PUBLISHED
OPINION
Case No.: 95-2411-FT
Complete Title
of Case:
IN RE THE PATERNITY OF
TAYLOR R. T.:
STATE OF WISCONSIN and
ROBIN R. T.,
Petitioners-Respondents,
v.
RANDY J. G.,
Respondent-Appellant.
Submitted on Briefs: December
22, 1995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: January
30, 1996
Opinion Filed: January 30, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Sawyer
(If "Special", JUDGE: Norman L. Yackel
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the
respondent-appellant the cause was submitted on the briefs of Daniel Snyder
of Park Falls.
Respondent
ATTORNEYSFor the
petitioners-respondents the cause was submitted on the brief of Jeffrey R.
Kohler of Spooner.
|
COURT OF APPEALS DECISION DATED AND RELEASED January 30, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2411-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
IN RE THE PATERNITY OF
TAYLOR R. T.:
STATE OF WISCONSIN and
ROBIN R. T.,
Petitioner-Respondents,
v.
RANDY J. G.,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Sawyer County:
NORMAN L. YACKEL, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Randy J. G. appeals a
summary judgment finding him to be the father of Taylor R. T.[1] Randy contends that the trial court erred
when it granted summary judgment because:
(1) the conceptive period was not established by evidence or by
statutory presumption; (2) there was evidence that Robin R.T. had sexual
intercourse with an untested male during a time conception could have occurred;
and (3) the affidavits did not establish the necessary foundation for the
admission of the blood test results used to establish paternity. Because we conclude that summary judgment
should not be granted either when the period of conception has not been
established or when there is sufficient evidence to permit a reasonable trier
of fact to conclude that an untested male had sexual intercourse with the
mother during a time conception could have occurred, we reverse the summary
judgment and remand for further proceedings.
Taylor R. T. was born
August 28, 1993, to Robin R. T. and weighed five pounds three ounces at
birth. The State subsequently commenced
an action against Randy, alleging that he was Taylor's father. Two blood tests were taken, the first of
which established the probability of Randy being Taylor's father to be 99.98%
and the second established the probability of paternity at 99.94%. Because Taylor weighed less than five and
one-half pounds at birth, the statutory presumption as to the conceptive period
did not apply. See § 891.395, Stats.[2] In addition, no medical evidence was
submitted in the affidavits or at the preliminary hearing regarding the
possible period of conception. In the
opposing affidavits, Randy submitted evidence that Robert V., Randy's first
cousin, had sexual intercourse with Robin during a time conception could have
occurred. In the affidavit, Randy's
father stated that, as Robert and Robin were getting into a vehicle upon
leaving a tavern, Robert indicated to him that he and Robin were about to have
sexual intercourse and Robin reacted with laughter. Notwithstanding Randy's demand for a jury trial, the trial court
granted summary judgment finding Randy to be Taylor's father based upon the
affidavits demonstrating the blood test results. Randy appeals.
We review a grant of
summary judgment de novo, applying the same methodology as the trial
court. Grotelueschen v. American
Family Mut. Ins. Co., 171 Wis.2d 437, 446, 492 N.W.2d 131, 134
(1992). Because that methodology has
been set forth in numerous decisions, we need not repeat it here. See Grams v. Boss, 97
Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980).
Summary judgment may not be granted where there are disputed issues of
material fact. Lecus v. American
Mut. Ins. Co., 81 Wis.2d 183, 189-90, 260 N.W.2d 241, 244 (1977). "Any reasonable doubt as to the
existence of disputed material fact is resolved against the moving
party." Clay v. Horton Mfg.
Co., 172 Wis.2d 349, 354, 493 N.W.2d 379, 381 (Ct. App. 1992). "[S]ummary judgment should not be
granted unless the moving party demonstrates a right to a judgment with such
clarity as to leave no room for controversy ...." Grams, 97 Wis.2d at 338, 294
N.W.2d at 477.
We have recognized that
in an appropriate case a judgment of paternity can be granted without the
necessity of jury adjudication. See In
re M.A.V., 149 Wis.2d 548, 439 N.W.2d 829 (Ct. App. 1989). In M.A.V., we concluded that a
directed verdict was appropriate when the evidence demonstrated sexual
intercourse occurred with the putative father during the statutorily presumed
conceptive period, blood tests established the probability of paternity in
excess of 99% and there was no evidence of sexual intercourse with an untested
person during the presumed conceptive period.
Id. We conclude
that M.A.V.'s analysis applies to motions for summary judgment as
well as motions for directed verdict.
While the form in which the evidence is presented is different in
summary judgment, the analysis is essentially the same. The requirements of judicial economy and the
interests of justice compel the creation of a means of establishing paternity without
the expense, delay and costs of a jury trial in cases where no reasonable trier
of fact could conclude that the putative father was not the child's
father. While we acknowledge that
summary judgment is a method by which paternity can be adjudicated, we caution
that it is only appropriate to use summary judgment in those limited cases
where there are no disputed issues of material fact and no reasonable fact
finder could come to opposing conclusions.
Randy first contends
that the trial court erred by granting summary judgment without the conceptive
period being established by evidence or statutory presumption. Under § 891.395, Stats., the conceptive period is presumptively established if
the child weighs at least five and one-half pounds at birth. However, Taylor weighed only five pounds
three ounces at birth and the State presented no evidence to establish the
conceptive period. We agree that
summary judgment is inappropriate when there is no evidence establishing the
conceptive period.
Blood test results
establish the probability of paternity based upon the assumption that the
individual tested had intercourse with the mother during the conceptive
period. T.A.T. v. R.E.B.,
144 Wis.2d 638, 650, 425 N.W.2d 404, 409 (1988). Therefore, the blood test's probability of paternity statistic is
relevant evidence conditioned upon the fact that competent evidence is offered
to show that sexual intercourse between the mother and alleged father occurred
during the conceptive period. Id. Only when such evidence is offered may
evidence of the probability of paternity be received. Id. In this
case, Robin testified to the fact that she and Randy had sexual intercourse on
certain dates; however, the conceptive period was not established. In the absence of a conceptive period being
established, the basic presumption upon which the probability of paternity
statistic is based has not been demonstrated.
In the absence of establishing that the defendant had intercourse with
the mother during the conceptive period, the blood tests are insufficient to
establish paternity for purposes of summary judgment.
We do not suggest that
the conceptive period must be established by statutory presumption for summary
judgment purposes. The moving party may
submit medical evidence or other evidence sufficient to establish the
conceptive period. But in the absence
of establishing a conceptive period, the probability of paternity statistic of
the blood test is insufficient to conclusively demonstrate paternity. The trial court therefore erred by granting
summary judgment without evidence of the conceptive period and evidence of
sexual intercourse between Randy and Robin during this period.
Next, Randy contends
that the trial court erred by granting summary judgment because there was
sufficient evidence to permit a reasonable trier of fact to conclude that Robin
had intercourse with an untested male during a time conception could have
occurred. We agree that this evidence
is sufficient to defeat the State's motion for summary judgment. The State has the burden to demonstrate that
Randy fathered Taylor. While the blood
tests are compelling evidence of paternity, they do not conclusively eliminate
another male who had intercourse with the mother during the conceptive period
from being the child's father. In M.A.V.,
we recognized that proof of intercourse with an untested person may present a
legitimate jury issue and make a directed verdict inappropriate. Id. at 554-55, 439 N.W.2d at
832-33. We conclude that such evidence
does preclude summary judgment because it raises a disputed issue of material
fact as to whether this untested person could be the father.
Before summary judgment
can be granted, it is necessary to conduct a blood test on the untested person
to demonstrate that there is an insufficient probability of his paternity. The existence of an untested male whom a
reasonable factfinder could conclude had sexual intercourse with the mother
during the possible conceptive period is a sufficient basis to deny summary
judgment.
The State suggests that
the affidavit is not sufficient evidence to permit a reasonable trier of fact
to conclude Robert had sexual intercourse with Robin. We disagree. Sexual
intercourse is not something that is likely to be witnessed by a third
party. Evidence that shows the mother
and the untested male were together at a time, under circumstances and in a
location which would lead a reasonable person to believe that sexual
intercourse took place is sufficient. See
T.A.T., 144 Wis.2d at 650, 425 N.W.2d at 409. Randy's affidavit is sufficient to raise a
disputed issue of material fact as to the paternity of the child.
Next, Randy contends
that the trial court erred when it granted summary judgment because the moving
party's affidavits were insufficient to demonstrate the admissibility of the
blood test results. Randy suggests that
because the affidavits did not contain the necessary foundation to demonstrate
the chain of custody the trial court could not rely on the blood test results
in granting summary judgment.
Section 802.08(3), Stats., provides that all affidavits
"shall be made on personal knowledge and shall set forth such evidentiary
facts as would be admissible in evidence." On summary judgment, the party relying on evidence need not
submit sufficient evidence to conclusively demonstrate the admissibility of the
evidence relied upon in its affidavits.
See Dean Medical Center v. Frye, 149 Wis.2d 727, 734-35,
439 N.W.2d 633, 636 (Ct. App. 1989).
The party producing the evidence need only make a prima facie showing
that the evidence would be admissible. Id. The burden then shifts to the opposing party
to show that the evidence is inadmissible or show facts which put the evidence
at issue. Id. at 735, 439
N.W.2d at 636. If the admissibility of
the evidence is challenged, the court must then determine whether the evidence
would be admissible.
We conclude that the
State made the necessary prima facie showing.
The blood tests indicate that the blood was drawn from Randy, Robin and
Taylor and tested by a qualified laboratory, and the directors or supervisors
of the labs certify that the results are true and correct. We further conclude that Randy has failed to
meet his burden to show the evidence is inadmissible. Randy only argues that the State did not establish the chain of
custody in the affidavits. He does not
contend that evidence shows the chain of custody is in question or that the
blood tests would be inadmissible on some evidentiary basis. Therefore, we reject Randy's argument that
the trial court erred by considering the affidavits.
In sum, we conclude that
summary judgment is inappropriate when either the conceptive period has not
been established or there is sufficient evidence to permit a reasonable trier
of fact to conclude that the mother had sexual intercourse with an untested
person during a time conception could have occurred. Therefore, we reverse the summary judgment and remand for further
proceedings.
By the Court.—Judgment
reversed and cause remanded.
[2] Section 891.395, Stats., provides:
In any paternity proceeding, in the absence of a valid birth certificate indicating the birth weight, the mother shall be competent to testify as to the birth weight of the child whose paternity is at issue, and where the child whose paternity is at issue weighed 5 1/2 pounds or more at the time of its birth, the testimony of the mother shall be presumptive evidence that the child was a full term child, unless competent evidence to the contrary is presented to the court. The conception of the child shall be presumed to have occurred within a span of time extending from 240 days to 300 days before the date of its birth, unless competent evidence to the contrary is presented to the court.