Home DEPARTMENT OF REVENUE & another [Note 1] vs. ROBERT SPINALE.

406 Mass. 1007

March 6, 1990

Joseph G. Spinale, Jr., for the defendant.

Rosanna Cavallaro, Assistant Attorney General, for the Commissioner of Revenue.

The defendant was adjudged the father of a child born to Jeanne Aiello. He appealed from that determination to the Appeals Court, which is the appropriate court to which an appeal from such a determination should be taken. Department of Revenue v. Jarvenpaa, 404 Mass. 177 , 180-181 (1989). We transferred his appeal to this court on our own motion.

1. The defendant's claim that he was entitled to a jury trial is without merit. Id. at 189 n.15.

2. It was not error for the trial judge, in making his decision, to rely on the physical resemblance between the child and the defendant. Although this court has expressed its doubt about the merits of such a comparison

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unaccompanied by expert testimony (Commonwealth v. Kennedy, 389 Mass. 308 , 314 [1983]), such a comparison is authorized by statute. G. L. c. 209C, Section 16 (e) (1988 ed.). The judge did not err in relying in part on the "clear, indeed striking" physical resemblance of the child and the defendant.

3. The judge believed the mother's testimony that, at the relevant times, she had intercourse only with the defendant. He was entitled to believe her testimony and, having done so, he ruled on clear and convincing evidence (G. L. c. 209C, Section 7 [1988 ed.]) that the defendant was the child's father.

4. There is no substance to the defendant's claim that the determination of paternity must be reversed because the mother testified to having had sexual intercourse with other men at the relevant times. The defendant's reading of the record to support that claim is patently wrong.

5. Expert testimony did not exclude the defendant from being the father. The judge was entitled to consider the testimony of the plaintiff's expert that the likelihood of the defendant's paternity was 99.7% more than the average man, to conclude on the basis of the testimony of the defendant's expert (see Commonwealth v. Beausoleil, 397 Mass. 206 [1986]), that the defendant was not excluded from the possibility of being the father, and then to turn to other evidence in making his decision.

6. The final arguments of the defendant's counsel present no basis for reversal of the judgment, particularly in a jury-waived trial.

Judgment affirmed.


FOOTNOTES

[Note 1] Jeanne Aiello.