*1 CALLISON, Betty Appellee, CALLISON, Appellant.
Gene
No. 55890. of Oklahoma.
Supreme Court
March Sept.
Rehearing Denied J., part and dis-
Opala, concurred part opinion an
sented V.C.J.,
Simms, concurred.
Simms, V.C.J., opin- dissented with J., Opala, joined.
ion in which *2 Gordon, Jr., Claremore,
Jack ap- E. for pellee. Crockett, Pryor, appellant.
Jоhn M. for HODGES, Justice. dispositive appeal issues on are 1) three-year of limi-
whether: statute prescribed by tations 831 is rights illegitimate years 1. The children to obtain after the of the child or within three birth support governed (3) years charged their natural person from father time from the that the provided: 10 O.S.1981 the child’s father last contributed to support paternity his or education. If has been “The of a child is born father who out of judicially for the determined or if the father has ac- wedlock is liable education knowledged writing of the child to same extent as father of a that he is father of child, obligation child wedlock. An to enforce born in action an action enforce this obligation brought this may and educate the child be time before child reach- brought by guardian majority, liability imposed be the mother or es only but be child, authority (3) public chargeable proceeding years. three The fa- child, obligation support of ther’s if with the child. is terminated pay- adopted. An action to determine to enforce The court order obligation may guardian within ments three made to mother or on the hearing was conducted proceeding initiat- full applicable to a 2) 1277.2;2 issue. pursuant ed to determine jurisdiction have trial courts objected, the court admit- Although Gene § 1277.2; 3) if blood paternity under the tests. The HLA ted the results of (Human by HLA Leuko- tests conducted could not be excluded as report stated Gene Typing are admissi- Antigen) Tissue cyte child, probability the father *3 ble. child he fathered the was that 94.37%. (appellee) and Gene Calli Betty Callison results, oth- the HLA test court found 22, 1972, May married (appellant) were son evidence, including the fact supportive er parties 1972. The divorced October and the child each have webbed that Gene relationship. On maintain a continued to toes, paternity. sufficient to establish again di Betty filed for October pay child was ordered to Gene mar
vorce, alleging that a common-law
Betty’s attorney’s fees.
established,
a child
and that
riage had been
that:
the court
appeal, Gene contends
On
during
marriage on June
was born
to determine
jurisdiction
lacked
custody
child
Betty requested
§ 1277.2;
three-year
under 12 O.S.1981
denied the exist
support. Gene
and child
§
limitations,
83, had
10 O.S.1981
statute of
relationship,
type
marital
ence of
run;
Appeals erred
it
the Court of
when
the father of the
that he was
and denied
he had waived the defense
found that
child.
limitations;
HLA
and that
the statute of
trial,
of the evi-
after the conclusion
At
inadmissible.
test results werе
common-law mar-
the issue of a
dence on
attempt
her
to
riage, Betty abandoned
marriage,
that
prove the
and asked
jurisdiction to de-
court had
The district
was the fa-
determine whether Gene
court
paternity pursuant
to
O.S.1981
termine
objection,
Despite Gene’s
ther of the child.
§
that the Court of
are aware
1277.2. We
jurisdiction
that it had
the trial court held
DuVall,
P.2d
Appeals in DuVall
pursuant
the issue of
to resolve
if the
(Okl.App.1975) held that
§
1277.2,
Betty’s
and at
to
O.S.1981
court,
proceeding,
during a divorce
trial
tests be con-
request, ordered that blood
marriage did not exist be-
found that a
Typing
HLA Tissue
Labora-
ducted
jurisdic-
the court lacked
parties,
tween
After
tory
University of California.
at the
However, this
support.
tion to order child
received, hearing
a
was
report had been
legislative
by the
problem was corrected
on the
motion to dismiss
held on Gene’s
§ 1277.2;
O.S.Supp.1976
enactment of
determination was
that the
basis
limitations,
recognized by this Court
10 and it was
by the statute
barred
Powers,
Bailey v.
ex rel.
566 P.2d
The court took the motion State
O.S.1981
(Okl.1977)3
governs
1277.2
advisement,
apparently
over-
under
subsequently a
such situations.
ruled the motion because
payment
at-
child,
appropriate
for
of costs and
person, corporation
order
or to some other
torney's
supervision
fees.”
agency
to administer under
the court.”
Powers,
Bailey
P.2d
ex rel.
3. In State
(Okl.1977)
prosecutrix
a
had instituted
1277.2:
456
paternity
12 O.S.1981
It is
support.
procure
She
to
child
action
divorce, legal separation or
for a
“In an action
had a common-
under oath that she
admitted
children born to the
where there are
annulment
marriage
putative father. The
with the
law
parties
parties,
determine if
the court
although
proper
her
forum
court ruled that
children,
parents
are the
to the action
although
court,
1277.2 was
divorce
in the
designed
parties are not
finds that the
the court
particular
of this
situation.
to take care
married;
parties
action are the
to the
and if
said:
This Court
children,
may deter-
the court
parents of the
recently
Legislature
enacted a statute
custody
has
of said
"The
have
mine which
children,
should
presented
provide
the situation which
support to the
and it
award
Although
at the time
it was not effective
custody,
an
to us.
and make
parent to whom it awards
II,
illegiti
A classification based on
III
it
macy is unconstitutional unless
has an
only question presented and decided
relationship
and substantial
evident
§ 83,
concerning 10
Oklahoma
legitimate
state interest.7 A state
pertaining
three-year statute of limitations
impenetrable
invidiously
erect an
barrier to
illegiti-
liability of the father of an
to the
against
illegitimate
discriminate
children
child,
and educate the
mate child
by denying
gen
them substantial benefits
it is unconstitutional insofar as
is whether
erally accorded all
After
children.
a state
bring
it relates to the time which
judicially
right by
establishes
enforceable
paternity.
to determine
Because we
action
children to
minor
from the natural
period
three-year
find that
father,
constitutionally
there is not a
suffi
equal protection
results
a denial of
justification
deny support merely
cient
laws,
had
thе issue of whether Gene
because
child’s natural father has not
the statute of limita-
the defense of
waived
imposi
its
married
natural mother.8 The
is immaterial.
tions
*4
three-year period
tion of a
within which a
paternity
brought
suit must be
restricts the
guarantee
equal protection
The
right
illegitimate
pater
of some
children to
protection of
pledge
law is a
of the
support
way
right
nal
in a
that the identical
equality
equal
Although exact
is
laws.
legitimate
children is not restricted.9
equal protection,
classifi
prerequisite
a
asserting
right
for
The time
invidiously discriminato
cations which are
enough
long
permit
must
those who
disсrimination
ry are forbidden.4 Invidious
normally
illegitimate
an interest
in
have
is arbi
defined as a classification which
behalf,
bring
their
children to
an action on
legiti
trary, irrational and unrelated to a
per
difficult
despite inhibitions caused
protection re
purpose.5 Equal
mate state
sonal, family,
circumstances
and financial
quires
the classification rest on real
that:
may accompany the
which
birth
differences;
feigned
the distinction
and not
child.10
purpose
have some relevance to
made;
precedent
federal
for strik-
and the We now have
the classification is
one-year
a
and a
dispаrate
ing as unconstitutional
treatments are not so
different
two-year statute of limitations
difference in classification as
relative to the
one-year limita-
The Texas
proceedings.
completely arbitrary.6
to be
year.
trial,
during
disposition
the child’s first
Financial
govern any
mothers
it would
further
expenses or a
caused
child-birth
difficulties
of this matter.”
income, continuing affec-
birth-related loss
356, 369,
4. Yick
Hopkins,
6 S.Ct.
Wo v.
118 U.S.
father, a desire to avoid
tion for the child’s
1064, 1070,
(1886).
L.Ed. 220
30
community,
family
disapproval
or the
that often at-
strain and confusion
emotional
420, 423,
Illinois,
83 S.Ct.
Norvell v.
373 U.S.
5.
illegitimate
all encum-
of an
tend the birth
1368,
1366,
(1963).
suffers from A. firmity. Legislature did not intend preclude the courts of this state from the *5 litigation in the The state’s interest of technical advances made subse benefits by undermined the coun of stale claims is quent of 504. Oklaho enactment ensuring that interest tervailing state Tests does not ma’s Uniform Act On Blood support are satisf genuine claims for child prohibit the admission of HLA test results. period three-year ied.11 The Legislative The intent of the Oklahoma Ev illegitimate children provide some does not is to ascertain the truth and idence Code sup adequate opportunity to obtain with proceedings.15 The trier justly determine substantially related to the port; and is not generally has little to aid in the of fact preventing legitimate interest state paternity of truth in a action. determination fraudulent claims. litigation of stale or The intimate acts from which a existing limitations any statute of anyone Whether arises are seldom known to action case, testimony applicable self-serving is not an issue is else and day. questionable reliability.16 another is the answer must await give judicial willingness to deci- a desire to reduce and unanimous interest stems from This evidentiary weight controlling to a to enter the sive and individuals forced the number of Habluetzel, paternity.” exclusion of note 10. blood test See Mills v. welfare rolls. 13. See 10 O.S.1981 501-508. §§ Terasaki, By Testing Of "Resolution HLA 12. See By Paternity ABOTest- Cases Not Resolved provides: (1977-1978). 14. 10 O.S.1981 504 ing," See also 16 J. Fam. L. 543 Brown, supra, note 9. Pickett v. all "If the court finds that the conclusions of Streater, by experts, the evidence based S.Ct. the upon as disclosed U.S. In Little v. 2206, test, alleged quot- is not are that the father the Court 68 L.Ed.2d child, Schatkin, question Disputed the father of the approval S. ed with Paternity Proceedings from accordingly. (1975): be resolved Evidence show- shall 9.13 reliability, dependa- ing ‘possibility’ be inad- accuracy, shall as the “As far question paternity shall be infallibility con- missible and the bility cerned, the test are —of —even any controversy. the basis of other evidence taken longer resolved on there is no universally accepted dis- before the court." result of the test is tinguished authority. and medical scientific See 12 O.S.1981 2102. is, fact, living authority repute, There legal, be cited adverse- medical or who Streater, supra. practically 16. Little v. note ly_ universal is now ... [T]here
m time development is cussed at the the tests were ordered. The HLA test17 a recent accept- generally trustworthiness is Appellee’s whose counsel contended that the court community.18 It is ca- ed the scientific results, take notice could establishing either that an individ- pable of responded, noting court that other after be the of a certain ual could not father pertinent factors would also be con- child, probability that he is the or that sidered,21 proba- “If I order the tests will of sci- father exceeds admission 90%. bly look at them.22 The tests were admit- proof high degree with entific such probative they for whatever ted value certainty рrovides HLA relevant as tests might have. The appellant’s counsel had and aids trier of fact evidence19 concerning discovery done extensive deciding case. HLA results should test cost, accuracy procedure, of the tests evidence have been admitted relevant it, only discussed and he had not with the §§ authority of 12 2401 and O.S.1981 but, appellee’s at technicians UCLA23 hearsay 2402;20 exceptions to the and as requested counsel “on occasion”24 He §§ 2803(24) under O.S.1981 rule that, ordered, if the tests were “the full 2804(5). battery completed.” of tests be It was obtained, only after the results which were B. client, challenged incriminаted his that he proper foun The contention that a their medical trustworthiness. When the admissibility not laid for the dation was appellee’s counsel stated that he had fur- tests, not have appellant or that did procedure the court with a nished taking opportunity a fair contest accurate, disput- extremely it was spe notice of the test results judicial ed.25 cious. (Code), Code on Evidence The Oklahoma the court would The issue whether § 2203(B),26 that a provides dis- judicial notice the results was O.S.1981 take testing 2402: upon §§ is based the chromosomal 20. It 17. HLA subjects. testing makeup identi- of the test HLA Section genetic inherited "markers” in the blood’s fies having evidence’ means evidence "‘Relevant yields strong positive evidence cells and white tendency any fact to make the existence of paternity. permits *6 plausibility of a labora- of tory It consequence the determination that is of biological father to match a child with its probable probable than action more or less blood of the The red cell in over 90% cases. be without the evidence.” it would by often used until re- tests most laboratories 2402. Section 504) (and by cently previously admissible, those excluded except as "All relevant evidence is generally show that сonsidered accurate to were by provided the Constitution otherwise father, accu- was not a child’s but not States, someone of the State The Constitution United prove enough Until the that he was. Oklahoma, rate by by Code. Evidence statute or 1970’s, predominate- early testing HLA was used relevant is not is not admissible." compatibility ly donor-recipient in to determine p. 21. Tr. 89. hereditary organ transplants and disease re- Now, revolutionizing it is determina- search. p.Tr. 90. pater- 22. identity of child's father in of the a tions Castillo, Test nity Use Of Blood cases. A. "New Times, p. Suits,” Tr. 91. 23. Paternity N.Y. June In Is Decisive 2, 1981. p. 90. 24. Tr. Richardson, Kan.App.2d 644 7 18. Tice p.Tr. Morrison, (1982); 153 Cramеr P.2d Cal.Rptr. (Ct.App.1979); Cal.App.3d by 12 O.S.1981 2203: It County Superior Court Fresno Fresno v. Cal.App.3d taking Cal.Rptr. determining County, propriety In “A. (Ct.App.1979). judicial notice of a matter: any may and use “1. The court consult information, Jacobson, pertinent or not "Paternity Testing whether With source of 19. Sterlek by party; a Leukocyte Antigen System: A Medi furnished and The Human exclusionary except claim a valid Breakthrough,” “2. No rule Clara L.Rev. colegal 20 Santa apply. (1980). privilege shall 525-26 upon timely request is entitled acknowledged be recognized and that its accu- concerning propriety heard taking racy readily can be determined sources judiсial scope notice and the of the matter accuracy whose reasonably ques- cannot be noticed, prior and that the absence of tioned.30 notification, request may be made after Code, Under the every court had notice is taken. appel- At no time did the right judicial to take accuracy notice of the object taking notice, lant judicial tests, appellant and any waived request nor did he opportunity to be objection to the admission of the test re- heard on propriety either the or the matter sults, or proper foundation, to the lack of a noticed —he on was notice. by failing to make timely request to be statutory cardinal rule of construc- propriety taking heard on the judicial language tion is that of the statute notice. should legisla- be considered to ascertain CERTIORARI GRANTED. OPINION tive intent. There is room for construc- OF THE COURT OF APPEALS VACAT- provision tion or inquiry for further when ED. JUDGMENT OF THE TRIAL the legislative plainly expressed; intent COURT AFFIRMED. nor exceptions court read into it legislature.27 Appellant not made BARNES, C.J., LAVENDER, and DOO- every opportunity received challenge LIN, WILSON, JJ., HARGRAVE and con- notice, taking of and this Court cannot cur. leniency afford him more than the statute permits. OPALA, J., concurring part, dissent- ing part.
C. accuracy SIMMS, V.C.J.,
Insofar
was
con
dissenting.
cerned,
it was concluded
the court that
OPALA, Justice, concurring
part
UCLA
polls.28
was number one in the HLA
dissenting
part:
trial,
At the motion for
appel
new
when
Our review on certiorari
argued
lant’s counsel
addresses a dis-
proper
that no
foun
puted paternity suit. The
Appeals
dation had been laid for
Court of
admissibility
tests,
left
said,
undisturbed the
the court
trial court’s decree
"...
It was the
against
putative
understanding
(defendant),
father
court that it
sti
pulated
opinion
agreed
this court’s
the court would
affirms that decision
upon
consider
grounds.
the test.” This
different
was not denied
It holds that
appellant’s
was,
parentage,
cоunsel.
response
custody
His
of an out-
right, your
“All
Honor.”29
litigated
The court
of-wedlock child
dehors
pertinent
consult and use
public paternity proceed-
purview
source of
information,
§§
and the HLA test
ing,
widely
is so
in private
seq.,1
et
*7
upon timely request
2203(A)(1),
26,
"B. A
is entitled
to
supra;
30.See 12 O.S.1981 §
note
opportunity
propriety
2202(B)(2)
provides:
to be heard as to the
and 12
§
of
O.S.1981
which
A
judicially
taking judicial
adjudicative
scope
notice
noticed
and the
of the
fact shall not be
mat-
subject
dispute.
to
prior
capa-
reasonable
It shall
ter noticed.
tion,
In the absence
be
of
notifica-
ready
ble of
by
accurate and
request may
determination
re-
judicial
the
be made after
accuracy
sort to sources whose
ably
cannot reason-
notice has been taken.
questioned.
be
may
"C. Judicial notice
be taken at
state
12,
See notes
17 for
proceeding.
scientific decisiveness of
of
the
the
test.
32,
Hughes Drilling
Morgan,
Co. v.
P.2d
648
1. Before the enactment of 10
§
O.S.1981 1.1 in
(Okl.1982);
Peoria,
35
Seventeen Hundred
Inc. v.
1974,
remedy
by
the filiation
created
10 O.S.
Tulsa,
(Okl.1966).
City
115
brought against
ing
reliability
The
both
of
testing
in contest.14
case was
the
the
tech-
5,
him
nique
October
and
of
application
thе correctness
its
performed
to the
test
this case.16 Be-
clearly
the
that
Because
record
reflects
clearly
cause the
stip-
defendant
refused to
§
timely brought,
1277.2 suit was
83
ulate that the test was
and did
admissible17
needlessly
offending
here as
condemned
demand that
its “medical worthiness” be
In
Equal
Protection Clause.
advance
“verified”,18
improper-
the test results were
necessity
judiciary will not
of strict
ly
requisite
pass upon
constitutionality
statutory
predicate
of
received
without
law.15
laid.19
proof
No
by
foundational
offered
was
Ill
absolutely
mother’s counsel. There is
nothing before us to indicate
scientif-
whаt
THE H.L.A. TEST RESULTS SHOULD
facts,
any,
judge
ic
if
NOT HAVE BEEN ADMITTED
did notice before
admitting
test,
WITHOUT A PROPER FOUNDA-
result of the
or the
TION
source whence he derived
technical
his
knowledge.20
any
record is
barren
agree
IWhile
with the court
that our
(1)
properly
evidence
identifying the exhibit
reception
statutory law does not bar the
(2)
sets
results,
forth the test
results
test
H.L.A.
I am the view that it
explaining
accuracy
technique
error
to admit
this evidence
was
without
expert
testimony
reaching
foundation in
vouch-
that was used in
results.21
these
14. The
bar” of restraint.
Diehl, Okl.,
it TR-118.
drawn on
clearly
ma. The check was marked "MEMO
consideration
deemed
-,
ring)[emphasis
blemont v.
Okl.,
483,
352, 28 L.Ed.
for Brook
tion
function
rule
attention
335
applied.’
quired
ValleyAuthority,
2,
When,
Congress
-,
Commissioners, supra
[1983].
cree under review for further SELLERS, Plaintiff/Appellant, Jack B. not inconsistent with these views. The OKLAHOMA PUBLISHING I SIMMS, am authorized to state that Taylor, COMPANY and Jack
V.C.J., my concurs views. Defendant/Appellee. No. 58281. SIMMS, Justice, dissenting: Vice Chief Supreme Court of join Opala I Oklahoma. Justice in his observation that the statute of limitations in this case March payment was tolled sup- act Rehearing Sept. Denied port for the child and it is therefore unnec- essary to reach the issue of constitutionali-
ty of year Oklahoma’s three statute.
further accede to his view that the blood
test under consideration is inadmissible objection
over necessary absent the eviden-
tiary predicate being established as to the reliability
scientific thereof.
Additionally, majority, I believe the hav-
ing year voided the three provi- paternity actions,
sions in should have
made the further determination as to
whether or not Oklahoma has other
statute of limitations which would bar a
belated Lawyers, action of this nature.
litigants, judges are guid-
ance this direction other than that year
three statute is unconstitutional. my O.S.1981,
It belief
§ 95(sixth) applies paterni- now bars
ty years action five after birth unless con- putative
duct father has affirmative-
ly year period. tolled the provi- five This relief,
sion of Sec. 95 reads: “An action for provided for, only hereinbefore can (5) years within five after
cause of action shall have accrued.”
I am authorized state that Justice joins expressed
OPALA me in the views
herein.