Humbert v. Smith

• Citation: 655 N.E.2d 602
• Decision Date: 28 September 1995
• Docket Number: No. 18A04-9504-CV-149,18A04-9504-CV-149
• Parties: Tommy L. HUMBERT, Jr., Appellant-Respondent, v. Kristy Lynn SMITH, Appellee-Petitioner.
• Court: Court of Appeals of Indiana

Page 602

655 N.E.2d 602

Tommy L. HUMBERT, Jr., Appellant-Respondent, v. Kristy Lynn SMITH, Appellee-Petitioner.

No. 18A04-9504-CV-149.

Court of Appeals of Indiana.

Sept. 28, 1995.

Transfer Granted Feb. 14, 1996.

Dale E. Hunt, Dunnuck & Associates, Muncie, Indiana, for appellant.

Pamela Carter, Attorney General, Frances Barrow, Deputy Attorney General, Indianapolis, for appellee.

OPINION

RILEY, Judge.

Respondent-Appellant Tommy L. Humbert, Jr. appeals from a final decree of the Delaware Circuit Court, concluding that Humbert is the natural father of Kristy Lynn Smith's child.

We affirm.

ISSUES

Humbert raises three issues for our review which we reorder and rephrase as:

1. Did the trial court err when it admitted the results of Humbert's blood test without proper foundation?

2. Is the trial court's decision supported by sufficient evidence?

3. Did the trial court err when it did not consider evidence of Smith's alleged fraud upon the court?

FACTS

On May 20, 1993, Smith gave birth to a child, M.S. During the possible period of conception, Smith had sexual relations with three men, including Humbert. Humbert admitted having relations with Smith on August 22, 1992, 39 weeks before M.S. was born.

Blood tests were administered to the three men with whom Smith had relations during the relevant period. Humbert's test results showed a probability of paternity of 99.97%; test results of the other two men excluded them as the father of M.S.

On June 20, 1994, Smith filed a petition to establish paternity for M.S., alleging that Humbert was the child's natural father. After a bench trial, Humbert was found to be so. It is from this order that Humbert appeals.

DISCUSSION

I.

Humbert contends that the trial court erred by admitting the report of the results of his blood test without first establishing a proper foundation for the report. Although the test results were admitted pursuant to IND.CODE 31-6-6.1-8(b) (1993), he argues that the statute is superseded by the Indiana Rules of Evidence, Rule 803(6). ¹

During her testimony, Smith offered into evidence the report of the results of the blood tests done on M.S. and Humbert. Humbert objected to the report because Smith did not establish a proper foundation for the admission of the report, and was overruled pursuant to I.C. 31-6-6.1-8(b) which allows blood or genetic test results to be admitted without foundation when the party opposing admission fails to file a written objection at least thirty days before the hearing at which the test results may be offered as evidence. ²

Customarily, when a statute, purporting to establish a rule of evidence, conflicted with a common law rule of evidence established by the Indiana Supreme Court, the supreme court rule prevailed and the statute was a nullity. Hawkins v. Auto-Owners Ins. (1993), Ind., 608 N.E.2d 1358; I.C. 34-5-2-1; Brim v. State (1993), Ind.App., 624 N.E.2d 27, 33, trans. denied. ³ However, since our supreme court adopted the Indiana Rules of Evidence on August 24, 1993, with an effective date of January 1, 1994, a statute which conflicts with a rule of evidence should be reviewed in a manner similar to our review of statutes which conflict with the trial and appellate rules. Fisher v. State (1994), Ind.App., 641 N.E.2d 105, 107, n. 2. It is on this basis that we resolve the present issue.

The Indiana Supreme Court has the inherent power to establish rules governing the course of litigation in our trial courts. Browning v. Walters (1993), Ind.App., 620 N.E.2d 28, 31; see I.C. 34-5-1-2 and I.C. 34-5-2-1. Our courts have held repeatedly that in the event of a conflict between a procedural statute and a procedural rule adopted by the supreme court, the latter shall take precedence. Anderson v. Horizon Homes (1995), Ind.App., 644 N.E.2d 1281, 1288, trans. denied; see, e.g., Augustine v. First Fed. Sav. & Loan Ass'n of Gary (1979), 270 Ind. 238, 241, 384 N.E.2d 1018, 1020; Neeley v. State (1974), 261 Ind. 434, 434, 305 N.E.2d 434, 435; Yang v. Stafford (1987), Ind.App., 515 N.E.2d 1157, 1160, reh'g denied, trans. denied. When a statute conflicts with the rules of procedure, the rules of procedure govern, and phrases in statutes which are contrary to the rules of procedure are considered a nullity. ⁴ Taylor v. Lewis (1991), Ind.App., 577 N.E.2d 986, 989, reh'g denied, trans. denied.

To be "in conflict," it is not necessary that the rule and the statute be in direct opposition. Spencer v. State (1988), Ind.App., 520 N.E.2d 106, 109, reh'g denied, trans. denied. Rather, the rule and the statutes need only be incompatible to the extent that both could not apply in a given situation. Id.; Matter of Little Walnut Creek Conservancy Dist. (1981), Ind.App., 419 N.E.2d 170, 171. Further, a procedural rule enacted by statute may not operate as an exception to a procedural rule having general application. State v. Bridenhager (1972), 257 Ind. 699, 702, 279 N.E.2d 794, 796.

Pursuant to Evid.R. 803(6), a report of the results of blood or genetic testing for paternity actions is admissible under the business records exception to hearsay once a proper foundation is established. Baker v. Wagers (1984), Ind.App., 472 N.E.2d 218, 222, reh'g denied, trans. denied. ⁵ I.C. 31-6-6.1-8(b) allows blood or genetic test results to be admitted without establishing a foundation if the party opposing admission fails to file a written objection at least thirty days before the hearing at which the test results may be offered as evidence. Evid.R. 803(6) and I.C. 31-6-6.1-8(b) conflict in that they both provide the means by which a report of the results of blood or genetic testing is admitted into evidence in paternity actions which cannot both apply in this situation. I.C. 31-6-6.1-8(b) also operates as an exception to Evid.R. 803(6), a procedural rule of general application. Therefore, I.C. 31-6-6.1-8(b) has no force and effect to the extent it conflicts with the evidence rule, and the admission of reports is governed by Evid.R. 803(6). See State ex rel. Jeffries v. Lawrence Circuit Court (1984), Ind., 467 N.E.2d 741, 742.

In view of our decision, the trial court erred by admitting the results of Humbert's blood test without proper foundation. However, this does not end our inquiry. Not all trial court error is reversible. Ind.Trial Rule 61; Vance v. State (1994), Ind., 640 N.E.2d 51, 55. An error is harmless if there is sufficient competent evidence to support the trial court's judgment. Harpe v. Beuoy (1966), 139 Ind.App. 690, 694, 215 N.E.2d 553, 556.

Our standard of review of the sufficiency of the evidence is well established. We are neither permitted to reweigh the evidence nor to judge the witnesses' credibility. Goodman v. State (1993), Ind.App., 611 N.E.2d 679, 681, reh'g denied, trans. denied, In re Paternity of Bratcher (1990), Ind.App., 551 N.E.2d 1160, 1162. We look instead to the evidence most favorable to the judgment and the reasonable inferences that follow therefrom. Id. at 1162. If the evidence has sufficient probative value to sustain the trial court's judgment, the judgment will not be overturned on appeal. H.W.K. v. M.A.G. (1981), Ind.App., 426 N.E.2d 129, 132; Roe v. Doe (1972), 154 Ind.App. 203, 213, 289 N.E.2d 528, 535.

Paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence. H.W.K., 426 N.E.2d at 133. In the present case there was probative testimony that during the time period of conception Smith engaged in sexual intercourse with three men, two of which were excluded as M.S.'s father on the basis of blood tests. Humbert and Smith testified that they engaged in unprotected sexual intercourse 39 weeks before M.S. was born. "The testimony of the mother regarding an act of sexual intercourse with the putative father, coupled with the probability of conception at such time, is sufficient to support the trial court's determination that he is the father of the child." Id.; Beaman v. Hedrick (1970), 146 Ind.App. 404, 411, 255 N.E.2d 828, 832 (An act of intercourse coupled with the probability of conception at that time will support a determination of paternity. (emphasis in original)). Accordingly, we find the evidence sufficiently supports the determination of paternity and the erroneous admission of Humbert's blood test was harmless error.

II.

Humbert contends that the trial court erred by failing to apply the law correctly to the evidence presented. He argues that "[s]ince the State's evidence barely supports an argument that there is a "possibility" that [Humbert] could be this child's father, [thus] ... the judgment of the trial court ... is clearly erroneous as a matter of law and ... must be reversed." Appellant's Brief at 14. This argument also attacks the sufficiency of the evidence and thus is governed by the aforementioned standard.

Humbert asserts that "[i]t is clear to a reasonable medical certainty that August 22, 1992 CANNOT be the date when this child was conceived." Appellant's Brief at 10 (emphasis in original). He bases this assertion on M.S.'s birth certificate and the record of Smith's pre-natal examinations which estimate M.S.'s gestational age to be 41 weeks at her birth, and also upon the report of a post-natal examination of M.S. entitled "Clinical Estimation of Gestational Age: An Approximation Based on Published Data" which indicates that the baby was born after a gestation of either 40-41 weeks or 39-41 weeks. All three pieces of evidence are, by their own designation, estimates and do not, without more, disprove that M.S. could have been conceived on August 22, 1992, 39 weeks before her birth.

Humbert argues that Smith had sexual relations with "at least two other men close to the time of possible conception." Appellant's Brief at 11. However, Smith admitted to having intercourse with two other men in July, 1992, and blood tests excluded both men as possible fathers.

Humbert argues that he may not be able to fath...