Crain v. Crain

Decision Date25 April 1983
Docket NumberNo. 14054,14054
Parties, 37 A.L.R.4th 151 Billie Lou CRAIN, Plaintiff-Appellant, v. Gary Dean CRAIN, Defendant-Respondent.
CourtIdaho Supreme Court

J.D. Hancock, Rexburg, for appellant.

Gary Dean Crain, pro se.

BISTLINE, Justice.

Appellant, Billie Lou Crain, married Doug Stephenson on November 16, 1974. The couple separated in February of 1975 and Billie Lou went to Salt Lake City to live with her parents. She testified that as of February 1975 she ceased having sexual relations with Doug.

Billie Lou returned to Rexburg in April of 1975 and moved into a mobile home, where she lived with her sister. Doug visited her there several times, and on occasion stayed the night. Billie Lou testified that she did not have sexual intercourse with Doug during these visits, and her sister testified that Doug and Billie Lou slept in separate rooms when he visited.

During the week of May 9-16, 1975, Billie Lou and respondent Gary Crain engaged in sexual intercourse while attending an Army Reserve training session. Later Gary moved into Billie Lou's mobile home, and in June of 1975 Billie Lou told Gary that she was pregnant.

Rebecca was born to Billie Lou on February 3, 1976. Billie Lou and Gary were then living together, but Billie Lou was still married to Doug. Gary supported Rebecca, referred to and treated her as his child, and claimed her as a dependent on his income tax returns.

Billie Lou was granted a divorce from Doug in August of 1976. In that action Billie Lou and Doug stipulated that Doug was presumptively the father of Rebecca, but that he was not her natural father. 1

Billie Lou and Gary were married in September of 1976; they lived together until they were permanently separated in July of 1978. A child, Toby, was born of this marriage, and Gary acknowledged this child as being his.

On July 7, 1978, Billie Lou instigated divorce proceedings against Gary, therein seeking child support for her two children, Toby and Rebecca. Gary denied paternity of Rebecca and at the divorce trial that issue was submitted to the court.

Prior to trial, Billie Lou had moved the trial court for an in limine ruling on the admissibility of Human Leucocyte Antigene (HLA) tissue typing tests for establishing paternity. The trial court ruled that it would exclude the HLA test results on the grounds that Idaho statutes and case law allow the admission of such tests only when the results exclude paternity. In its written memorandum order denying the admission of the HLA test results, the court stated:

"A motion is before the court requesting a ruling from the court that results of HLA testing for blood type may be admitted although the results of such testing will not show that the party is not the father.

"It appears that modern HLA testing has become quite sophisticated and that the testing can limit to a small minority the number of people who could be the father of the child. A person tested who could be the father of that child therefore becomes one of that small minority and the likelihood of his being the father is quite high. However, it is not conclusive because even under such testing the possibility remains that another member of that minority might have been around at time of conception.

"In California it appears that the courts are about ready to admit such evidence in their cases to establish paternity. In Idaho our courts have not gone that far. Our Idaho statutes do not permit it and our Idaho decisions interpreting those statutes rule against its admission. I believe that there would not be anything particularly wrong with considering such tests along with other evidence in establishing paternity except that the chances of his being the father are usually rated so high that I am afraid such evidence would appear to be more conclusive than it actually is.

"It is therefore the ruling of this court that under the law as it now exists HLA testing which tends to establish paternity is not admissible. Perhaps what should have been done is to have tested other parties who might have been the father and see if they could not have been excluded. Such exclusions of other parties would have accomplished more in indicating the probability of paternity in this case than would the testing of the purported father."

R. 52-53.

At trial, an offer of proof was made by Billie Lou's attorney, who argued that her witnesses would have testified, based upon the HLA test results, that "Mr. Crain cannot be excluded as the father of that child and that the probability of his being the father is 98.98 percent and the odds are 140,000 to 1 that some other person in the male white population could be the father of Rebecca Crain other than Gary Dean Crain." Opposing counsel then argued that such tests can only be admitted into evidence if they show nonpaternity, and the trial court agreed, again meticulously detailing its reasoning:

"Well, I understand that that is the rule in the State of Idaho and that is the rule in most states, I believe. A few states, and California is among them, are apparently relaxing that rule, although it is not Tr., pp. 65-67.

[104 Idaho 668] sure what California has done. The last case that has been submitted to me, and Mr. Hancock [Billie Lou's attorney] has submitted several, the official announcement by the Supreme Court of the State of California, as nearly as I can remember, was not a ruling on whether or not the test could be permitted. It was simply a ruling on whether or not the Court had a right to order the test or how the test should be ordered or something to that effect and it didn't say, I don't believe--in fact if it did say it would be dicta about its admission in the trial of the case. Now, we have some appellate court cases that appear to have admitted the test to be considered along with other evidence in determining paternity, but they in that case say that it is not conclusive and that it should be very carefully done because testimony should be taken and it should be shown just how it applies and what the rules are and so on and, as nearly as I can understand, the objection is that it might be considered to be conclusive and it is not conclusive. In other words I am sure that Mr. Hancock, if he presented it, would like to say, "Now, that proves he is the father," and, of course, it doesn't. Even going along with Mr. Hancock and say the doctors have gotten so sophisticated that they can pin it down to 98.9 percent. Let's say that we agree they can do that. There is still that possibility. I believe he said 1 in 140,000, something like that and, of course, in the United States there are several million people, I think 160,000,000 or 170,000,000, something like that. So, there are a lot of 140,000 people in this country and even if there is only 1 in every 140,000 over the United States there could be several thousand of them and it is just possible that two or three of them could be right here in Rexburg and that is a possibility and that is why the Courts won't admit that kind of test because they say it is not conclusive and it is quite possible that the Court would rely on it too much and that is why I refuse to accept it because I think that its mere evidence in the case might tend to sway my opinion more than I should let it. So, I don't even want to consider it along with the other evidence. I am going to deny it and I am going to reject the offer of proof."

The trial court by memorandum decision held that there was insufficient evidence to overcome the presumption that Doug was Rebecca's father and that Billie Lou had failed to establish that Gary was Rebecca's natural father. Billie Lou appeals that determination.

I.

The HLA test is a tissue typing test which was developed as a means of reducing the incidence of rejection of organ transplants. The test is generally performed on white blood cells, but may be done with other body tissues.

"[T]he HLA test ... is based on the identification and typing of antigen markers found in white blood cells and other tissues of the body.... The basic theory is that by identifying the antigen markers of a child and of the mother, the child's antigen genetic markers which could only be inherited from the father can generally be determined, thereby identifying the father to a high degree of certainty."

Phillips v. Jackson, 615 P.2d 1228, 1230-31 (Utah 1980) (footnote omitted).

For a thorough discussion of the HLA test see Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J.Fam.L. 543 (1977-78) (hereinafter Terasaki ).

The HLA test results in this case allegedly demonstrate that the probability of Gary being the natural father of Rebecca is 98.98 percent. Without doubt, this evidence is both relevant and material to the issue of paternity. However, the trial court excluded the test results primarily on the grounds that the "Idaho statutes do not permit it and our Idaho decisions interpreting those statutes rule against its admission." The trial court was referring to the case of In Isaacson, the trial court admitted into evidence blood grouping test results which did not exclude paternity. The blood tests had been administered to the parties and the involved child in that case at the request of the alleged father and they were not ordered by the trial court pursuant to I.C. § 7-1115. The written report of the results was admitted without any accompanying testimony by the expert who performed the tests. This Court on appeal said:

[104 Idaho 669] Isaacson v. Obendorf, 99 Idaho 304, 581 P.2d 350 (1978), and to the Idaho Paternity Act, particularly former I.C. § 7-1115, 2 discussed infra in connection with Isaacson.

"The appellant's second assignment of error challenges the admission in evidence of blood test reports which did not exclude the paternity of the appellant and which were admitted without any accompanying expert testimony.

"The blood tests were...

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