State ex rel. J.A.S. v. M.E.S.
State ex rel. J.A.S. v. M.E.S.
Opinion of the Court
This is an appeal from a judgment finding M.E.S. to be the father of J.B.S. M.E.S. raises one issue: whether he was denied a meaningful opportunity to present a defense when the trial court interpreted sec. 891.395, Stats., to limit testimony about the mother’s sexual relations to a period shorter than the 60-day statutory presumptive period of conception. Because the statue allows for a contrary period of conception based on competent evidence, we affirm.
The child, J.B.S., was born on February 20, 1984. It is undisputed that the baby was full term. On March 26, 1984 a paternity petition was filed naming M.E.S. the respondent. The period of conception stated in the petition was April 25, 1983 through June 24, 1983, which corresponded to the 60-day period of conception under sec. 891.395, Stats. M.E.S. denied that he was the father of J.B.S.
On June 12, 1985, Dr. Beth Anne Lepley, the attending physician during the mother’s pregnancy and at the child’s birth, testified at a deposition that the period of conception was between May 15 and May 30, 1983. The mother, J.A.S., moved the court for an order amending the conceptive period to the above
At trial, M.E.S. asked the court to allow testimony of J.A.S.’s sexual relations outside the two-week period but within the statutory presumptive period of sec. 891.395, Stats. This was denied. The jury returned a verdict finding M.E.S. the father of J.B.S. M.E.S. now appeals.
This case involves the interpretation of sec. 891.395, Stats., as it applies to undisputed facts. This is a question of law which we review without deferring to the trial court’s determination. Manor v. Hanson, 123 Wis. 2d 524, 533, 368 N.W.2d 41, 45 (1985). Section 891.395 provides that when the child is full term "[t]he conception of the child shall be presumed to have occurred within a span of time extending from 240 days to 300 days before the date of its birth, unless competent evidence to the contrary is presented to the court.”
M.E.S. argues that under sec. 891.395, Stats., he should be allowed to present evidence of the mother’s sexual relations during the entire presumptive period and that limiting the testimony to a two-week period was improper. He argues that the evidence of conception between May 15 and May 30 was not contrary to the presumptive period, but was consistent with it. He further claims that the trial court therefore took notice of a shorter, but included, presumptive period, contrary to State ex rel. Skowronski v. Mjelde, 112 Wis. 2d 110, 332 N.W.2d 289 (1983). We disagree with this reading of the statute and of Skowronski.
Although M.E.S. would like us to hold that the 60-day period under sec. 891.395, Stats., must always apply when the child’s birth weight is at least five and one-half pounds, we cannot read the statute to support such an interpretation. The statute clearly states that the presumptive period applies "unless competent evidence to the contrary is presented to the court.”
M.E.S. next argues that even if the two-week period were contrary to the statutory presumption, the 60-day period should have been submitted to the jury. We disagree.
M.E.S. also argues that because the statutory presumptive period was not presented to the jury, the trial court failed to adequately instruct the jury as to the burden of proof required to establish the concep-tive period. We disagree. It was for the trial court to decide whether the evidence was competent to eliminate the statutory conceptive period. See sec. 891.395, Stats.
M.E.S.’s last argument is that he was denied due process of law under Little v. Streater, 452 U.S. 1 (1981), because he was foreclosed from presenting evidence of a rape which occurred during the 60-day statutory presumptive period. He claims he should have been allowed to present evidence of the rape which was admissible under secs. 767.457(5) and 767.47(3), Stats. He claims that because he was not allowed to present such evidence, he was denied a "meaningful opportunity to be heard” under Streater, 452 U.S. at 5-6.
In Streater, the defendant was denied due process because a state statute required that the cost of blood grouping tests be borne by the party requesting them, thereby denying such tests to indigent defendants. Id. at 16. The court stated that "[w]ithout aid in obtaining
Section 767.457(5) Stats., provides that the respondent has the defense that another man had sexual intercourse with the mother during a period eight to ten months prior to the birth of the child. Section 767.47(3), Stats., provides that under certain circumstances, evidence is admissible that another man had sexual intercourse with the mother at or about the presumptive time of conception of the child. Section 767.47(2), Stats., provides, however, that testimony relating to sexual relations of the mother at any time other than the possible time of conception is inadmissible in evidence unless offered by the mother. Reading these statutes and Secs. 891.395 and 767.475(3), Stats., in conjunction, we conclude that when competent evidence has eliminated the statutory presumptive period, testimony of sexual relations outside of the established period of conception is inadmissible unless offered by the mother.
We further note that there was no evidence presented that the sexual assault could have resulted
By the Court. — Judgment affirmed.
Since the appellant has not argued on appeal that the evidence regarding the conception period was not competent or that the doctor was not qualified to testify as an expert, we will not consider those matters.
Connecticut law provides that the defendant’s testimony alone, in a paternity suit, is insufficient to overcome the plaintiffs prima facie case. Streater, 452 U.S. at 12. Our research reveals no similar requirement in Wisconsin.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.