Robinett v. Robinett, WD

• Decision Date: 21 March 1989
• Docket Number: No. WD,WD
• Citation: 770 S.W.2d 299
• Parties: Adam Wesley ROBINETT and Mary K. Huff, Plaintiffs-Respondents and Cross-Appellants, v. Wade V. ROBINETT, Defendant-Appellant and Cross-Respondent. 40540.
• Court: Missouri Court of Appeals

Page 299

770 S.W.2d 299

Adam Wesley ROBINETT and Mary K. Huff Plaintiffs-Respondents and Cross-Appellants, v. Wade V. ROBINETT, Defendant-Appellant and Cross-Respondent.

No. WD 40540.

Missouri Court of Appeals Western District.

March 21, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 2, 1989.

Application to Transfer Denied June 13, 1989.

Thomas B. Sullivan and A. Morgan Hickenlooper (argued), Kansas City, for Wade V. Robinett.

David E. Martin, Independence, guardian ad litem for Adam Wesley Robinett.

John K. Allinder, Independence, for Mary Huff.

Before NUGENT, P.J., and SHANGLER and CLARK, JJ.

NUGENT, Presiding Judge.

Defendant Wade Robinett appeals from the trial court's order finding that he is the father of plaintiff Adam Wesley Robinett, (Adam). Plaintiff Mary Huff cross-appeals from the court's order denying her compensation for the expenses she has incurred for Adam's support and birth and denying her attorney fees.

Defendant Robinett argues on appeal that no substantial evidence supports the trial court's conclusion that he is the father of the child born to plaintiff Huff and that the court erred in placing on him the burden of proving his sterility at the time of conception. Plaintiff Huff argues in her cross-appeal that the court abused its discretion in failing to award her damages for past expenses or for attorney's fees. We affirm in part and reverse in part.

We review the decision in this court-tried case under the principles announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976) (en banc). Accordingly, we will reverse the trial court's decision only if no substantial evidence supports it, it is against the weight of the evidence, erroneously declares the law or erroneously applies the law. Id. We will, however, give substantial deference to the trial court's ability to hear the evidence and determine the credibility of witnesses. N.R. v. A.D., 691 S.W.2d 350 (Mo.App.1985).

Ms. Huff, a flight attendant, began seeing Dr. Robinett, a physician, in August, 1982. Their sexual relationship began about one month later. By Dr. Robinett's account, it continued until February, 1984, and, by Ms. Huff's account, until mid-March of 1984. Ms. Huff had been visiting a sister in Texas in late February of that year when she contracted chicken pox. The defendant testified that their sexual relationship ended before Ms. Huff went to Texas. She testified, however, that she spent the first two weeks of March, her period of recuperation from chicken pox, at Dr. Robinett's apartment. During that time the couple engaged in sexual intercourse. A prescription on Dr. Robinett's form, dated March 1, 1984, was presented in evidence. Although the prescription was made out to "Mrs. Robinett", Ms. Huff testified that the defendant had written it for her use.

Ms. Huff confirmed her pregnancy on March 29, 1984. At that time, her gynecologist estimated that she was five weeks pregnant. According to that estimate, conception would have occurred on February 24 while Ms. Huff was in Texas. She testified, however, that her menstrual period occurred during her Texas visit and that she had calculated that her ovulation should occur in the first week of March. She denied having engaged in sexual relations with anyone other than Dr. Robinett during the year before or during her pregnancy. Adam arrived on November 26, 1984.

Ms. Huff notified the defendant of her impending motherhood on April 1, 1984. In later discussions about the pregnancy, Dr. Robinett advised her that he had been exposed to radiation several years ago and that he feared the effects that the radiation might have on any of his offspring. He advised her to have an abortion and offered to help her be artificially inseminated if she wanted a child.

The plaintiff's propounded interrogatories to the defendant elicited the following answers:

23. Are you sterile? ....

ANSWER: Unknown at this time.

24. Do you now claim that you are sterile or for any other reason could not be the father of Adam Wesley Robinett?

ANSWER: I do not believe we had sexual relations within 9 months of the birth of the child. Sterility is unknown.

The defendant gave those answers on April 3, 1986. Later, on July 14, 1987, he submitted amended answers to the above interrogatories, stating that he is sterile and was sterile in 1984 when Adam was conceived. He based that conclusion on his having undergone a vasectomy in 1968 or 1969 and on a semen analysis performed in 1987 by Dr. Henry Habib.

Dr. Robinett presented Dr. Habib's deposition at trial. Dr. Habib testified that he determined from his examination of the defendant that the vasectomy scars were at least ten years old. Dr. Mark Noble, at the guardian ad litem's request, conducted an examination of Dr. Robinett. Dr. Noble reported that the vasectomy scars were at least one year old. He stated, however, that because scars change very little after one year, visual examination of the scars could not determine precisely whether the scars were more than one year old.

Dr. Robinett produced no medical records documenting the vasectomy. He testified that while he was in medical school in New York as a professional courtesy a Dr. Daugherty had performed the operation without charging a fee and that no record had been made of it. He explained that he has sired four children by his former wife before his vasectomy and that he feared that his exposure to radiation would endanger any further offspring. Dr. Robinett could not remember Dr. Daugherty's first name nor the spelling of his last name. The guardian ad litem unsuccessfully attempted to find the doctor who had performed the vasectomy.

Malcom Beck, an immunohematologist, testified for the plaintiffs. He had performed blood tests on Ms. Huff, Adam, and Dr. Robinett. From his genetic analysis of those samples he determined that a 241-to-one or a 99.56% probability existed that Dr. Robinett is Adam's father. He admitted on cross-examination that he based that probability on the assumption that the defendant was fertile at the time of conception.

The trial court found that the parties' sexual relationship continued beyond March 1, 1984; that the paternity tests indicated that it is "extremely likely" that Wade Robinett is the natural father of Adam Robinett; and that the defendant was not sterile at the time of Adam's conception. The court concluded that Dr. Robinett is Adam's natural father.

Following its finding of paternity, the court conducted a separate hearing on the issues of compensation for Ms. Huff's past child support expenses and prospective child support. Ms. Huff and Dr. Robinett both submitted reports of their income and expenses. Ms. Huff based her claim for past expenses on her estimate of the average amounts she had spent for food, clothing, medical, and child care expenses for Adam. She testified that she had paid cash for many of her purchases. She was, therefore, unable to present documentation to support her claims for expenses. The defendant's cross-examination of Ms. Huff revealed that she had received cash for many of the cancelled checks that she presented in support of her expense claims. She explained that she spent the cash from those checks for Adam's expenses.

Dr. Robinett testified that he owned 100% of a medical corporation from which he received a salary. He explained that his salary had declined because the corporation's net income had declined. His expenses included court-ordered payment of college fees for his two youngest daughters. He testified that his investments outside of his medical practice produced a net loss in income. His salary for the years 1984, 1985, 1986 and 1987, respectively, amounted to $75,075, $75,075, $60,179, and $46,470.

The court ordered Dr. Robinett to pay monthly child support payments of $600.00, beginning April 1, 1988. It denied Ms. Huff's claims for past expenses and for attorney fees. Defendant Robinett appeals from the court's finding of paternity and plaintiff Huff cross-appeals from the court's denial of past expenses and attorney fees.

The defendant argues on appeal that the trial court abused its discretion in finding that he is the father of the plaintiff child. The alleged defects in the court's judgment include the absence of any evidence showing the defendant's fertility; the inconsistency between the calculated time of conception and Dr. Robinett's access to Ms. Huff; and the court's reliance on the testimony of the plaintiff's expert witnesses and on the findings of the guardian ad litem. As a corollary to that argument the defendant asserts that the court erred by requiring him to prove sterility as an affirmative defense.

Dr. Robinett testified that he had undergone a vasectomy some fifteen years before Adam's conception. He presented Dr. Habib's expert testimony that he is sterile and that his vasectomy scars were at least ten years old at the time of his trial. He argues that, in light of that evidence, the plaintiff's failure to present affirmative evidence of his fertility amounted to a failure to meet her burden of proof.

The defendant correctly asserts that the burden of proof in a paternity action rests on the party seeking to establish paternity. See Stegemann v. Fauk, 571 S.W.2d 697, 701 (Mo.App.1978).

Defendant also correctly contends that sterility does not constitute an affirmative defense that must be pleaded in the answer or lost:

An affirmative defense contemplates additional facts not included in the allegations necessary to support plaintiff's case and avers that plaintiff's theory of liability, even though sustained by the evidence, does not lead to recovery because the affirmative defense allows the defendant to avoid legal responsibility.... Any evidence which tends to show [that] plaintiff's cause never had legal existence is admissible on a general denial even though the facts are affirmative, if and insofar as they are adduced only to...