Herrin v. Herrin , 1978 Ga. LEXIS 1164 ( 1978 )

Undercofler, Presiding Justice.

In this divorce action, the trial judge found the husband was not the father of the child for whom child support was sought. The mother appeals. We reverse.

Once sexual intercourse between the husband and wife is proved, nothing short of impossibility will rebut the presumption of legitimacy of the child born to the wife. Wright v. Hicks, 15 Ga. 160, 170 (9) (1854). Accord, Simeonides v. Zervis, 120 Ga. App. 883 (172 SE2d 649) (1969); s. c. 127 Ga. App. 506 (194 SE2d 324) (1972). See also Code § 74-101. See generally Stubbs, Georgia Law of Children, § 3 (1969); 3 EGL 265, Bastards and Bastardy, § 10.

The husband in the case at hand admits intercourse. He has not produced any evidence which would show the absolute impossibility of his being the father, from whatever cause that impossibility might arise; consequently, the trial judge erred in finding the presumption of legitimacy rebutted.

Judgment reversed.

All the Justices concur, except Jordan, J., who dissents.