Callison v. Callison

OPALA, Justice,

concurring in part and dissenting in part:

Our review on certiorari addresses a disputed paternity suit. The Court of Appeals left undisturbed the trial court’s decree against the putative father (defendant), and this court’s opinion affirms that decision upon different grounds. It holds that (1) parentage, custody and support of an out-of-wedlock child may be litigated dehors the purview of a public paternity proceeding, 10 O.S.1981 §§ 71 et seq.,¹ in a private action brought under the provisions of 12 O.S.1981 § 1277.2;² (2) the three-year statute of limitations, 10 O.S.1981 § 83,³ determined to govern all paternity contests between unmarried parents, both public and private, violates the Equal Protection Clause of the XIVth Amendment to the Federal Constitution; and (3) there was no error in admitting the H.L.A.⁴ test results. I am not entirely in accord with the court’s pronouncement. I would reverse the filiation decree on these grounds: (1) the instant § 1277.2 suit was neither properly commenced nor prosecuted; (2) while the § 83 limitation period was correctly found in the trial court to have been tolled by support payments made within 3 years last preceding the institution of the contest, the results of the H.L.A. test should not have been admitted in evidence without an adequate foundation being first laid by expert testimony vouching the scientific reliability of the technique and the correctness of its application to the test performed in this case.

I.

CLAIMED ERROR IN ALLOWING THE PATERNITY SUIT TO BE COMMENCED AND PROSECUTED WITHOUT A WRITTEN PETITION

This suit was begun by the mother as a divorce action based on her alleged common-law union with the defendant. When her proof of marriage failed, she orally withdrew her prayer for divorce and elected to proceed for determination of the child’s paternity, invoking the provisions of § 1277.2. The defendant objected — on due process grounds — to the mother’s oral change of her claim for relief. He sought an order requiring her to file a paternity petition by which he would “be apprised of the facts upon which this case is based”.⁵ Because the court overruled the objection, allowing the mother to proceed under § 1277.2 without a written petition for paternity adjudication, the defendant now assigns this ruling as fundamentally erroneous. I agree.

When the mother’s claim for divorce failed for lack of a demonstrated marriage, her case came to an end. There was no longer any issue to be tried and nothing in evidence to which the pleadings could have been made to conform by some midtrial amendment.⁶ Total failure of proof differs from variance. While the latter may be cured by an amendment that makes pleadings conformable to proof,⁷ the former cannot.⁸ Pleadings are required to be in writing. 12 O.S.1981 § 261.⁹ Although under the provisions of § 1277.2 the case could proceed as a private paternity suit, the court, upon receiving the mother’s announcement that she elected to press a filiation claim, should have required her to file a petition¹⁰ that conformed to our Code of Civil Procedure.¹¹

The defendant suffered serious prejudice from an absence of pleadings. He was deprived of the opportunity formally to (a) challenge the mother’s claim either as untimely or otherwise legally insufficient; (b) to file defensive pleadings; and (c) to demand a jury in accordance with the provisions of 10 O.S.1981 § 76.¹² Unless waived, a trial by jury must be accorded in every § 1277.2 filiation proceeding. This is so because such right clearly is conferred by law in a public paternity proceeding under 10 O.S.1981 §§ 71 et seq. A disparate mode of trial for private and public paternity defendants would be violative of the Equal Protection Clause. The state cannot constitutionally dichotomize unwed putative fathers for a diverse treatment at trial. In short, the § 1277.2 filiation defendants cannot be validly excluded from the benefit of a jury trial.¹³

II

THE THREE-YEAR LIMITATION PERIOD IN 10 O.S.1981 § 83 WAS TOLLED BY SUPPORT PAYMENTS

I agree with the court that private and public paternity suits must be governed by the same limitation period. By the terms of 10 O.S.1981 § 83, a filiation proceeding may be filed “... within three (3) years from the time that the person charged with being the child’s father last contributed to ... [its] support ...” According to the undisputed proof, the defendant in this case did, on February 15, 1979, pay $100.00 for the support of the child whose status is in contest.¹⁴ The case was brought against him October 5, 1979.

Because the record clearly reflects that the § 1277.2 suit was timely brought, § 83 is needlessly condemned here as offending the Equal Protection Clause. In advance of strict necessity the judiciary will not pass upon the constitutionality of statutory law.¹⁵

Ill

THE H.L.A. TEST RESULTS SHOULD NOT HAVE BEEN ADMITTED WITHOUT A PROPER FOUNDATION

While I agree with the court that our statutory law does not bar the reception of H.L.A. test results, I am of the view that it was error to admit this evidence without any foundation in expert testimony vouching both the reliability of the testing technique and the correctness of its application to the test performed in this case.¹⁶ Because the defendant clearly refused to stipulate that the test was admissible¹⁷ and did demand that its “medical worthiness” be “verified”,¹⁸ the test results were improperly received without the requisite predicate being laid.¹⁹

No foundational proof was offered by the mother’s counsel. There is absolutely nothing before us to indicate what scientific facts, if any, the judge did notice before admitting the result of the test, or the source whence he derived his technical knowledge.²⁰ The record is barren of any evidence properly (1) identifying the exhibit that sets forth the test results and (2) explaining the accuracy of the technique that was used in reaching these results.²¹

I would reverse the private paternity decree under review for further proceedings not inconsistent with these views.

I am authorized to state that SIMMS, V.C.J., concurs in my views.

1 . Before the enactment of 10 O.S.1981 § 1.1 in 1974, the filiation remedy created by 10 O.S.1971 §§ 71 et seq. was called a “bastardy” proceeding, the same name as that given to it in the early English prototype known as the Poor Law Act. 18 Eliz. c. 3 [1576]; 1 Blackstone, Commentaries, ch. 16, 458; IV Holdsworth, A History of English Law, 157. 1 Schatkin, Disputed Paternity Proceedings (4th.Ed.1983), § 10.5, pgs. 1-12-1-14. Until the passage of 12 O.S.1981 § 1277.2 in 1976, first noted by us in State ex rel. Bailey v. Powers, Okl., 566 P.2d 454, 456 [1977], the father’s statutory duty to support his out-of-wedlock offspring was enforceable only in bastardy. Anderson v. Fry, Okl., 288 P.2d 1111, 1112 [1955]; cf. State ex rel. Keithline v. Jennings, Okl., 463 P.2d 690, 692 [1970], Oklahoma follows the majority of Anglo-American jurisdictions in holding that the father’s liability to support his out-of-wedlock child must be rested on statutory law. Annot.: Nonstatutory duty of father to support illegitimate child, 30 A.L.R. 1069-1073; See Moncrief v. Ely, 19 Wend. (N.Y.) 403, 405 [1838].

2 . The provisions of 12 O.S.1981 § 1277.2 are:

"In an action for a divorce, legal separation or annulment where there are children born to the parties, the court may determine if the parties to the action are the parents of the children, although the court finds the parties are not married; and if the parties to the action are the parents of the children, the court may determine which party should have custody of said children, and it may award child support to the parent to whom it awards custody, and make an appropriate order for payment of costs and attorney’s fees." [emphasis added]

3 . The provisions of 10 O.S.1981 § 83 are:

"The father of a child who is born out of wedlock is liable for the support and education of the child to the same extent as the father of a child born in wedlock. An action to enforce this obligation to support and educate the child may be brought by the mother or guardian of the child, by the public authority chargeable with the support of the child, or by the child. An action to determine paternity and to enforce this obligation may be brought within three (3) years after the birth of the child or within three (3) years from the time that the person charged with being the child’s father last contributed to his support or education. If paternity has been judicially determined or if the father has acknowledged in writing that he is the father of the child, an action to enforce this obligation may be brought any time before the child reaches majority, but liability may be imposed for only the preceding three (3) years. The father’s obligation to support is terminated if the child is adopted. The court may order the payments made to the mother or guardian of the child, or to some other person, corporation or agency to administer under the supervision of the court.” [emphasis added].

4 . H.L.A. is an accepted acronym for a human leukocyte antigen inclusionary-type bio-chemical blood tissue test of the probability of paternity.

5 . Transcript of Proceedings (TR) 95.

6 . Winemiller v. Matthews, 125 Okl. 219, 257 P. 291, 295 [1927].

7 . The terms of 12 O.S.1981 § 317 provide in pertinent part:

"The court, may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, ... [to] conform the pleading or proceeding to the facts proved ..." [emphasis added]

8 . Wagoner v. Saunier, Okl., 627 P.2d 428, 431 [1981]. The provisions of 12 O.S.1981 § 313, which deal explicitly with failure of proof, are: "When, however, the allegation of the claim or defense, to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections [Sections 311, 312 of this title], but a failure of proof." [emphasis added]

9 . The provisions of 12 O.S.1981 § 261 are:

"The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses." [emphasis added]

10 . The pertinent provisions of 12 O.S.1981 § 264 are:

“The petition must contain * * * Second. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetion. * * * [emphasis added]

11 . The terms of 12 O.S.1981 § 317 proivide in pertinent part:

"The court, may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, ... and when any proceeding fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment." [emphasis added]

12 . The provisions of 10 O.S.1981 § 76 are:

"Upon the defendant being brought before the court, if he deny the truth of the complaint, the issue to be tried shall be 'guilty' or 'not guilty’, and shall be tried summarily before the court, unless the defendant demand a trial by jury." [emphasis added]

13 . Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 [1966]; Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 [1972]; Wilson v. Foster, Okl., 595 P.2d 1329, 1332-1333 [1979].

14 . The payment was made by check No. 780, drawn on the Lakeside Bank of Salina, Oklahoma. The check was marked "MEMO support for Brook (the child’s name).” Plaintiff s Exhibit 2, TR-118.

15 . When, as here, the relief to be dispensed clearly is affordable upon alternative grounds, consideration of constitutional infirmities is deemed precluded by a self-erected “prudential bar” of restraint. I.N.S. v. Chadha, - U.S. -, -, 103 S.Ct. 2764, 2766, 77 L.Ed.2d 317, 335 [1983]. "The Court has frequently called attention to the ‘great gravity and delicacy’ of its function in passing upon the validity of an act of Congress ... The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ Liverpool, N.Y. & P.S.S. Co. v. Emigration Commissioners, supra [113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899].” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandéis, J., concurring)[emphasis added]. See also, Schwartz v. Diehl, Okl., 568 P.2d 280, 283 [1977] and Dablemont v. State, Department of Public Safety, Okl., 543 P.2d 563, 564 [1975].

16 . If the court desired to take judicial knowledge, from the available literature, of the scientific community's general acceptance of the H.L.A. test, it should have given the defendant notice of its intention so to do and afforded him the opportunity to meet this issue. 12 O.S.1981 § 2203(B); United States v. Lopez, 328 F.Supp. 1077, 1085 (U.S.D.C.E.D.N.Y.1971). The same requirement of notice is applicable to proceedings before administrative agencies. Notice of scientific facts "within their specialized knowledge” may be taken by administrative tribunals in individual proceedings, but parties must be notified "of the material noticed ... and be afforded an opportunity to contest the material so noticed ...’’ 75 O.S.1981 § 310(4). The Evidence Code, 12 O.S.1981 § 2203(B), is in accord with this approach. Davis, Administrative Law Text [1973], 313. See Morgan, State and Federal Evidence [Fifth Ed. by Weinstein], 8 [1976].

17 . TR-90.

18 . TR-121-122.

19 . Yeager v. Farmer, Okl., 549 P.2d 345 (1976); Harris v. State, Okl.Cr., 383 P.2d 39 (1963); Looper v. State, Okl.Cr., 381 P.2d 1018 (1963); Raley v. State, Okl.Cr., 479 P.2d 609 (1971); Sartin v. State, Okl.Cr., 610 P.2d 262 (1980); see Frye v. United States, 293 F. 1013 (U.S.C.A.D.C.1923).

20 . United States v. Lopez, supra note 16, at 1085, strongly counsels the judge to include in the record the scientific material noticed or make explicit reference to such material in his ruling.

21 . One commentator suggests that if counsel desire to challenge the H.L.A. result which shows a plausibility or probability of actual paternity, he should be allowed to cross-examine as to the accuracy of the laboratory technique used and as to the competence of the serologist "to calculate the mathematical plausibility of paternity”. 1 Schatkin, Disputed Paternity Proceedings (4th Ed.Rev.1983), Suppl., pg. 8-29—8-30.