 (4th ed. rev. 1968). Although we have found no North Carolina case precisely defining the term, we think this definition is consistent with the decided cases involving "open and notorious adultery" in North Carolina.

The testimony of Rebecca Bailey tended to show that she had illicit sexual relations with another man during the period of possible conception. That testimony also tended to show that she shared a room with this man on several nights while both within and without the community in which she resided. No evidence that she lived with *195 him on a regular basis or as if a marital relationship existed was introduced. This evidence, if believed, was insufficient to tend to show that type of "open and notorious adultery" which has been held to constitute "a potent circumstance tending to show nonaccess." Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968). Further, had this testimony by the wife, Rebecca Bailey, tended to show such nonaccess, the trial court would have been required to exclude it as the incompetent testimony of a wife tending to prove nonaccess of her husband during the period of conception. A wife is not a competent witness to prove such nonaccess by her husband. State v. Rogers, 260 N.C. 406, 408, 133 S.E.2d 1, 2 (1963).

None of the competent evidence introduced by the plaintiff, including the testimony of the relatrix as to her illicit sexual acts, tended to show lack of access by the husband during the period in which the child in question could have been conceived. Rather, all of the plaintiff's evidence itself tended to show access. Thus, it is conclusively presumed that the child was lawfully begotten in wedlock.

The trial court committed no error prejudicial to the plaintiff in its findings of fact and conclusions of law as set forth in the order from which this appeal is taken. We find that order was proper, and it is

Affirmed.

BROCK, C. J., and HEDRICK, J., concur.