Thomas v. Pacheco

• Decision Date: 23 November 1987
• Docket Number: No. 87-100,87-100
• Citation: Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (Ark. 1987)
• Parties: Vincent THOMAS, Appellant, v. Patti Ann PACHECO, Appellee.
• Court: Arkansas Supreme Court

Page 123

740 S.W.2d 123

293 Ark. 564

Vincent THOMAS, Appellant, v. Patti Ann PACHECO, Appellee.

No. 87-100.

Supreme Court of Arkansas.

Nov. 23, 1987.

[293 Ark. 565] Paul F. James, Little Rock, for appellant.

Michael Redden, Little Rock, for appellee.

HICKMAN, Justice.

Patti Ann Pacheco brought this case to determine the father of a child born to her on June 3, 1984. She was married at the time to Carlos Pacheco but claimed that Vincent Thomas was the father. Blood tests indicated that the husband could not be the father and that it is virtually certain (99.5%) that Thomas is the father. The county court and the trial judge found that Thomas is the father.

In this case, out of state experts performed and certified the blood tests, and when one of those experts failed to honor a subpoena, the trial judge ordered a telephone deposition of another. Under the circumstances, this procedure did not satisfy the statutory right to subpoena the expert performing the blood tests for questioning at trial. See Ark.Stat.Ann. § 34-705.2 (1985). The trial judge should not have ordered the deposition as a substitute for a face-to-face confrontation. It was also error for the trial judge to permit the husband and wife to testify that they did not have sexual intercourse during the critical time period. Such testimony, concerning the non-access of the husband in a bastardy proceeding, has long been deemed inadmissible in Arkansas. These two errors require us to reverse the judgment and remand the case for further proceedings.

THE FACTS

Patti Pacheco and her husband, Carlos Pacheco, had one child when they separated in June of 1983. They both testified to seeing each other on a regular basis but denied that they had sexual relations from the time they separated until April, 1984, when Mrs. Pacheco was seven months pregnant.

Mrs. Pacheco met Vincent Thomas in July, 1983, when both worked at a Little Rock restaurant. She testified that they began having sexual intercourse August 5, 1983. She remembers the date because two days later she left for a trip to Washington. Mrs. Pacheco testified that from that date until she resumed sexual relations with her husband, two months before the baby was born, she did not have sexual intercourse with anyone other than Thomas.

On June 3, 1984, Mrs. Pacheco gave birth to a full term baby boy. At the time, she and her husband had reconciled, and the birth certificate lists Carlos Pacheco as the father of the child. In addition, her husband's insurance company paid all the medical expenses relating to the delivery. The Pachecos have remained married.

A year after the child was born, Mrs. Pacheco brought this paternity suit against Vincent Thomas in Pulaski County. Thomas admitted that he had sexual relations with the appellee but denied paternity, claiming that the relationship did not begin until October, 1983. The county court apparently ordered all interested parties to undergo blood tests. (Part of the record was lost, and we only have an agreed upon reconstruction, approved by the court.) The tests were conducted by Roche Biomedical Laboratories. Thomas' blood was drawn at the laboratory's Little Rock location, while the blood of the child and Mr. and Mrs. Pacheco was drawn at Roche's office in San Antonio, Texas. All of the blood samples were then sent to Roche's office in Burlington, North Carolina, for analysis.

Mr. Pacheco's test established that he could not be the child's father, because he lacks the leucocyte antigen A26, which is present in the child and absent in the mother. His tests results were certified by an affidavit signed by Dr. Ronald Barwick. The test on Thomas revealed that he possesses the leucocyte antigen A26, and that he shares other common genetic markers with the child. This test indicates that it is 99.5% probable that Thomas is the father of the child. The results of his test were certified by an affidavit signed by Dr. Scott Foster. Relying on this and other evidence, the county court ruled that Thomas was the father and ordered him to pay half of the laying-in expenses as well as child support in the amount of $30 per week. Thomas appealed to the Pulaski County Circuit Court for a de novo review. The circuit court affirmed the county court's decision, and Thomas appealed to us.

THE ISSUES

(1) Testimony of the husband and wife as to non-access.

In the circuit court, Thomas made numerous objections to the Pachecos' testimony that they did not have sexual intercourse during the period of conception. Nevertheless, the trial court allowed them to testify freely on this subject. In a bastardy proceeding, the husband and wife cannot testify to the non-access of the husband. This has been a common law rule of evidence since 1770 and is known as Lord Mansfield's Rule. Arkansas adopted this rule in 1915 in Kennedy v. State, 117 Ark. 113 173 S.W. 842 (1915), and has adhered to it ever since. See Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976). The reason for prohibiting this testimony is that it defiles the married state of the parties and allows married people to declare illegitimate a child born of their marriage, a child the law presumes to be legitimate. Lord Mansfield's Rule is an old rule, but not without its critics. Indeed, Dean Wigmore, a prominent scholar in the field of evidence, is one of the foremost critics of the rule. He claims that there was never any true precedent for the rule announced by Lord Mansfield, and that the asserted reasons for the rule are artificial. He argues that there is no indecency in allowing people to testify that they were apart during a particular time period, and that if it is indecent to allow parties to bastardize their children, then the rule should not allow it by any means. Wigmore points out that under the rule, the parties may testify as to any fact leading to the conclusion of illegitimacy other than non-access. Finally, he argues that the best obtainable evidence should be used to prove every disputed fact, since the primary object of the common-law rules of evidence is to ascertain the truth concerning the facts in issue. 7 J. Wigmore, Wigmore on Evidence § 2063 (1978).

Wigmore makes a good argument. But there is more at issue than a rule of evidence. Marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate are not and should not be made easy.

Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to that marriage, is one of the strongest presumptions recognized by the law. See Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920). It can be overcome, but not easily. We have consistently held that the presumption is rebuttable only by the strongest type of conclusive evidence, such as the husband's impotence, or the non-access of the parties. See Dunn v. Davis, supra; Spratlin v. Evans, supra. It is in this regard that Lord Mansfield's Rule comes into play. The appellee's attorney in this case candidly admits that he offered the testimony of Mr. and Mrs. Pacheco to establish the non-access of the parties in an effort to overcome the presumption of legitimacy; that is precisely what Lord Mansfield's Rule will not allow. We decline to abandon this time-honored rule of evidence that favors the institution of marriage and protects the innocent children born thereof. Children should not, if at all possible, pay for the irresponsible conduct of adults. We will continue to prohibit the parties to a marriage from denying the husband's participation in a birth; proof of such non-access must come from other sources.

(2) The blood tests.

In Richardson v. Richardson, 252 Ark. 244, 478 S.W.2d 423 (1972), we approved the use of blood tests to determine paternity, and undoubtedly the tests are valuable evidence. However, in order for such tests to be admissible, the proper procedure, as set forth in Ark.Stat.Ann. §§ 34-705.1 and 34-705.2 (Supp.1985), must be followed. Section 34-705.1 provides:

Whenever it shall be relevant to the...