The record on this appeal presents important and material evidence bearing upon the fundamental question in this controversy. The facts established leave no room for doubt that the provision in the judgment "that no support money shall be paid on behalf of the minor child, Bernadine" was as just and as equitable an arrangement of affairs as could be made under the circumstances. There are two aspects of the matter of consequence here. When the judgment was entered at the conclusion of the trial, the court was of the opinion that the legal presumption to which it referred did not necessarily control the *Page 205 equities of the case. The judgment was against the appellant on the point of parenthood but it was in his favor on the point of support for the child born after the separation. It plainly appears from the return made by the trial court what the true situation was. It is apparent that the burden of supporting the child was not placed upon the husband but was placed upon the mother for a good and sufficient reason. No appeal was taken by the wife from that part of the judgment which was against her. No appeal was taken by the husband from the holding against him. The result was then accepted by both parties on that basis. No fact now relied on was then overlooked. And there has been no such change since in the circumstances as in equity now can warrant the court in changing the judgment or in making a new judgment or in entering the order now appealed from pursuant to sec. 247.25, Stats. It seems to me that we are now ruling that a change may be made in such a judgment whenever the trial judge may be moved to do so, although "It has been repeatedly held by this court that a judgment in a divorce suit . . . does not prevent the court from afterwards modifying the judgment under sec. 2369, R. S., if the circumstances of the parties haveso changed as to render such modification just and equitable,"Blake v. Blake, 68 Wis. 303, 308, 32 N.W. 48. See alsoEstate of Wakefield, 182 Wis. 208, 216, 196 N.W. 541;Gould v. Gould, 226 Mich. 340, 197 N.W. 505; Bauman v.Bauman, 18 Ark. 320; Gavel v. Gavel, 123 Cal. App. 589,11 P.2d 654; Snyder v. Snyder, 219 Cal. 80, 25 P.2d 403;Molema v. Molema, 103 Cal. App. 79, 283 P. 956;Simpson v. Simpson, 51 Idaho., 99, 4 P.2d 345; Williamsv. Williams, 127 Miss. 627, 90 So. 330.
The welfare of children and the proper provision for a child's support are matters of primal concern. They are present when a judgment in a divorce suit is granted as well as after it has been entered. If, when first up for consideration, equity and justice require a particular provision in a *Page 206 special instance, the facts if unchanged which controlled then, ought to continue to have the thoughtful concern of the chancellor.
Upon the matter now before us, it very evidently is not a change in the condition or circumstances that prompted the application to shift the burden from where it belonged to the shoulders of one where it should not be placed, but a desire by the petitioner to have a review of the then existing circumstances with particular emphasis upon the declaration based on the fact that the child was born before the divorce was granted. The present order appears to be granted because of a continuing misunderstanding of the purpose of a rule of evidence. While the court below or this court — the judgment not having been appealed from — may not be able to overtake and correct the error made in rejecting evidence, the decision on this present application ought to be affected by a full recognition of the reasons originally present and prompting the original order and judgment.
It may be that nominal parenthood under the circumstances is not to be challenged in a proceeding between the immediate parties — the child is not a party to this action nor is the state — but the question of equitable distribution of burden is still a matter within the control of the court. It appears that the circuit court would have refused to change the judgment of 1941 upon the application in 1943 but for the declaration of parenthood in the 1941 judgment. Under the circumstances, I am of the opinion that the court ought to say, and with good reason, that it is inequitable to now disturb the situation fixed in the judgment entered in the suit for divorce. All the circumstances that can suggest the proper place for the burden were disclosed and a judgment was consideredly formed and pronounced. A new judgment may be entered in matters affecting children but even then the proceeding must be based on cause and be according to correct principles of equity. So that even though now bound by the technical and ancient *Page 207 common-law presumption of legitimacy and the exclusion of some evidence that might have been clarifying, still enough appears to form a ground for the equitable adjustment made by the court in that original judgment.
The advantage of nominally giving the child a status of legitimacy did not particularly embarrass the husband and he did not appeal. However, the justice of relieving him from support of the child was so apparent that the wife did not then ask for an allowance. And as we have pointed out, she did not appeal from a ruling that was clearly adverse to her. The fact that public authorities have lately been unduly impressed by the efficacy of the legitimacy presumption does not necessarily control. It does not follow that a sequence of conclusions based alone on that single pronouncement will lead to a just result.
We find in the record this statement by the learned trial judge: "This is an application directed to the court to declare and set an amount of support money for a minor child of the defendant, Frances Romanowski, which the court in its judgment declared was born in lawful wedlock, but for which the court made no allowance of support money, that is, I mean, that the court directed that the plaintiff need pay no support money for this child in view of the circumstances elicited at the trial."
The presumption of parenthood as affecting appellant was so effectively controverted by the determination of the controlling issue in the divorce proceeding as to place beyond question that the court's original decision not to require support money was the only equitable result that should have been reached.
As I have said, the divorce was granted pursuant to sec. 247.07 (7), Stats., which allows a divorce to be granted "whenever the husband and wife shall have voluntarily lived entirely separate for the space of five years next preceding the commencement of the action." The court found that *Page 208 Bernadine was two years old. She must necessarily have been conceived within the five-year period during which the trial court found the parties had lived separately and apart. That finding like others is now to be accepted. Had appellant been the father of the child, the divorce would have been denied.
The trial court was convinced that the parties had not lived together as man and wife preceding the action. The divorce was granted "and in view of the circumstances elicited at the trial" the court did not allow support money for this particular child.
The difficulty arises from a misunderstanding of the nature of the ancient common-law presumption of legitimacy. It is well settled that this presumption is "one of the strongest presumptions known to the law." As has been suggested, it may be that the finding that the child was born in wedlock cannot as between these parties now be set aside. But, in the matter now before us, the trial court was again erroneously using the presumption to the disadvantage of appellant. Its conclusion is that it is inequitable to make the order that it did but as a matter of law it was helpless.
This presumption of fact can be rebutted and "may be wholly removed by proper and sufficient evidence showing that the husband was, (1) incompetent;(2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must, in the course of nature, have been begotten; or (4) only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse."Riley v. State, 187 Wis. 156, 159, 203 N.W. 767; Shuman v.Shuman, 83 Wis. 250, 256, 53 N.W. 455; and Estate ofLewis, 207 Wis. 155, 240 N.W. 818. See also In re Findlay,253 N.Y. 1, 170 N.E. 471. Of course, evidence of a substantial nature is necessary to rebut the presumption. It is not, however, a conclusive presumption and if the evidence of separation on the trial was considered sufficient to *Page 209 grant a divorce from the bonds of matrimony, that evidence surely should have been sufficient to rebut the presumption of legitimacy. It would at least be sufficient evidence to warrant the judgment "that no support money shall be paid on behalf of the minor child Bernadine." It would indeed be a paradox to say that evidence of separation sufficient to constitute grounds for granting a divorce is not sufficient to rebut this ancient presumption and capable of supporting an adherence to the solemn judgment that appellant be excused from supporting the child.
The learned trial judge said in his opinion: "The court was satisfied that the cause of action had been established, but in view of the existence of the child Bernadine was compelled, on the basis of the ancient presumption of the common law, to declare that the said child was born in lawful wedlock and was therefore legitimate."
Now, the presumption is again relied on to change the situation of the parties as to supporting the child. But it appears that originally, at least, the presumption operated only to give the child the benefit of the use of the description "legitimate" in the judgment of the court. If the force of the presumption stops where the court first left it, the inconsistencies existing might not be so glaring. But when rights and duties of a stranger to the child are created and when a new effort for a new judgment is made and this artificial relation is relied on to change the original judgment, it does seem that an opportunity for a consideration of the conclusiveness of the matter should be afforded.
I recognize the complexity of the problem with which the trial court was confronted and appreciate that in his ruling he was undoubtedly influenced by language repeated many times by this court that "husband and wife are alike incompetent witnesses to prove the fact of nonaccess" by the husband.Mink v. State, 60 Wis. 583, 19 N.W. 445; Watts v. Owens,62 Wis. 512, 22 N.W. 720; Shuman v. Shuman, supra. Since *Page 210 here it was principally the testimony of the parties themselves on which the judge relied in granting the divorce, he felt constrained to disregard such evidence and to yield to the presumption of legitimacy. This case is an illustration of the necessity for limitations to the rule, at least in proceedings other than filiation proceedings.
The criticism of the rule in 7 Wigmore, Evidence, pp. 358, 368, secs. 2063 and 2064, as not based on any logical principle when brought into play in such a case as this may well be referred to. A reading of the observations of Prof. Wigmore brings to the front the proposition that the growth of the rule was due to a following of precedent without regard for the existence of the rule. The rule in the beginning had its reason in the disqualification by interest, of wife or husband as witnesses; a rule long since outlawed by statute in Wisconsin. Secs. 325.13, 325.18, Stats. The only reason which remains for the perpetuation of the ruling, according to Prof. Wigmore is found in Lord Mansfield's utterance in 1777 in Goodright v. Moss, Cowp. 591, that the "law of England" as well as "decency, morality, and policy" forbade a parent's testimony to nonaccess. These bases for the rule seem hardly tenable when we reflect that a wife is allowed to testify to adultery, or a single woman to illicit intercourse. There seems to be no sufficient reason from the point of view of public policy for recognizing that rule of evidence as extending as far as it was permitted to in this case.
The equitable arrangement made by the trial court when it originally refused to allow support money for the younger child should continue. And the order allowing support should be reversed.
It is unfortunate that a misunderstanding of the rule referred to, should have prevented up to now the proper authorities, on complaint of respondent, from bringing proceedings for support against the true father. However, the *Page 211 mistake should not be cured by the unjust imposition of the burden upon an innocent man.
I am authorized to say that Mr. Justice FRITZ and Mr. Justice BARLOW join in this dissent.