State ex rel. Kimball v. Rollins

528 So. 2d 686, 1988 La. App. LEXIS 1031, 1988 WL 43173
Louisiana Court of Appeal·Decided May 4, 1988·No. No. 19636-CA·Published·Cited by 1 cases

Opinion

JASPER E. JONES, Judge.

This is a suit to establish paternity brought by the State of Louisiana through the Department of Health and Human Resources against the defendant Kenneth Wray Rollins. The trial court rendered judgment against the defendant finding him to be the natural father of the minor child Brandon Steven Kimball. Kenneth Wray Rollins appeals the judgment of the trial court. We affirm.

FACTS

On June 8, 1984 Jeanie Lynn Kimball gave birth to Brandon Steven Kimball in Monroe, Louisiana. On September 17,1985 the State filed a suit alleging that Kenneth Wray Rollins was the natural father of the child.

Kenneth Rollins was married to Patsy Rollins at the time he met Jeanie Lynn Kimball in 1981. The defendant and Ms. Kimball, referred to hereinafter as Lynn, began an affair shortly after their introduction.

At trial, Lynn testified she had sexual relations with the defendant in September of 1983 resulting in the conception of Brandon. The defendant admitted to the affair with Lynn but denied having sexual relations with her during this time period.

Tests were performed on blood samples given by the defendant, the mother, and the child. Pat Wojtkiewicz, supervisor of the serology section of the North Louisiana Criminalistics Laboratory, was qualified as an expert and testified to the results of the blood testing performed there. Mr. Wo-jtkiewicz stated the analysis of the blood test revealed the defendant could not be excluded as the father. The blood test evaluations further revealed the defend[687] ant’s paternity index is 633, or the defendant is 633 times more likely to be the father of the child than another randomly selected caucasion male. Mr. Wojtkiewicz also stated the relative probability of paternity in this case is ninety-nine point eight percent (99.8%).

In support of the allegation of paternity, the State introduced evidence of the defendant’s informal acknowledgment of the child, including two photos of the defendant and the infant; an excerpt from a baby book containing the defendant’s signature; and a postcard mailed by the defendant to Lynn in September of 1984 which states as a postscript “take care of my boy.”

Based upon this evidence, the trial court concluded the State established by a preponderance of the evidence the defendant is the father of Brandon Steven Kimball.

On appeal the defendant contends the trial court placed undue emphasis on the testimony of Lynn and the expert Pat Wo-jtkiewicz. The defendant further contends the trial court erred in finding him to be the father of the child because the State did not prove paternity by a preponderance of the evidence.

APPLICABLE LAW

The State bears the burden of proving by a preponderance of the evidence the defendant is the father of the child. LSA-C.C. art. 209;1 State v. Bolden, 519 So.2d 362 (La.App. 2d Cir.1988); State through the Department of Health and Human Resources in the Interest of Johnson v. Rice, 482 So.2d 873 (La.App. 2d Cir.1986). The trial court’s determination of factual and credibility issues should not be disturbed by an appellate court in the absence of manifest error. State v. Bolden, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973).

DID THE STATE ESTABLISH PATERNITY BY A PREPONDERANCE OF THE EVIDENCE

The events of the summer of 1983 are in dispute. Lynn testified in September of 1983, after a brief period of estrangement, she was living with the defendant in an apartment in Alexandria, Louisiana. She stated she and the defendant engaged in sexual relations on a daily basis throughout the month of September. She further stated she did not have sexual relations with any men other than the defendant after July 6, 1983 when she had her birth control device removed. Lynn left the apartment in Alexandria and returned to West Monroe in late October or early November and discovered she was pregnant on November 21, 1983.

Lynn further testified the defendant admitted to her and to her mother that he was the father of the child when he became aware she was pregnant. This statement was corroborated by the testimony of Lynn’s mother, Yvonne McClain. Yvonne McClain stated the defendant expressed to her his pride at the possibility of having a baby boy. She further recounted incidences when the defendant contributed cash for payment of her daughter’s medical bills during her pregnancy and later contributed $1,200 to $1,500 after Lynn gave birth. [688] The defendant visited Lynn and the baby one week after the infant’s birth, while Ms. McClain was also present. During this time, Ms. McClain stated the defendant indicated he intended to support the child and further expressed his desire to have the child’s name on the birth certificate changed from Kimball to Rollins.

Michelle Landry, a welfare eligibility worker contacted by Lynn, testified she spoke with the defendant and he acknowledged the child as his during their telephone conversations. The defendant denied this statement in his testimony. The trial court discounted Ms. Landry’s testimony as “tainted by the veracity of the information given by the mother.”

The defendant denied continuing the relationship with Lynn past June of 1983. He testified he terminated the relationship with her because he discovered she had sexual relations with other men, including his brother Gerald Rollins. He denied giving any money to Lynn other than $100.00 for repair of her car. He denied signing the baby book or writing the postcard and suggested Lynn had forged his signature. He denied having sexual relations with her in August or September and further testified he never stated to anyone that the child was his son.

The defendant did admit to going on a trip to Las Vegas with Lynn and another male friend Kenneth Miller in the latter part of August. He further admitted to visiting with Lynn during her pregnancy while on business trips to the Monroe area. He stated he saw Lynn at least twice after the child was bom. On one of these occasions the defendant and the child were photographed reclining on a couch in Lynn’s residence. He admitted his divorce from Patsy Rollins in May of 1985 was at least in part precipitated by his relationship with Lynn.

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State ex rel. Kimball v. Rollins, 528 So. 2d 686, 1988 La. App. LEXIS 1031, 1988 WL 43173 (La. Ct. App. 1988).

528 So. 2d 686 (State ex rel. Kimball v. Rollins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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