Opinion
No. C9-96-2456.
Filed July 15, 1997.
Appeal from the District Court, Winona County, File No. F89550946.
Charles MacLean, Winona County Attorney, Nancy L. Buytendorp, Assistant County Attorney, (for Respondents).
Eric P. Johnsrud, Pflughoeft, Pederson Johnsrud, (for Appellant).
Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Dean Korder challenges the district court's grant of summary judgment in favor of respondents State of Minnesota, County of Winona, and Stephenie Marie Sasser, adjudicating Korder to be the father of Sasser's son, M.S. We affirm.
FACTS
Sasser and Korder engaged in sexual intercourse in November 1994. On August 28, 1995, Sasser gave birth to M.S. Respondents filed a complaint against Korder, requesting an adjudication that he is M.S.'s father and a judgment that Korder is obligated to pay child support.
Sasser alleged that she did not engage in sexual intercourse with a male other than Korder during the ten-month period preceding M.S.'s birth. Sasser submitted an affidavit of Dr. Herbert Polesky, the director of a blood center accredited by the American Association of Blood Banks, stating that Korder has a 377.85 paternity index, which converts to a 99.736% likelihood that he is M.S.'s father.
Korder denied that the blood tests were accurate and alleged that "there are other prospective fathers" of M.S. Korder submitted an affidavit of Deborah Anderson, a former friend of Sasser, describing Sasser as "promiscuous." Anderson stated:
I know for a fact that during October and November of 1994, Stephanie Sasser had male friends stop over at her house late at night. This would usually occur after we had been out at bars and I would drop Stephanie off at her place. * * * I cannot say for a fact that Stephanie had sex with them, but I believe, based upon my conversations with Stephanie, that there is a ninety (90%) percent chance that Stephanie had sex with some of them.
In addition, Korder submitted a letter from a statistics professor, who challenged Polesky's description of the statistical likelihood of paternity.
The district court concluded that Korder is M.S.'s father and ordered him to pay ongoing child support. Korder appeals.
DECISION
On appeal from summary judgment, the reviewing court evaluates (1) whether any genuine issues of material fact exist and (2) whether the district court erred in applying the law. State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment may be granted only if, after viewing the evidence in the light most favorable to the nonmoving party, the moving party has clearly sustained the burden of proving that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Vacura v. Haar's Equip., Inc. , 364 N.W.2d 387, 391 (Minn. 1985).
In granting summary judgment, the district court properly relied on the blood evidence of paternity, the fact that Korder admits that he had sexual intercourse with Sasser in November 1994, and Sasser's allegation that she did not have sexual intercourse with another male during the relevant time period. See Minn. Stat. § 257.63, subd. 1 (1996) (providing that any relevant evidence may be introduced regarding paternity of child, including evidence that mother and alleged father engaged in sexual intercourse at any possible time of conception and blood tests of statistical probability of alleged father's paternity); Johnson v. Van Blaricom , 480 N.W.2d 138, 141 (Minn.App. 1992) (concluding that blood test "is only one factor to be considered," but it is "the most accurate and reliable proof of paternity").
Korder argues that the district court applied the wrong standard in finding that Korder "failed to prove by clear and convincing evidence that he is not the father of [M.S.]" We agree.
If the results of blood or genetic tests completed in a laboratory accredited by the American Association of Blood Banks indicate that likelihood of the alleged father's paternity, calculated with a prior probability of no more than .5 (50 percent), is 99 percent or greater, the alleged father is presumed to be the parent and the party opposing the establishment of the alleged father's paternity has the burden of proving by clear and convincing evidence that the alleged father is not the father of the child.
Minn. Stat. § 257.62, subd. 5(b) (1996). While the alleged father has the burden of meeting the clear and convincing standard at trial, he need not meet that standard on summary judgment. Williams v. Curtis , 501 N.W.2d 653, 656 (Minn.App. 1993), review denied (Minn. Aug. 6, 1993). We conclude, however, that application of the proper standard for summary judgment leads to the same result because there are no genuine issues of material fact regarding Korder's paternity.
In Williams , this court concluded that, notwithstanding blood tests showing a 99.21% likelihood of paternity, the alleged father's denial of intercourse during what appeared to be the likely month of conception was sufficient to overcome summary judgment. Id. This case is factually different from Williams because, in addition to the blood evidence showing there is a 99.736% likelihood that he is M.S.'s father, Korder admits that he had unprotected sex with Sasser on November 26, 1994, which is a possible time of M.S.'s conception.
Korder argues that summary judgment was improper because he submitted evidence, in the form of Anderson's affidavit, that Sasser had sexual intercourse with other men during the relevant time period. However, Anderson does not identify any man with whom Sasser allegedly had sexual intercourse or the dates on which the alleged acts occurred, and Anderson admits she was not there when the alleged acts took place. See State v. Stephon , 179 Minn. 80, 81-82, 228 N.W. 335, 336 (Minn. 1929) (rejecting alleged father's offer to prove mother had sexual intercourse with another man where offer failed to specify times, places, or circumstances of alleged acts). Anderson's affidavit, based on Sasser's prior statements about her sexual behavior, rests in speculation and innuendo concerning [the mother's] alleged lifestyle and past sexual behavior. A party cannot rely upon speculation to demonstrate the existence of a genuine fact issue.
See Johnson , 480 N.W.2d at 140. Korder has presented no specific facts to support his allegation that Sasser had sexual intercourse with other men during the conception period and, therefore, has failed to demonstrate that a genuine issue of fact exists.
Korder further argues that summary judgment was improper because there were contradictory affidavits regarding the significance of his blood test results. This court has rejected similar challenges to blood testing procedures. See, e.g. , Itasca County Soc. Servs. v. Pitzen , 488 N.W.2d 8, 10 (Minn.App. 1992) (rejecting appellant's challenge to reliability of paternity index), review denied (Minn. Oct. 20, 1992); Johnson , 480 N.W.2d at 141 (holding that district court did not err in granting summary judgment where alleged father challenged blood testing procedures).
The district court did not err in granting summary judgment in favor of respondents.