State ex rel. K.F.K. v. D.P.K.
State ex rel. K.F.K. v. D.P.K.
Opinion of the Court
The state appeals a judgment denying its motion to set aside the jury's verdict that D.P.K. is not the biological father of the child in question or, in the alternative, order a new trial, arguing that the jury should have been instructed that D.P.K. is rebuttably presumed to be the father pursuant to sec. 767.48(lm), Stats. Because two different sets of blood tests with conflicting statistical results as to the probability of parentage were presented at trial, we hold that the sec. 767.48(lm) presumption óf paternity is inapplicable and affirm the trial court.
In July 1982, the state, by the Langlade County district attorney, filed a petition for a determination of paternity, alleging that D.P.K. is the child's father. After court-ordered blood samples of the mother, the child and D.P.K. were drawn, Badger Labs of the American Red Cross reported the test results showed that the paternity of D.P.K. is unlikely. The state then agreed to dismiss the case.
In April 1986, Badger Labs notified the state that a clerical error had resulted in an incorrect interpretation of the blood test data and that, in fact, there was a 97.06% chance that D.P.K. is the father. The state then filed a new petition for determination of paternity alleging D.P.K. to be the father.
On March 29, 1990, at the pretrial conference, the state moved that sec. 767.48(lm), Stats.,
Section 767.48(lm), Stats., provides for a rebuttable presumption of paternity where an alleged father is shown to have a statistical probability of 99.0% or
The application of a statute to a set of facts is a question of law we review de novo. Sturgis v. Town of Neenah Bd. of Canvs., 153 Wis. 2d 193, 198, 450 N.W.2d 481, 483 (Ct. App. 1989). We must give effect to the legislative intent and, to do so, we first look to the language of the statute itself. Id. Section 767.48(lm), Stats., states: "Under sub. (1), if the blood tests show that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0% or higher, the alleged father shall be rebuttably presumed to be the child's parent." (Emphasis added.)
The statute is ambiguous because it is capable of being understood by a reasonably well-informed person in more than one way. See Sturgis, 153 Wis. 2d at 198, 450 N.W.2d at 483. When sec. 767.48(1m), Stats., is read in conjunction with subsec. (1), to which it refers, it is unclear whether "blood tests" refers to the statistical result of one set of blood tests done on the mother, child and alleged father, or whether it refers to the results of more than one set of blood tests.
Here, the statistical results of both sets of blood tests were presented to the jury at trial. Experts by the state testified in support of the accuracy of both tests, while D.P.K.'s expert refuted the accuracy of the results as well as the conclusions drawn from them. The credibility of the test results was properly left to the jury.
By the Court. — Judgment affirmed.
The trial court dismissed the new petition on the grounds of
Langlade County corporation counsel was now handling the state's representation.
Wis J I — Civil 5001 provides in part:
In this case, the blood test report establishes a statistical probability of —% that the respondent is the father of-. From this blood test, a presumption arises that the respondent is the father of-. But there is evidence in the case which may be believed by you that he is not the father. You must resolve the conflict. Unless you are convinced to a reasonable certainty by the greater weight of the credible evidence that it is more probable that he is not the father, you must consider this presumption as conclusive evidence of paternity and find that he is the father.
Reference
- Full Case Name
- IN RE the PATERNITY OF J.M.K.: STATE of Wisconsin EX REL. K.F.K. v. D.P.K.
- Cited By
- 1 case
- Status
- Published