State v. Dodd

961 S.W.2d 865, 1998 WL 30644
CourtMissouri Court of Appeals
DecidedJanuary 16, 1998
DocketNo. 21488
StatusPublished
Cited by3 cases

This text of 961 S.W.2d 865 (State v. Dodd) 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 v. Dodd, 961 S.W.2d 865, 1998 WL 30644 (Mo. Ct. App. 1998).

Opinion

SHRUM, Judge.

This is a ease brought under Missouri’s version of the Uniform Parentage Act, § 210.817 et seq,1 in which the trial court adjudged Brian Eugene Dodd (Father) to be the natural father of S_ M_ S_. This appeal presents two issues:

1. Did Father’s failure to request a jury trial “within ninety days of the first responsive pleading” as required by § 210.839 result in a waiver of his right to trial by jury?
2. Did the trial court err when it admitted blood test results over Father’s objection that the proponent of the evidence had to present live expert testimony “to establish proper interpretation of the results?”

Affirming the judgment, we answer “yes” to the first question and “no” to the second.

FACTS

When teenagers, Father and Serena Sue Suit (Mother) engaged in sexual relations for approximately a year and a half, which included the probable time of S_M_S_⅛ conception.2 During that period, Father was the only man with whom Mother had sexual relations. They had ceased dating by the time Mother learned in July 1981 that she was pregnant. Mother told Father of her pregnancy, but they never re-established a relationship and never married. The child, S_M_S_, was bom February 12, 1982. Throughout, Father paid no support for the child and had no contact with her.

[867]*867This paternity action against Father was commenced in January 1995. His answer, filed on March 6, 1995, denied paternity. Blood testing was ordered and the results thereof were furnished to Father’s counsel on August 14,1995.3

On September 5,1995, Father filed a written request for jury trial. Counsel for Respondents immediately objected to Father’s jury trial request, citing § 210.839.4 as authority for their position that Father’s request was untimely.

A hearing on Father’s jury trial request set for October 2, 1995, was not taken up as scheduled. Instead, the trial court sustained Father’s request that C_0_be added as a party based on Father’s allegation that C_ 0_was S_M_S_⅛ natural father. C_ 0_⅛ answer to the third-party petition filed against him contained his request for trial by jury. Based on C_0_⅛ request, the case was scheduled for jury trial on November 13, 1996.

Later, when laboratory blood test results excluded C_0_as the biological father of S_M_S_, the trial court sustained C_ 0_’s motion for dismissal as to him. With C_0_no longer in the case, the trial court found that Father’s request for jury trial was not timely filed, removed the case from the jury docket, but left it on the November 13 docket for trial to the court.

At trial, Father objected to the admission of the blood test result without the use of live expert testimony. The trial court overruled the objection, admitted the evidence, and ultimately found Father to be the natural father of S_M_S__ This appeal followed.

DISCUSSION AND DECISION

Point I: Waiver Of Jury Trial

The “Uniform Parentage Act” (UPA), §§ 210.817-.852 was first enacted in Missouri in 1987 (effective July 15, 1987). The purpose of the UPA was to establish a uniform means for deciding paternity that would protect the rights of all parties involved, especially children. See Piel v. Piel, 918 S.W.2d 373, 375 (Mo.App.1996).

Under the UPA, “[a]ny party shall have a right to trial by jury” but must request a jury “within ninety days of the first responsive pleading.” § 210.839.4. Although Father’s jury trial request was not timely under § 210.839.4, he claims in his first point relied on that the trial court erred when it denied him a jury trial. He advances several reasons why the trial court erred. We examine his claims separately.

Father first contends that he “did not waive [his] right to trial by jury [because he] is ... constitutionally entitled to a trial by jury unless waived in accordance with Missouri Supreme Court Rule 69.01(b).” He cites Mo. Const. (1945), art. I, § 22(a) which provides “[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate.”

As to Rule 69.01(b), it provides:

“(b) Jury Trial-How Waived. Parties shall be deemed to have waived trial by jury:
“(1) by failing to appear at the trial;
“(2) by filing with the clerk written consent in person or by attorney;
“(3) by oral consent in court, entered on the minutes;
“(4) by entering into trial before the court without objection.”

Father’s argument is that the constitutional provision cited entitled him to a jury trial unless he waived that right in one of the four ways prescribed by Rule 69.01(b). Such argument, however, misstates the meaning of Article I, Section 22(a) of our constitution. This provision holds inviolate the right to trial by jury as “heretofore enjoyed.” Hammons v. Ehney, 924 S.W.2d 843, 848 (Mo. banc 1996).

“Particularly, the phrase ‘as heretofore enjoyed’ has been interpreted to mean that the constitution protects the right as it existed when the constitution was adopted and does not provide a jury trial for proceedings subsequently created.... [T]his court has stated multiple times that the right [to jury trial] applied to actions that [868]*868existed at common law before the adoption of the first constitution, in 1820.”

Id, at 848-49[12], (citations omitted).

As pointed out in James v. Hutton, 373 S.W.2d 167 (Mo.App.1963) and in cases cited therein, “at common law there was no legal duty on the father of illegitimate children for their support.” Id. at 168. Moreover, “[o]ur General Assembly never enacted a bastardy statute.... ” In re L_, 461 S.W.2d 529, 531 (Mo.App.1970). It was in R_ v. R_, 431 S.W.2d 152 (Mo.1968), that our supreme court first afforded “illegitimate children a right equal with that of legitimate children to require support by their fathers.” Id. at 154[2]. Also, it was in R_that a Missouri court first recognized that the paternity of an illegitimate child and the liability of his or her father could properly be adjudicated and enforced in a declaratory judgment action. In re L_, 461 S.W.2d at 532[1],

It is true that under Missouri’s Declaratory Judgment Act the right to jury trial was afforded when paternity was the issue. See K.D.R. v. D.E.S., 637 S.W.2d 691, 694[4] (Mo.banc 1982). Generally, however, the UPA is now the exclusive method for adjudicating paternity in Missouri. See Roberts v. Roberts, 920 S.W.2d 144, 146[3] (Mo.App.1996). But see Matter of Nocita, 914 S.W.2d 358, 359 (Mo.banc 1996).

As noted earlier, Missouri adopted the UPA in 1987.

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Bluebook (online)
961 S.W.2d 865, 1998 WL 30644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dodd-moctapp-1998.