Beck v. Beck

• Decision Date: 19 December 1973
• Docket Number: No. 2--273A33,2--273A33
• Citation: 304 N.E.2d 541,159 Ind.App. 20
• Parties: Nora BECK, Appellant, v. Joseph Ray BECK, Appellee.
• Court: Indiana Appellate Court

Page 541

304 N.E.2d 541

159 Ind.App. 20

Nora BECK, Appellant, v. Joseph Ray BECK, Appellee.

No. 2--273A33.

Court of Appeals of Indiana, Third District.

Dec. 19, 1973.

E. Frank Welke, Cook, Cook & Welke, Kokomo, for appellant.

Samuel H. Power, Power & Ponton, Delphi, for appellee.

HOFFMAN, Chief Judge.

This is an appeal from a divorce proceeding in which the trial court granted the husband, Joseph Ray Beck, an absolute divorce on his cross-complaint and found that the husband was not the father of the wife's child and not liable for the child's support.

The instant proceeding was commenced on April 11, 1972, by the filing of a complaint by the wife, Nora Beck, for separation from bed and board. On April 20, 1972, by agreement of the parties reduced to a court order, the wife was given the temporary custody of the child and the husband was ordered to pay $35 per week support for the wife and child. The order included the following: 'The Defendant by providing support and consenting to custody is not admitting paternity of said child.' On May 12, 1972, the husband filed an answer denying each and every allegation of the complaint, and also filed a cross-complaint for absolute divorce stating that the parties were separated on August 20, 1970, and that no children were born of said marriage. On July 25, 1972, an amended counterclaim for absolute divorce was filed by the husband setting forth the additional ground of adultery. On August 11, 1972, before the trial, the wife amended her complaint to request an absolute divorce. After hearing the evidence, the trial court found for the husband on his cross-complaint and further found that the husband was not the father of his wife's child and not liable for the child's support. Judgment was entered accordingly. The wife filed a motion to correct errors which was subsequently overruled and this appeal followed.

The record discloses that appellant and appellee were married on October 8, 1967. Thereafter, on December 31, 1970, appellant gave birth to a male child. An abnormal period of gestation was not indicated. Prior to their physical separation in July, 1970, both parties had been living together in Delphi, Indiana. Appellee testified that he had no sexual relations with appellant from January through July of that year.

On April 20, 1972, both parties to this action, together with the child, voluntarily submitted to a blood test relating to the question of paternity. During the subsequent trial, defendant Joseph Ray Beck was successful in introducing the expert testimony of Dr. Joseph Dean Gifford, a pathologist who had supervised the administration of the tests.

Dr. Gifford testified that he had had four years specialty training in pathology; that he had been a licensed physician in the State of Indiana since 1965, and that he provided laboratory services at Dukes Memorial Hospital in Peru, Indiana, and Wabash County Hospital in Wabash, Indiana.

Further, on direct examination, Dr. Gifford was asked if he had occasion to perform a test for Joseph Ray Beck and Nora Beck. Thereupon, plaintiff Nora Beck objected to any evidence pertaining to a blood grouping test on the ground that such evidence was not admissible in a divorce proceeding. The court overruled the objection and plaintiff was subsequently permitted to register a continuing objection to this particular line of questioning.

When direct examination was resumed, Dr. Gifford identified the plaintiff, the defendant and the child as the persons to whom blood grouping tests had been administered in his presence in the laboratory of Dukes Memorial Hospital.

The parties and the child underwent testing for major blood group, Rh-typing, MN-typing and S-typing. From the results of the Rh-typing tests, Dr. Gifford concluded that paternity was excluded.

The initial point of inquiry necessarily centers around the question of whether the trial court acted improperly in permitting the results of blood grouping tests to be admitted into evidence.

Although by authority of IC 1971, 34--3--3--1 Burns Ind.St.Ann. § 3--658 (Burns Code Edition), the results of blood grouping tests may be admitted in paternity actions under certain conditions, our research has disclosed no Indiana cases in which the question of admissibility of blood tests in divorce proceedings has been in issue. However, the absence of direct authority in this regard does not, in any way, controvert the proposition that test results may be admissible under circumstances not unlike those existent in the present case. Indeed, such a proposition finds indirect support in the language of Rule TR. 35(A), Ind.Rules of Procedure, IC 1971, 34--5--1--1, Rule 35(a) which provides, in pertinent part, as follows:

'When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control 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 or to produce for examination the person in his custody or legal control. * * *.'

It is to be noted that Fed.R.Civ.P. 35(a), upon which the Indiana rule is patterned, has been applied to divorce actions in which the paternity of a child was at issue.

In an action for maintenance by an infant wife against her husband in which the husband counterclaimed for divorce on the ground of adultery, the court in Beach v. Beach (1940), 72 U.S.App.D.C. 318, 114 F.2d 479, 131 A.L.R. 804, observed that Fed.R.Civ.P. 35(a), supra, was procedural in that it related exclusively to the obtaining of evidence and was, therefore, not confined in its scope to actions for damages for personal injuries. The court thereupon concluded that the rule empowered the trial court to make an order requiring the wife and child to submit to a blood grouping test for the purpose of comparison of their blood with that of the husband. ¹ See also: Rider v. Rider (1964), 110 Ga.App. 382, 138 S.E.2d 621; State v. Cornett (Okl.1964), 391 P.2d 277; Anonymous v. Anonymous (1956), 1 A.D.2d 312, 150 N.Y.S.2d 344.

While the principal holding in Beach does not bear directly upon the question here in issue, it must be viewed as having been premised upon the assumption that evidence derived from blood grouping tests is admissible in such a case. Indeed, it is the natural implication of that decision which provides a valuable guide to the disposition of the case at bar--for Beach discloses an attitude which is representative of an increasing predilection to recognize and accord considerable weight to evidence obtained through the use of such tests. See: 1 Jones on Evidence, (6th Ed. 1972), § 3.80, at 290; Schatkin, Disputed Paternity Proceedings, (3d Ed. 1953), at 289--356.

The accuracy and reliability of blood grouping tests were first acknowledged by American courts in proceedings of a criminal nature. Commonwealth, ex rel. v. Visocki (1935), 23 Pa.D. & C. 103; State v. Damm (1933), 62 S.D. 123, 252 N.W. 7, 104 A.L.R. 430, (aff'd. on rehearing, 64 S.D. 309, 266 N.W. 667, 104 A.L.R. 441); Commonwealth v. Zammarelli (1931), 17 Pa.D. & C. 229. More recent decisions have recognized the admissibility of such evidence in bastardy proceedings. Jordan v. Mace (1949), 144 Me. 351, 69 A.2d 670; Saks v. Saks (1947), 189 Misc. 667, 71 N.Y.S.2d 797; and in civil actions for support, Cortese v. Cortese (1950), 10 N.J.Super. 152, 76 A.2d 717. In addition, it is generally held that results of blood grouping tests establishing nonpaternity are admissible in divorce actions in which the paternity of a child is in question. Jackson v. Jackson (1967), 67 Cal.2d 245, 60 Cal.Rptr. 649, 430 P.2d 289; Houghton v. Houghton (1965), 179 Neb. 275, 137 N.W.2d 861; Groulx v. Groulx (1954), 98 N.H. 481, 103 A.2d 188, 46 A.L.R.2d 994; Cuneo v. Cuneo (1950), 198 Misc. 240, 96 N.Y.S.2d 899; Anthony v. Anthony (1950), 9 N.J.Super. 411, 74 A.2d 919. See: Anno. 46 A.L.R.2d 1000; Anno. 163 A.L.R. 939.

It should, however, be emphasized that among the several jurisdictions so disposed, admissibility is necessarily conditioned upon a demonstration that the tests were conducted by a qualified expert and that the results of the tests exclude paternity. The requirement of exclusion derives simply from the fact that blood tests cannot disclose the identity of the biological father. Rather, they can only reveal that a particular person could not be the father. See: 1 Wigmore, Evidence, (3d Ed. 1940), § 165(a), at 610.

The condition requiring expertise on the part of the person or persons conducting the testing and the condition that the results of the tests must exclude paternity have been satisfied in the case at bar.

The prevailing view that results of blood-grouping tests are admissible in divorce proceedings is not to be regarded lightly. Indeed, the forces of logic and...