State ex rel. Kapusta v. Weir
| Decision Date | 29 November 1960 |
| Parties | STATE ex rel. Pauline KAPUSTA, Respondent, v. James Harold WEIR, Appellant. |
| Court | Wisconsin Supreme Court |
Arthur DeBardeleben, Park Falls, William E. Chase, Park Falls, of counsel, for appellant.
John W. Reynolds, Atty. Gen., William A. Platz, John H. Bowers, Asst. Attys. Gen., for respondent.
The defendant contends that the evidence presented by the plaintiff was insufficient to sustain the findings of the trial court.
The complainant, Pauline Kapusta, unmarried, was delivered of her second of three children born out of wedlock on June 29, 1957. Pauline Kapusta made complaint on July 29, 1959, charging the defendant, James Harold Weir with the paternity of the second child, Rosemarie. The complainant was twenty-nine years of age and the defendant, also unmarried, was sixty years of age.
The defendant first became acquainted with the complainant shortly before he hired her as a bartender at his Mellen, Wisconsin tavern in June, 1956. She began working for the defendant during the first week of June, 1956. The complainant testified that she first had intercourse with the defendant in August, 1956, and that following the first intercourse in August, 1956, they had intercourse through the months of October, November, December, 1956, and January, 1957. The child was born on June 29, 1957.
The complainant testified that conception occurred approximately in October, 1956. The acts of intercourse occurred at Weir's cabin at Lake Gallilee, and during the winter in the barroom of Weir's tavern. The complainant also testified that she had sexual intercourse with one Tom Doyle on Memorial Day of 1956, but did not have intercourse with any other man than the defendant from August, 1956, through January, 1957.
The defendant Weir admitted going out with the complainant between August, 1956, and the spring of 1957, and that they were alone at his cabin on two occasions. That on one of these occasions the complainant stood outside while he checked the windows, and that on another occasion in October, 1956, they went out for a few drinks and took a lunch to the cabin. They stayed at the cabin a couple of hours, but just sat around, had a couple of drinks and watched television.
The defendant denied having had any sexual relations or physical contact with, or any romantic interest in the complainant, and testified that his interest in the complainant was only as a bartender. He testified that he hired the complainant because of her previous bartending experience and because he thought she would be a good mixer with his men trade.
There is evidence from which the trial court could have inferred from the associations and opportunities for sexual relations between Tom Doyle and the complainant during the period when the child necessarily was conceived that Tom Doyle could have been the father. However, there is no evidence that the complainant had relations with Doyle during this period, if the direct testimony on the part of the complainant that she did not have any relations with any one other than the defendant during the critical period is believed. The trial court did believe the complaining witness.
The issue before this court is whether the complainant met the required burden of proof by clear and satisfactory preponderance of the evidence as required under sec. 52.355, Stats.1959.
The trial judge was unsure whether the complainant's burden was to prove paternity beyond a reasonable doubt or by clear and satisfactory evidence. He did not determine which was the correct burden of proof, but stated that he was satisfied defendant was the father of complainant's child, beyond a reasonable doubt.
Sec. 52.355, Stats.1957, which changed the burden of proof from beyond a reasonable doubt to clear and satisfactory evidence, was amended by ch. 298, sec. 1, Laws of 1959, and published August 15, 1959. This case was tried in ...
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