# Petition — Caton v. Caton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0874%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 464 U.S. 1042 ## Text 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 OPINIONS BELOW The opinion of the Oklahoma Court of Appeals, which was not for publication, is printed in Appendix A. The Journal Entry of the Supreme Court of Oklahoma denying certio- rari is printed in Appendix B. JURISDICTION The judgment of the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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0874%3A1. Public record. Not legal advice.