Whitelaw v. Whitelaw

SPENCE, J.

This is an appeal by defendant from those portions of the interlocutory decree of divorce wherein it is adjudged that defendant is the father of the minor child of plaintiff and wherein said defendant is ordered to pay to plaintiff the sum of $15 per month for the support of said minor child.

At the time of the trial in 1929 plaintiff was of the age of sixteen years and defendant was of the age of seventeen years. It was admitted that the parties had one act of sexual intercourse, the date fixed in the testimony being December 22, 1927. Thereafter plaintiff became pregnant and the parties with full knowledge of that fact were married with the consent of their parents on April 23, 1928. The child was born on August 8, 1928.

Appellant's first contention is that he is not the father of respondent’s child. This is equivalent to a contention that the evidence is insufficient to support the trial court’s finding to the contrary. We find no merit in this contention. It is unnecessary to discuss whether the presumptions relating to legitimacy have any application to eases involving antenuptial conceptions for in our opinion the evidence was sufficient to sustain the findings without the aid of any presumptions. Both parties testified that they had an act of sexual intercourse as above set forth and respond

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ent testified that she never had intercourse with any' other man. If respondent spoke the truth, the findings are amply sustained and on this appeal we cannot disregard her testimony unless it may be said to be so inherently improbable as to be wholly unworthy of belief. In this connection appellant points to the fact that the child was born 230 days after the known date of the single act of intercourse and he quotes at length from numerous standard medical works relating to the subject under discussion. These authorities and the medical witnesses were substantially in accord to the effe.ct that the

usual

period of gestation covers approximately 269 days after the known date of intercourse. But the authorities on the subject demonstrate the fact that the period of gestation varies greatly. As was stated in

State