Miller v. Kirshner

621 A.2d 1326, 225 Conn. 185, 1993 Conn. LEXIS 58
CourtSupreme Court of Connecticut
DecidedMarch 23, 1993
Docket14438; 14439
StatusPublished
Cited by69 cases

This text of 621 A.2d 1326 (Miller v. Kirshner) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Kirshner, 621 A.2d 1326, 225 Conn. 185, 1993 Conn. LEXIS 58 (Colo. 1993).

Opinion

Norcott, J.

This is an appeal from the judgment of the trial court, Hon. Joseph F. Morelli, state trial referee, finding the defendant, Hal Kirshner, to be the father of the child of the plaintiff, Mary Miller, and ordering the defendant to pay a support arrearage, weekly child support until the child’s eighteenth birthday and attorney’s fees. The defendant claims that the trial court improperly: (1) admitted the results of a human leukocyte antigen (HLA) test of the defendant; (2) evaluated the credibility of the witnesses by concluding that the plaintiff’s testimony was more credible than that of the defendant and by ignoring the testimony of one of the defendant’s witnesses; (3) awarded attorney’s fees to the plaintiff; (4) determined the defendant’s liability for past child support; and (5) imposed new financial obligations on the defendant [188]*188in an amended memorandum of decision on financial issues. The plaintiff filed a separate appeal claiming that the trial court had improperly denied her motion for an allowance for attorney’s fees to defend this appeal. We affirm the judgment of the trial court.

The relevant facts are as follows. On May 21, 1986, the plaintiff petitioned the Superior Court to establish the paternity of a child born to her on April 21,1985. The parties agreed to try the issues of paternity and support separately. After a trial on the issue of paternity, the trial court found that the defendant was the father of the plaintiff’s child and that he was responsible for the child’s support and maintenance. The trial court then heard evidence relating to financial issues and ordered that the defendant pay weekly child support, medical expenses, child support arrearage from the time of the child’s birth and attorney’s fees.

The defendant appealed the judgment of the trial court regarding both paternity and support to the Appellate Court. The plaintiff then filed a corrected motion in the trial court for an allowance to defend the appeal seeking attorney’s fees in advance of the appeal.1 The trial court denied this motion with prejudice. The plaintiff appealed the denial of that motion to the Appellate Court. We transferred both the defendant’s appeal and the plaintiff’s appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Further facts will be discussed as they become relevant.

[189]*189I

The defendant first claims that the trial court improperly admitted into evidence the results of an HLA test performed on the defendant’s blood because: (1) a contrary earlier pretrial ruling of a coordinate judge constituted the law of the case; (2) the test results were improperly admitted into evidence by retroactively applying General Statutes (Rev. to 1989) § 46b-168 (b), as amended by Public Acts 1989, No. 89-360, § 41; and (3) the testing violated his rights under the fourth and fifth amendments to the United States constitution. We disagree.

The following facts are relevant to this claim. On June 20, 1986, after the plaintiff had petitioned the Superior Court for a determination of paternity, the defendant moved for an order that the plaintiff, the plaintiff’s child and the defendant submit to blood tests pursuant to General Statutes (Rev. to 1985) § 46b-168.2 The parties subsequently agreed to submit to blood tests before an order was entered. The defendant signed a consent form that stated that the blood taken would be tested for multiple factors and if exclusion from paternity could not be demonstrated the likelihood of paternity would be calculated. These blood tests included an HLA test. The results did not exclude the defendant from paternity and determined that the likelihood of paternity was 99.9 percent.

[190]*190The defendant subsequently filed a motion in limine for an order precluding the plaintiff from introducing the results of his HLA test into evidence on the ground that the test was conducted on his tissue whereas he had consented only to a blood test. After a hearing, the trial court, Hon. Julius J. Kremski, state trial referee, ordered that “[t]he plaintiff may not utilize the results of the tissue testing because the parties only agreed to a blood test.”

Following this ruling, the plaintiff filed an amended motion for additional paternity testing and a motion in limine to admit the test results. At a hearing on the plaintiff’s motions, the trial court heard the testimony of Herbert Silver, the physician who had supervised the blood testing procedure, who testified that HLA testing was performed on components of blood and that none of the blood components are considered to be tissue. Judge Kremski then denied without prejudice the plaintiff’s amended motion for paternity testing because the plaintiff had not shown the need for additional testing. The trial court concluded that “[t]he court is not aware of any basis for considering that the . . . test contained or involved tissue testing, however, the court is not foreclosing the [defendant] from presenting evidence to the contrary at a future hearing. Further, the court is not foreclosing the [plaintiff] from presenting evidence that a need for the additional blood test requested by this motion is necessary.” The trial court also denied the plaintiff’s motion in limine to admit the results of the blood test stating that the issue of the admissibility of evidence was better left for the time of trial.

During the trial, the results of the HLA test were admitted into evidence by Judge Morelli over the objection of the defendant. On the basis of testimony presented, the blood test results, the defendant’s offer to pay for an abortion and later to include the plaintiff’s [191]*191child in his will, as well as a visual comparison of the child with the defendant, the trial court found the defendant to be the father of the plaintiffs child.3

A

The defendant contends that the decision by Judge Morelli to admit into evidence the results of the defendant’s HLA test effectively overturned the earlier ruling of Judge Kremski, who had granted the defendant’s motion in limine to exclude the defendant’s HLA test. The defendant argues that, under the doctrine of the law of the case, the earlier ruling was binding on the judge at the subsequent trial and that there was no cause for review or reversal of that ruling. We do not agree.

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. . . . [I]t expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). Nonetheless, “[w]e observed in Breen that [192]

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Bluebook (online)
621 A.2d 1326, 225 Conn. 185, 1993 Conn. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-kirshner-conn-1993.