State ex rel. Lyons v. De Valk, 230

• Citation: 177 N.W.2d 106,47 Wis.2d 200
• Decision Date: 02 June 1970
• Docket Number: No. 230,230
• Parties: STATE of rel. Evelyn LYONS, Appellant, v. Willard DeVALK, Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 106

177 N.W.2d 106

47 Wis.2d 200

STATE of rel. Evelyn LYONS, Appellant, v. Willard DeVALK, Respondent.

No. 230.

Supreme Court of Wisconsin.

June 2, 1970.

On August 7, 1967, this paternity action was commenced by the then pregnant complainant by signing a complaint naming Willard De Valk, defendant-respondent herein, father of the child that was due to be born in September of 1967.

On August 8, 1967, De Valk voluntarily appeared for arraignment before branch 9 of the Milwaukee county court. At that time he requested a preliminary hearing and that blood tests be ordered for the complainant, defendant, and as yet unborn child, ¹ pursuant to sec. 52.36, Stats. The court scheduled the blood tests for February 5, 1968, and the preliminary hearing was set for March 14, 1968.

The child, a girl, was born on September 19, 1967. Milwaukee county paid the lying-in expenses including the hospital and doctor bill and care for the child, totaling approximately $800.

On November 7, 1967, Evelyn Lyons, without notice to De Valk, terminated her parental rights in the child and custody and guardianship of the child were transferred to the Milwaukee county department of public welfare. The child was placed in an adoptive home on November 25, 1967, and the adoption was completed on October 8, 1968.

On February 5, 1968, De Valk appeared at the Clinical Pathologists Laboratory for the scheduled blood tests. At this time he did not know of the child's placement for adoption. Neither the complainant nor the child appeared for the blood test.

Thereafter, on May 9, 1968 (the March 14 preliminary examination date had been continued), the preliminary hearing was held before Judge John A. Fiorenza. De Valk, by his attorney, entered a special appearance for the purpose of attacking the jurisdiction of the court under sec. 52.21, Stats., and moved to dismiss the action on the ground that the termination of parental rights stripped the court of jurisdiction in the paternity matter. Briefs were ordered on that point. The complainant, although under subpoena to appear, did not do so. An assistant corporation counsel for Milwaukee asked that a body attachment be issued for her on the ground that she was a witness for the state and apparently had 'no interest in this matter.' At this hearing, De Valk pointed out that neither the complainant nor the child had kept the appointment for the blood test on February 5, 1968.

More than a year after this hearing, in a written decision dated May 12, 1969, Judge Fiorenza denied De Valk's motion to dismiss on the lack-of-jurisdiction issue. Judge Fiorenza also ordered that a new date for blood tests be scheduled and that the complainant, together with the child, present themselves and allow the blood tests to be taken or the court would entertain a motion for dismissal. De Valk's attorney contacted the court's clerk and asked that a new date for the blood tests be scheduled and that notice be sent to all of the parties.

On May 21, 1969, the corporation counsel for Milwaukee informed the court and defendant's counsel that neither the complainant nor the child would appear for the newly ordered blood tests because of the difficulty created by the adoption.

On June 24, 1969, De Valk submitted an affidavit and moved for dismissal of the action. On June 30, 1969, Judge Fiorenza granted the motion fiding that the failure of the complainant to appear for the scheduled blood tests with the child was a denial of due process of law to the defendant in that he was thus precluded from using the results of the blood tests as defense under the provisions of sec. 52.36(3), Stats.

On behalf of the complainant, the corporation counsel for Milwaukee appeals.

Robert W. Warren, Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, Gerald G. Pagel, Asst. Corp. Counsel, Milwaukee, for appellant.

Joseph H. Hallows, Milwaukee, for respondent.

WILKIE, Justice.

The only issue raised by this appeal is whether in a paternity action where the defendant has made a timely request for blood tests of the parties and the child, and the mother has terminated her parental rights to the child without notice to the defendant, the failure of the complainant to appear with the child for the blood tests was a denial of due process of law to the defendant, and thus grounds for dismissal of the action on the merits.

Paternity actions are special civil proceedings and are purely statutory in origin. ² Thus they must be carried on in the manner fixed by the legislature. ³ The statute governing blood tests in paternity actions is sec. 52.36, Stats. That statute provides, in part:

'52.36 Evidence; blood tests. (1) If it is relevant to the prosecution or defense in a paternity proceeding, * * * the trial court, if requested, shall order that the complainant, her child and the defendant * * * submit to one or more blood tests as provided in sub. (2).

'(2) When the court determines that a blood test is relevant to any proceeding under sub. (1) * * * the court shall, upon request of any party, order that such test be made * * *. All arrangements for such tests shall be made by the party requesting the same and any failure on the part of said party to have said tests performed prior to the date of trial shall be deemed a waiver of said party's right to such tests unless good cause is shown to the contrary. * * *

'(3) Whenever the results of said tests exclude the defendant as the father of the child the same shall be conclusive evidence of such fact and the court shall dismiss said action * * *. Such tests shall be receivable in evidence only in cases where definite exclusion of any person is established. If any party refuses to submit to such test such fact shall be disclosed upon trial.' (Emphasis added.)

The defendant's right to blood tests which might conclusively prove that he was not the father of the child is recognized by both sides and the trial court as a substantial right. ⁴ A blood test can provide a conclusive defense. The defendant claims that this right is so important that when he is precluded from exercising it by the complainant's failure to appear for the court ordered blood tests, his constitutional right to due process of law is violated. The remedy for this according to defendant and the trial court is dismissal of the paternity action.

The appellant, on the other hand, argues that the drastic result of dismissal is not required nor even contemplated by the governing statutes. According to appellant, the remedy available to defendant here is that provided by the last sentence of the above-quoted statute: Complainant's refusal to submit to the blood test can be commented on at trial. This argument is untenable. The right to comment at trial on the other party's failure to appear for a blood test hardly offers the defendant the same protection a favorable result in a blood test affords. Moreover, the last sentence of this statute speaks of a party refusing to submit to a blood test. In this case it is not so clear that complainant was still a party within the meaning of this phrase at the time she failed to appear for the blood test....