Opinion
March 31, 1966
In this disputed paternity proceeding respondent appeals from a determination adjudging him to be the father of the infant. The order entered on February 19, 1965, appealed from is affirmed, without costs or disbursements to either party. The petitioner testified to numerous acts of intercourse between the parties. Respondent denied that intercourse ever occurred. Petitioner testified that the sexual intercourse covered a period from March 26, 1964 to June, 1964, with resulting pregnancy, and that the child was born November 17, 1964. She testified that a hospital clinical test on April 23, 1964 confirmed an earlier medical opinion of her pregnancy. It might be noted that on that occasion, as well as at the time of confinement in connection with the birth of the child, she gave the respondent's name as the putative father. Respondent was arrested June 5, 1964, in connection with this proceeding. That evening the parties and another couple met and a discussion ensued concerning the pregnancy. Dorothy Bliss, a friend of the petitioner, testified that respondent's friend, John Literinas, spoke of an abortion. This Literinas denied. Petitioner testified that on several occasions prior to June 5, 1964 respondent had suggested that she have an abortion performed, a suggestion which she rejected. Respondent testified that he was "stunned" by petitioner's accusation of him at the June 5 meeting as the father of her expected child. Such testimony is a little surprising in view of the fact that in May he had informed Literinas and another friend that petitioner had accused him of paternity. Again, while respondent denied that petitioner had ever been in his apartment, petitioner testified in rebuttal and gave a description of the apartment which was not contradicted in any respect or refuted by respondent. The medical expert classified the infant's birth as normal and described the baby as a "full term" baby with an explanation of the meaning of such words. He also testified on the facts presented that the child could have been born of a sexual union occurring as claimed. No contrary medical testimony was offered nor did the blood test exclude paternity. Unquestionably there were sharp conflicts in the nonmedical testimony, but the trier of the facts resolved them in favor of the petitioner. On the record we cannot say that such determination is not supported by satisfactory competent proof nor that the determination is contrary to the weight of the credible evidence. The court's determination that petitioner established filiation "by that degree of clear persuasive satisfactory evidence as required by law" should be and is affirmed.
The child for whose support this proceeding in filiation was brought was born November 17, 1964. Petitioner, a divorcee, testified to several acts of intercourse with respondent, the first of which took place on March 26, 1964. Thus, the interval between conception and birth is 236 days. The birth was normal. The child by weight was within the range considered normal for a full-term birth and the attending physician noted no signs of prematurity. Expert testimony revealed that the usual period of gestation is assumed to be 280 days but there is some variation. Out of a large number of cases it was found that 93.6% of births occur between 263 and 299 days after conception, the high point in the graph occurring at 282 days. Six and four-tenths per cent fall outside these figures. The testimony does not reveal the percentages beyond the points of the bulk of the cases, that is, whether of the 6.4% of the births the greater number occur in the days closely approximating those within the 263-299-day-range, but it was testified that this was a reasonable assumption. (It may be explained that the record information came from a publication, Eastman Hellman, Obstetrics, 12th edition, giving a graph of conception time. The graph only covers the 263-299 day period but states that 6.4% of the births occur outside of it.) As this birth is claimed to have taken place 27 days outside the usual range, it is very fair to assume that the percentage resulting at that time would be materially less than 6.4%. And actually there is no testimony that a birth so far outside the usual range is a physical possibility, with the exception of the doctor's statement that he believes it possible. He did not testify to any birth either within his own experience or taken from medical history with such an abbreviated term. And his opinion that such a birth was possible was offset by his testimony that it was possible that this birth was the consequence of an earlier conception. Aside from the medical testimony this case presented the usual conflict between the parties and their witnesses. No purpose would be served and no conclusive answer could be derived from a discussion of the various improbabilities and discrepancies which are discernible in the proof offered by both sides. From the record no one could be entirely satisfied that a decision either way would correctly reflect the course of events. In order to sustain the Family Court's finding, it must first be found that this birth was an extraordinary freak of nature — if not physically impossible, at least on the threshold of impossibility. Then to support this finding on conflicting testimony, itself of very doubtful certainty, can hardly be held to support a finding that is the product of evidence that is "entirely satisfactory" ( Matter of Rebmann v. Muldoon, 23 A.D.2d 163). The order of the Family Court should be reversed on the facts and the petition dismissed.