State ex rel. Schlehlein v. Duris, 204

• Citation: 194 N.W.2d 613,54 Wis.2d 34
• Decision Date: 29 February 1972
• Docket Number: No. 204,204
• Parties: STATE ex rel. Nancy J. SCHLEHLEIN, Respondent, v. Sherman DURIS, Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 613

194 N.W.2d 613

54 Wis.2d 34

STATE ex rel. Nancy J. SCHLEHLEIN, Respondent, v. Sherman DURIS, Appellant.

No. 204.

Supreme Court of Wisconsin.

Feb. 29, 1972.

This is a paternity proceeding wherein the trial court (without a jury) found that the defendant Sherman Duris was the father of a child born out of wedlock on April 7, 1969, to the complainant Nancy J. Schlehlein. The court ordered the defendant to pay the lying-in expenses and monthly support money.

Judgment was entered accordingly and the defendant Duris appeals.

The facts will be set forth in the opinion.

Charlton, Yanisch, Greco & Roffa, Earl A. Charlton and Carlton Roffa, Milwaukee, of counsel, for appellant.

Robert W. Warren, Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, James W. Conway, Asst. Corp. Counsel, Milwaukee, for respondent.

BEILFUSS, Justice.

The defendant-appellant, Duris, has raised three questions on this appeal:

(1) Was it error to refuse to admit testimony as to the resemblance between the child and a man not a party to the action?

(2) Was it error to refuse to hear an offer of proof on the resemblance issue?

(3) Was the evidence sufficient to sustain a finding that defendant was the father of the child?

The complainant, Nancy J. Schlehlein, gave birth to a baby girl on April 7, 1969. She was unmarried at all times during the relevant course of events in this case. The complaint charged that the father of the child was Sherman Duris, who has been married to another woman during all of the relevant events in this case. He has three children by his wife. He resides in the lower of two flats at 302 East Clarence street, Milwaukee, Wisconsin.

Nancy Schlehlein testified that in April, 1968, she moved into the upstairs flat at 302 East Clarence street at the suggestion of the defendant, and lived there between June 10, 1968, and August 9, 1968. The latter two dates are the outer limits of the possible conceptive period.

Nancy Schlehlein testified that she had sexual intercourse with Duris some thirty times during the conceptive period. The acts of intercourse took place in her flat, the basement, the attic, in his car, and once in a tent. She further testified that she had not gone out with any other man during the conceptive period, nor did she have sexual relations with any other man than Duris during that time.

Nancy Schlehlein also stated that she called Duris twelve hours after the baby was born and that he said he 'was sorry that he disappointed me because I wanted a boy.'

In May, 1969, Duris came to Mrs. Ruth Koprek's house where Nancy Schlehlein and her baby were visiting Mrs. Koprek and her family. Mrs. Koprek testified that Duris stated at some point while he was there, 'now, we don't want to have a baby this way again.' Duris made this statement to Nancy Schlehlein in front of the Koprek family.

Duris testified that he never had sexual relations with Nancy Schlehlein. He also testified that he never went out alone with her socially during the conceptive period. He also denied knowing Ruth Koprek.

Marilyn Tal, the defendant's sister, testified that in August, 1969, Nancy Schlehlein told her and the defendant that they would have to prove that Duris was not the father even though Nancy Schlehlein knew it was not the truth.

Elizabeth Olk, a waitress at Melba's Truck Stop, testified that on February 15, 1970, one Nilo Torres said to the baby, 'Come to Daddy.' This alleged incident took place at Melba's. Nancy Schlehlein did not make any response to Torres' comment.

Mrs. Olk then testified that on the occasion in February of 1970 she did observe the baby and Torres. The court then sustained an objection to any further testimony by Mrs. Olk on the question of resemblance upon the ground that it was immaterial.

In an early case, Hanawalt v. State (1885), 64 Wis. 84, 24 N.W. 489, this court considered the question of resemblance in a paternity proceeding. The issue presented itself in a somewhat different manner. There the trial court erroneously permitted the state to exhibit the child to the jury in an attempt to show a resemblance between the child and the defendant. Here it was only an attempt to offer the opinion of Mrs. Olk from her February observation of the child and Torres. The child was not exhibited nor was Torres present, nor was he a party to the action.

In Hanawalt, at page 87, 24 N.W. at page 490, the court stated:

'In any case this kind of evidence is inherently unsatisfactory, as it is a matter of general knowledge that different persons, with equal opportunities of observation, will arrive at different conclusions, even in the case of mature persons, when a family likeness will be fully developed if there be any. And when applied to the immature child its worthlessness as evidence to establish the fact of parentage is greatly enhanced, and is of too vague, uncertain, and fanciful a nature to be submitted to the consideration of a jury.

'The learned author of 'Beck's Medical Jurisprudence' says: 'It has been suggested that the resemblance of a child to the supposed father might aid in deciding doubtful cases. This, however, is a very uncertain source of reliance. We daily observe the most striking differences in physical traits between parent and child, while individuals born in different parts of the globe have been mistaken for each other. And even as to malformations, although some remarkable resemblances in this respect have been noticed between father and child, yet we should act unwisely in relying too much on them. There is, however, a circumstance connected with this which, when present, should certainly defeat the presumption that the husband or paramour is the father of the child, and that is when the appearance of the child evidently proves that its father must have been of a different race from the husband or paramour, as when a mulatto is born of a white woman whose husband is also white, or of a black woman whose husband is a negro.' In a case where the question of race is concerned, the child may be exhibited for the purpose of showing that it is or is not of the race of its alleged father. Warlick v. White, 76 N.C. 175. In a case like the one at bar, we think no exhibition should be made.'

In oral argument in this court defendant's counsel stated that the testimony of Mrs. Olk would have shown that the child bore a resemblance to Nilo Torres, a Puerto Rican with a dark complexion. His argument is that the testimony was material under the exception in Hanawalt, supra, which would allow the defendant to show the child to the jury to demonstrate a difference in race...