G---- M---- H---- v. J---- L---- H----, 13836

• Decision Date: 04 November 1985
• Docket Number: No. 13836,13836
• Citation: G---- M---- H---- v. J---- L---- H----, 700 S.W.2d 506 (Mo. App. 1985)
• Parties: G____ M____ H____, Respondent, v. J____ L____ H____, Appellant.
• Court: Missouri Court of Appeals

Page 506

700 S.W.2d 506

G____ M____ H____, Respondent, v. J____ L____ H____, Appellant.

No. 13836.

Missouri Court of Appeals,

Southern District,

Division Three.

Nov. 4, 1985.

Cynthia L. Sudduth, Steelman, Hearne & Hearne, Salem, for appellant.

Terry Daley Schwartze, Rolla, for respondent.

CROW, Presiding Judge.

J____ L____ H____ ("J") appeals from a decree dissolving his marriage to G____ M____ H____ ("G"), insisting the trial court erred in adjudicating him the father of C____ A____ H____, a child conceived prior to, but born during, the parties' marriage.

G and J began dating "towards the end of April," 1981, a few weeks before G's high school graduation. J, as best we can determine from the record, was 20 or 21 years of age at the time, and was home in Missouri on leave from active duty with the United States Navy. G testified--and J conceded--that they first engaged in sexual intercourse with each other near the end of April, and that they had sexual relations with each other on several occasions thereafter until J departed to return to his ship at San Diego, California. That date, according to J and a friend who saw him the day he left, was May 15, 1981. Asked to describe his relationship with G at the time he returned to duty, J replied, "We was planning on getting married, and we was getting along pretty good."

G testified that she had menstrual periods on a regular 28-day cycle and that she had a menstrual period "[a]t the end of April." According to G, she had sexual intercourse with no one except J during April and May, 1981. She admitted, however, that she engaged in sexual intercourse with one R____ on June 27, 1981, describing the incident as "a one-night occurrence."

In mid-July, 1981, G, having had no menstrual period since the end of April, took a "pregnancy test," which confirmed that she was pregnant.

J, at that time, was "out to sea." G notified J of her condition by telegram. According to G, J replied by letter that he wanted her to have the child, and in subsequent letters he stated he wanted to marry her.

J, who understood from G that the child was due in December, planned to obtain leave so that he and G could marry before the birth.

On September 8, 1981, G visited Bernard L. Draper, a physician specializing in obstetrics and gynecology. His examination of G revealed "a three and a half month sized uterus."

J was granted leave by the Navy in December, and the parties were married December 26, 1981. Prior to his December leave, J had not seen G since the preceding May. J returned to Navy duty about January 5, 1982.

The child was born February 23, 1982. It was delivered by Dr. Draper, who noted that it "appeared to be full term," and that there was nothing which suggested "prematurity."

G took the child to California to visit J in May, 1982, remaining there about two weeks. G and the child then returned to the home of G's parents and remained there until J came to take G and the child to California to live in August, 1982. G, J, and the child resided in California a short time, after which G returned to Missouri with the child.

After that, G and J never lived together. G filed a petition to dissolve the marriage on December 2, 1982. J, in his answer, denied that he was the father of the child and asserted that he had no duty to support it.

In an apparent effort to resolve the paternity issue, G and J agreed that samples of their blood and the child's would be submitted to The Minneapolis War Memorial Blood Bank in Minneapolis, Minnesota ("the Blood Bank"), for analysis and testing. Pursuant to that agreement, J, on January 27, 1983, went to a hospital in Missouri, where a sample of his blood was drawn by a medical technologist. On February 1, 1983, G and the child went to the same hospital, where samples of their blood were likewise drawn. H. Neil Grannemann, a medical doctor specializing in anatomic and clinical pathology who practiced at the hospital, was present when G and the child arrived to give their samples. Grannemann did not draw the samples himself, but he later checked the samples of all three individuals (J, G, and the child), packaged them, and took the container to the post office for mailing to the Blood Bank.

Under date of March 19, 1983, a letter was sent to J's attorney from the Blood Bank. The letter, over the signature of H.F. Polesky, M.D., director of the Blood Bank, stated:

"The attached protocol contains the results obtained in our laboratory on blood specimens from the individuals listed. We tested these samples for genetic factors. These factors can establish whether the tested man is not the biologic father of the child in question or whether he might be the father. Shown are the most probable phenotypes (observed genetic characteristics) for the child, mother, and alleged father, and the gene system index calculated for each genetic system tested. This index is a ratio comparing the tested man's chance of contributing the paternal gene to the child with the frequency of this gene in random men in the White population.

From the testing shown on the attached protocol it can be established that the alleged father is NOT one of the biological parents of the child in question. This conclusion is based on the fact that the results of testing in the Rh, Gci, Bf, and AcP genetic systems do not follow the expected rules of inheritance. Thus the protocol shows a zero (0) for the probability that the alleged father contributed to the genetic pool of the child, [C____ A____ H____].

In this case, in the Rh system, the child has inherited r, which is absent in both the presumed mother and the alleged father. Since this genetic marker (r) must have been inherited from one of the parents, failure to find it in either is proof of non-paternity for the alleged father, [J____ L____ H____].

The findings in the Gci, Bf, and AcP systems further corroborate the exclusion of [J____ L____ H____] as the father of the child, [C____ A____ H____]."

The "protocol" attached to the letter listed the following data:

The letter and the protocol are hereafter referred to collectively as "the Polesky report."

After the Polesky report was received, counsel for the parties interviewed Dr. Grannemann about the tests and the results. In order to preserve Dr. Grannemann's comments and at the same time curtail expenses, it was agreed that the interview would be recorded on audio tape, and that the tape would be received as evidence at trial. Counsel for the parties also interviewed Dr. Draper prior to trial, and the same method was utilized to create a record of that interview.

At trial, at which both parties appeared in person and with counsel and the child appeared by a guardian ad litem, the tape recordings of the interviews of Doctors Grannemann and Draper were offered in evidence by G's attorney and received without objection. Additionally, it was agreed that the Polesky report would be marked "Respondent's Exhibit A" and would be received in evidence to accompany the tape of the Grannemann interview. Accordingly, the trial court stated: "I'll note at this time that I have been handed Respondent's Exhibit A, which is documents which go along with Petitioner's Exhibit No. 3, a taped statement from a Dr. Grannemann, and hearing no objection, I am going to admit into evidence Respondent's Exhibit A." Immediately thereafter, the transcript shows: "(AT THIS TIME RESPONDENT'S EXHIBIT A WAS RECEIVED IN EVIDENCE AND WAS MADE A PART OF THIS RECORD.)"

Inexplicably, the trial court, some 11 weeks later in its findings of fact, conclusions of law and decree, stated: "The report upon which Dr. Grannemann based his opinion was never put into evidence...."

That finding, which is the subject of J's first assignment of error, is, of course, categorically refuted by the record. The effect of that mistaken finding by the trial court will be considered after we complete our summary of the evidence.

Dr. Draper, the obstetrician, was asked to assume that the only two dates on which the child could have been conceived were May 16, 1981, or June 27, 1981. Why the May 16 date was chosen--it was the day after J departed to return to Navy duty--is unexplained. Nonetheless, Dr. Draper was asked for his opinion as to which of the two dates was the most likely for conception to have occurred. He responded:

"Alright, the um, the two suggested dates of climate would give respective, I'm sorry, expected dates of conception, would give respectively dates of confinement or of delivery of February 9 and of March 20 and she delivered approximately two weeks after the one and approximately one month before the next. Usually, we would expect to be able to determine that an infant was four weeks early, earlier than expected. Uh, the two weeks beyond the expected date falls within the normal range of expectation so, um, of the two dates, throughout the pregnancy the, um, earlier one seems more, more acceptable. Um, fitting it with size at various stages of pregnancy.

Um, there are really some confusing factors here. For instance, if conception occurred May 16, she was seen on for her first visit on September 8 and, um, that being the case the uterus should have been four months or approximately sixteen week size, it was in fact fourteen week size. Uh, that much variation is normal. Uh, another another factor that is interesting is, uh, the date of the pregnancy test supposedly done in July.... That certainly would have been expected to be positive relating to a May conception date. It would hardly be expected to be positive relating to a June 27 conception date. Um, the size at that first visit just fits neatly between the two dates, you can't really come to any conclusion on that basis. Um, let's see, heart tones were first heard from the stethoscope on December 7. That, one normally expects to begin to hear heart tones with a fetal stethoscope at 20 weeks gestation. If we use the May 16 conception...