Appeals from the Superior Court of the District of Columbia; Hon. Annice McBryde Wagner, Trial Judge
Rogers, Chief Judge, and Terry and Schwelb, Associate Judges.
The opinion of the court was delivered by: Rogers
Appellant W.M. appeals from the judgment adjudicating him to be the father of a minor child born to appellee D.C. on the grounds that the trial court's finding of paternity is clearly erroneous, the amount of child support is invalid under the child support guideline then in effect, and the trial Judge abused her discretion in denying appellant's motions for a new trial and for relief from judgment. Appellee filed a cross appeal on the ground that the trial Judge abused her discretion by denying child support retroactive to the date of birth. We find appellant's contentions unpersuasive. However, we agree with appellee that the trial Judge should have awarded retroactive child support. Accordingly, we reverse the order denying retroactive child support and remand the case for further proceedings, and otherwise affirm.
A child was born to appellee D.C. on September 4, 1986, after she had filed a petition on May 6, 1986, for custody and child support, naming appellant W.M. as the father of the child. At trial, appellee testified that the parties had an intimate relationship from May, 1984, to January, 1986, during which they saw each other frequently and had sexual intercourse on most of these occasions. Appellee expressly recalled that they had sexual intercourse several times during December, 1985, the likely period of conception of the child, including the first Saturday after her birthday (December 7, 1985). Appellee's brother and her two roommates testified regarding their observations which led them to believe that appellee and appellant had an intimate sexual relationship, noting appellant's frequent visits to appellee's bedroom.
In addition, appellee introduced into evidence, over appellant's objection, the results of two HLA (Human Leukocyte Antigen) tests *fn1 which showed a 99.97 percent likelihood that appellant was the father of appellee's child and excluded appellee's other boyfriend as the child's father. *fn2 The HLA tests were interpreted by Dr. Wurzinger, associate director of the Department of Paternal Evaluation of the Roche Biomedical Laboratories in Burlington, North Carolina, who also testified about the chain of custody of the test samples and the standards used by the laboratory.
Appellant denied paternity, testifying that he had never had a sexual relationship with appellee. He admitted meeting appellee as a result of answering her advertisement in the personal section of a magazine, becoming friends with her, and sending her postcards signed "Love." He challenged the results of the HLA tests on the ground that appellee had not demonstrated that the man who appeared to give the second blood sample was in fact appellee's other boyfriend. Appellant also presented expert testimony about problems experienced by Roche Laboratories in 1984-86, before their accreditation, regarding the adequacy of supervisory review of test procedures, and questioned Dr. Wurzinger's expertise.
The trial Judge found that appellant was the father of appellee's child, and ordered him to pay child support of $800 per month, retroactive to the date of the adjudication of paternity, December 3, 1987. The Judge denied appellant's motions for a new trial and for relief from judgment, rejecting appellant's claims that the findings were contrary to the credible evidence, and that newly discovered evidence showed he was out of town between December 2 and 7, 1985.
On appeal appellant renews the claims of error that he raised in his motions for a new trial and relief from judgment, and contends that the trial Judge erred in calculating the amount of child support.
Appellant contends that the trial Judge's factual findings that he was the father of appellee's child are contrary to the credible evidence and that he was prejudiced by the improper admission of evidence of an HLA test which excluded appellee's other boyfriend as the father of her child. Credibility is for the trial Judge to determine, as appellant acknowledges, and we find no basis on which to overturn the determinations made in the instant case. See Cohen v. Cohen, 240 A.2d 662, 663 (D.C. 1968). Appellee's testimony about her relationship with appellant was corroborated by the testimony of her brother and roommates which the Judge could properly credit over appellant's denial of a sexual relationship with appellee. Nor do we find clearly erroneous the trial Judge's finding that appellee and her other boyfriend did not have sexual intercourse during the period of conception. The trial Judge could properly take judicial notice that the period of conception is about 280 days, or nine months, see L.C.D. v. District of Columbia ex rel T.-A.H.D., 488 A.2d 918, 919 n.1 (D.C. 1985); District of Columbia v. Mock, 217 A.2d 113, 115 n.4 (D.C. 1966), and based on evidence that appellee's last menstrual period occurred on November 23, 1985, find that appellant had sexual intercourse with appellee during the critical period for conception. The Judge's finding that appellee had no sexual relations with any other man during the period of conception is supported by the evidence and not clearly erroneous. See S.A. v. M.A., 531 A.2d 1246, 1249 (D.C. 1987).
In support of his claim of prejudicial error when the trial Judge admitted into evidence the blood tests, appellant contends that appellee failed to lay a proper foundation, that he was denied statutory notice the HLA tests had been performed on appellee, her child, and her other boyfriend, and that Dr. Wurzinger was only minimally qualified to testify as an expert in paternity testing and was unfamiliar with the laboratory used. Appellant also contends that the HLA report on the other boyfriend was not properly admitted under the business records exception to the hearsay rule. He relies on ...