The issue here is whether defendant husband should be required to support a child conceived and born to plaintiff wife after defendant underwent a vasectomy operation.
The parties were married June 28, 1969. Three children were born of the marriage, after which the family doctor advised the wife not to have more children due to medical reasons. The parties agreed that the husband would have a vasectomy by Dr. Yorker on July 28, 1972, the same month in which the third child was born. This was done.
On January 21, 1974 the wife gave birth to the child at issue. The pregnancy was full term, with conception occurring apparently in April 1973. The parties separated in June 1973. The wife testified that the parties occupied separate rooms for three months before the separation, but had sexual relations about once every two weeks during that time, using no birth control methods. The husband testified that they had separate rooms for five to six months prior to the separation and had sexual relations less than every two weeks and none for the two months before the husband left.
There is no testimony or suggestion of any impropriety on the wife's part with any other man, except inferentially by the husband's claim that he cannot be the father of the last child by reason of his operation.
The wife testified that she has had no relations with any man other than her husband; that she is an active and regular church member, and that she has not dated since the separation.
The husband is also a good church member, studying to be a minister. The parties have had sexual relations in 1974 since their separation and after the last child's birth.
Dr. Yorker testified in substance as follows: He tells his patients that success with a vasectomy is better than any other kind of operation; that usually tests are made of the sperm count the second and third month after the operation, and if the count is zero at the second month and two to zero at the third month, the patient is considered sterile; that complete sterility is usually seen in three months; that this defendant had tests in October 1973 and April 1974, with no sperm seen, which means defendant was sterile at the time of the tests; that he has never had a vasectomy with sperm 10 to 11 months after the operation; that the outside limits for the existence of sperm is not much more than six months; that it is medically not probable that defendant is the father of the child conceived 10 to 11 months after the vasectomy; that the probability of sterility at the time of conception is great but is not 100%, and that normal gestation is nine months previous to birth.
Both parties impressed the court as being honest, sincere and straightforward in their testimony.
The legitimacy of every child born in wedlock is now, and since the earliest times has been, bolstered by an exceedingly sturdy presumption, which presumption is recognized in this State. In re Rogers, 30 N.J. Super. 479 (App. Div. 1954). In such circumstances legitimacy,
though strongly presumed, may be rebutted. B. v. O., 50 N.J. 93 (1967). At one time the proof to establish illegitimacy of a child born in wedlock had to be such that there was no probable escape from the conclusion. In re Rogers, supra. This test has been modified and the appropriate burden now is "clear ...