Lyle v. Eddy

• Decision Date: 13 November 1985
• Citation: 481 So.2d 395
• Parties: Mary J. LYLE and Jean E. Lyle Crane v. Tommy EDDY. Civ. 4935.
• Court: Alabama Court of Civil Appeals

Page 395

481 So.2d 395

Mary J. LYLE and Jean E. Lyle Crane v. Tommy EDDY.

Civ. 4935.

Court of Civil Appeals of Alabama.

Nov. 13, 1985.

Jack Caddell, Decatur, for appellant.

Sherman B. Powell, Jr. and Bob Burrell, Decatur, for appellee.

WRIGHT, Presiding Judge.

This is a paternity and child custody case.

This is the second time this case has been appealed to this court. In the first appeal, we held that the circuit court had jurisdiction to entertain an action by a putative father to determine the paternity of an illegitimate child under § 38-10-7, Code of Alabama 1975. Eddy v. Lyle, 455 So.2d 877 (Ala.Civ.App.1984). Only a brief recitation of the facts is necessary.

Tommy Eddy alleged that he is the father of Christy Lee Lyle, a minor child. Christy was born to Jean E. Lyle on February 24, 1980. Ms. Lyle was not married at the time. In his complaint, Mr. Eddy asked that he be determined to be Christy's father and be awarded either custody or visitation rights. At the time this action was commenced, Christy was in the legal custody of her maternal grandmother, Mary J. Lyle.

Prior to conducting bifurcated ore tenus hearings on the paternity and custody issues, the trial court ordered that Tommy Eddy, Jean Lyle, and Christy each submit to a human leukocyte antigen (HLA) test. At the paternity hearing, the results of the HLA tests were admitted into evidence over the objection of counsel for the Lyles. The experts who administered the tests were not present in court, nor was any predicate laid for introduction of the results. Those tests allegedly showed that Tommy Eddy had a 99.31 percent probability of being Christy's father. The trial court determined that Tommy Eddy was Christy's father and proceeded to determine proper custody of the child. After the second ore tenus hearing, primary custody of Christy was awarded to Tommy Eddy. A final decree was entered on April 3, 1985. The Lyles moved to alter, amend or vacate the judgment. The motion was denied. On appeal, the Lyles raise a number of arguments for reversal.

The Lyles first argue that since this action was commenced prior to the effective date of the Alabama Uniform Parentage Act (AUPA), § 26-17-1 to -21, Code of Alabama 1975, the trial court committed reversible error by admitting into evidence the HLA test results. They argue that prior to the effective date of that act, HLA test results were inadmissible under Alabama law. That question has recently been decided to the contrary by this court in Blackwell v. State, 475 So.2d 565 (Ala.Civ.App.1985). See also Balfour v. Balfour, 413 So.2d 1167 (Ala.Civ.App.1982). HLA test results were admissible evidence in a paternity action even before passage of the AUPA.

The Lyles' second argument is that the trial court erred when it allowed the HLA test results to be admitted into evidence without requiring that any predicate be laid. Counsel for Tommy Eddy argues that this did not constitute error because the AUPA does not require the laying of any foundation at trial before the HLA test results become admissible.

Section 26-17-12(b) expressly provides for the admission into evidence of HLA test results in certain specific instances. While we recognize that the statute does not set forth any foundational requirements for admissibility, except that the test must be made by a person approved as "qualified" by the court, we do not believe that the legislature intended that no other foundational requirements be applied.

We consider that certain minimal foundational requirements are necessary to insure the reliability and relevancy of the test results. We hold that the party offering the HLA test results must show that the blood tested was in fact that of the alleged father, the mother, and the child, and that the test results were based on reliable blood samples. See Blackwell v. State, 475 So.2d 565 (Ala.Civ.App.1985) (where this court noted that "The proper predicate was laid."); Balfour v. Balfour, supra (where this court noted the admissibility of HLA test results "after proper predicate has been laid"). See also Willerick v. Hanshalli, 136 Mich.App. 484, 356 N.W.2d 36 (1984).

This minimal foundation includes the establishment of a chain of identification from the time the blood samples are taken to the time the samples are analyzed. See Nordan v. State, 143 Ala. 13, 39 So. 406 (1905); Annot., 21 A.L.R.2d 1216 (1952). Such testimony, of course, should be based upon the first-hand knowledge of the witness. See C. Gamble, McElroy's Alabama Evidence, § 105.01 (1977).

In passing, we note that we do not deem it necessary to decide whether the HLA test results were admitted under § 26-17-12(b), Code 1975, or under the common law. The same minimal foundation should be required under either authority.

The Lyles next argue that the trial judge committed reversible error when it apparently took judicial notice, during trial of the custody issue, of the entire juvenile court file concerning the home and family of Mary J. Lyle. This file was part of records then located in the Juvenile Court of Morgan County.

It appears that an order of the juvenile court was offered into evidence by counsel for Mr. Eddy. When this occurred, the trial judge volunteered that the entire file would be helpful and admitted it over the objection of counsel for the Lyles. Apparently, the trial judge had earlier become familiar with the child's family history as a result of his having been, at one time, a judge in the juvenile court. At no time was the entire file offered into evidence by a party to the proceedings.

While a judge may take judicial notice of his own court's records, Boone v. Director of Department of Public Safety, 337 So.2d 6 (Ala.Civ.App.1976), there is no authority allowing a judge to judicially notice the record of proceedings from a prior court. In fact, the law is quite clearly to the contrary. One of the better statements of the law on this issue is found in C. Gamble, McElroy's Alabama Evidence § 484.02(2) (3rd ed. 1977), where it is stated:

"The circuit court takes judicial notice of all parts of its record of the case in hand. For a proper purpose, the circuit court takes judicial notice of its own record in another case if, but only if, the pleadings in the case in hand refer to the record in the other case. However, the circuit court cannot take judicial notice of its record in another case for the purpose of supplying evidence in the...