FRANKLIN E. ELDRIDGE
v.
ANN ILA ELDRIDGE, ET AL.
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In this paternity case, the Florida Supreme Court upheld the presumption of legitimacy of a child born to spouses married just weeks before conception, rejecting the husband's challenge to the child's paternity despite the short time between initial meeting and birth.
The court affirmed the judgment upholding the child's legitimacy. The court held that the presumption of legitimacy is not weakened merely because a child was conceived before marriage but born during marriage, and the husband's evidence was insufficient to overcome this strong presumption with clear and satisfactory proof.
“Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized.”
Establishes the high standard of proof required for a husband to challenge a child's legitimacy.
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Join FLexlaw to unlock all legal intelligenceAppellant and appellee first met June 22, 1941, and engaged in frequent sexual intercourse. They married July 16, 1941. The child was born February 9,…
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The only question presented by this appeal is the legitimacy vel non of an infant child.
Appellant and appellee first met on June 22, 1941. A courtship followed with frequent acts of sexual intercourse. They were married July 16, 1941. The child was born February 9, 1942, a period of about 226 days from their first meeting.
The appellant husband claims he is not the father of the child. Where a child is born in wedlock the law extends the right to the reputed father to contest the parentage but the mother has no such right. She being restricted, to question the identity of the child only. Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177. Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized. At common law the presumption was at one time virtually conclusive. Law of illegitimacy by Hooper, pg. 202; Anon v. Anon (1856), 22 Beav. 481, 23 Beav. 273. The rule was relaxed later in England and the latter case was overruled in 1903 in The Poulett Peerage A. C. 395. See also Hargrave v. Hargrave, 9 Beav. 552, 50 English Reprint 458. The rule is well established in this country that the husband may make the attack but in so doing he must overcome the strong presumption of legitimacy by clear and satisfactory *875testimony. Marriage, Divorce, Separation and Domestic Relations by Schouler (6d) Vol. 1, pg. 760, Lay v. Fuller, 178 Fla. 375, 59 So. 609, 7 C. J. 953, 10 C. J. 18. The better rule is that the husband is not required to prove his contention beyond all reasonable doubt, yet his proof must be sufficiently strong to clearly remove the presumption of legitimacy. The evidence must more than cast a strong suspicion or grave doubt on the paternity of the child. 7 Am. Jur. Par. 43, pg. 655. Powell v. State ex rel. Fowler, 84 Ohio St. 165, N. E. 660, 36 L.R.A. (N.S.) 255.
There is authority that the presumption is weakened in cases where it is shown that the child was born in wedlock but conceived prior thereto. Wright v. Hicks, 15 Ga. 160, 60, Am. Dec. 687; Re McDermott, 125 Neb. 179, 249 N.W. 555. The better view which is adhered to by most courts is to the effect that under such circumstances the presumption is not weakened. We prefer to adhere to the latter rule. It is supported by public policy and a wealth of authority. 7 Am. Jur. Par. 45, pg. 656. Zachmann v. Zachmann, 201 Ill. 380, 66 N. E. 256, 94 Am. St. Rep. 180; Wallace v. Wallace, 137 Iowa 37, 114 N.W. 527, 14 L.R.A. (N.S.) 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761; State v. Schoemaker, 62 Iowa 343, 17 N.W. 589, 49 Am. Rep. 146; Rabeke v. Baer, 115 Mich. 328, 73 N.W. 242, 69 Am. St. Rep. 567; Miller v. Anderson, 43 Ohio St. 473, 3 N. E. 605, 54 Am. Rep. 823; Westfall v. Westfall, 100 Or. 224, 197 P. 271, 13 A.L.R. 1428; Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644; McCulloch v. McCulloch, 69 Tex. 682, 7 S. W. 593, 5 Am. St. Rep. 96.
That brings us then to the question of whether there was sufficient proof to sustain the appellant’s contention when weighed by these principles of law. The judgment appealed from is presumed to be proper hence the evidence in support thereof is viewed in its most favorable light. The evidence shows that appellant engaged in frequent acts of sexual intercourse with the mother from June 24th until their marriage on July 16th following. The medical testimony disclosed that the normal period of gestation is 280 days;, that after 190 days a child has a fair chance to live.
When the evidence is considered in its entirety we are *876unable to say that the chancellor committed error in the conclusion reached.
The judgment is affirmed.
BUFORD, C. J., TERRELL and CHAPMAN, JJ., concur.
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Citator
Cited By (33 total)
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Gammon v. Cobb, 335 So. 2d 261 (Fla. 1976)…is state in Ken-nelly, supra, and Lorenz, supra, have previously held that a married woman may not maintain an action to prove the illegitimacy of her child, the rule is just the contrary with respect to a husband. As stated in Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163 (1944) “. . . The rule is [*264] well established in this country that the husband may make the attack, but in so doing he must overcome the strong presumption of legitimacy by clear and satisfactory testimony.” In that case the Court…1 / 2
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Knauer v. Barnett, 360 So. 2d 399 (Fla. 1978)…d by the district court in the case sub judice, the father of a child born in wedlock has the right to challenge the parentage of that child despite the presumption that it is the legitimate issue of his marriage to its mother. Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163 (1944). It clearly is not in the best interests of a legitimate child to permit its father to later challenge the fact of paternity. However, this right is accorded the father of a legitimate child in order that he may not be inequita…
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Carolina Lumber Co. v. Daniel, 97 So. 2d 156 (Fla. 1st DCA 1957)…to appear, it is the judgment of this court that the decree appealed from dismissing the complaint be and it is hereby affirmed. STURGIS, C. J., and TAYLOR, A. J„ concur. . Harmon v. Harmon, Fla.1949, 40 So. 2d 209. . E. g., Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163; Meola v. Sparks, 138 Fla. 364, 189 So. 408. . E. g., Povia v. Melvin, Fla., 66 So. 2d 494; Exchange Nat. Bank of Winter Haven v. Smith, 148 Fla. 473, 4 So. 2d 675. . Loew v. Friedman, Fla.1955, 80 So. 2d 672.…
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- Gossett v. Ullendorff, 114 Fla. 159 (Fla. 1934)