Pyeatte v. Pyeatte

• Decision Date: 29 March 1974
• Docket Number: CA-CIV,No. 2,2
• Citation: 520 P.2d 542,21 Ariz.App. 448
• Parties: , 84 A.L.R.3d 486 Richard Conger PYEATTE, Appellant, v. Carolyn PYEATTE, Appellee. 1402.
• Court: Arizona Court of Appeals

Page 542

520 P.2d 542

21 Ariz.App. 448, 84 A.L.R.3d 486

Richard Conger PYEATTE, Appellant, v. Carolyn PYEATTE, Appellee.

No. 2 CA-CIV 1402.

Court of Appeals of Arizona, Division 2.

March 29, 1974.

Rehearing Denied May 7, 1974.

Boyd M. Morse and Bernard L. Lesser, Tucson, for appellant.

Philip Jones, Tucson, for appellee.

OPINION

HATHAWAY, Chief Judge.

Defendant Richard Pyeatte has appealed from a judgment granting plaintiff Carolyn Pyeatte an absolute divorce, declaring that defendant is the father of plaintiff's son, and ordering that he pay plaintiff $125 per month as alimony and $125 per month as child support.

The parties began dating in February, 1971. They had sexual relations for the first time in April, 1971. In May, 1971, the parties began living together and their sexual relations intensified. About the third week in July, plaintiff discovered that she was pregnant. Upon being informed of the pregnancy, defendant asked plaintiff to marry him. The parties were married on August 3, 1971. They separated 37 days later. Plaintiff sued for divorce in October, 1971. She gave birth to a son on March 24, 1972. Trial of the divorce action began on August 31, 1972.

Plaintiff was 25 years old at the time of the trial and had worked as both a waitress and a nurse's aid. Defendant was 40 years old and was working as a law enforcement officer. Defendant's first contention is that the trial court's finding that he was the father of the child was not supported by a preponderance of the evidence. Defendant was confronted at trial with the presumption that a child born to a married woman is fathered by her husband. This presumption is one of the strongest and most persuasive known to the law. Anonymous v. Anonymous, 10 Ariz.App. 496, 460 P.2d 32 (1969). It is 'by no means a mere recognition of probability, but is rather one of the weightiest expressions of legal policy in the law.' Shields v. Folsom, 153 F.Supp. 733, 738 (E.D.Pa.1957).

In State v. Mejia, 97 Ariz. 215, 399 P.2d 116 (1965), our Supreme Court held this presumption to be in effect despite the fact that our legislature has eliminated the status of illegitimacy. See A.R.S. § 14--206. The court held that the party opposing the presumption must rebut it by 'clear and convincing evidence'. 97 Ariz. at 218, 399 P.2d at 118. The presumption of legitimacy permanently shifts the burden of persuasion (here by clear and convincing evidence) to the party opposing it. Therefore, our standard of review on appeal is whether defendant, as a matter of law, clearly and convincingly, established that he is not the father of the child.

Defendant introduced evidence that he was sterile as proof of non-paternity. In order to save time at trial, the parties stipulated to the admission of the deposition testimony of Dr. C. J. Hoffman who had performed fertility tests on defendant in November and December, 1971. Dr. Hoffman is experienced in urology ¹ and there was no challenge to his qualifications. He concluded that defendant was sterile At the time of the tests.

Dr. Hoffman also testified that defendant had spoken to him concerning his medical history. He related that he had been born with undescended testes ² which were treated with hormone injections when he was 9 or 10 years old and that after 10 years of married life with 5 different wives, he had created no pregnancies. ³ Although he did not know the extent of the hormone treatments, Dr. Hoffman testified that 60% Of adults who receive that particular treatment are permanently sterilized. He testified that based upon this history and the test results, he believed that defendant was also sterile At the time the bady was conceived (June or July, 1971) and that he did not think defendant could have been its father.

On the other hand, plaintiff testified that she had not dated or gone out with any man other than the defendant in June or July of 1971. Defendant admitted that he regularly had intercourse with plaintiff during the period in which the child was conceived. Plaintiff testified that they often had sexual relations 'five or six times a week' during June and July, 1971.

We therefore are faced with what Division One of this court termed a 'classic confrontation of advancing medical technology versus judicial presumptions. . . .' Anonymous v. Anonymous, supra, 10 Ariz.App. at 497, 460 P.2d at 33. In that case, the court held that properly conducted blood grouping tests which excluded a husband as the father of his wife's child were not only clear and convincing, but also conclusive of the question. ⁴ The case law dealing with medical evidence of sterility arises from two distinct factual situations. One area is that in which the mother was unmarried and no presumption of legitimacy is applicable. These are usually paternity proceedings in which the state attempts to prove a man to be the father of a usually unmarried mother's child. See A.R.S. § 12--841 et seq. In these cases, medical testimony of sterility has been given greater weight since the state has the burden of proving paternity (in many states the proof must be by more than a preponderance of the evidence). In re Stroope's Adoption, 232 Cal.App.2d 581, 43 Cal.Rptr. 40 (1965); Potasz v. Potasz, 68 Cal.App.2d 20, 155 P.2d 895 (1945); Commr. of Welfare v. Wendtland, 25 A.D.2d 640, 268 N.Y.S.2d 547 (1966); Hogeboom v. Hurlburt, 207 Misc. 997, 141 N.Y.S.2d 691 (1955); Timm v. State, 262 Wis. 162, 54 N.W.2d 46 (1952); compare People v. Guiseppe, 97 N.Y.S.2d 486 (Ch.Ct. 1949).

Into the other broad area falls the situation with which we are here confronted--the husband (and alleged father) introducing evidence of sterility to rebut the presumption of legitimacy. With but one possible exception, we have found no appellate case in this area reversing a lower court's finding of paternity when medical evidence of sterility had been introduced by the husband. In Groner v. Groner, 23 Cal.App.3d 115, 99 Cal.Rptr. 765 (1972) a trial court's finding of paternity was reversed but it had been stipulated on appeal that the husband was 'sterile and unable to procreate'. (99 Cal.Rptr. at 765). On the other hand, we have found numerous decisions upholding trial court rulings that the presumption of legitimacy was not conclusively overcome by medical evidence of sterility. Lucas v. Williams, 218 Md. 322, 146 A.2d 764 (1958); Tosh v. Tosh, 214 Cal.App.2d 483, 29 Cal.Rptr. 613 (1963); Houston v. Houston, 199 Misc. 469, 99 N.Y.S.2d 199 (1950); Shepherd v. Shepherd, 314 Ky. 575, 236 S.W.2d 477 (1951); Smith v. Smith, 71 S.D. 305, 24 N.W.2d 8 (1946); Whitman v. Whitman, 215 N.W.2d 689 (Ind.App.1966). ⁵ In each of these cases, appellate courts have refused to reverse findings of paternity (i.e., hold that the husband's burden of proof was met as a matter of law) despite testimony of medical experts that the husband was sterile. By and large, it therefore appears that evidence of sterility has been given much less weight than the blood test exclusion.

Dr. Hoffman described the various data relevant to fertility which he had a gleaned from the two semen tests. First the quantity or count of the sperm was below the normal level. Second, the motility (mobility of the sperm necessary for fertility) was very low. Together with the medical history related to him by defendant, these two facts were the primary basis for Dr. Hoffman's conclusion of sterility at the time of conception. However, Dr. Hoffman testified that no one could state as 'an absolute fact' that defendant could not have produced the pregnancy in June or July, 1971--only that it was 'highly improbable.'

We also note that defendant's medical history of undescended testes was not corroborated by medical evidence. This was crucial to Dr. Hoffman's opinion that defendant was sterile At the time of conception. Further, unlike blood grouping tests which are taken in a clinical setting, defendant produced the semen specimens at his home and brought them to Dr. Hoffman's office for examination. Defendant had been instructed to abstain from intercourse from three to seven days and to bring the specimen in within two hours of its production. Although Dr. Hoffman testified that prior intercourse affects only quantity and not motility and that an examination of the specimen can determine its age, the integrity of the specimen rested to some extent upon the defendant who was highly interested in the outcome of the tests.

The trier of fact is not compelled to believe expert opinion in the face of evidence of practical results indicating otherwise. Pacific Guano Co. v. Ellis, 83 Ariz. 12, 315 P.2d 866 (1957). Here there was evidence of repeated intercourse between plaintiff and defendant during the period of conception and a denial by plaintiff of access to other men during this time. Taken together with the lack of total conclusiveness inherent in a medical determination of sterility, we cannot hold as a matter of law that defendant clearly and convincingly established non-paternity.

Defendant's second assertion of error is that the trial court erred in sustaining an objection to a question posed by defendant's counsel on cross examination of plaintiff. Throughout the trial defendant sought to establish and plaintiff denied that she had been visited by a Mr. Frank Williams in her apartment during the period of conception (June--July 1971). Defendant's counsel asked plaintiff if she had ever had sexual relations with Mr. Williams prior to April, 1971 (one to two months before the conception of the child). The trial court sustained an objection on the grounds of immateriality.

Obviously the issue of plaintiff's pre-April 1971 sexual relations with Williams would itself have no bearing on the resolution of the case and would be immaterial.

In State v. Mesquita, 17 Ariz.App. 151, 496 P.2d 141 (1972), Division One of this court ruled that inquiries into the mother's sexual conduct before the time of conception in a...