Michael K.T. v. Tina L.T.

• Decision Date: 21 December 1989
• Docket Number: No. 18989,18989
• Citation: 182 W.Va. 399,387 S.E.2d 866
• Court: West Virginia Supreme Court
• Parties: MICHAEL K.T. v. TINA L.T.

Page 866

387 S.E.2d 866

182 W.Va. 399

MICHAEL K.T. v. TINA L.T.

No. 18989.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1989.

Syllabus by the Court

1. In West Virginia, the presumption of legitimacy that arises when a child is born or conceived during a marriage is rebuttable.

2. When a putative father seeks to use blood test results to disprove his paternity and rebut the presumption of legitimacy which has attached to a child born of a valid marriage, an in camera hearing should be held in order for the circuit court to make a preliminary determination whether the equities surrounding the particular facts and circumstances of the case warrant admission of blood test results.

3. A trial judge should refuse to admit blood test evidence which would disprove paternity when the individual attempting to disestablish paternity has held himself out to be the father of the child for a sufficient period of time such that disproof of paternity would result in undeniable harm to the child.

4. A guardian ad litem should be appointed to represent the interests of the minor child whenever an action is initiated to disprove a child's paternity.

Richard A. Bush, Bush & Trippel, Parkersburg, for Michael K.T.

David McMahon, West Virginia Legal Services Plan, Inc., Charleston, for Tina L.T.

WORKMAN, Justice:

This case is before the Court on an appeal from a final order of divorce which declared the appellant, Michael K.T. (Michael T.), to be the father of the child born during the appellant's marriage to the appellee, Tina L.T. (Tina T.), despite conclusive blood test evidence to the contrary and required appellant to pay monthly child support until the child reaches the age of majority. This appeal presents a case of first impression regarding whether blood test evidence is admissible for the purpose of rebutting the presumption of legitimacy that arises when a child is conceived or born during a marriage. ¹

The facts giving rise to this appeal are as follows: The parties were married in Wood County, West Virginia, on November 1, 1983. One child, namely Brittany N.T. (Brittany T.), was born on June 5, 1985. The parties last lived together as husband and wife on July 26, 1986. Appellant filed a complaint against Tina T. on August 10, 1987, wherein he sought a divorce upon the grounds of irreconcilable differences, one-year separation, cruel and inhuman treatment, and adultery. Based on his allegation that Brittany T. was not his child, appellant also sought a determination from the court that no children had issued as a result of the marriage.

During the course of the final hearing before the family law master, evidence pertaining to two separate blood tests was admitted for the purpose of resolving the paternity of Brittany T. ² These tests conclusively demonstrated that Michael T. could not be the biological father of Brittany T. ³ Following the conclusion of the final hearing, the family law master made the following finding of fact in connection with his recommended decision:

The child, Brittany [T.] was born June 5, 1985 to the defendant, Tina [T.]. However, two separate blood tests taken during these proceedings absolutely preclude the Plaintiff from being the natural father of the child, Brittany [T.]. In addition, the evidence showed that at the time of the conception of the child, Brittany [T.], the Plaintiff had non-access to his wife in that he was on military maneuvers in the Federal Republic of Germany. The Defendant admitted that during the time her husband was absent on military exercise that she had sexual intercourse with one Brett [P.]. Therefore, the overwhelming weight of the evidence was that the plaintiff is not the father of Brittany [T.].

The family law master concluded as a matter of law "[t]hat the plaintiff, Michael [T.], is not the father of Brittany [T.] and therefore he does not have any legal rights or obligations regarding said child."

The circuit court granted the divorce on the grounds of irreconcilable differences, but refused to follow the recommended decision of the family law master with respect to declaring that Michael T. was not the father of Brittany T. Instead, the court ordered that Brittany T. be declared the legitimate child of the appellant and further directed that Michael T. was required to pay the monthly sum of $345.00 for child support and maintenance. In deciding that Brittany T. was the legitimate child of the appellant, the circuit court found determinative the fact that the conditions precedent for establishing paternity pursuant to W.Va.Code § 48A-6-1 (Supp.1989) had not been met. ⁴ The circuit court erred in looking to W.Va.Code § 48A-6-1 as a method of resolving this case since that statute relates to the establishment of paternity. West Virginia Code § 48A-6-1 clearly was not intended to apply to a proceeding where the issue is disproof, rather than proof of paternity. See note 4. Accordingly, W.Va.Code § 48A-6-1 is inapplicable because the real issue in this case is whether blood test evidence is admissible in a divorce proceeding to rebut the presumption of legitimacy that accompanies a child born during the course of a valid marriage.

Historically, society has frowned upon the bastardization of children. Thus, many states like West Virginia view a child as being presumptively legitimate if the child was born or conceived during a marriage. See State ex rel. Worley v. Lavender, 147 W.Va. 803, 809, 131 S.E.2d 752, 756 (1963), overruled on other grounds; State ex rel. Toryak v. Spagnuolo, 170 W.Va. 234, 292 S.E.2d 654 (1982); see generally 10 Am.Jur.2d Bastards § 11 (1963 & Supp.1989). This presumption, which has been referred to as one of the strongest at law, had only two common law defenses: nonaccess and impotence. See State v. Reed, 107 W.Va. 563, 566, 149 S.E. 669, 671 (1929). Appellee contends that Michael T. cannot disprove paternity by any method other than these two common law defenses.

Although we recognized in State ex rel. J.L.K. v. R.A.I., 170 W.Va. 339, 294 S.E.2d 142 (1982), that West Virginia's presumption of legitimacy is rebuttable, we have not previously addressed whether blood test evidence is admissible to rebut the presumption of legitimacy. Id. 170 W.Va. at 343 n. 9, 294 S.E.2d at 146, n. 9. This Court has acknowledged the scientific reliability of blood test evidence, however. In State ex rel. Oldaker v. Fury, 173 W.Va. 428, 317 S.E.2d 513 (1984), the Court stated that "it should be noted that for the purpose of rebutting the presumption of legitimacy, the accuracy and reliability of blood tests is widely accepted." Id. 173 W.Va. at 529, 317 S.E.2d at 515, n. 1. Based upon the recognized reliability of blood tests, we believe that this Court should join the ranks of numerous other tribunals and admit blood test evidence to rebut the common law presumption of legitimacy under certain circumstances. See Annotation, Admissibility and Weight of Blood-Grouping Tests in Disputed Paternity Cases, 43 A.L.R. 4th 579 (1986).

Notwithstanding scientific advancements concerning blood-typing and grouping, blood tests cannot establish that a given individual is the father of a child--only that the putative father is within a certain segment of the population with certain genetic traits which make paternity probable. See id. at 584-85 (explaining differences between blood-grouping tests and human leukocyte antigen (HLA) tests as well as the genetic rules of inheritance). Blood tests can, however, in some instances conclusively exclude a man as the father of a child. Annotation, 43 A.L.R. 4th at 585. When blood tests do exclude paternity, "there is now ... practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity." Little v. Streater, 452 U.S. 1, 7, 101 S.Ct. 2202, 2206, 68 L.Ed.2d 627 (1981) (citing S. Schatkin, Disputed Paternity Proceedings § 9.13 (1975)).

The almost universal position that blood tests are admissible evidence regarding the issue of nonpaternity is due to a combination of several factors. See id. The first and major reason is the increased scientific reliability of blood test results. The second reason is that the historical basis for the presumption of legitimacy was society's desire to protect children from the stigma of illegitimacy as well as to prevent illegitimate children from becoming wards of the state. See State ex rel. J.L.K., 344-45, 170 W.Va. at 294 S.E.2d at 147. These two historical bases for opposing bastardization have been significantly vitiated given the modernization of society and legislation drafted to address the problems of bastardization. Specifically, it has been recognized that the stigma of illegitimacy is diminishing in the wake of a society which is composed of so many nontraditional households (e.g. single parents step-parents, etc.). See 2 L. Wardle, C. Blakesley, J. Parker, Contemporary Family Law: Principles, Policy and Practice, § 9:01 at 3 (1988). Moreover, most states have statutes similar to W.Va.Code §§ 48A-6-1 to 48A-6-6 (Supp.1989), pursuant to which paternity can be established and awards of child support and maintenance made, thereby removing the financial burden of bastardization historically placed on the state.

One final reason advanced by appellee in favor of avoiding bastardization is the preservation of the family unit. See Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 2343-44, 105 L.Ed.2d 91 (1989). Unfortunately, the realities of modern America belie this concern as evidenced by the fact that nearly one out of every two marriages ends in divorce. ⁵ In the face of a defunct or nearly defunct marriage, the need to uphold the sanctity of the traditional nuclear family fails as a justification for avoiding bastardization. Furthermore, when the issue of paternity is raised during a divorce proceeding, preserving the family no longer stands as a valid defense to...