Defendant appeals as of right from the trial court’s order granting plaintiffs motion for summary disposition on the issue of paternity, finding that defendant is the father of the child, Brandon Deller, born to Candance Deller, an Aid to Families with Dependent Children (afdc) recipient. Defendant asserts that he rebutted the statutory presumption of paternity established by blood typing when he denied, under oath, that he had sexual intercourse with Candаnce Deller, and Deller could not remember the act of penetration. We affirm.
The facts of this case are rather unique. In Octоber 1988, Candance Deller discovered during a doctor’s visit that she was five months’ pregnant, but she had no memory of the fetus’ conception, whiсh was estimated to have occurred in May 1988. The child, Brandon, was born in March 1989. Candance Deller did not designate the name of Brandon’s fathеr on the baby’s birth certificate. When she applied for assistance, plaintiff required her to disclose the name of Brandon’s father as a precondition to receiving assistance.
After receiving spiritual counseling from her pastor’s wife, Candance began to remember trau *614 matic incidents of sexual abuse that had occurred in the past. She remembered that her father had sexually abused her, but she also knew that he had a successful vasectomy before the spring of 1988. Candance also began to remember an incident of sexual intercourse that occurred when the weather was warm and she had gone for a ride with defendant on his three-wheel all-terrain vehicle (atv). She rеmembered defendant looking at her in a strange manner, then disrobing her and pushing her backward over the rack on the atv. Although she did not remembеr the act of penetration, she recalled experiencing physical pain and feeling defendant breathing very hard on her faсe.
Defendant, who denied having sexual intercourse with Candance Deller, submitted to two separate blood tests. MCL 722.716; MSA 25.496. Pursuant to §6(5) of the Paternity Act, MCL 722.716(5); MSA 25.496(5):
If the probability of paternity determined by the qualified person described in subsection (2) is 99% or higher, paternity shall be presumed. The burden of proof is upon the alleged father to rebut the presumption. If 2 or more persons are determined to have a probability of paternity of 99% or higher, paternity shall be presumed for the person with the highest probability. [Emphasis added.]
The 1990 blood test established the probability of рaternity at 99.453%, and the 1992 deoxyribonucleic acid (dna) test established the probability of paternity at 99.96%. On the basis of these blood tests, plaintiff mоved for and was granted summary disposition pursuant to §6(5) of the Paternity Act and MCR 2.116(0(10). On appeal, defendant argues that the rebuttable presumption established in § 6(5) cannot result in summary disposition under MCR 2.116(0(10) in light of Candance *615 Deller’s lack of memory regarding the act of penetration and defеndant’s denial that he had sexual intercourse with her. We find that summary disposition was appropriate in this case because defendant fаiled to present substantial evidence to rebut the statutory presumption of paternity.
The trial court must determine whether, as a matter оf law, a presumption exists.
Widmayer v
Leonard,
MRE 301, entitled "Presumptions in Civil Actions and Proceedings,” explains the effect of rebuttable presumptions:
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whоm it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
In short, a presumption is a procedural device that regulates the burden of proceeding with the evidence.
State Farm Mutual Automobile Ins Co v Allen,
In Widmayer, our Supreme Court clarified some *616 confusion in the law regarding presumptions and the effect of MRE 301:
[T]f the jury finds a basic fact, they must аlso find the presumed fact unless persuaded by the evidence that its nonexistence is more probable than its existence.
We so hold bеcause we are persuaded that the function of a presumption is solely to place the burden of producing evidence on the opposing party. It is a procedural device which allows a person relying on the presumption to avoid a directed vеrdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption. [422 Mich 289 . Emphasis added.]
Thus, an unrebutted presumption can form the basis for a directed verdict or summary disposition in favor of the moving party.
Applying the law to the facts оf this case, we find that defendant failed to present substantial evidence rebutting the presumption of paternity. Widmayer, supra at 288-289; Allen, supra. Despite Candance Dеller’s inability to specifically recall the act of penetration resulting in Brandon’s conception, she testified at her depositiоn that she recalled the sexual assault that defendant committed against her. Although the trial court found that her deposition testimony alonе "would not be enough to convince this Court that a pretrial adjudication would be appropriate,” the court correctly held thаt "the results of the blood tests remove any factual question from the mind of this Court, and the resulting legal presumption created by those blood tеsts dictate the resolution of this Motion, and this case.” Indeed, pursuant to § 6(5) of the Paternity Act, defendant’s two blood tests established the statutory рresumption of paternity. *617 Defendant’s mere assertion that he never penetrated or engaged in the act of sexual intercoursе with Candance Deller is not sufficient to overcome this presumption, 1 and the results of defendant’s polygraph examination were not, and could not, be considered as evidence to rebut the presumption based upon defendant’s blood and dna tests.
Because defendant was unable to produce substantial evidence to dissipate the presumption of paternity established pursuant to § 6(5) of the Paternity Act, we find that no genuine issue of material fact existed regarding defendant’s paternity of Brandon Deller. Thus, summary disposition was properly granted in favor of plaintiff pursuant to MCR 2.116(0(10).
Affirmed.
Notes
Indeed, we believe that no citation of authority is necessary for the proposition that penetration is unnecessary to impregnate a woman. Also, defendant cites no support for his contention that Candance DeUer’s suppressed memory and her inability to specifically recall the act of penetration or the child’s conception somehow rebuts or negates the statutory presumption of paternity contained in § 6(5) of the Paternity Act.