Indeed, notice may be taken that not every period of gestation is precisely 280 days, In Re Marriage of B., 619 S.W.2d 91, 93[2] (Mo.App. 1981), and numerous opinions recognize a broadly ranging gestation period. See, e.g., Division of Family Services v. Guffey, 795 S.W.2d 546, 550[5] (Mo.App. 1990); Rasco v. Rasco, 447 S.W.2d 10, 17 (Mo.App. 1969). Thus we do not believe the trial court abused its discretion in refusing to judicially notice a 280-day gestation period, choosing rather to permit the appellant to refer in closing argument to a range of 38 to 42 weeks.
The effect of these evidentiary requirements is: (1) absent substantial evidence to the contrary, the presumption is sufficient to defeat a claim that a child born in wedlock was not fathered by the husband, and (2) a child born in wedlock may be declared illegitimate only if the substantial evidence to the contrary when considered with all other evidence in the case is of such a persuasive quality that the fact of illegitimacy cannot be said to be in doubt. Some few cases, notably Rasco v. Rasco, 447 S.W.2d 10 (Mo.App. 1969) and S____ v. S____, supra, have considered the effect of scientific evidence, such as the blood grouping analysis evidence in the present case, on the issue of legitimacy. In reality, scientific evidence does not by the mere appellation of the term acquire absolute verity but, like other evidence, it depends on qualitative factors which themselves tend to lend greater or lesser credence to the proof.
F____ v. F____, Mo.App., 333 S.W.2d 320, 327; Caspermeyer v. Florsheim Shoe Store Co., Mo.App. 313 S.W.2d 198, 207 (7); Boudinier v. Boudinier, 240 Mo. App. 278, 294(6), 203 S.W.2d 89, 98(6). §§ 452.010 and 474.080; Rasco v. Rasco, Mo.App., 447 S.W.2d 10, 16; Schierenbeck v. Minor, 148 Colo. (banc) 582, 367 P.2d 333, 334(1); In re Julian's Estate, 184 Kan. 94, 334 P.2d 432, 436(3); Koch v. Miller, Ohio Prob., 87 Ohio Law Abst. 47, 178 N.E.2d 186, 187(3); State v. Bowman, 230 N.C. 203, 52 S.E.2d 345(1); Buzzell v. Buzzell, Me., 235 A.2d 828, 832(12); Kuhns v. Olson, 258 Iowa 1274, 141 N.W.2d 925, 927(7); Wechsler v. Mroczkowski, 351 Mich. 483, 88 N.W.2d 394, 396(1); Balance v. Balance, 261 Ala. 97, 72 So.2d 851, 852(1); In re Lewis' Estate, 207 Wis. 155, 240 N.W. 818, 819(1); 10 C.J.S. Bastards § 3 c., at p. 25; 10 Am.Jur.2d, Bastards, § 15, p. 855. When a rebuttable presumption arises, the person against whom the presumption operates is confronted with a rule of law which casts upon him the burden of producing substantial evidence to controvert the presumed fact [Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, 316(4)], and upon the introduction of such substantial evidence, the existence or nonexistence of the fac
The "plain error" rule authorizes appellate courts to consider errors not raised or preserved in cases which otherwise fall within their appellate jurisdiction. See, e.g., Highfill v. Brown, 320 S.W.2d 493, 497-498 (Mo. 1959); Rasco v. Rasco, 447 S.W.2d 10 (Mo.App. 1969). Jurisdiction must be established by questions preserved for review and not merely by error present in the record.
This is true even though the juvenile officer has not appealed. This is particularly appropriate "when it is remembered that [appellant's] brief here raises the issue negatively", In re Duren, 355 Mo. 1222, 200 S.W.2d 343, 346 (banc 1947), and the Juvenile Act is rooted in the doctrine of parens patriae, In re F____ C____, 484 S.W.2d 21 (Mo.App. 1972). Cf. Rasco v. Rasco, 447 S.W.2d 10 (Mo.App. 1969), in which the court of appeals reversed a portion of a decree determining a child to be illegitimate even though that issue was not presented. This court finds that portion of the order of disposition placing the children in the custody of the mother is supported by the evidence.
In addition, Missouri courts have taken judicial notice that the human gestation period is generally 280 days, T.A.L.S. v. R.D.B., 539 S.W.2d 737, 739 (Mo.App., E.D. 1976), although the period of gestation may range up to eleven months. Rasco v. Rasco, 447 S.W.2d 10, 17 (Mo.App., W.D. 1969). This point is denied.
It was for the trial court to consider the evidence and determine the issue. The husband argues that as the trial court took judicial notice of a normal gestation period of 280 days, the trial court erred because the wife did not prove intercourse on April 2, 1979. It is judicially noticed that the normal period of gestation is 280 days, but notice may also be taken that not every period of gestation is precisely 280 days. Rasco v. Rasco, 447 S.W.2d 10 (Mo.App. 1969); F____ v. F____, 333 S.W.2d 320 (Mo.App. 1960). The testimony of the wife that following her menstrual period, in the first part of April until after her pregnancy was confirmed, she engaged in intercourse only with her husband, if believed by the trial court, is evidence from which the trial court could have reasonably found the husband was the father.
What we have said in holding this instruction not to be prejudicial error in this case, should not be considered an approval of the instruction for general use. It has not been suggested, and we have not considered whether MAI 34.02 might be the only appropriate instruction to withdraw from the jury's consideration the fact of plaintiff widow's remarriage. In re Duren, 355 Mo. 1222, 200 S.W.2d 343, 344-346 (Mo. banc 1947); Rasco v. Rasco, 447 S.W.2d 10, 15-16 (Mo.App. 1969); Vinyard v. Vinyard Funeral Home, Inc., 435 S.W.2d 392, 395-396 (Mo.App. 1968). Omission of verdict director to require finding of manner of death.
Ordinarily, the foregoing would conclude this appeal since it disposes of all the allegations of error raised by appellant in his brief. Johnson v. Duensing, 332 S.W.2d 950, 953 (Mo.banc 1960); Rasco v. Rasco, 447 S.W.2d 10, 15 (Mo.App. 1969). However, we reverse the trial court's judgment in the interest of justice, Rule 84.13(c), because appellant was denied due process of law.
Thus the case may be distinguished. Rasco v. Rasco, 447 S.W.2d 10 (Mo.App. 1969), is relied upon by appellant as authority that the evidence here is not sufficient to rebut the presumption of legitimacy. That case may be distinguished. There the issue turned upon the medical expert's testimony concerning the results of blood tests as between the alleged father and the child. Although the doctor testified that based upon reasonable medical certainty, the defendant was not the father of the child, he refused to say that it was impossible, and thus the court ruled that the strong presumption of legitimacy had not been overcome.