Tosh v. Tosh

DEVINE, J.

Appellant makes two points on appeal from a decree of divorce which was made in favor of his former wife: (1) that the evidence is insufficient, as a matter of law, to sustain that part of the judgment which declares a minor child born to the wife on November 13, 1960, to be the lawful issue of her and appellant, and requires appellant to pay for the child’s support; and (2) that the court failed to find on the charge of alleged adultery of the wife.

The parties were married on July 28, 1958, and appellant had a vasectomy performed on him in October 1958. The date of separation given in husband’s complaint for divorce and in wife’s cross-complaint, is March 19, 1960, but the wife testified that appellant often visited her, and continued marital relations, until April 24. She testified that she did not have sexual relations with anyone else than her husband at any time since the date of marriage, to the date on which she testified, in May 1961.

Although appellant charged his wife with adultery, in his complaint for divorce, he produced no evidence of the wife’s affection for, propinquity to, or acquaintance with any other man. After the separation, the parties lived next door to each other. Appellant relies on his asserted sterility as negativing paternity and establishing adultery.

In November 1958, June 1960, and July 1960, tests of semen which was thought by the doctors to be that of appellant showed an absence of live spermatozoa. The first of these tests was done by the physician who had operated, about a month after the operation. The doctor had no records, but testified that no live spermatozoa were present; he could not remember if there were any other sperm. He testified, as did the second physician who was a witness, that a test so soon after the operation is not conclusive.

The two later tests, in 1960, were after the divorce action

[485]

had been commenced, and after the wife had informed appellant that she was pregnant and that he was the father. It was assumed by those who conducted the tests that the specimens were those of appellant, for they did not have personal knowledge that this was the fact. Indeed, appellant did not directly testify as to the age of the specimens, nor even that they were his own.