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04/26/83 STATE WISCONSIN EX REL. RHONDA S.

April 26, 1983

STATE OF WISCONSIN EX REL. RHONDA S. SKOWRONSKI, NOW BYAL, COMPLAINANT-PLAINTIFF-RESPONDENT-PETITIONER,
v.
DANIEL RAYMOND MJELDE, DEFENDANT-APPELLANT



Review of a decision of the Court of Appeals. Modifying and affirming Beilfuss, C.j.

The opinion of the court was delivered by: Beilfuss

This is a review of an unpublished decision of the court of appeals which reversed the judgment of the trial court, the Honorable Robert J. Miech, presiding, adjudicating the defendant to be the father of the complainant's child in a paternity action.

On September 24, 1978, the complainant, Rhonda Byal, *fn1 gave birth to a three pound, three ounce baby. Byal was not married at the time of the birth. In May of 1979 the state commenced this action on behalf of Byal against the defendant, Daniel Raymond Mjelde, alleging that Mjelde was the father of Byal's child. The complaint alleged that Byal had sexual intercourse with Mjelde between November of 1977 and January of 1978, and that during this period Byal did not have sexual intercourse with any other male.

The case came to trial on November 17, 1980. At trial the state presented two witnesses: Byal and her father, Stan Sargeant. Byal testified to the birth date and weight of the child and that the estimated due date of the birth was November 7, 1978. The assistant corporation counsel then attempted to question Byal regarding her sexual activity during the months of January, February and March of 1978. Defense counsel objected to this question on the grounds that the complaint alleged that the acts of sexual intercourse took place between November of 1977 and January of 1978, and therefore any testimony regarding sexual intercourse should be limited to that period. The assistant corporation counsel indicated that she mistakenly thought the complaint had been amended but thereafter confined her questions to the November through January period.

Byal testified that the first time she engaged in sexual intercourse was with Mjelde on December 31, 1977. She testified that she also had sexual intercourse with Mjelde during the entire month of January, approximately three to ten times per week. Byal further stated that between November of 1977 and January of 1978, she did not have sexual intercourse with any male other than Mjelde and that in her opinion he was the father of her child. On cross-examination she testified that her last menstrual period before the child's birth occurred during the end of January of 1978.

Byal's father testified that his daughter told him that Mjelde was the father of the child. He further testified that Mjelde did not deny being the child's father when he visited the complainant's house with his parents to discuss the pregnancy. The defendant did not present a defense or testify at trial. The state then moved for a finding of paternity.

The trial court found that the state had proved by clear and satisfactory evidence that the defendant was the child's father based on the undisputed evidence that Byal had sexual intercourse with the defendant repeatedly throughout January and that she did not have sexual intercourse with any other male during this time. The court of appeals reversed, holding that the state failed to prove the conceptive period by clear and satisfactory evidence. The court reasoned that the presumptive conceptive period of sec. 891.395, Stats., did not apply and the state failed to meet its burden because it did not present any competent evidence establishing the conceptive period. We granted the state's petition for review.

The sole issue on review is whether there is credible evidence to support the trial court's finding of paternity. The principal issue in a paternity action is whether the defendant is or is not the father of the complainant's child. Sec. 52.35, Stats. 1977. *fn2 The complainant has the burden of proving this issue by the clear and satisfactory preponderance of the evidence. Sec. 52.355. *fn3 A trial court's finding that this burden of proof has been met will be sustained by this court unless it is contrary to the great weight and clear preponderance of the evidence. State ex rel. Isham v. Mullally, 15 Wis. 2d 249, 255, 112 N.W.2d 701 (1961).

The defendant contends that the state failed to meet its burden of proof because no evidence was introduced to establish the conceptive period. The state argues that the trial court permissibly found as a matter of common knowledge or judicial notice, based on the baby's birthdate and weight, that conception could have occurred during the month of January (236 to 267 days before the child's birth), and thus it met its burden to establish a prima facie case of paternity. It contends that the defendant's failure to object to the conceptive period "suggested" by the state and his failure to "suggest" a different conceptive period results in waiver of any error on that basis.

The state's position must be rejected because it erroneously attempts to shift the burden of proof in a paternity action to the alleged father. We agree with the court of appeals and the defendant that the state did not meet its burden of proof because it failed to present any evidence establishing the conceptive period of the child involved.

The elements of a prima facie case in a paternity action were well stated by Judge Holz in his article, The Trial of a Paternity Case, 50 Marq. L. Rev. 450, 460 (1967):

"A prima facie case is established by proof of the birth out-of-wedlock, date of birth, weight at birth, an accusation that the defendant had sexual relations with the complainant during the conceptive period, and the denial of the complainant that she had sexual relations with any other man during the conceptive period. The complainant is permitted to state who the father of her child is. Such is treated as a statement of fact and not opinion.

"The conceptive period in the case of a child whose weight at birth is in excess of five and a half pounds is presumptively established by statute. If the child is not a full term child, the conceptive period must be established by other competent evidence. It is not essential that the exact date of conception be proven. One act of intercourse adequately identified as to time and place is sufficient to support a judgment of paternity. The complainant's testimony, of course, need not be corroborated." (Emphasis supplied.)

This court in State ex rel. Brajdic v. Seber, 53 Wis. 2d 446, 449, 193 N.W.2d 43 (1972), enunciated the type of testimony that is sufficient to meet the ...


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