Pizana v. Jones, Docket No. 61529

• Decision Date: 15 September 1983
• Docket Number: Docket No. 61529
• Citation: 339 N.W.2d 1,127 Mich.App. 123
• Parties: Alonzo PIZANA, Plaintiff-Appellee, v. Jearline JONES, Defendant-Appellant. 127 Mich.App. 123, 339 N.W.2d 1
• Court: Court of Appeal of Michigan — District of US

Page 1

339 N.W.2d 1

Alonzo PIZANA, Plaintiff-Appellee, v. Jearline JONES, Defendant-Appellant.

Docket No. 61529.

127 Mich.App. 123, 339 N.W.2d 1

Court of Appeals of Michigan.

Submitted March 16, 1983.

Decided July 11, 1983.

Released for Publication Sept. 15, 1983.

[127 MICHAPP 124] Ashley Gorman, Troy, for plaintiff-appellee.

Eloise Williams, Detroit, for defendant-appellant.

Before T.M. BURNS, P.J., and CYNAR and MARUTIAK, ^* JJ.

CYNAR, Judge.

Defendant appeals as of right from a circuit court judgment finding that plaintiff is the father of a child born to defendant on July 14, 1978.

On August 13, 1979, plaintiff filed his paternity complaint, alleging that he was the father of defendant's child, Kiela Nasha Payne, born out of wedlock on July 14, 1978. In her answer, defendant denied that plaintiff was the father of her child. Pursuant to the court's order, upon plaintiff's[127 MICHAPP 125] motion, plaintiff, defendant and the child submitted to human leukocyte antigen (HLA) testing in order to establish parentage.

At trial, plaintiff testified that he and defendant engaged in sexual intercourse on numerous occasions between August and November 1977, inclusive. Plaintiff believes that he is the child's father.

On the other hand, although defendant admitted having sexual relations with plaintiff, defendant testified that she and plaintiff quarreled in mid-September 1977 and that she did not see or speak with plaintiff again until June 1978. Defendant also testified that she had sexual relations with James Moore from mid-October until December 1977.

James Moore acknowledged that he had sexual relations with defendant from mid-October until the end of the year. Moore believed that he was the child's father.

Each side presented additional evidence favoring their own position. Critical evidence was presented by plaintiff through Richard H. Walker, M.D. Defendant unsuccessfully moved to exclude Dr. Walker's testimony relative to the results of the blood and tissue typing tests.

Dr. Walker conducted blood and tissue-type testing, including blood grouping, HLA, heptoglobin and sickle cell tests, on plaintiff, defendant and the child in May 1980. Dr. Walker testified that, based on the blood grouping tests, it was impossible to exclude plaintiff from paternity. Dr. Walker described the remaining tests. The remaining tests involve isolation of genetic traits contained in blood, so-called "markers". The greater the correlation between a child's "markers" and a putative father's "markers", the greater the probability that the putative father is the biological father. [127 MICHAPP 126] HLA testing began in the 1950s and at that time was used primarily in tissue typing for organ transplants. The test involves the isolation of white blood cells from the blood. These cells are tested against different reagents to determine the "markers". HLA testing is the most advanced system for obtaining paternity exclusions and, failing an exclusion, for giving a high probability of inclusion. Dr. Walker testified that, based on the test results, the probability that plaintiff was the father of defendant's child, as compared to the probability that a random black man was the father, was 95.56 percent. The probability that plaintiff was the father, as opposed to a random white man, was 99.8 percent.

The parties stipulated that defendant's last menstrual period ended on October 6, 1977. Dr. Walker indicated that generally the most fertile time for conception occurs approximately two weeks after the first day of the last menstrual period. In defendant's case, however, conception could have occurred prior to the last menstrual period or as late as the first week of November 1977.

At the close of proofs, the trial court concluded that plaintiff was the child's father. The court relied heavily but not exclusively on the test results, and the paternity determination was expressly made under the Child Custody Act, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq.

A threshold question in this case is whether the trial court could determine paternity under the Child Custody Act.

Paternity proceedings are of a purely statutory nature. McFetridge v. Chiado, 116 Mich.App. 528, 530, 323 N.W.2d 470 (1982). The purpose of the paternity act is to provide for the support of illegitimate children. Smith v. Robbins, 91 Mich.App.[127 MICHAPP 127] 284, 289, 283 N.W.2d 725 (1979), lv. den. 408 Mich. 853 (1980). The paternity act provides that paternity litigation may be commenced by the mother, the father or the Department of Social Services. M.C.L. Sec. 722.714(a); M.S.A. Sec. 25.494(a). Here, the child was born out of wedlock, under either the old or the new definition of that phrase. Even if Winsett v. Donaldson, 69 Mich.App. 36, 244 N.W.2d 355 (1976), and Raleigh v. Watkins, 97 Mich.App. 258, 293 N.W.2d 789 (1980), cited by plaintiff, are still good law, they are factually distinguishable because plaintiff had a forum to litigate his claim under the paternity act. The trial court erred by establishing paternity under the Child Custody Act. Plaintiff's action to determine paternity lies under the paternity act and should be governed by the pertinent provisions of that act.

The next question for this Court to address is whether reversible error occurred by the admission of the HLA test results.

At the time of trial, the results of blood tests were receivable into evidence only in cases where a definite exclusion was established. M.C.L. Sec. 722.716(d); M.S.A. Sec. 25.496(d) prior to its amendment by 1982 P.A. 129. This is in contrast to the amended statute which, effective April 20, 1982, provides in pertinent part:

"(1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing tests which may include, but are not limited to, tests of red cell antigens, red cell isoenzymes, human leukocyte antigens, and serum proteins to determine whether the alleged father is likely to be, or is not, the father of the child.

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[127 MICHAPP 128] "(4) The result of a blood or tissue typing test, and if a determination of exclusion of paternity cannot be made, a calculation of the probability of paternity made by a person the court determines is qualified as an examiner of blood or tissue types based on the result of a blood or tissue typing test shall be admissible in evidence in the trial of the...