State ex rel. Anderson v. Sutton

807 S.W.2d 152, 1991 Mo. App. LEXIS 512, 1991 WL 46692
CourtMissouri Court of Appeals
DecidedApril 9, 1991
DocketNo. 16754
StatusPublished
Cited by3 cases

This text of 807 S.W.2d 152 (State ex rel. Anderson v. Sutton) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Anderson v. Sutton, 807 S.W.2d 152, 1991 Mo. App. LEXIS 512, 1991 WL 46692 (Mo. Ct. App. 1991).

Opinion

FLANIGAN, Chief Judge.

This is an action under the Uniform Parentage Act, §§ 210.817 to 210.852,1 RSMo (L.1987, S.B. 328), to determine the existence of the father and child relationship between David Sutton, defendant in the trial court and appellant here, and Linda F. Anderson, who was born January 10, 1983. Plaintiffs in the action, respondents here, are Sylvalene Burke (the mother) and Linda. The trial court, sitting without a jury, found the issues in favor of plaintiffs. Defendant appeals.

The trial court in its judgment found that defendant was the natural father of Linda and was capable of paying child support. Defendant was ordered to pay $100 per month for the support of Linda and to reimburse the state of Missouri the sum of $4,457 for funds paid to Sylvalene by the state under the Aid to Families With Dependent Children program.

Defendant’s first point is that the evidence is insufficient to support the finding of paternity, and thus insufficient to support the judgment, “since the evidence established that defendant could not be the father of Linda because the parties did not have sexual intercourse during the time Linda was conceived.”

An action filed under the Uniform Parentage Act is a civil action governed by the Rules of Civil Procedure. § 210.839. Appellate review of this court-tried case is governed by Rule 73.01(c), Y.A.M.R. This court must give due regard to the opportunity of the trial court to have judged the credibility of the witnesses. The judgment of the trial court will be sustained unless there is no substantial evidence to support it, or it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Section 210.822 sets forth certain factual situations, none present here, where a man is presumed to be the natural father of a child. Unless a presumption applies under § 210.822, the burden of proof as to all issues shall be preponderance of the evidence. § 210.839.4.

In support of his first point, defendant argues that Linda was born on January 10, 1983, that the normal human gestation period is 280 days, that Sylvalene testified that Linda was not “born premature,” that Linda “was born full term plus 10 days,” and “therefore, the date of conception of the child was March 27, 1982.” Defendant points to his own testimony that he admitted having intercourse with Sylvalene on March 7, 1982, and to a portion of the testimony of Sylvalene where she stated that the first time she had intercourse with defendant was in June 1982.

Defendant’s calculation of March 27 as the date of conception is based only on his view of selected portions of the evidence. Defendant’s argument overlooks other evidence.

[154]*154When Sylvalene mentioned that she had had intercourse with defendant in June 1982, she also testified that she was “having a little trouble remembering some of this_ It’s been a while.” In her interrogatory answers, received into evidence by agreement of the parties, Sylvalene testified that she engaged in intercourse with the defendant in April 1982 and May 1982.

Sylvalene testified that she had intercourse with defendant three or four times. She also testified, “I had no kind of get-together with any other male.... I had no intercourse with anyone else in March, April, May, June or July of 1982.” Sylva-lene also testified that after she found out she was pregnant, “I told [defendant] face to face.” She then gave the following testimony:

Q. Why did you tell him rather than someone else?
A. Why did I tell him?
Q. Uh-huh.
A. Because he was the father of the child.
Q. And what made you believe that?
A. Because he was the only one I had been with.
Q. He’s the only person you’d had intercourse with?
A. Yes.
Q. Had you had intercourse with anyone else in March of 1982?
A. No.

Based on tests of blood samples taken from Sylvalene, Linda and defendant, George Maha, a geneticist employed by Roche Biomedical Laboratories, testified: “The scientific evidence would indicate that [defendant] is 99.89 percent likely to be the father of the child.... I would feel it’s practically proved that [defendant] is the father of Linda.”

The evidence set forth above was sufficient to justify the trial court’s finding of paternity. Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in admitting “the testimony of Dr. George Maha” and the report of Roche Biomedical Laboratories, Exhibit 3, because: (a) Exhibit 3 was not properly qualified as a business record, (b) the persons conducting the tests upon which Exhibit 3 was based were not present and did not testify, and (c) no chain of custody of the blood samples showing their unadulterated nature was proven.

“Prejudicial or reversible error in the admission or rejection of evidence is not an issue on appeal in any case tried before the judge without a jury.” City of Town and Country v. St. Louis County, 657 S.W.2d 598, 608[16] (Mo. banc 1983). In a case tried without a jury, the trial court may properly allow the parties “wide latitude” in the admission of evidence. Mashak v. Poelker, 367 S.W.2d 625, 626[2] (Mo. banc 1963). See also Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 632[9] (Mo.App. 1976); “In a court tried case, the same strictness as to admission of evidence is not applied as is to jury cases.” In re Marriage of Ryterski, 655 S.W.2d 102, 104[4] (Mo.App.1983). In any event, the challenged evidence was properly received.

Defendant’s point is over-broad in challenging “the testimony” of Dr. Maha. His testimony consumes 64 pages of the transcript. Most of that testimony was received without objection and some of it was elicited by defendant’s counsel. Actually, what defendant is challenging is the admissibility of Exhibit 3.

The trial court received Exhibit 3 into evidence at the conclusion of plaintiffs’ direct examination of Dr. Maha. When Exhibit 3 was offered, defendant’s counsel objected for the following reasons:

“There are a number of hearsay objections; the first one being that, of course, again, it is not prepared in the common course of business but instead is prepared for purposes of litigation. The testimony here has been that Dr. Maha did not perform any of these tests, he did not observe any of the tests being performed, and they were each performed by different unnamed, unknown technicians. We have no testimony before us today that the tests were actually, in fact, performed in a manner which is consistent and acceptable within the scientific community, and we have no knowledge of whether or not these tests [155]*155were accurate.

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Bluebook (online)
807 S.W.2d 152, 1991 Mo. App. LEXIS 512, 1991 WL 46692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-anderson-v-sutton-moctapp-1991.