Houghton v. Houghton

137 N.W.2d 861, 179 Neb. 275, 1965 Neb. LEXIS 639
CourtNebraska Supreme Court
DecidedNovember 12, 1965
Docket35943
StatusPublished
Cited by28 cases

This text of 137 N.W.2d 861 (Houghton v. Houghton) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Houghton v. Houghton, 137 N.W.2d 861, 179 Neb. 275, 1965 Neb. LEXIS 639 (Neb. 1965).

Opinions

Brower, J.

Plaintiff and appellee Mary Jean Houghton brought this action on October 10, 1962, for a divorce on the ground of extreme cruelty from the defendant and appellant James Richard Houghton in the district court for Douglas County, Nebraska. The original petition alleged one child, Alice Marie Houghton, was born to this union on May 4, 1961.

After filing the original petition the plaintiff became pregnant and on July 16, 1963, she filed a supplemental petition, alleging that because of defendant’s promises the parties had resumed marital relations after the action was begun and were expecting the birth of a second child in the month of October 1963. She again alleged acts of cruelty and sought a divorce, custody of Alice Marie, child support, and alimony.

The defendant thereafter filed an amended answer and cross-petition. It admitted defendant was the father of the first-born child. It alleged that plaintiff enticed the defendant into having sexual relations on February 17, 1963, and on several occasions thereafter but denied having such relations between October 10, 1962, and February 17, 1963. It denied the child the plaintiff alleged to be expecting was the defendant’s child. It alleged plaintiff had condoned any alleged acts of cruelty committed against her as a result of enticing him into sexual relations with her. It further alleged the plain[277]*277tiff had committed adultery and was guilty of extreme cruelty. It prayed for a divorce and the custody of the child which was admitted to be his.

The child referred to in the supplemental petition was born October 1, 1963. She was named Sandra Kay and the testimony shows she was fully developed at birth.

After a trial the court found the defendant to be the father of the infant and awarded a decree of absolute divorce to the plaintiff with custody of both minor children in her, subject to visitation rights in the defendant who was ordered to pay $12.50 per week for the support of each child. It gave the plaintiff the household furniture and fixtures and the equity in the real estate of the parties. It further ordered the defendant to pay the professional services of the doctor with the prenatal care and birth of Sandra Kay Houghton, together with attorney’s fees of the plaintiff. Defendant’s motion for new trial being overruled, defendant has appealed.

The assignments of error, so far as are necessary for our decision, are: The court erred in its finding that the defendant was the father of the infant, Sandra Kay; in ordering the defendant to pay the plaintiff support for her maintenance and to pay the doctor bills in connection with the prenatal care and birth of said infant; in granting custody of the minor child, Alice Marie, to the plaintiff; and in granting the plaintiff an absolute divorce from the defendant, and in not granting the defendant an absolute divorce from the plaintiff on the grounds of adultery and extreme cruelty. The court further erred in not finding that the results of blood tests of the plaintiff, defendant, and the infant, Sandra Kay, were conclusive, and that as a result of the tests the defendant overcame any presumption of legitimacy of said child.

A motion was made previous to the trial by the defendant to’ require blood tests to be taken of the parties and Sandra Kay for the purpose of determining the parentage of that infant. The motion was never heard [278]*278but the parties agreed that the tests would be made and agreed that Dr. Earl Greene would make them.

Medical science has established that such tests may determine in some instances that a certain person cannot be a parent of a certain child although they may not affirmatively prove that one is in fact one of the parents.

The doctor was notified of their agreement by the plaintiff’s attorney and the parties appeared pursuant to arrangements on December 17, 1963, at the Bishop Clarkson Memorial Hospital, the plaintiff bringing the infant with her. Blood was drawn from each of the three in the presence of the doctor and the samples labeled in his presence. The blood specimens so labeled were taken to the blood bank where blood typing is normally done. The tests on the three specimens were made by qualified medical technologists in the laboratory at Bishop Clarkson Memorial Hospital under the supervision and direction of Dr. Greene. A separate technologist typed each specimen. On the following day the tests were repeated, each by a technologist other than the one who analyzed the particular specimen the day before. The results were identical and thereafter they were recorded and submitted to Dr. Greene for analysis.

Dr. Greene explained the general procedure for blood typing as follows: “* * * blood is typed by what is called an antigen-antibody reaction. The antigen is the red blood cell and the antibodies are derived from the serum or from the portion of the blood that does not have the red cell. These antibodies and cells are incubated together * * * for a period of time and if the antigen that you are seeking with this particular antibody is present you get a clumping of the cell. This is called the positive reaction and this particular type is present and this particular antigen is present. Q. In other words if the antigen is present then you will get the clumping. If it is not present you will not get any clumping, is that right? A. Yes. Q. If there is a clumping you call it positive and [279]*279if there isn’t clumping you call it negative? A. Yes, sir.”

Tests were made under two systems of each person’s blood, one called the Rh system and one the MN system. In this case Dr. Greene made out a report and copies were sent to counsel for each party, one of which was admitted in evidence, showing the results of the tests as reported to him and his interpretation of them which is therein set out. Although he testified at length in regard to these tests and their significance, his conclusion from that report may be understood better than an attempt to here summarize his evidence. They are as follows:

“(1) Rh system. There are 6 antigens in the Rh system. These are usually written, C, D, and E and c, d, and e. All persons have 6 Rh antigens and these occur in three pairs. There is a pair of “C’s”, a pair of “D’s”, and a pair of “E’s”. Each pair may be any combination, i.e., CC, cc, Cc. One of the antigens in each of the pairs comes from the father and one from the mother. In the above case, Mary Jane Houghton has e antigen and no E antigen, and her formula for this particular antigen pair must be ee. James Richard Houghton has e antigen and no E antigen, and his formula for this antigen pair must also be ee. Sandra Kay Houghton has e antigen and E antigen. Her formula for this pair, therefore, would have to be eE. Since neither Mary or James have the E antigen, it must have come from another source.
“(2) In the MN system: The MN system is composed of a pair of anigens which occur in the following combinations: MM, NN, or MN. In the above typing, Mary Jane Houghton is positive for M and positive for N. Her formula is MN. James Richard Houghton is negative for M and positive for N. His formula is NN. Sandra Kay Houghton is positive for M and negative for N. Her formula is, therefore, MM. One of the M’s in Sandra Kay’s [280]*280formula could have been inherited from the mother, Mary Jane Houghton. However, the other M could not have been inherited from James Richard Houghton, since he does not possess this factor.

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Bluebook (online)
137 N.W.2d 861, 179 Neb. 275, 1965 Neb. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houghton-v-houghton-neb-1965.