Retzer v. Retzer

• Decision Date: 07 June 1960
• Docket Number: No. 2532.,2532.
• Citation: 161 A.2d 469
• Parties: Clifford P. RETZER, Jr., Appellant, v. Marlene C. RETZER, Appellee.
• Court: D.C. Court of Appeals

161 A.2d 469

Clifford P. RETZER, Jr., Appellant, v. Marlene C. RETZER, Appellee.

No. 2532.

Municipal Court of Appeals for the District of Columbia.

Argued April 4, 1960.

Decided June 7, 1960.

Jacob Gordon for appellant.

Paul J. Kasloff, Washington, D. C., with whom Harry L. Burlingame was on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

Appellee wife brought suit for separate maintenance pursuant to the provisions of Code 1951, § 16-415. She asked for support money for herself and her four children who ranged in age from four months through six years old. The court awarded the wife $40 per week maintenance and support money, and custody of the children subject to reasonable visitation rights on the part of the father. This appeal is solely concerned with the finding by the court that appellant is the father of the youngest child.

The parties were married in 1951 and thereafter lived and cohabited intermittently with each other until May 4, 1958, when they finally separated; it was acknowledged that they had relations as late as this date. The child was born on February 19, 1959. During most of the intervening period the wife lived in an apartment rented for her by a married man who was seen visiting her there on a number of occasions, sometimes late at night. She gave the landlady this man's name as her married name, and her real married name as her maiden name. She denied ever having been unfaithful to her husband, but he denied the paternity of the child born to his wife.

At the pre-trial conference the court ordered blood grouping tests to be taken on the husband, wife and child. Both parties agreed to submit to these tests. The results, put into evidence without objection, showed that appellant was excluded as the father of the child.

The court ruled that these results were entitled to evidentiary weight only. In view of the positive testimony of the wife that she had never had relations with any other man, and since the parties had cohabited during the critical period, the court felt that the results of the tests were insufficient to establish nonpaternity. We agree that but for the blood tests there is sufficient evidence to find appellant to be the father of the child. But the weight to be accorded blood grouping tests has not been presented heretofore in this jurisdiction, and whether they are to be considered as evidentiary only subject to whatever weight the trier of fact wishes to accord them, or whether they are to be regarded as conclusive proof of scientific fact is before us now for review.

One consideration is whether the common-law presumption of the legitimacy of a child born to a married woman is so strong in this jurisdiction as to be unassailable by the results of blood grouping tests. The tenacity of this presumption has been a long time in yielding, but it is clear today that a majority of jurisdictions hold it to be rebuttable. Harrington v. Harrington, D.C.Mun.App., 145 A.2d 121. In Peters v. District of Columbia, D.C.Mun.App., 84 A.2d 115, 118, this court listed several situations the "proper and sufficient showing" of which would effectively rebut the presumption. These were impotence, complete absence, absence during the period of conception, and presence but with clear proof of the lack of sexual intercourse. This was by no means an attempt to define the limits to which a husband may have recourse to prove nonpaternity, but was simply an indication of what courts have held to be sufficient in overcoming the presumption.

Some states now deem a determination of nonpaternity through blood tests to be an additional method of effectively rebutting the presumption. In those cases so holding the courts have at times based their findings on the conclusiveness of the tests. Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717; Anonymous v. Anonymous, 1 A.D.2d 312, 150 N.Y.S.2d 344; C v. C, 200 Misc. 631, 109 N.Y.S.2d 276. Others have said that the tests were of sufficient weight to support a finding of nonpaternity without the necessity of labeling them as conclusive or evidentiary. Groulx v. Groulx, 98 N.H. 481, 103 A.2d 188, 46 A.L.R.2d 994. In one case, State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773, the court was reluctant to find the results of blood tests conclusive of nonpaternity. It was nevertheless willing to reverse a prior decision to the effect that the presumption of legitimacy was conclusive, and then accord enough evidentiary weight to the blood tests to hold them sufficient in overcoming the now rebuttable presumption.

There is authority to the contrary. The latest case to come to our attention is from California. Kusior v. Silver, Cal. App., 2 Cal.Rptr. 580, 587. In that case, however, the court was faced with a statutory presumption of legitimacy. The only exceptions allowed were the same as found in Peters v. District of Columbia, supra, and in spite of the fact that California had adopted the Uniform Act on Blood Tests to Determine Paternity the court was unable to reach the conclusion that the tests were sufficient in themselves to overcome the presumption. The reason for this was that the section making the tests conclusive had been omitted when the state legislature adopted the Uniform Act. The court conceded that the new act "negatives the possibility of another Arais v. Kalensnikoff [10 Ca1.2d 428, 74 P.2d 1043, 115 A.L.R. 163] or Berry v. Chaplin [74 Cal. App.2d 652, 169 P.2d 442]" but decided that it did not permit the statutory presumption of legitimacy to be rebutted by the exclusionary results of blood tests.

We think the decision in Kusior is based purely on statutory interpretation. No simliar statute exists in this jurisdiction limiting the evidence which a husband may rely on to rebut the presumption of legitimacy. All that is required is that he make a proper and sufficient showing of nonpaternity and the presumption is dispelled. We believe the more enlightened view is represented by those jurisdictions which hold that this may be done by the results of blood grouping tests.

Returning to the question at hand, i.e., whether the results are to be deemed conclusive or evidentiary only, it is not necessary to set forth in detail the process by which the results are gained. These are detailed in 1 Wigmore, Evidence, § 165 (b) (3d ed., 1940), and 163 A.L.R. 939, 941-943.

It is enough to point out the underlying principle involved, that these tests are valid to disprove paternity only, and not to prove it. For instance, on the basis of the international blood group designations used here, A, B, AB, and O, the physician's report showed that the mother's blood was from group 0, and the child's from group A; the father's blood must be...