State ex rel. Dept. Social Serv. V. Miller

• Decision Date: 14 March 2007
• Docket Number: No. 27188.,27188.
• Citation: 218 S.W.3d 2
• Parties: STATE of Missouri, ex rel., DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, and Holly Marie Adams, Petitioners-Respondents, v. Raymon MILLER, Respondent-Appellant, and Richard Miller, Respondent.
• Court: Missouri Court of Appeals

218 S.W.3d 2

STATE of Missouri, ex rel., DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, and Holly Marie Adams, Petitioners-Respondents, v. Raymon MILLER, Respondent-Appellant, and Richard Miller, Respondent.

No. 27188.

Missouri Court of Appeals, Southern District, Division Two.

March 14, 2007.

Cameron Bunting Parker, Welch, Todd & Parker, Malden, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, Jason M. Lloyd, Assistant Attorney General, Kansas City, for respondent.

PHILLIP R. GARRISON, Judge.

In this paternity action the trial court entered a judgment finding that Raymon Miller ("Appellant") was the natural father of the minor child ("K.A.A."), and that his identical twin brother, Richard Miller ("Richard") was not the natural father. The results of blood tests performed on the two brothers demonstrated that both had a 99.999% probability of being the father. The issues on this appeal relate to whether sufficient evidence was presented to rebut the presumption, created by the blood tests, that Richard was the father. We affirm.

On September 13, 2004, Holly Marie Adams ("Mother"), individually and as next friend of K.A.A., as well as the State of Missouri through the Department of Social Services, Division of Child Support Enforcement (collectively "Plaintiffs"), filed suit against Appellant and Richard to determine the identity of the natural father and to obtain a declaration of paternity as to K.A.A., born April 12, 2004. After a bench trial, the court entered a judgment finding that Appellant was K.A.A.'s natural father. This appeal followed.

In paternity cases, as with other court-tried cases, we review pursuant to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).¹ Robinett v. Robinett, 770 S.W.2d 299, 301 (Mo.App. W.D.1989). Under Murphy, we will reverse the trial court's judgment only if no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. 536 S.W.2d at 32. In making that review, we give substantial deference to the trial court's ability to hear the evidence and determine the credibility of witnesses. Robinett, 770 S.W.2d at 301. In making credibility determinations, the trial court may believe none, part, or all of a witness's testimony. In re Marriage of Thomas, 21 S.W.3d 168, 177 (Mo.App. S.D.2000). As a result, issues about the credibility of witnesses are for the trial court to resolve and are not matters that appellate courts can review. Id. In making our review, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Blair v. Blair, 147 S.W.3d 882, 885 (Mo. App. W.D.2004). Viewed in that light, the evidence showed the following:

Blood tests conducted on Appellant and Richard demonstrated that both had a combined paternity index of 814,445 and a probability of paternity of 99.999% with a prior probability of 0.5. The conclusion of those tests stated:

The alleged father [Appellant], cannot be excluded as the biological father of the child [K.A.A.], because they share genetic markers. The probability of paternity is 99.999%, as compared with an untested, unrelated Caucasian man of the North American Population. [Richard] is the twin brother of [Appellant] and an alleged father of [K.A.A.]. The probability that [Appellant] is the biological father of [K.A.A.]is identical to the probability that [Richard] is the biological father. [Appellant] and [Richard] are one billion times more likely to be identical twins than to be fraternal twins.

At trial, Mother testified that K.A.A. was born approximately three and one-half weeks prior to her due date of May 1, 2004. She said that she had a sexual relationship with Appellant that began in December 2002, and ended when they had sex on August 8, 2003, one week after her last full menstrual period ended. She said that Appellant never used any kind of birth control when they had sex. She also said that she had a sexual relationship with Richard that began in 2002 and lasted until April 2003.² She first suspected that she was pregnant when she began having morning sickness around the 18th to 20th of August 2003, and made a doctor's appointment. Mother testified that she again had sexual intercourse with Richard on August 22 or 23, 2003, but that he used a condom on that occasion; she did not start her period which should have begun on August 24 or 25, 2003; she went to the doctor on August 26, 2003, at which time a urine test confirmed her pregnancy; and that type of urine test requires that the person be pregnant at least two weeks before it will provide a positive result.

Appellant's two points on appeal are inter-related and will be considered together. In one, he contends that the trial court erred in declaring him the father of K.A.A. because the party bringing a paternity action has the burden of proof, which is by a preponderance of the evidence, and in this case that burden of proof was not met because the undisputed evidence showed that the blood tests were non-determinative between he and Richard, and that both had sexual intercourse with Mother at or around the time of conception. In the other point, Appellant contends that the trial court erred in finding that Richard was not K.A.A.'s biological father because there was a conclusive presumption of his paternity pursuant to Section 210.822,³ and there was no clear and convincing evidence to rebut that presumption as provided in Section 210.822.2.

The pertinent statutory provisions include Section 210.839.4, which provides, in part, that "[u]nless a presumption applies pursuant to [S]ection 210.822, the burden of proof on all issues shall be preponderance of the evidence." Section 210.822, states in pertinent part:

1. A man shall be presumed to be the natural father of a child if:

....

(4) An expert concludes that the blood tests show that the alleged parent is not excluded and that the probability of paternity is ninety-eight percent or higher, using a prior probability of 0.5.

2. A presumption pursuant to this section may be rebutted in an appropriate action only by clear and convincing evidence, . . . If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing the paternity of the child by another man.

As indicated earlier, blood tests in this case indicated that either Appellant or Richard was the father of K.A.A., and that the probability of that being true was equal as between the two of them. It is Appellant's position that pursuant to Section 210.822, the blood test created a conclusive presumption that Richard was the father of K.A.A. and there was no evidence to rebut that presumption.

Illinois Dept. of Public Aid, ex rel. Masinelli. v. Whitworth, 273 Ill.App.3d 156, 209 Ill.Dec. 918, 652 N.E.2d 458 (1995), was a case involving a paternity suit against two identical twin men in which the results demonstrated an equal probability that they each fathered the child in question. That case also involved a statute creating a presumption of parentage which could be rebutted by clear and convincing evidence. Id. at 460. The Illinois Appellate Court held that when blood tests of two identical twins produces an equal probability of fatherhood, there is a rebuttable presumption that one or the other is the father. Id. In such cases, the court said that the "so-called `hard' scientific blood testing could result in competing presumptions of paternity which cancel each other out, relegating the trier of fact to the `soft' evidence." Id. at 461. There, the "soft evidence" was that one twin had had sexual intercourse with the mother but the other had not. Id. at 459-60. The appellate court approved the trial court relying on nongenetic evidence to conclude that one of the twins was the father. Id. at 461.

The reasoning of Whitworth is persuasive. Otherwise, application of the statutory presumption from the...