Ashley v. Ashley ( 1962 )

HOOD, Chief Judge.

This action was originally commenced by appellee wife against appellant husband for maintenance for herself and their infant daughter. The trial court found that the parties had separated in January 1957 and that the wife was entitled to the custody of the child and to maintenance for herself and the child; and an order to that effect was entered on September 9, 1957. The parties continued to live separate and apart but in October 1960 the wife moved for an increase in maintenance mainly on the ground that a second child had been born to the parties on May 11, 1960. The husband opposed the increase and denied that he was the father of the second child. The hearing on the motion centered largely on the question of the paternity of the second child.

After a full hearing the court found that “the testimony as a whole pertaining to the alleged unfaithfulness of the wife with another man was most unconvincing” and found that the husband was the father of the second child. Accordingly the court ordered the husband to pay an increased amount for maintenance of the wife and the two children.

On this appeal the husband asserts that the trial court gave too much weight to the presumption of the legitimacy of a child born in wedlock. He contends that the presumption is entitled to little or no weight when the parties, though still married, have lived separate and apart for several years. We do not believe the presumption was the decisive factor in the trial court’s decision. Essentially the question in this case, as in most disputed paternity cases, was whether the man or the woman was stating the truth; and the trial court resolved this issue in favor of the wife.

The husband also strongly urges that the finding of the trial court was in direct conflict with the great weight of the evidence. It is not the function of this court to determine whether the finding of the trial court on an issue of fact was right, or to justify that finding. We review, for errors of law and not for errors of fact; and except for errors of law, we are expressly forbidden to set aside the judgment of the trial court, sitting without a jury, unless the judgment “is plainly wrong or without evidence to support it.” Code Í961, 11 — 772(c). Here, as we have said, the issue depended essentially on the ■credibility to be accorded to the parties. This was a matter strictly and entirely within the province of the trial court. ICeeping within the bounds of our reviewing power,, we cannot say the judgment was plainly wrong or without evidence to support it.

Affirmed.