Opinion
No. 70-139
Decided February 2, 1971.
Paternity action against ex-husband in regard to child conceived during term of the marriage. From finding that respondent was not child's father, petitioner appealed.
Affirmed
1. PARENT AND CHILD — Legitimacy — Child Conceived in Wedlock — Strongest Presumption — Not Conclusive — No Access — Impotent. Although presumption that child conceived in wedlock is the offspring of the husband is the strongest presumption known to the law, and can only be overcome by clear and convincing proof that the husband is either impotent or had no access to the wife at any time when, according to the course of nature, conception could have occurred, nevertheless this presumption of legitimacy is not conclusive.
2. Conception Alleged — Specific Date — 307 Days — Evidence Justified Finding — No Access — Husband — Period of Conception. Where wife testified that conception occurred on specific date 307 days before birth of the child and that husband had no further access during period in which conception could have occurred, the record is replete with evidence which justified court's conclusion that wife's testimony was unbelievable and that husband had shown, by clear and convincing proof, that he had no access to wife during period in which conception could have occurred.
Error to the Juvenile Court of the City and County of Denver, Honorable Ted Rubin, Judge.
Robert A. Powell, L. L. Nathenson, for petitioner and plaintiff in error.
Theodore A. Borrillo, Joe Clarence Medina, for respondent, defendant in error.
This is a child support action filed against defendant-husband under Article VII of the Colorado Children's Code. The child was born after the husband and wife had been divorced, but conception occurred during the term of the marriage. The husband defended on the ground that he was not the father of the child.
The trial court found that the child was conceived during the term of the marriage, but determined that defendant was not the child's father and dismissed the action against him, with prejudice.
[1] The only alleged error claimed by the wife which merits discussion is her contention that under the facts presented, the court should have ruled that the husband was the father of the child in question. Citing Lanford v. Lanford, 151 Colo. 211, 377 P.2d 115, as her authority, she contends that the presumption that a child conceived in wedlock is the offspring of the husband is the strongest presumption known to law, and can only be overcome by clear and convincing proof that the husband is either impotent or had no access to the wife at any time when, according to the course of nature, conception could have occurred. We agree with that statement of the law, but we do not agree with her argument that the presumption of legitimacy is conclusive.
[2] The wife testified that conception occurred on a specific date, some 307 days prior to the birth of the child, although the evidence showed that a normal gestation period is from 266 to 279 days, with only a slight possibility that a pregnancy would not terminate in less than 300 days. She further maintained that the husband had no further access until several weeks after she was in fact pregnant, nor did he have access for several months prior to the alleged date of conception. The record is replete with evidence which justified the court's conclusion that the wife's testimony was unbelievable and that the husband had shown, by clear and convincing proof, that he had no access to the wife during the period in which conception could have occurred.
Judgment is affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE DUFFORD concur.