Worley v. Thirdkill

506 So. 2d 1288
CourtLouisiana Court of Appeal
DecidedMay 6, 1987
Docket18624-CA
StatusPublished
Cited by9 cases

This text of 506 So. 2d 1288 (Worley v. Thirdkill) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Worley v. Thirdkill, 506 So. 2d 1288 (La. Ct. App. 1987).

Opinion

506 So.2d 1288 (1987)

Callie Marie WORLEY, Appellee,
v.
Claytis James THIRDKILL, Appellant.

No. 18624-CA.

Court of Appeal of Louisiana, Second Circuit.

May 6, 1987.

Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for appellant.

Rankin, Yeldell, Herring & Katz by James E. Yeldell, Bastrop, for appellee.

Before SEXTON, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

The plaintiff, Callie Marie Worley, filed suit against the defendant, Claytis James Thirdkill, alleging that the defendant is the father of her child, Jessica Lynette Worley. The trial court held that the plaintiff proved, by a preponderance of the evidence, that the defendant is the father of the child in question. From this judgment, the defendant appealed. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiff filed this paternity suit against the defendant on June 12, 1985 alleging that the defendant is the father of her child, Jessica Lynette, who was born May 5, 1985. The plaintiff alleged that she and the defendant dated each other from January to July, 1984, that they engaged in sexual intercourse and that the defendant is the only person with whom the plaintiff *1289 had sexual intercourse during that period of time.

This case was tried on April 21, 1986. The plaintiff testified that she and the defendant first met around 1976 or 1977, but they did not begin dating until early 1984. The plaintiff testified that from January through July, 1984, she and defendant were seeing each other and they engaged in sex, although not frequently. She claimed that she stopped using any method of birth control after the defendant informed her that he had undergone a vasectomy. In corroboration of her testimony that she and the defendant were dating during 1984, plaintiff presented the testimony of her next door neighbor who testified that she frequently saw the defendant's vehicle at the plaintiff's residence.

Plaintiff testified that she last engaged in sexual intercourse with the defendant on the night of July 20, 1984. She testified that the defendant came to her home that night and they went to bed in plaintiff's bedroom where they remained all night.

The plaintiff also presented the testimony of her female friend, Willie Whaley. The plaintiff and Whaley were planning to leave early on the morning of July 21, 1984 for a vacation in Dallas, Texas. Whaley stayed at plaintiff's residence on the night of July 20, 1984 in order to facilitate those plans. Whaley testified that she entered the plaintiff's bedroom around 4:30 a.m. on July 21, 1984 to awaken the plaintiff. At that time she observed the plaintiff and the defendant in bed together, asleep.

Prior to trial, a blood test was conducted. At trial the defendant consented that the blood test could be introduced into evidence without the necessity of calling the expert who performed the tests. However, the defendant reserved the right to raise other legal objections to admissibility. This blood test showed that there was a 97.3% probability that the defendant was the father of the child.

The defendant denied ever having sexual intercourse with the plaintiff, although he admitted attempting intercourse on one occasion. He also denied ever telling the plaintiff that he had undergone a vasectomy. The defendant claimed that the relationship between the two deteriorated around April, 1984 and he introduced into evidence letters he received from the plaintiff in April and June of 1984, indicating that fact.

The defendant claimed that the plaintiff continued to contact and harass him and that he went to plaintiff's residence on July 20, 1984 to talk about the relationship. The defendant admitted that they talked in the plaintiff's bedroom until the early morning hours, but denied any sexual contact.

The evidence revealed that plaintiff went to Dallas on July 21, 1984 and did not return until sometime in August, 1984. In answers to interrogatories, plaintiff indicated that the approximate time of conception was August, 1984. At trial, the defendant objected to any testimony concerning contact between plaintiff and defendant after July as being outside of the scope of the pleadings.

In an apparent attempt to show that plaintiff engaged in sex with other men, defendant called as a witness Earl Anderson, who admitted being the father of the plaintiff's oldest child, Gina Marie Worley. Anderson testified that he and the plaintiff engaged in sexual intercourse in 1985 following the birth of Jessica Lynette, but denied any sexual contact with the plaintiff during 1984.

The trial court found in favor of the plaintiff, and declared the defendant to be the father of the child in question. In oral reasons for judgment, the court indicated that the blood test and the fact that a credible, independent witness saw the pair in bed together on July 20, 1984 weighed heavily in its decision. Although the court noted that the date of conception was disputed, conception in late July, 1984 was not inconsistent with the child's birth on May 5, 1984.

The defendant appealed the trial court judgment, claiming that the trial court erred in finding that plaintiff proved paternity of the child by a preponderance of the evidence. The defendant also complains *1290 that under LSA-R.S. 9:397, multiple experts are required for an admissible blood test to establish paternity. Further, the defendant argues the trial court erred in allowing, over objection of counsel, proof which expanded the pleadings filed by the plaintiff concerning when conception occurred. We find the defendant's arguments to be meritless.

SUFFICIENCY OF EVIDENCE

The defendant claims the trial court erred in finding that the plaintiff proved, by a preponderance of the evidence, that the defendant is the father of Jessica Lynette Worley.

The burden of proof in a paternity action is set forth in LSA-C.C. Art. 209 which provides, in pertinent part:

A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.

To establish a claim by a preponderance of the evidence, taking the evidence as a whole, such proof must show that the fact or cause sought to be proved is more probable than not. IMC Exploration Co. v. Henderson, 419 So.2d 490 (La.App. 2d Cir. 1982), writs denied 423 So.2d 1149, 1150 (La.1982).

In paternity actions, the determination of whether there has been sufficient proof of descent from an alleged parent is a question of fact. State through Department of Health and Human Resources in the Interest of Brown v. Williams, 471 So.2d 1064 (La.App. 3rd Cir.1985). A factual determination made by a trial court should not be overturned by an appellate court absent a showing that the trial court is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), on remand 370 So.2d 1262, writ denied 374 So.2d 660 (La.1979); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

In his brief, the defendant argues that there were inconsistencies in plaintiff's testimony as to how their relationship began, its constancy and the time of the child's conception. He also argues that plaintiff was having an affair with Earl Anderson, the father of plaintiff's first child, and that the testimony of Willie Whaley was suspect because of her close relationship to the plaintiff.

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Bluebook (online)
506 So. 2d 1288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worley-v-thirdkill-lactapp-1987.