State, ex rel, Lorretta Head Overstreet v. Paul Daniel King - Concurring

• Court: Court of Appeals of Tennessee
• Decided: January 24, 1996
• Docket: 01-A-01-9507-CH-00309
• Status: Published

Opinion

STATE, EX REL, LORRETTA HEAD ) OVERSTREET, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9507-CH-00309 VS. ) ) Smith Chancery ) No. 5357 PAUL DANIEL KING, )

Defendant/Appellant. ) ) FILED Jan. 24, 1996

Cecil Crowson, Jr. COURT OF APPEALS OF TENNESSEE Appellate Court Clerk MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF SMITH COUNTY AT CARTHAGE, TENNESSEE

THE HONORABLE C. K. SMITH, JUDGE

CHARLES W. BURSON Attorney General & Reporter

WILLIAM ASHBY SMITH, JR. Assistant Attorney General 404 James Robertson Parkway Nashville, Tennessee 37243-0499 Attorney for Plaintiff/Appellee

THOMAS H. BILBREY 1024 Scottsville Highway P. O. Box 97 Lafayette, Tennessee 37083 Attorney for Defendant/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR: LEWIS, J. KOCH, J. OPINION

The only issue raised in this paternity action is whether there is any

material evidence to support the jury's verdict that the appellant was the father of the

child. We affirm.

The appellee testified that beginning in the early part of 1983 she

engaged in sexual intercourse with the appellant approximately once a week. These

liaisons lasted most of the year, even after the appellee became pregnant in October

of 1983. She testified that she was not having sex with anyone else during the

relevant period.

The appellee also produced the testimony of the director of a Nashville

laboratory that ran certain blood tests on the mother, the child, and the appellant. The

first test, performed in 1985 and testing blood cell characteristics, showed an 83.3%

probability that the appellant was the child's father. A DNA test administered in 1993

established a relative chance of paternity at 99.83%. Combining the test results

established a 99.96% chance of paternity.

The appellant argues that the appellee's testimony should have been

excluded by the doctrine of judicial estoppel. He cites her sworn allegations in a

paternity action and an action for outrageous conduct filed in 1984. In those

pleadings she swore (1) that when she learned she was pregnant the appellant gave

her twenty dollars to buy medicine to induce an abortion, and (2) that the appellant

had acknowledged by words and acts that he was the child's father. At the trial below

the appellee testified (1) that she did not talk to the appellant after she learned that

she was pregnant, until after the child was born and, (2) that the appellant had never

acknowledged that the child was his.

-2- As a general rule, the doctrine of judicial estoppel prevents a witness

from contradicting sworn testimony given in a prior judicial proceeding. In Re:

Adoption of Johnson, 678 S.W.2d 65 (Tenn. App. 1984). But the application of the

doctrine in this case would not help the appellant. If the appellant had objected at the

trial and the two contradictory statements had been excluded, it would not change the

essential parts of the appellee's testimony. Nor would it have affected the scientific

evidence showing the probability that the appellant was the child's father.

The appellant also cites the large amount of evidence in the record that

contradicts the appellee's version of the facts and points toward her stepfather, the

appellant's brother, as the real father of the child. These, however, were facts for the

jury to consider. We cannot reweigh the evidence and must affirm if there is material

evidence to support the verdict. Rule 13(d), Tenn. R. App. Proc.

The judgment of the trial court is affirmed. The cause is remanded to

the Chancery Court of Smith County for any further proceedings necessary. Tax the

costs on appeal to appellant.

_____________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ WILLIAM C. KOCH, JR., JUDGE

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