Opinion
No. FA03-0069573S
October 28, 2004
MEMORANDUM OF DECISION
This matter first came before the court on a Paternity Petition issued by the Attorney General's Office on behalf of Jennifer Ewing on January 16, 2003. After several hearings, the case ended in a mistrial. The matter was assigned to the undersigned for a new trial which commenced on October 24, 2003, and was continued to March 23, 2004, for additional testimony. The hearings were concluded on March 23, 2004. Parties filed briefs by June 21, 2004.
Findings of Fact
The petitioner, Jennifer Ewing, had been living with her boyfriend, Scott Benoit, with whom she previously had another child. They were living together in a house belonging to and occupied by Mr. Benoit's parents. In the beginning of January 2002, petitioner was asked to leave the house by Mr. Benoit's parents. Mr. Benoit brought her to a friend's house, the respondent, Michael Chase, and she lived there for approximately two to four weeks in February of 2002. (March 2003 Transcript, p. 9.) During the time the parties resided under the same roof, the petitioner claims to have had sexual relations with the respondent several times and became pregnant by the respondent. She claims the respondent is the father of the child (Sean) who was born on September 23, 2002. Petitioner became aware of the pregnancy by a home test while residing with the respondent and this was corroborated by her doctor who found her conception time to be approximately between February 5, 2002 and February 15, 2002. The child, Sean, was born six weeks prematurely. The respondent was aware of his rights as the putative father and chose to have a court-appointed attorney, a trial to the court, and refused to have DNA testing. Respondent denies he is the father of the child and claims he never had sexual relations with the petitioner. Mr. Benoit, who was petitioner's boyfriend, maintained a sexual relationship with petitioner until the early part of January 2002. This relationship was resumed after petitioner left respondent's residence in March 2002. This relationship lasted until June of 2003. There were no DNA tests performed on Mr. Benoit.
Discussion
The primary issues in this case comes down to whether the petitioner and respondent had sexual relations during the time that petitioner resided at respondent's residence, and whether the petitioner's sexual contacts with other men were made during the time window of conception.
The respondent's Exhibit 1 is a letter dated June 18, 2003, from the Women's Health Center of Putnam where plaintiff was treated for her pregnancy. The letter provides in pertinent part that "the ultrasound was done (on Ms. Ewing) on March 25, 2002, and found an eight week and one day gestation which is exact by plus or minus five days for an EDC of November 20, 2002. A follow-up ultrasound was done May 31, 2002, and confirmed the due date of November 20, 2002. This would make her date of conception approximately February 5-15, 2002." (Emphasis added.) This was the respondent's exhibit who now argues that there was a discrepancy between the gestation shown on the first ultrasound and the approximate date of conception. However, he never asked the doctor's office to explain this "discrepancy." In fact, the letter went on to state the follow-up ultrasound confirmed the due date of November 20, 2002, which would make the conception date approximately February 5 to 15, 2002. If respondent questioned the date of conception, he had the opportunity to have it clarified because the letter, respondent's Exhibit 1, a copy of which was sent to the respondent's attorney, closed with, "Please let me know if you have any further questions." In the alternative, the respondent could have subpoenaed the author of the letter to testify in this case to explain the terms or conclusions of the letter, but he chose not to call her as a witness. This court is not aware of the medical basis used by the doctor or nurse in reaching the conclusion of the conception date, but has to rely on their professional opinion as stated in the respondent's Exhibit 1. Additionally, this court may take judicial notice of adjudicative facts such as the normal period of human gestation being nine months because this facts is "one not subject to reasonable dispute in that it is . . . within the knowledge of people generally in the ordinary course of human experience . . ." Connecticut Code of Evidence § 2-1(c)(1). Accordingly, this court finds the conception date to be approximately between February 5 and February 15, 2002 which is consistent with an estimated due date of November 20, 2002. This is also consistent, plus or minus five days, with the estimated gestation period formulas proposed in Melanson v. Rogers, 38 Conn.Sup. 484, 490-91 (Appellate Session 1973). See also, Waskiewicz v. Black, 13 FMD 302, 306 (2000); also note that the court in Crawford v. Hasberry, 21 Ohio Op.2d 350, 186 N.E.2nd 522 (Ohio Juv.Ct. 1962), stated "[t]he usual period of gestation which elapses between the conception and birth of a child is approximately two hundred and eighty days. This period may vary somewhat depending on the condition of the mother. It is not necessary to prove the exact date on which the complainant became pregnant, but the act of intercourse must be shown to have occurred on such a date as will satisfy you that the child was the result of such intercourse." (Emphasis in original.) Id., 525.
Although the respondent claimed he never had sexual intercourse with the petitioner, his testimony confirms that he had wanted to enter into such a relationship with the petitioner. He tries to explain his reason in questioning the petitioner during her stay with him, about birth control measures by stating that this is a conversation he has with any woman. (March 23, 2004 Transcript, p. 33.) But he denies he had any sexual relations with the petitioner. The petitioner claims she had sexual relations with respondent three or four times during her stay at his home during the month of February 2002. This was corroborated by the testimony of the child's guardian ad litem, Norma Arel, who had previously interviewed the respondent who stated to her that he had sexual relations with the petitioner a few times. (March 23, 2004 Transcript, p. 26.)
The testimony of Ms. Cheryl Byrnes, who was called by the respondent, lacked credibility. She testified that a nurse told her the petitioner was suicidal, that she spoke to petitioner previously who stated she was having a sexual relationship with several men when she became pregnant, but Ms. Byrnes could not recall all their names other then the respondent and Mr. Benoit. When she realized, on further questioning, that the nurse had acted improperly in telling her about petitioner's suicidal attempt, she blithely explained it was because she and the nurse were old friends. Her testimony did not add any new evidence about Mr. Benoit since he admitted he and petitioner had a relationship, but the relationship had ceased during her stay with respondent. But if she were to be believed, it would also implicate the respondent, who has denied ever having a sexual relationship with petitioner.
The respondent claims the petitioner was wearing maternity clothes when she arrived at his home in February 2002. (October 24, 2003 Transcript, p. 54.) The respondent, however, claims that this did not raise any suspicions about the petitioner being pregnant yet he now claims that when the petitioner came into the relationship with him, she was pregnant. (March 23, 2004 Transcript, p. 33.) He then goes on to say, when petitioner told him she was pregnant by him, he kicked her out as being a fraud. (October 24, 2003 Transcript, p. 75 and March 23, 2004 Transcript pp. 32-33.)
All parties agree that petitioner came to live with respondent in February 2002. The petitioner claims the time period to be from two to four weeks in February. The respondent claims the petitioner lived with him for approximately two weeks. However, the respondent further claims that after the petitioner lived there for an unspecified time during which he saw her take birth control pills in front of him all week, and then two weeks later he comes home from work and she tells him she is pregnant. He claims she deceived him. (March 23, 2004 Transcript, pp. 32-33.) So it was at least three weeks that she lived with respondent. She took the home pregnancy test in February 2002 when she thought she was pregnant. (March 23, 2004 Transcript, p. 12.) It was when she told the respondent she was pregnant because of the test that he sent her away from his home.
The credibility of the witnesses was carefully considered. Least credible was the testimony of Ms. Byrnes. Attorney Arel, guardian ad litem for the child, was most credible, however, the credibility of the petitioner and respondent was questionable. "The probative force of conflicting evidence is for the trier to determine . . . We defer to the trier of fact's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony, and may accept part, all or none of the testimony." (Citation omitted; internal quotation marks omitted.) In re Victoria B., 79 Conn.App. 245, 262-63 (2003). In this case, the court finds the respondent did have sexual relations with the petitioner during the period of conception of February 5 to February 15 and that Mr. Benoit did also have sexual relations with petitioner, however, it was prior and also subsequent to the conception period. State Exhibits B and C are pictures of the child, Sean Ewing, Exhibit C is a picture of Sean Ewing and the petitioner's first child (Spencer) fathered by Ms. Benoit. GAL Exhibit 1 shows a closeup photo of Sean Ewing. These pictures demonstrate that the petitioner's child from her relationship with Mr. Benoit, whose name is Spencer, to have dark hair, a complexion similar to Mr. Benoit which is darker than Sean who has light hair and a fair complexion. The respondent has blond hair and a fair complexion. The facial expression of Sean in state's exhibits B and GAL 1 is also similar to the petitioner, Michael Chase.
Conclusions
This court finds that the respondent, Michael Chase, is the father of Sean Ewing who was born to Jennifer Ewing on September 23, 2002. It is found that the respondent and petitioner did have sexual relations during the conception period of February 5 to February 15, 2002, which may vary ± five days, to the exclusion of other parties with whom petitioner may have had sexual relations outside of this conception period. The plaintiff was consistent in claiming the respondent as the father of Sean. Pictorial evidence also indicates the child, Sean, strongly resembles the respondent. The petitioner need only prove her case by a "fair preponderance of the evidence" in a paternity proceeding. Palomba v. Grey, 208 Conn. 21, 25 (1988). "Fair preponderance of the evidence" is defined as "the better evidence, the evidence having the greater weight, the more convincing force in your mind." Cross v. Huttenlocher, 185 Conn. 390, 394 (1981). The court finds plaintiff has so proved her case.
This court also considered the best interests of the child in determining the child's father and carefully weighing the conflicting evidence in this case, which to some extent, depended on the credibility of the parties. "[I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence . . . In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct." (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316 (2004).
The court having established paternity in this case, hereby continues the case to establish support and medical orders to December 2, 2004 in the Superior Court, Family Support Magistrate Division, Judicial District of Windham at Willimantic, Connecticut. Both parties are to bring in completed financial affidavits, pay stubs, if available, and copies of the 1040 IRS tax forms for the years 2002 and 2003.
Alan E. Steele Family Support Referee