Petition — Caton v. Caton

Office -Supre

83-716 "FILED 8

No. A-208 OCT 26 1983

REERAREER L STEVAS,

CLERK

IN THE SUPREME COURT OF THE UNITED

OCTOBER TERM 1983

CAROLE JUNE CATON, Petitioner

Vv.

PAUL WILLIAM CATON

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OKLAHOMA

-

a iat we

CAH hiro peer

Carole Juné’ Lawson

(Formerly Caton)*

Rt. 2, Box 85C

Haskell, Oklahoma 74436

Phone: 918-482-5914

*Proceeding for herself

wr rs

ee ui. bie

QUESTIONS PRESENTED

1. Whether the Oklahoma Court of Appeals

may hold that it is acceptable for a male to

use 10 O.S. §§ 501-508, providing for blood

tests, to prove nonpaternity of a child

while denying blood tests to a similarly

situated female attempting to prove

nonpaternity.

2. Whether petitioner has a right to be

heard, through the vehicle of blood grouping

tests, which could provide the only

scientific and impartial evidence of the

identity of the natural father of her minor

child.

TABLE OF CONTENTS,

Opinions Below .

Juriedfction ... .

Constitutional and statutory provisions

OS

Pr. « 6 6.0 *

Reasons for granting the

’ Conclusion . .« « «

Table of Cases .

Constitution. .

r EE@O 6s ce

Appendix A. °

Appendix B...

petition.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

No. A-208

CAROLE JUNE CATON, Petitioner

Vv.

PAUL WILLIAM CATON

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OKLAHOMA

Carole June Lawson (formerly Caton),

petitions for a writ of certiorari to the

Oklahoma Supreme Court for the purpose of

reviewing the judgment of the Oklahoma Court

of Appeals.

OPINIONS BELOW

The opinion of the Oklahoma Court of

Appeals, which was not for publication, is

printed in Appendix A. The Journal Entry of

the Supreme Court of Oklahoma denying certio-

rari is printed in Appendix B.

JURISDICTION

The judgment of the Oklahoma Court of

Appeals was entered on March 15, 1983. A

petition to the Oklahoma Court of Appeals fer

rehearing was denied on May 3, 1983. On June

28, 1983 the Oklahoma Supreme Court denied

certiorari. On September 23, 1983 Associate

Justice Byron White extended the time within

which to file a petition for a writ of cer-

tiorari to Oct. 26, 1983. The Jurisdiction

of this Court is invoked under 28 U.S.C. 1257

and any relevant statutes.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

This case involves the Fourteenth Amend-

ee

ment to the Constitution of the United States,

which provides, in part, as follows:

“..enor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT

Carole June Caton filed for divorce from

Paul William Caton in the District Court of

Tulsa County, Oklahoma. Carole Caton alleged

that Paul Caton was not the father of her

minor child (12 months), and requested blood

grouping tests to establish this. The Dis-

trict Court ordered blood tests. Carole

Caton and her minor child had blood grouping

tests performed. Paul Caton refused to comply

with two District Court orders requiring him

to provide blood samples.

The District Court granted a divorce and

found Paul Caton in willful contempt of court,

but adjudicated that Paul Caton was the father

of the minor child. The District Court took

no action to enforce the blood grouping orders

ame

against Paul Caton.

Carole Caton appealed to the Oklahoma

Court of Appeals, Division no. l, requesting

that the District Court of Tulsa County be

instructed to adjudicate the question of

paternity against Paul Caton (In this case,

this means adjudicating that he is not the

father), or alternately, to enforce its blood

grouping order against Paul Caton. The Okla-

homa Court of Appeals denied the appeal on

Feb. 8, 1983.

Carole Caton filed a petition for rehear-

ing, which was granted. The Oklahoma Court

of Appeals, Division 1, again denied the ap-

peal, substituting a new opinion.

The Oklahoma Court of Appeals denied a.

second petition for rehearing on May 3, 1983.

On May 20, 1983, Carole Caton petitioned

the Oklahoma Supreme Court for a writ of

certiorari.

On June 28, 1983, the Supreme Court of

Oklahoma denied certiorari, with six justices

concurring and three dissenting.

whe

REASONS FOR GRANTING THE PETITION

Oklahoma Statute 10 0.S.§ 501 provides:

“In a civil action or actions in the

nature of a civil proceeding in which

paternity is a relevant fact, the court

*** upon motion of any party to the

action made at a time so as not to delay

the proceedings unduly, shall, order

the mother, child, and alleged father

to submit to blood tests. If any party

refuses to submit to such tests, the

court may resolve the question of

paternity against such party or enforce

its order if the rights of others and

the interests of justice are required.”

The Act, on its face, applies to any

party. There is nothing in the Act to sup-

port an interpretation that the Act applies

only to men seeking to show nonpaternity. but

not to women seeking to show nonpaternity.

The Oklahoma Court of Appeals held that

it was “socially repugnant” for a woman to,

in effect, illegitimize a child, by proving

nonpaternity, and that the act was intended

for use by men to avoid support payments.

The use of the Act by a man would also

illegitimize a child if nonpaternity were |

proven, and should be equally socially repug-

a ae

nant. However the Oklahoma Court of Appeals

held that such use by a man was proper.

Petitioner claims that the use of Okla-

homa Statute 10 0.S. § 501 by men, but the

denial of its use by women constitutes

impermissible, invidious discrimination sole-

ly on the basis of sex. The U.S. Supreme

Court has held, in the cases of Reed vs. Reed,

404 U.S. 71 and Frontiero v. Richardson, 4l1

U.S. 677, that discrimination based upon sex

constituted invidious discrimination and

could not stand absent a compelling state

reason. There is no compelling state reason

which would authorize men to dispute the

paternity of children born during wedlock,

but not authorize women to dispute the pater-

nity of the same child born during wedlock.

The Court of Appeals erred in not ordering

that the issue of paternity be resolved

against the party refusing to provide the

court-ordered blood sample, or by alternately

instructing the trial court to enforce its

blood grouping order.

-6-

Cc

The Fourteenth Amendment provides in

part: “No State shall...deprive any person

of life, liberty, or property, without due

7

process of law...”. The Supreme Court of the

United States decided in Little vs. Streater,

452 U.S. 1, that the absence of blood grouping

tests denied petitioner due process by denying

him “...a meaningful opportunity te be heard”.

While the reasons for denial of petitioner’s

opportunity to be heard by presenting blood

grouping evidence are different from the rea-

sons in Little vs. Streater, they are no less

a denial of due process. The decision in

Little vs. Streater referred to Mathews vs.

Eldridge, 424 US 319, in setting three stan-

dards for a due process claim. Under the

first standard a significant private interest

must be affected. In this case it is peti-

tioner’s interest of having the filiation of

her child correctly ascribed to her present

husband, rather than to her former husband,

who refuses to allow filiation to be deter-

mined by the blood grouping tests twice or-

ee

dered by the trial court. Petitioner and her

present husband have already been heard, by

submitting to blood grouping tests and ob-

taining expert opinion ascribing a 96.7%

probability of paternity to her present hus-

band. The second standard is consideration of

the risk of erroneous deprivation of such pri-

vate interest through the procedures used.

The use of a presumption of legitimacy causes

great risk of error. This risk of error could

be made almost nil by the scientific blood

grouping tests ordered by the trial court, but

refused by the respondent, Paul Caton. The

third standard is consideration of the Govern-

ment’s interest “including...the fiscal and

administrative burdens”. The State of Okla-

homa has not been asked to pay for blood

grouping tests, nor to take on substantial

administrative burdens if they are performed.

The sole possible state interest is the

social interest of not illegitimizing the

child. In this case there is no possi-

bility of illegitimizing the child. Peti-

-8-

tioner’s present husband has testified that

he is the father of the minor child and ac-

cepts her as his daughter, this in addition

to the 96.7% probability of paternity scien-

tifically ascribed to him by blood grouping

tests. It would be simple for the trial

court to declare petitioner’s present husband

the legal father. In this way the child

would not be illegitimized, rather she would

be correctly legitimized to her natural father.

CONCLUSION

I, Carole June Lawson (formerly Caton),

respectfully request that the United States

Supreme Court grant this petition for writ

of certiorari, and reverse the decision of

the Oklahoma Court of Appeals, by directing

that Paul William Caton be judged not to be

the natural father of my minor child, or by

directing that the trial court enforce its

orders requiring Paul William Caton to

provide samples of his blood.

ie

Respectfully submitted,

( TV prstey' Ok Kerem)

CAROLE JUNE LAW. ON (Formerly Caton)

I certify that a copy was sent to:

Mr. Gomer A. Evans, Jr. and

Mr. Bruce Sewell

Attorneys at Law

2121 South Columbia

Tulsa, Oklahoma 74114

Rt. 2, Box 85SC

Easkell, Oklahoma 74436

Phone: (918) 482-5914

-10-

TABLE OF CASES

Reed vs. Reed, 404 US 71, 30 L Ed 2d 225, 92

S Ct 251.

Frontiero vs. Richardson, 411 US 677, 36 L Ed:

2d 583, 93 S Ct 1764.

Little vs. Streater, 452 US 1, 68 L Ed 2d 627,

101 S Ct 2202.

Mathews vs. Eldridge, 424 US 319, 47 L Ed 2d

18, 96 S Ct 893.

CONSTITUTION

Amendment XIV - Certified true copy published

in USCA.

STATUTES

28 U.S.C. 1257

me

APPENDIX A

NOT FOR PUBLICATION

THE COURT OF APPEALS OF THE STATE OF OKLAHOMA

(Division No. 1)

CAROLE JUNE CATON, )

Appellant, )

vs. No. 57,002

PAUL WILLIAM CATON,

Appellee. )

APPEAL FROM THE DISTRICT COURT OF

TULSA COUNTY, OKLAHOMA

HONORABLE BERT C. McELROY, JUDGE

AFFIRMED

Bruce M. Townsend

Tulsa, Oklahoma, For Appellant,

Gomer A. Evans, Jr.

G. Bruce Sewell

Tulsa, Oklahoma, For Appellee.

Opinion by LESTER A. REYNOLDS, Presiding

Judge:

Carole June Caton (Appellant) contends

that the trial court erred in failing to im-

oi @a

pose sanctions against Paul William Caton

(Appellee) for contempt of court. Appellant

also alleges that the amount of child support

awarded is inadequate and clearly against the

weight of the evidence. Appellant further

asserts that it was error to deny her alimony.

Appellant and Appellee were granted a di-

vorce on the grounds of mutual and irrecon- —

cilable incompatibility on February 18, 1981.

Appellant filed her initial petition for di-

vorce on January 3, 1980. Temporary custody

of the child of the marriage, Adrianna Vashti

Caton, was granted to Appellant. Permanent

custody, questions about the child’s paterni-

ty, alimony, and property division were re-

served for further hearing. The division of

property has not been appealed,

Appellant alleged that the child, born

December 26, 1978, was not fathered by Appel-

lee. The trial court granted Appellant’s mo-

tion for blood tests of Appellee pursuant to

10 0.S. 1981 § 501, which provides:

In a civil action or actions in the

-13-

nature of a civil proceedings in which

paternity is a relevant fact, the court,

upon its own initiative or upon sugges-

tion made by or on behalf of any person

whose blood is involved may, or upon

motion of any party to the action made at

a time so as not to delay the proceedings

unduly, shall, order the mother, child

and alleged father to submit to blood

tests. If an rty refuses to submit to

such tests, the court may resolve the

question of paternity against such party

or enforce its order if the rights of

others and the interests of justice so

require. (Emphasis added. )

Appellee has consistently failed and re-

fused to submit to blood tests. He contends

that it would be repugnant to the policy of

Oklahoma and to social conscience to allow

Appellant to use 10 0.S. 1981 § 501 to il-

legitimize their daughter. We agree. He

does not deny paternity of the child.

The trial court held hearings several

times on Appellant’s motions to hold Appellee

in contempt for refusing to submit to blood

tests. The record reveals that the trial

court declined to cite Appellee for contempt

on at least two occasions. The trial court

ultimately found that Appellee was in indi-

rect contempt of court, but found that the

oT

interests of justice did not require that he

be punished.

Appellant contends that the trial court

erred in not punishing Appellant? for con-

tempt of court.

A primary objective in construing any

statute is to ascertain the intent of the

Legislature. Midwest City v. Harris, 561 P.

2d 1357 (Okl. 1977). Statutes must be con-

strued to render a reasonable result and to

promote the general purposes for which they

were enacted. AMF Tubescope Company v.

Hatchel, 547 P.2d 374 (Okl. 1974).

The presumption that a child born during

marriage is legitimate is longstanding, and

may be rebutted only by clear, sinned ve:

and convincing evidence. Frankovich v.

Frankovich, 459 P.2d 583 (Okl. 1969); Bell v.

Territory, 56 P. 853 (Okl. 1899). This pre-

sumption reflects a strong public policy of

Oklahoma.

In matters of equitable cognizance such

as the case at hand, this Court will not re-

a0

1 sic

verse the trial court’s determination unless

it is clearly against the weight of the evi-

dence or established principles of equity.

Nisbet v. Midwest Oil Corporation, 451 P.2d

687 (Okl. 1968).

One purpose of suits to determine paterni-

ty is to allow accused men an opportunity to

present evidence of non-paternity so they may

avoid having to pay support for children they

have not fathered. Another purpose is to ob-

tain support for minor children from their

natural parents. Appellee does not deny that

he is the father of the child in this action.

He does not seek to avoid his financial re-

sponsibility to his daughter. Appellant’s

contention that Appellee did not have marital

relations with her during the time of concep-

tion does not clearly and conclusively rebutt

Appellee’s testimony that the parties did en-

gage in marital relations. The trial court’s

finding that Appellee is the father of the

child born to Appellant is not clearly against

the weight of the evidence nor is it contrary

-16-

to established principles of equity.

The triai court had the discretion under

10 0.5. 1981 § 501 not to enforce its order

for blood tests if the interests of justice did

not so require. Appellant has demonstrated no

abuse of that discretion nor has she shown

that the trial court’s holding is contrary to

the intended operation of 10 0.S. 1981 § 501.

Appellant’s contention that the award of

$100.00 per month as child support is woefully

inadequate is unsupported by the record. This

Court will search the entire record, but wil

not disturb the amount of child support al-

lowed by the trial court unless the amount a-

warded is clearly against the weight of the

evidence. Kirkland v. Kirkland, 488 P.2d

1222 (Okl. 1971). The only evidence regard-

ing Adrianna’s expenses was that Appellant

and the child incurred approximately $560.00

per month in expenses. Appellant stated that

she had no budget for the child’s separate ex-

penses. If it is assumed that the child’s ex-

penses are half of the monthly total, one must

i P

then subtract the support which Appellant her-

self owes the child. When so viewed, the a-

ward of $100.00 per month is not clearly a-

gainst the weight of the evidence.

The determination of an alimony award is

a matter addressed to the sound discretion of

the trial court. The discretion must be rea-

sonably exercised based upon what is fair and

just in light of all the circumstances sur-

rounding the case. Peters v. Peters, 539 P.

2d 26 (Okl. 1975). Appellant has a bachelor’s

degree in journalism from the University of

Tulsa. She was employed prior to her mar-

riage to Appellee. Appellant presented no

medical evidence showing an inability to

resume gainful employment. No abuse of

discretion has been shown.

Attorney’s fees for this appeal should

be borne by the individual parties.

AFFIRMED*

ROBINSON, J. and YOUNG, J. concur.

ay

APPENDIX B

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

Tuesday, June 28, 1983

THE CLERK IS DIRECTED TO ISSUE THE FOLLOWING

ORDERS:

57,002 Carole June Caton v. Paul William

Caton.

Certiorari denied.

CONCUR: Barnes, C.J., Simms, V.C.J.,

Irwin, Hodges, Doolin, Hargrave, JJ.

DISSENT: Lavender, Opala, Wilson, JJ.

Page signed by Don Barnes,

CHIEF JUSTICE

eT