Smith v. Brown, No. 080340 (Jun. 16, 1993)
Opinion of the Court
The remaining evidence amply demonstrated that the defendant had access during the time conception took place; that no other man was ever named as the possible father; that the defendant continued to visit the plaintiff and the child; that the defendant's statements were inconclusive as to his possible fatherhood i.e., he had doubts and questioned if a Billy had access; that at other times, the defendant assumed the role of father; and the plaintiff was constant in her accusation that the defendant was the father. The court concluded that this evidence was overwhelming except for the scientific evidence offered by the defendant's expert. After considering the tests and finding that it could not determine that they are 100% accurate, the court concluded that paternity had been proven by a fair preponderance of the evidence, in the face of the scientific evidence. The attorney for the defendant immediately indicated that an appeal was being considered. No appeal was taken.
The defendant has now brought a motion to reopen the judgment, alleging fraud on the plaintiff's part, asserting that she lied as to the paternity of the child on the petition and at the trial. This is based on statements the plaintiff is alleged to have made to the defendant and to one Roy Normand that the child is not the defendant's child, implying she fraudulently concealed intercourse with another man. Connell v. Colwell,
The first assertion is that the blood test results excluded the defendant as the possible father. This is not the case. A careful reading of the transcript demonstrates that trial court carefully evaluated the testimony of Dr. Silver and reached the conclusion that such tests, while approaching 100% accuracy, are not 100% accurate as Dr. Silver acknowledged.
The trial court is the arbiter of who is truthful while testifying. The defendant was not steadfast in denying paternity at the trial. The plaintiff was constant in her accusation that the defendant was the father. All this testimony was before the trial court.
The defendant correctly cites the burden he has in establishing a fraud as clear and convincing proof, and it is not to be presumed, Kavarco v. T.J.E., Inc.,
The statements of the plaintiff, made several years later, if made, while angry with defendant, do not meet the burden of proof. The plaintiff denies the alleged episodes ever took place. Her testimony is credible.
The court denies the defendant's motion to reopen the judgment.
HARRIGAN, J.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.