Williams v. Moon

PETERS, P. J.

The trial court, in an action brought by plaintiff to have defendant declared to be the father of one of her children, determined that defendant was the father of the child, and ordered him to make monthly payments for the support of the child, to pay the hospital and doctor’s bills incurred by plaintiff during the birth of the child, and to pay plaintiff’s counsel fees. Defendant appeals.

There has been but one brief filed on this appeal—the appellant’s opening brief. Respondent has informed the clerk of this court that she is unable to pay for the preparation of a brief on appeal, and submits her case upon the record.

Respondent was married to Frank L. Williams in 1935, and by him admittedly had four children. On June 1, 1945, she filed an action for divorce, and on October 23, 1945, she obtained her interlocutory decree of divorce. At the time of trial —October, 1947—the final had not yet been entered. The child that is the subject of this action—Benjamin James Williams—was born on April 14, 1946, just a little less than six months after the interlocutory. With a normal period of gestation, the child was conceived in July of 1945.

Respondent testified that she met appellant in March, 1945, and that from May, 1945, until March of 1946, she frequently engaged in sexual intercourse with him, and that during such period she had intercourse with no other man. Appellant admitted that, although he and respondent at no time had lived together, he had had intercourse with respondent during the period when conception would normally have occurred. There is evidence, denied by appellant, that he admitted paternity of the child.

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Just when respondent and her husband separated, and whether after such separation the husband and respondent had access to each other, are the pivotal questions in the case. Respondent testified that when she met appellant, which she testified was in March, 1945, she was “separated” from her husband. In the questionnaire filed with her divorce complaint she averred that she separated from him on May 29, 1945. This affidavit is dated June 29, 1945, and was filed in the action on July 6, 1945. It is there averred that on June 29,1945, the “children, myself and husband—he won’t leave” lived in the same house with respondent.. Appellant testified, and this testimony stands uncontradicted, that he was introduced to respondent’s husband by respondent in the latter’s home sometime late in July, 1945. Respondent testified that the last time she had seen her husband was in November, 1945. The brother of the husband testified that the husband had lived with him since about January, 1944.