BEFORE ROY NOBLE LEE, ROBERTSON and SULLIVAN
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Thomas E. Grimsley filed a petition in the Chancery Court of Pearl River County, Mississippi, for filiation, seeking to have himself declared the natural father of Charles Thomas Grimsley, rights of visitation with the minor child, and for the court to set a reasonable amount of contribution by him for support and maintenance of the child. Virginia Ann Stines (a/k/a Steins) Tyner filed a motion for jury trial, which was granted. The chancellor appointed Honorable R.I. Prichard, III, Circuit Judge of the Fifteenth Circuit Court District of Mississippi, Special Master, and transferred the cause to Judge Prichard's circuit court for the trial by jury.
The jury returned a verdict finding that Thomas E. Grimsley is not the natural father of Charles Thomas Stines, and Judge Prichard filed his report as Special Master with the Chancery Court of Pearl River County. That court entered a decree approving, ratifying and affirming the report of the Special Master and decreed that Thomas E. Grimsley is not the natural father of Charles Thomas Stines. From that decree, Grimsley has appealed to this Court and has assigned seven errors in the trial below.
Five of the assigned errors state that the lower court erred in overruling appellant's motion for judgment notwithstanding the jury verdict in that the evidence did not sustain a verdict on behalf of appellee, or, in the alternative, that the verdict was contrary to the overwhelming weight of the evidence. Those five assignments of error will
At the time of the trial on October 2, 1981, appellant was thirty-three years of age and appellee was thirty-eight years of age. They met in 1973, lived in the same neighborhood and, subsequently, began a sexual relationship. The child, Charles Thomas Stines (Charlie), the subject of this controversy, was born July 8, 1977, in Slidell Memorial Hospital, Slidell, Lousiana. The birth certificate issued for the child did not indicate the name of the father, and on February 9, 1979, it was altered to reflect Thomas E. Grimsley as Charlie's father. At the time of the trial, appellee had been married to Hosie Bee Parker for approximately two years and one child, Hosie Bee Parker, III, age 13 months, was born of the marriage. Previously, she was married to one Ralph Tyner for approximately six or seven years and Tonette Ann Tyner, age 18 years, is a child of that marriage.
Other than the above facts, the versions of appellant and appellee directly contradict each other on material points. According to appellant, he was living with appellee and engaging in sexual intercourse with her during 1976, more particularly in the summer and autumn, which was the period when Charlie was conceived. Also, he stated that he paid bills; contributed to the hospital expenses, even though Medicaid paid most of the amount; agreed with appellee that the child's birth certificate be altered, and appellant's name indicated as the father of the child; that they executed a sworn agreement to the effect that appellant was the father of the child; that he would contribute $100.00 per month for the support of the child; and that he would not interfere with custody rights until the child became 18 years of age.
Appellee testified that she did not have sexual relations with appellant during the summer and autumn of 1976, the period of conception; that she had been going with one James Arthur Hale since 1973, and had sexual relations with him three or four times a week for a period of seven or eight years, until he was killed in an automobile accident September 6, 1978, and that James Arthur Hale was the father of Charlie; and that he was the only person with whom she engaged in sexual relations during the period when Charlie was conceived.
For the purpose of this decision, it will not be necessary to state the facts of the case further insofar as the testimony of the parties and witnesses is concerned. The
testimony was so highly contradictory and hopelessly different that the factual issue could only be resolved by the jury. If there were no other physical or documentary facts to shed light on the sole issue involved, viz, the paternity of the child, the verdict of the jury and judgment of the court would have to be affirmed.
Expert and Documentary Evidence
On October 23, 1978, appellant and appellee contacted a lawyer, went to his office, and obtained his assistance in preparing proper papers acknowledging appellant to be the father of the child and obtained an alteration of the birth certificate to so indicate. On that date, appellant and appellee each swore to and signed an acknowledgment of paternity setting out that Thomas E. Grimsley is the father of Charlie. Also, on October 23, 1978, appellant and appellee entered into a sworn agreement to the effect that the child's name would be changed to Charles Thomas Grimsley, that Thomas E. Grimsley, father of the child, pay $100.00 per month for child support until the child reaches the age of 18 years, that Thomas E. Grimsley should have reasonable visitation rights to see said minor child; that appellee would have permanent custody of said child; and that appellant would not take any action to change custody until the child attained the age of 18 years. [See Appendix].
Dr. Leslie Ray Bryant, Jr., was agreed upon by the parties as an expert to conduct paternity study and blood tests of the parties and the child and was appointed by the court to make the examination and study. He conducted the tests at the Southern Baptist Hospital blood bank and found no exclusion of paternity for appellant, based upon the red blood cell testing. The most advanced system of testing for paternity (the HLA testing) was used, and, based on that testing, Dr. Bryant found ...