Pitfall in Proving Parentage Produces a Pratfall

June 25, 2013 § 1 Comment

The COA decision in Ivy v. Ivy, decided December 11, 2012, is a tour de force analysis of the hearsay rule and the parentage presumption. It’s far beyond the scope of this humble blog to break the 30-page majority and 10-page dissenting opinions down in detail, but the case bears mentioning for a few points:

  • If you intend to offer a document into evidence that pertains to a material fact and is circumstantially trustworthy but not within any of the specific hearsay exceptions, it may not be admitted unless you first comply with MRE 803(24), which requires you to give the other side notice of it and an opportunity to “prepare to meet it.”
  • Even self-authenticated documents under MRE 902 require prior notice to opposing counsel before they may be admitted at trial.
  • The majority opinion’s analysis of the confusing welter of statutes for acknowledgment of paternity may be helpful to you, particularly in a wrongful-death setting as was the case here.

In Ivy, the battle was to determine who were the heirs at law and wrongful-death beneficiaries. There was a lot at stake, because the decedent had been killed in a car-train collision in Kemper County, which had the potential to produce a lucrative verdict or settlement.

The chancellor admitted into evidence an affidavit and DNA test that supported the conclusion that the decedent’s mother and siblings were the only heirs and wrongful-death beneficiaries. The COA ruled, after detailed analysis, that the chancellor should not have admitted the affidavit and DNA report into evidence. The case was remanded for “further proceedings consistent with this opinion.” To me, this means that the parties are headed for a do-over, with the COA majority opinion as a road map to a proper conclusion.

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