State v. Rogers

Citations: 50 Ark. App. 108; 902 S.W.2d 243; 1995 Ark. App. LEXIS 350Docket: CA 94-836

Court: Court of Appeals of Arkansas; June 28, 1995; Arkansas; State Appellate Court

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The Greene County Chancery Court ruled that the Child Support Enforcement Unit failed to prove Carl Jimmy Rogers is the father of Allen Dwayne Deckard, born in 1985. The court affirmed this decision, stating that the evidence supported the chancellor's findings and that the appellant waived the right to call the child's mother, Kelly Deckard, as a witness. Ms. Deckard had filed a support petition in 1993, claiming Mr. Rogers was the father, but also mentioned having sexual relations with another man during the conception period. Genetic testing indicated a 99.99% probability of paternity for Mr. Rogers, but he denied the relationship, citing a vasectomy from 1969 and suggesting another man, Allen Robinson, was the true father. Witnesses testified about Mr. Rogers' vasectomy and his long-term relationship with Sonia Bensch, who stated they never used contraception yet she never became pregnant. The court noted that in paternity cases against living putative fathers, the mother's burden of proof is merely a preponderance of the evidence. On appeal, the court emphasized that it reviews evidence favorably towards the appellee and does not overturn factual findings unless clearly erroneous. The appellant's arguments concerning statutory paternity presumption were found to be insufficient to warrant a reversal.

Arkansas Code Annotated § 9-10-108(a)(4) allows a mother to shift the burden of proof to a putative father if paternity tests show a 95% or greater probability of inclusion and if there is corroborating testimony from the mother regarding access during the conception period. The appellant claims these conditions were met, citing blood test results exceeding 95% probability and an affidavit from the mother, Kelly Lynn Deckard, as corroboration. However, the affidavit was not formally admitted into evidence, as it was not proffered, despite § 9-17-316(b) allowing its admission under certain conditions. The appellant also referenced testimony from Mr. Rogers, which indicated access during the conception period, but the statute specifically requires the mother's corroboration. Consequently, the statutory presumption of paternity was not established.

The chancellor determined that Mr. Rogers successfully rebutted any presumption of paternity, supported by testimony from three witnesses about his prior vasectomy and a lab report indicating a zero sperm count. Additionally, Ms. Deckard had previously sworn in a 1991 affidavit stating she had no sexual relations with anyone other than Everett Allen Robinson within a month of the child's conception. The court found no clear error in its ruling that the appellant did not meet the burden of proof for establishing paternity.

On appeal, the appellant sought to have Ms. Deckard testify, arguing that her credibility was essential to the case and claiming a failure of proof. However, Mr. Rogers countered that the appellant had previously declined an opportunity to continue the case for Ms. Deckard's testimony, suggesting the appellant should not be allowed to argue for a remand now.

At the conclusion of the appellant's case, a discussion occurred regarding the legal presumption from a lab report and the mother's affidavit concerning access. The court noted a provision requiring the mother's presence to testify, which both attorneys acknowledged. The court questioned the necessity of the URESA action if the mother was required to appear. The attorneys discussed the likelihood of parties not showing up and whether to continue the case or proceed. Ultimately, the court indicated it could either take the matter under advisement or continue. The appellant's attorney preferred to proceed with the case. A significant point raised was that issues introduced for the first time on appeal are typically not considered by appellate courts, as previously established in Bright v. Gass and Kulbeth v. Purdom. Since the appellant did not request a continuance to secure the mother's testimony and opted to continue the trial without her, the right to seek a remand for her testimony was waived. The court's decision was affirmed, with concurrences from both judges.