Filkins v. Cales

*63 Shaw, Judge. Defendant-appellant, Gary Cales, appeals from a judgment of the Common Pleas Court of Logan County, Juvenile Division, granting plaintiffs-appellees’ motion for judgment notwithstanding the verdict and finding Gary to be the father of plaintiff, April Filkins. The record reveals that plaintiff, Brenda Filkins, gave birth to April on November 11, 1984. Thereafter, plaintiffs initiated a parentage action to establish a parent-child relationship between April and Gary. Plaintiffs alleged that the period of conception was on or about April 1984, and that Gary is the father of April. A jury trial commenced on July 18, 1991, to determine whether a parent-child relationship existed between Gary and April. Due to the inability of the jury to reach a verdict, the trial court declared a mistrial. On July 26, 1991, plaintiffs filed a motion for judgment notwithstanding the verdict, or, in the alternative, a motion for a new trial. In its judgment entry dated March 27, 1992, the trial court granted plaintiffs’ motion for judgment notwithstanding the verdict, and specifically found Gary to be the father of April. The trial court also conditionally granted plaintiffs’ motion for a new trial. Gary now appeals from the trial court’s judgment, entry and asserts the following assignment of error: “The Trial Court Erred in Sustaining Appellee’s [sic ] Motion for Judgment Notwithstanding the Verdict.” In this paternity action, the plaintiffs’ burden of proof was to establish the existence of the parent-child relationship between Gary and April by a preponderance of the evidence. Domigan v. Gillette (1984), 17 Ohio App.3d 228, 228, 17 OBR 494, 495, 479 N.E.2d 291, 291; see R.C. 3111.08. Pursuant to R.C. 3111.03(A)(5), a man is presumed to be the natural father of a child under the following circumstance: “A court or administrative body * * * has ordered that genetic tests be conducted to determine the father and child relationship and the results of the genetic tests indicate a probability of ninety-five per cent or greater that the man is the biological father of the child.” At trial, Dr. Edward J. Ball, the Scientific Director at the Community Blood Center in Dayton, Ohio, testified that the genetic testing of April, Brenda, and Gary disclosed a 98.5 percent probability that Gary is April’s father. Dr. Ball further gave his expert professional opinion that the genetic blood tests were strong evidence in favor of Gary being the biological father of April. *64 In addition to Dr. Ball’s testimony, Brenda testified at trial that she and Gary had sexual intercourse twice in April 1984, the alleged month of conception. She also testified that she had sexual intercourse with David Guyan on approximately April 14, 1984. However, the record reveals that the results of genetic blood testing excluded David as the biological father of April. Brenda further testified that she had sexual relations with no other man during the month of April 1984. Gary testified under cross-examination that it was possible that he had sexual intercourse with Brenda in April 1984, on any of the three dates that he had stayed at the L-K Motel in Bellefontaine. He further testified that neither party brought up the issue of using any form of contraceptive. Based primarily on an ultrasound performed on May 23, 1984, Dr. Jeffrey Barrows, Brenda’s physician, testified that he estimated the time of conception to be roughly around April 7, 1984. Based upon all the foregoing, we believe the plaintiffs clearly established a prima facie parent-child relationship by a preponderance of the evidence. Pursuant to R.C. 3111.03(B), the presumption of paternity resulting from the genetic testing may only be rebutted by clear and convincing evidence. As defined by the Ohio Supreme Court in Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979, 984, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus: “ ‘Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ ” On cross-examination, Dr. Barrows stated that April’s estimated gestational age at birth was about thirty-four weeks. While Dr. Barrows’ gestational age assessment based upon the ultrasound was within the alleged period of conception, a thirty-four-week gestational estimate would have placed the probable date of conception in March 1984. Because the record indicates that Gary and Brenda did not have sexual intercourse during the month of March 1984, the appellant maintains that such evidence was sufficient to rebut the presumption of paternity resulting from the genetic tests. Although Dr. Barrows’ testimony does contain certain inconsistencies, it is our opinion that such evidence alone does not rise to the level of clear and convincing evidence, as is required to rebut the presumption of paternity established by the genetic test results in this case. *65 The Ohio Supreme Court set forth the established standard for reviewing a motion for judgment notwithstanding the verdict in Osler v. Lorain (1986), 28 Ohio St.3d 345, 28 OBR 410, 504 N.E.2d 19. Construing the evidence most strongly in favor of the party against whom the motion is made, such a motion should be denied where there was substantial evidence to support the nonmoving party’s position upon which reasonable minds could differ. Id. at 347, 28 OBR at 411, 504 N.E.2d at 21. Based upon the record, we conclude that there was not substantial evidence upon which reasonable minds could reach different conclusions as to the existence of a parent-child relationship between Gary and April. Accordingly, Gary’s sole assignment of error is overruled, and the judgment of the trial court granting plaintiffs’ motion for judgment notwithstanding the verdict and finding Gary to be the father of April is affirmed. Judgment affirmed. Thomas F. Bryant, J., concurs. Evans, J., dissents.