Perry v. Com., ex rel. Kessinger

• Citation: 652 S.W.2d 655
• Parties: Kenneth Wade PERRY, Movant, v. COMMONWEALTH of Kentucky, ex rel. Sheryl KESSINGER, Respondent.
• Decision Date: 15 June 1983
• Court: United States State Supreme Court (Kentucky)

Page 655

652 S.W.2d 655

Kenneth Wade PERRY, Movant, v. COMMONWEALTH of Kentucky, ex rel. Sheryl KESSINGER, Respondent.

Supreme Court of Kentucky.

June 15, 1983.

Alan N. Leibson, Louisville, for movant.

Irvin G. Maze, Louisville, for respondent.

MARLIN M. VOLZ, Special Justice.

Appellate review of this paternity action was prompted by a denial by the Jefferson District Court of a motion by the Commonwealth for an order under CR 35.01 to require the defendant, Kenneth Wade Perry, to submit to the Human Leukocyte Antigen (HLA) blood test and by a denial by that Court of a motion by the Commonwealth for a mistrial based upon a statement by Mr. Perry that even on his own he had taken a lie detector test. In denying the motion for the blood test, the Jefferson District Court had held that CR 35.01 was subordinate to KRS 406.081, being part of a special statutory proceeding within the meaning of CR 1(2) ¹, and therefore was inapplicable. On appeal, the Jefferson Circuit Court reversed the judgment of the Jefferson District Court and granted a new trial, holding that CR 35.01 and KRS 406.081 are not incompatible; that, if the statute alone is found to be applicable, it is unconstitutional as violating the equal protection clause of the 14th Amendment of the U.S. Constitution since only the alleged father could request a blood test and the mother could not; and that the reference by Mr. Perry that he had taken a lie detector test required the granting of a mistrial. The Court of Appeals of Kentucky granted discretionary review and affirmed the decision of the Jefferson Circuit Court in part, and reversed in part, affirming the granting of a new trial to permit the Commonwealth to move under CR 35.01 for an order for medical tests and to exclude any testimony referring to the taking by Mr. Perry of a polygraph test, and reversing the determination as to the unconstitutionality of KRS 406.081, finding that its constitutionality was saved by CR 35.01. We affirm the result reached by the Court of Appeals, and in doing so, specifically hold that CR 35.01 and KRS 406.081 are not inconsistent, that KRS 406.081 is constitutional, and that a new trial should be granted as mandated by the Court of Appeals.

In 1960, the Commissioners on Uniform State Laws submitted to the States for adoption a proposed Uniform Act on Paternity, accompanied by a Prefatory Note of the Commissioners explaining their purpose in part as follows:

This Uniform Act on Paternity was originally drafted as a revision of the Uniform Illegitimacy Act, but experience with it at two annual conferences demonstrated that on some of the collateral matters included there were apparently irreconcilable points of view. Therefore the drafting committee discarded the pattern. As a result there is presented here a comparatively brief act confined to setting up the suggested civil action, wherever possible utilizing existing law.... It is hoped that this act will furnish an acceptable modernized procedure for handling this troublesome social problem....

Two of three basic tenets sought to be achieved by the Commissioners on Uniform State Laws have been fully accepted by this Court or its predecessor. In Pendleton v. Commonwealth ex rel. Rawlins, Ky., 349 S.W.2d 832 (1961), it was held that a paternity proceeding was a civil action and in Sweat v. Turner, Ky., 547 S.W.2d 435 (1977), this Court observed that

The purpose of the Uniform Paternity Act was designed to give the mother a remedy to compel the putative father to contribute to the support of his illegitimate child.

In doing so, the Act provided "a modernized procedure for handling this troublesome social problem" since the common law had not recognized this precise remedy.

This appeal requires this Court to consider and apply the third basic premise announced by the Commissioners on Uniform State Laws that "wherever possible ... existing law" will be utilized. Such law in a civil case, as already recognized by the Kentucky Court of Appeals in White v. Commonwealth ex rel. Feck, Ky., 299 S.W.2d 618 (1957), includes the Kentucky Rules of Civil Procedure, and thus CR 35.01. In 1964 when the General Assembly adopted the Uniform Act on Paternity, such Rule read in part:

In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician.

Effective October 1, 1971, this Rule was amended to conform to the 1970 amendment of Federal Rule of Civil Procedure 35(a) so as to continue the identical wording of the State and Federal rules. The principal changes made by the amendment were to identify specifically "the blood group" as a physical condition and to permit the examination of a person in the custody or under the legal control of a party. Since CR 35.01 originally, and as amended, was adopted verbatim from FRCP 35(a), federal court decisions interpreting the latter rule may be accepted as persuasive authority.

The defendant in a paternity proceeding is a party for purposes of CR 35.01. Thus, it was clear prior to the adoption by the General Assembly in 1964 of the Uniform Act on Paternity that, upon motion by the plaintiff and a showing of good cause, such defendant could be subjected to an examination by a physician as to any mental or physical condition in controversy. And long before 1964 it had been held by the United States Court of Appeals for the District of Columbia in Beach v. Beach, 114 F.2d 479, 131 ALR 804 (D.C.1940), that in an action to determine paternity such examination could include blood tests since "the characteristics of one's blood ... are part of one's physical condition." The Court in Beach also concluded that FRCP 35(a) "relates exclusively to the obtaining of evidence, and is therefore procedural." The Advisory Committee's notes to the 1970 revision of the Federal Rules of Civil Procedure indicate an intent to codify, and not to change, the holding in Beach; for that decision is cited as authority for the recommended addition of the words "(including the blood group)" in FRCP 35(a), which words, as previously stated, by virtue of the 1971 amendment became part of CR 35.01.

Thus, existing Kentucky law as evidenced by CR 35.01 in 1964 provided a procedure to obtain a blood test of the defendant (alleged father). The converse was true only if the mother and child were named parties to the action or were considered to be such. The language adopted in KRS 406.021(1) arguably allows for situations where they might not be parties. The proposed draft of the Uniform Act on Paternity of the Commissioners on Uniform State Laws read:

Paternity may be determined upon the [petition] [complaint] of the mother, child, or the public authority chargeable by law with the support of the child.

While substantially using such language in the first sentence of KRS 406.021(1) ², the General Assembly added:

Such action shall be brought by the county attorney upon the request of such complainant herein authorized.

Would the mother and child be parties in an action in which they are not the complainants but the complainant is a "person or agency substantially contributing to the support of the child"? Would the child be a party within the meaning of CR 35.01 when only the mother would be the complainant? The Advisory Committee for the Federal Civil Rules of Procedure was sufficiently in doubt for it to propose the following words which were included in the 1970 revision of FRCP 35(a) and then made part of CR 35.01 by amendment in 1971: "or of a person in the custody or under the legal control of a party." The notes of the Advisory Committee explain:

The amendment will settle beyond doubt that a parent or guardian suing to recover for injuries to a minor may be ordered to produce the minor for examination.

And finally, would the mother and child be parties if the county attorney exercised his prerogative under CR 17.01 and brought the action only in the name of the Commonwealth "without joining the party or parties for whose benefit it is prosecuted?"

These questions are raised not for the purpose of implying answers but rather to indicate that the General Assembly in 1964 had a reasonable basis for finding that "existing law" in the form of CR 35.01 was inadequate in itself to cover all of the blood-testing situations in paternity proceedings and that it therefore was desirable to supplement it in order to plug any possible gaps. In KRS 406.081 it insured to the defendant the same right to require blood tests of the mother and child as "existing law" (CR 35.01) granted to them through the County Attorney to require of him.

KRS 406.081 reads in part:

The court, upon timely motion of the defendant, shall order the mother, child and alleged father to submit to blood tests.

The intent of the General Assembly to use KRS 406.081 only for the purpose of supplementing "existing law", and not for superseding it, is also evidenced by the modification made by it in the language proposed by the Commissioners on Uniform State Laws. The latter had recommended the following wording:

The court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the [action] [proceeding] made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests.

In limiting the motion to the defendant in KRS 406.081, the General Assembly reached back to the first draft of the Uniform Act on Paternity by the Commissioners on Uniform State Laws which had read:

In any proceeding to determine the question of paternity, the court, on motion of the defendant, shall order the mother, her child and the defendant to submit to one or more blood grouping tests....

By adopting such language from the first draft, the General Assembly succeeded in filling any gaps...