Kelsaw v. Green

Citation296 A.2d 1
Decision Date20 October 1972
Docket NumberNo. CV2-717-84063,CV2-717-84063
CourtCircuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
PartiesMayme E. KELSAW v. Lincoln GREEN. AP.

Donald C. Cousins, Bridgeport, for appellant (plaintiff).

Lincoln Green, pro se.

DEARINGTON, Judge.

Following a trial to the court, the defendant was found not guilty of being the father of a child of the plaintiff born May 28, 1971, and the plaintiff has appealed. There were three witnesses, the plaintiff and defendant and a welfare investigator who offered evidence solely to the expenditures of the welfare department for lying in expenses and accrued support. She assigns error as follows: (1) in the finding and conclusion, (2) in rendering judgment for the defendant when the plaintiff had made out a prima facie case based on constancy of accusation, (3) in rendering judgment for the defendant when the plaintiff had proved her case by a fair preponderance of the evidence, and (4) in rendering judgment for the defendant when the court had demonstrated a personal bias or prejudice against the plaintiff.

The plaintiff was unsuccessful in seeking to strike certain paragraphs and add others to the finding. Among the paragraphs sought to be stricken, were those in which the court found, (1) the defendant did not have sexual relations with the plaintiff, (2) the defendant is not the father of the child, (3) the plaintiff's constancy of accusation is not credible, and (4) the plaintiff did not make out a prima facie case. There was affirmative evidence from the defendant that he did not have relations with the plaintiff and was not the father of the child. 'As the trier, the court is the sole arbiter of the credibility of witnesses and is privileged to adopt whatever testimony it reasonably believes to be credible.' Branford Sewer Authority v. Williams, 159 Conn. 421, 424, 270 A.2d 546, 548. The plaintiff further claims that the finding by the court that her claimed constancy of accusation was not credible is improper, citing Maltbie, Conn.App.Proc. § 134, p. 165, to the effect that 'Statements characterizing the testimony of witnesses or their credibility are improper.' See Cripps v. Liquor Control Commission, 130 Conn. 693, 698, 37 A.2d 227. While it is improper in a finding to recite characterizing testimony, it is not improper for the court to find that the testimony of a witness lacks credibility. See Broderick v. Shea, 143 Conn. 590, 592, 124 A.2d 229. Moreover, the alleged constancy of accusation consisted solely of the plaintiff's testimony in which she claimed to have told two people (named) that the defendant was the father of her child. The plaintiff did not produce either person as a witness in accordance with the requirement laid down in State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101. The court also found that the plaintiff failed to make out a prima facie case. Since this conclusion also appears as an ultimate conclusion we will consider it when we review the ultimate conclusions. There is no error here.

The plaintiff further sought to strike five paragraphs from the finding appearing under the heading: 'The following claims and proof of facts are found not credible.' Since all of the relevant materitious appearing in these paragraphs is repetitious of that set forth in the preceding paragraphs heretofore considered, no additional discussion is required. Furthermore, the paragraphs here under attack are set apart from the subordinate facts which are recited under part 'First' of the finding and which we will consider independently from other portions of the finding in reviewing the conclusions.

One of the paragraphs appearing in the draft finding and sought to be added was that the defendant had previously been adjudged to be the father of a child born to the plaintiff. See Kelsaw v. Green, 6 Conn.Cir.Ct. 516, 276 A.2d 909. The plaintiff claims the prior relationship was relevant. There is some merit in this claim for "(I)n fairness to the parties the court is rarely justified in omitting facts which, having been proved or conceded, litigants ask to have incorporated in the finding' and which they deem material to the presentation of their claims on appeal.' Cappiello v. Haselman, 154 Conn. 490, 491, 227 A.2d 79, 80. Several paragraphs of the draft finding were undisputed and will be added to the corrected finding. Other additions sought would neither assist or change the results. Thompson v. Portland, 159 Conn. 107, 108, 266 A.2d 893.

The finding as corrected reveals the following: The defendant was unrepresented and did not wish to avail himself of the opportunity to obtain counsel or to obtain blood grouping tests. The plaintiff was delivered of a child, May 28, 1971. A representative of the state welfare department was familiar with the birth of the child. The plaintiff was married to a man other than the defendant and had lived apart from her husband for some eight or nine years. The plaintiff became pregnant on August 16, 1970. In September, she...

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