Holland v. Holland
| Decision Date | 14 September 1982 |
| Citation | 188 Conn. 354,449 A.2d 1010 |
| Court | Connecticut Supreme Court |
| Parties | Timothy HOLLAND v. Vicki HOLLAND. |
Jon C. Blue, New Haven, for appellant (plaintiff).
Mary von Dorster, Mystic, for appellee (defendant).
Joseph X. DuMond, Jr., Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (state).
Before PETERS, HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.
This case concerns the proper legal standard to be applied by a trier of fact in determining the paternity of a child born to a married woman. The plaintiff husband in a dissolution action was adjudged the father of a child born to the defendant wife although both parties denied his paternity. He now appeals that judgment to this court on both evidentiary and constitutional grounds.
Although the record below is sparse, the following evidence was available to the state trial referee sitting as trier of fact. Vicki Hill and Timothy Holland were married in February 1976 and had one child, born later that year, whose paternity is not at issue. A second child was born to Vicki Holland on September 7, 1979 after a full term pregnancy. At the time surrounding the probable conception of this child, the plaintiff was incarcerated in Montville Community Correctional Center, where he remained from February 24, 1978 until February 1, 1979, except for a furlough on Christmas Day of 1978.
The plaintiff testified that he and the defendant last had sexual relations in February 1978. He further testified that he spent his Christmas Day furlough at the home of his aunt, Mrs. Gardillo, in New London and had no contact with the defendant; Mrs. Gardillo and Vicki Holland both corroborated this account. The only meeting between the Hollands during the plaintiff's incarceration consisted of a visit by the defendant to the correctional center during which, according to the defendant, the parties sat and talked. The defendant testified that the father of the child was a man named Joseph Thomas who had first acknowledged and later disclaimed paternity.
Although no further evidence of paternity was offered, the attorney representing the child submitted a report to the court in which he requested a finding that the plaintiff was the child's father. That request was based in part on an interview conducted by the child's counsel at which the plaintiff apparently at first falsely denied having received any furlough from prison. At trial no questions were asked of the plaintiff concerning this interview or his alleged denial.
In a brief oral memorandum of decision the trial court found both the defendant's children to be issue of the marriage, awarded custody to her, and ordered the plaintiff to pay child support of $20 per week for each child. On this appeal the plaintiff raises two related claims of error: the insufficiency of the evidence to support the court's finding of paternity and the constitutional impropriety of the presumption of paternity in its allocation of the burden of proof. The defendant, although nominally the appellee, in fact supports the plaintiff's position and joins him in attacking the court's finding of paternity. The appeal is defended by the state of Connecticut, a mandatory party to the divorce action because at the time of the hearing it was contributing toward the support of the defendant and her older child. General Statutes § 46b-55(a). 1 The younger child's counsel did not file an appellate brief, appear at oral argument, or otherwise participate in this appeal.
This court has only recently determined that "in Connecticut there is a presumption that a child born during lawful wedlock is the child of the husband, which presumption may be rebutted only by clear, convincing, and satisfactory proof that the child is illegitimate." Schaffer v. Schaffer, 187 Conn. 224, 226, 445 A.2d 589 (1982); see Grant v. Stimpson, 79 Conn. 617, 623, 66 A. 166 (1907); Coffman v. Coffman, 121 Ariz. 522, 523, 591 P.2d 1010 (1979); Happel v. Mecklenburger, 101 Ill.App.3d 107, 112, 56 Ill.Dec. 569, 427 N.E.2d 974 (1981); Perkins v. Perkins, 198 Neb. 401, 404, 253 N.W.2d 42 (1977); Joan G. v. Robert W., 83 App.Div.2d 838, 839, 441 N.Y.S.2d 709 (1981); Garrett v. Garrett, 54 Ohio App.2d 25, 30-31, 374 N.E.2d 654 (1977). In other states, the presumption of paternity may be rebutted by different, more or less stringent, evidentiary showings. See Borchers v. McCarter, 592 P.2d 941, 944 (Mont.1979) (); Coleman v. Hudson, 396 So.2d 1024, 1026 (Miss.1981) (); Vincent B. v. Joan R., 126 Cal.App.3d 619, 622-23, 179 Cal.Rptr. 9 (1981) (). See generally McCormick, Evidence (2d Ed. 1972) § 343; 9 Wigmore, Evidence (3d Ed. 1940) § 2527. As applied to the facts of this case, the presumption of paternity requires the plaintiff to prove nonaccess to the defendant at the time of conception by evidence rising to the prescribed standard of clear, convincing and satisfactory proof.
The plaintiff first objects that the trial court misapplied the existing law in finding paternity where all the evidence offered at the hearing factually supported the opposite conclusion. Although it is true that both the plaintiff and the defendant testified without contradiction to the plaintiff's lack of access, neither party disputes the factfinder's role as arbiter of witness credibility. Arbour v. McCullough, 186 Conn. 280, 286, 440 A.2d 980 (1982); Kukanskis v. Jasut, 169 Conn. 29, 32-33, 362 A.2d 898 (1975). In the event that the trier rejected their testimony as unworthy of belief, the presumption of legitimacy, which shifts the burden of persuasion to the proponent of illegitimacy, would require a finding that the plaintiff is the child's father. See O'Dea v. Amodeo, 118 Conn. 58 64, 170 A. 486 (1934); Hartford National Bank & Trust Co. v. Prince, 28 Conn.Sup. 348, 353, 261 A.2d 287 (1968). See generally F. James & G. Hazard, Civil Procedure (2d Ed. 1977) § 7.9; McCormick, supra, § 345, p. 826; Morgan, "Instructing the Jury upon Presumptions and Burden of Proof," 47 Harv.L.Rev. 59 (1933); "Presumption of Legitimacy of a Child Born in Wedlock," 33 Harv.L.Rev. 306 (1919).
In his second claim of error, the plaintiff argues that the presumption of legitimacy cannot constitutionally shift the burden of persuasion to him because paternity proceedings in Connecticut are sufficiently criminal in nature to invoke the constitutional doctrine that Ulster County Court v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979); see Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979); State v. Mason, 186 Conn. 574, 582, 442 A.2d 1335 (1982) and cases cited therein. Without the presumption, he argues, there is no evidence of his paternity, and he has therefore been deprived of both liberty and property interests without due process of law. 2
The cornerstone of the plaintiff's argument is the recent United States Supreme Court decision in Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), which held that Connecticut must pay the cost of blood tests for an indigent putative father in a paternity action. Id., 16, 101 S.Ct. 2210. That decision rested in part on the following discussion of our paternity proceedings: Id. 10, 101 S.Ct. 2207. The plaintiff reads this language to mean that a paternity determination within a dissolution action must be accompanied by all the procedural safeguards required for a criminal prosecution. We reject this reading as overbroad.
Although we agree that a finding of paternity under the present circumstances entails both a loss of property in the form of support payments and a potential loss of liberty in the form of statutory sanctions for nonsupport, we do not view these consequences as sufficient under Little to transform a civil dissolution action into a criminal proceeding. We can see no relevant distinction under our statutes between the plaintiff's vulnerability and that of any spouse who upon dissolution is assigned comparable support obligations. See General Statutes §§ 46b-82, 46b-84. 3 We decline to extend Little's characterization of paternity actions under General Statutes §§ 46b-160 4 et seq., offered for the limited purpose of assigning to the state the cost of blood tests, to all civil actions with attendant statutory sanctions. The " 'quasi-criminal' overtones" detected by Chief Justice Burger echo too faintly in the present dissolution action to preclude the use of a burden-shifting presumption grounded in a universally accepted...
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