DiMauro v. Natalino

528 A.2d 851, 11 Conn. App. 548, 1987 Conn. App. LEXIS 1016
CourtConnecticut Appellate Court
DecidedJuly 21, 1987
Docket4373
StatusPublished
Cited by4 cases

This text of 528 A.2d 851 (DiMauro v. Natalino) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiMauro v. Natalino, 528 A.2d 851, 11 Conn. App. 548, 1987 Conn. App. LEXIS 1016 (Colo. Ct. App. 1987).

Opinion

Daly, J.

The defendant appeals from the judgment rendered after a jury found that he is the father of the plaintiffs child. In a separate proceeding, the trial court then ordered him to pay monthly support until that child’s eighteenth birthday, as well as arrearages to the state of Connecticut, attorney’s fees and costs.1 On appeal, the defendant claims the trial court erred (1) in denying his motions for a directed verdict and to set aside the verdict because of insufficient evidence, and (2) in refusing to instruct the jury as requested. We find no error.

In September, 1981, the plaintiff instituted a paternity action against the defendant alleging that he was the father of the child born to her on November 28, 1979. The defendant denied having had sexual relations with the plaintiff at any time in 1979 and specifically denied having them during the time of conception. He acknowledged that a sexual relationship had existed between the two during the “warmer months” of 1978. He further claimed that the plaintiff had admitted to [550]*550having sexual relations with another man prior to, during and following the time of conception. The plaintiff testified that she had not had sexual intercourse with anyone other than the defendant during the period of conception, although on cross-examination she made one statement which contradicted her earlier testimony. .

Paternity actions are civil proceedings and the general rules governing civil actions apply. Robertson v. Apuzzo, 170 Conn. 367, 372, 365 A.2d 824, cert. denied, 429 U.S. 852, 97 S. Ct. 142, 50 L. Ed. 2d 126 (1976). Thus, “the plaintiff in a paternity proceeding need only prove her case by a fair preponderance of the evidence. Terrasi v. Andrews, 3 Conn. Cir. Ct. 449, 453, 217 A.2d 75, cert. denied, 153 Conn. 729, 214 A.2d 130 (1965).” Lavertue v. Niman, 196 Conn. 403, 407, 393 A.2d 213 (1985). A determination that a defendant is the father of a child is factual and may be rejected on appeal only if it is clearly erroneous or otherwise contrary to law. See Practice Book § 4061; Schaffer v. Schaffer, 187 Conn. 224, 225, 445 A.2d 589 (1982).

The record in this case, like most paternity cases, reveals conflicting testimony of the parties and of their witnesses. During cross-examination, the plaintiff was asked an isolated question regarding whether she had had sexual relations with anyone other than the defendant during the time that the child was conceived. She responded, “Yes, I did.” When viewed in isolation, this testimony appears damaging to the plaintiffs case. This question was asked, however, in the midst of cross-examination regarding the surname of the woman with whom the plaintiff was sharing an apartment at the time of conception. It would not have been unreasonable for the jury to conclude, therefore, that the plaintiff was confused when she answered this particular question. Moreover, at four separate times during the [551]*551trial, the plaintiff denied having had sexual relations with anyone other than the defendant at the time of conception.2 Thus, the jury was presented with one inconsistency within the plaintiffs testimony, and it was incumbent upon them to weigh her testimony as a whole.

The plaintiffs older sister testified that the plaintiff had stated to her that the defendant was the father of the child. A former boyfriend with whom the plaintiff had lived for approximately one year testified, however, that he had had sexual relations with the plaintiff during the time of conception. He also testified that the plaintiff told him that he was the father of her child. Thus, there was testimony buttressing both the testimony of the plaintiff and of the defendant. “Nothing [552]*552in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Schaffer v. Schaffer, supra, 227. Thus, it was up to the jury to weigh the testimony of the various witnesses and to reach a conclusion based on all the evidence. We will not retry the facts.

I

The defendant claims that the inconsistencies in the plaintiff’s testimony and the conflicting testimony of others rendered the evidence insufficient to support the jury’s verdict. He asserts, therefore, that he was entitled to a directed verdict and the granting of his motion to set aside the verdict.

Directed verdicts are not favored and should be granted only when the jury could not reasonably and logically reach any other conclusion. In considering a trial court’s refusal to direct a verdict, we must review its action in the light most favorable to the plaintiff. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982).

The defendant mistakenly relies on Yarmark v. Strickland, 193 So. 2d 212, 213 (Fla. 1967), cited in Gelinas v. Nelson, 165 Conn. 33, 35, 327 A.2d 565 (1973). In Yarmark, the plaintiff unequivocally admitted having had sexual intercourse with another man as well as with the defendant during the medically recognized time in which conception occurred, yet judgment entered for the plaintiff. The Appellate Court of Florida reversed, stating that since the plaintiff admitted having intercourse with a man other than the defendant, it was improper for the trier to guess which of the two men was the father and to determine parentage based on such speculation. Yarmark v. Strickland, supra. In this case, however, the plaintiff repeatedly denied having relations with anyone other [553]*553than the defendant during the time of conception. Thus, proof that she had sexual relations with any other man rested upon the testimony of the defense witnesses and the jury’s weighing of the conflicting evidence. In situations such as this, it is proper for the case to go to the jury. Thus, the defendant’s reliance on Yarmark is misplaced, and it was proper for the trial judge to deny the motion for a directed verdict and to let the case go to the jury.

As to the defendant’s claim that the trial court erred in refusing to set aside the verdict, there is no demonstration on the record that the jury was swayed by prejudice, passion, mistake or corruption. The jury must determine the credibility of the witnesses and weigh it accordingly. When there are issues on which there can be a reasonable difference of opinion, the jury’s conclusion must stand, even if we might have concluded differently. Trzcinski v. Richey, 190 Conn. 285, 298-99, 460 A.2d 1269 (1983). The jury in this case, after weighing the evidence and finding facts, could have found by a preponderance of the evidence that while the plaintiff had been intimate with another man prior to and subsequent to the period of conception, the defendant was the only one with whom she had had sexual intercourse during the period of conception.

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Cite This Page — Counsel Stack

Bluebook (online)
528 A.2d 851, 11 Conn. App. 548, 1987 Conn. App. LEXIS 1016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimauro-v-natalino-connappct-1987.