T. A. L. S. v. R. D. B., 36856

• Decision Date: 20 July 1976
• Docket Number: No. 36856,36856
• Citation: 539 S.W.2d 737
• Parties: T.A.L.S. and D.R.S., a minor, by her next friend, T.A.L.S., Plaintiffs-Respondents, v. R.D.B., Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 737

539 S.W.2d 737

T.A.L.S. and D.R.S., a minor, by her next friend, T.A.L.S., Plaintiffs-Respondents, v. R.D.B., Defendant-Appellant.

No. 36856.

Missouri Court of Appeals, St. Louis District, Division One.

July 20, 1976.

John D. French, Ralph Levy, III, St. Ann, for defendant-appellant.

George E. Sullivan, Joel B. Eisenstein, O'Fallon, for plaintiffs-respondents.

WEIER, Presiding Judge.

Defendant appeals from a judgment of the trial court determining that he is the father of plaintiff's child and ordering him to pay child support in the amount of $25.00 per week. In seeking a reversal, he contends that the judgment is against the weight of the evidence, that there is no positive evidence of sexual intimacy during the period of conception, and that 'the trial court did not require and the respondent did not produce any evidence corroborating appellant's paternity and as a matter of law it must be corroborated where her testimony is contradictory and lacks credibility as it is in this case'. We affirm the decision of the trial court.

The scope of review to be applied in this court-tried civil case is outlined in Rule 73.01(3). In Murphy v. Carron, 536 S.W.2d 30, 32(2) (Mo. banc 1976), this rule was construed to mean that 'the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong.' Both of defendant's points are based on the sufficiency and credibility of the evidence presented. We, therefore, have carefully reviewed the transcript and weighed the evidence with due consideration of the trial court's ability to view the witnesses and determine the credibility of their testimony.

Three witnesses appeared at the trial but only the parties themselves testified concerning their relationship. The court could have found and inferred from the evidence that plaintiff met defendant in January of 1973; that she and defendant started going steady in April; that they had their first sexual intercourse at her apartment on May 14, 1973; that she had no sexual relations with any other person during the time of conception; and that their relationship and sexual relations continued until October, 1973, although in September, when she thought she was pregnant, he wanted to break off the relationship. She clearly stated that defendant was the father of her child and that she had no intercourse with any other man other than defendant until December 25, 1973. Her daughter was born on May 23, 1974.

Plaintiff brought her diary to the witness stand so that she could refresh her memory. The entries had been made at or near the time of occurrence. She stated that she had always kept and still keeps the diary.

Defendant's testimony was substantially the same as that of plaintiff concerning their initial courtship. He testified that they had their first intercourse on May 14, 1973; that he saw her almost every day prior to his vacation in late June, 1973; that they had sexual intercourse sometimes when they met; and that although they had had no intercourse subsequent to his return from vacation in July, they continued to date each other after his vacation at a reduced level until they broke up on October 24, 1973.

Defendant's first point concerns the sufficiency of plaintiff's evidence and the absence of positive evidence of sexual intimacy during the period of conception. We have carefully considered the record and find plaintiff has sustained her burden of proof on the issue of sexual intimacy. L.D. v. J.D., 481 S.W.2d 17(1, 2) (Mo.App.1972). The court will take judicial notice of a human gestation period of 10 lunar months or 280 days unless evidence to the contrary is presented. S.J.B. v. S.F.S., 504 S.W.2d 233, 235(6, 7) (Mo.App.1973). This would set the date of conception at the end of August, 1973, which is consistent with plaintiff's belief that she was pregnant on September 22, 1973, and her indication on the hospital records that her last normal period prior to the pregnancy was on ...