531 P.2d 487 | Utah | 1975
We have an unusual fact situation in these proceedings wherein two former husbands of Sheryl Rae Miller Marticorena contest the right to have the custody as well as the duty of supporting a child born to Mrs. Marticorena. From an adverse ruling by the district court, Sergio Marti-corena, denominated third-party defendant, appeals to this court.
On May 10, 1969, the plaintiff, Richard W. Miller, and Sheryl Rae Miller were married. Shortly thereafter, plaintiff left for Fort Gordon, Georgia, where he began a tour of active duty with the army. Richard’s tour of duty began on May 22, 1969. Soon after Richard arrived at Fort Gordon, he failed to receive any communication from his wife. Richard obtained a leave of absence for the purpose of searching for Sheryl Rae, whom he located about the third week of August. Richard and Sheryl Rae lived together for a few days during which time they had sexual relations. Richard returned to Fort Gordon where he completed his tour of duty and thereafter returned to Salt Lake City, where during the month of October, Richard and Sheryl Rae resumed living together. The couple lived together for approximately six months and then separated.
On December 31, 1970, Richard commenced these proceedings seeking a divorce. A decree of divorce was entered on March 29, 1972, which became final on June 30, 1972. Sheryl Rae and Marticor-ena were married on July 30, 1972. The decree awarded the care and custody of the child, Michael Wayne, to Sheryl Rae, and Richard was granted rights of visitation. The child lived with Sheryl Rae and Marticorena after their marriage. On October 20, 1973, Sheryl Rae was killed in an automobile accident. After the death of Sheryl Rae, the child Michael Wayne Miller remained in the custody of Marticorena. Richard W. Miller, the plaintiff, obtained an order to show cause, which was served upon Marticorena for the purpose of contesting Marticorena’s right to maintain custody of the child. While this procedure is questionable, no question was raised by the parties, and they elected to try out the issues of custody on the issues joined *by the pleadings.
At the trial the plaintiff elected to stand on the preseumption that Michael Wayne
The main thrust of Marticorena’s appeal to this court is based upon refusal of the trial court to admit statements made by Sheryl Rae to Marticorena, Richard Miller, Dr. Donald M. Kirk, the physician who attended Sheryl Rae prior to and at the birth of the child; Dr. Kirk’s nurse, and a bishop of the L. D. S. Church. While the specific grounds for the refusal on the part of the court do not appear, it would appear that the ruling was based upon the court’s judgment that a proper foundation had not been laid for the receipt of the proffered testimony. The evidence shows that on or about the time of her conception Sheryl Rae had sexual relations with both Marticorena and Richard. It is unlikely that she knew which man was in fact the father. Without a better foundation being laid, the trustworthiness of the evidence proffered was doubtful.
After a careful examination of the entire record we conclude that Marticor-ena, appellant here, failed to establish beyond a reasonable doubt that he was the father of the child here involved. The decision of the lower court is affirmed. Respondent is entitled to costs.
. Lopes v. Lopes, 30 Utah 2d 393, 518 P.2d 687.
. 5 Wigmore on Evidence, 3d Ed., Secs. 1482-1484.