Gelinas v. Nelson

• Citation: 327 A.2d 565,165 Conn. 33
• Parties: Raymonde C. GELINAS v. Braxton T. NELSON.
• Decision Date: 23 May 1973
• Court: Supreme Court of Connecticut

Page 565

327 A.2d 565

165 Conn. 33

Raymonde C. GELINAS v. Braxton T. NELSON.

Supreme Court of Connecticut.

May 23, 1973.

Jacob D. Zeldes, Bridgeport, with whom, on the brief, were Robert S. Cooper and Lawrence W. Kanaga, Bridgeport, for the appellant (defendant).

Edward F. Reynolds, Jr., Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for the appellee (plaintiff).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The plaintiff Raymonde Gelinas brought a paternity action against the defendant Braxton T. Nelson pursuant to § 52-435a of the General Statutes alleging that she gave birth on September 19, 1969, to a child and that the defendant was the father of the child. In answer to the defendant's motion for a more specific statement, the plaintiff further alleged that the child was conceived on or about December 26, 1968. The case was tried to a jury which returned a verdict for the plaintiff and judgment was rendered awarding her $2006.06, payable $15 per week for support and $5 per week on the arrearage, in addition to counsel fees of $250 and costs. The defendant appealed to the Appellate Division of the Circuit Court, assigning error in the denial of his motion to set aside the verdict on the grounds (1) that the verdict was not supported by the evidence and (2) that the statutes governing paternity actions, §§ 52-435a-52-445 of the General Statutes, were unconstitutional. The Appellate Division of the Circuit Court found no error and we granted certification for appeal.

The first of several claims pressed by the defendant is that the evidence before the jury was insufficient to support its verdict that the defendant was the father of the child. The defendant makes no claim that in a paternity action the act of sexual intercourse requires corroboration, but he urges that as a principle of law where the mother admits having had sexual relations with the defendant and another man during the medically recognized time when conception may have occurred, neither she nor the jury, absent other evidence, should be permitted to 'speculate' as to the parentage of the child. The defendant derives support for this principle from several cases decided in other jurisdictions. See State v. Giles, 41 Ala.App. 363, 133 So.2d 62; Yarmark v. Strickland, 193 So.2d 212 (Fla.App.); Commonwealth v. Young, 163 Pa.Super. 279, 60 A.2d 831. In urging that we apply this rule to the case at hand, the defendant claims that the plaintiff 'in effect' admitted having had sexual intercourse with another man during the time when conception might have occurred. The plaintiff, on the other hand, denies that such an admission was made. Each party in the appendix to his brief summarizes from the same portions of the transcript testimony which each claims supports his interpretation. To supplement the excerpts contained in the appendices and discover the exact language used by the witness, we have consulted the transcript as permitted, in such circumstances, by Practice Book § 721; see Cappella v. New York, N.H. & H.R. Co., 154 Conn. 410, 412, 226 A.2d 394; Baton v. Potvin, 141 Conn. 198, 200, 104 A.2d 768.

The plaintiff, in relevant part, testified on direct examination as follows: That on September 19, 1969, she gave birth to a child, and she was single at the time; that she met the defendant in March, 1968, and that she went out 'pretty steadily for about seven months' with him, two or three times a week and on weekends; that she first had intercourse with the defendant in April, 1968, and that the last time was on December 26, 1968; that she was positive of this latter date; that she had intercourse with the defendant approximately two times a week during the seven-month period that she went out with him; that her relationship with the defendant began 'tapering off' when she began working for him; that she first learned that she was pregnant on February 12, 1969, when she consulted a doctor, and that she had a full-term pregnancy; that she knew that she conceived the child on December 26, 1968; that she told the defendant that he was the father of the child; that she had no doubt that the defendant was the father; and finally that she did not have intercourse with anyone else between April, 1968, and January, 1969.

On cross-examination the plaintiff testified in relevant part as follows: The first time that she told the defendant that he was the father of the child was in September, 1969, after the child was born; that she did not tell the defendant earlier that he was the father because 'I wasn't sure yet'; that in response to the next question: 'You weren't sure whether he was the father or you weren't sure you were pregnant?' she answered: 'I wasn't sure he was the father'; that in response to the question: 'Well, you say that you didn't have intercourse with anyone. If he is the only may you had intercourse with why weren't you sure?' she replied: 'I said that I did not have intercourse with anyone else before January 1969'; that she told a lawyer that a man other than the defendant was the father of her child; that she was only positive that the defendant was the father of the child after the baby was born; that the defendant denied being the father of the child on two occasions, the first time was in February, 1969, when she told him that she was pregnant, and the second time was after the baby was born; and, finally, that when the defendant first denied being the child's father she had doubts then whether he was the father.

In reviewing the above testimony the Appellate Division of the Circuit Court stated: 'The plaintiff maintained that she had not had intercourse with anyone else.' We must agree with the defendant that the plaintiff never testified that 'she had not had intercourse with anyone else.' The plaintiff merely responded in the negative to the question: 'Did you have intercourse with anyone else between April 1968 and until January 1969?' We also agree with the defendant that the testimony of the plaintiff is an admission that she had intercourse with another man after December 31, 1968. Although the plaintiff did not state categorically that she had intercourse with another man after December 31, 1968, we hold that her testimony constitutes an admission of this fact because we are unable to find another reasonable explanation for her statements. This admission, however, does not aid the defendant because the plaintiff did not admit the date or dates when she had intercourse with the other man. The exact time when the plaintiff had intercourse is of importance because the act must have happened at or about the time when conception might have occurred in order for the defendant to avail himself of the rule stated earlier. Even using the standard deviation of 12.88 days from the average thirty-eight weeks duration of a full-term pregnancy ¹ to define the limits of the time when conception might have occurred, it cannot be said that the plaintiff's statements are an...