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Rabb v. Estate of Jerry M. McDermott

January 22, 1991


Scholfield, J. Pekelis and Baker, JJ., concur.

Author: Scholfield

Evangeline McDermott, personal representative of the estate of her son, Jerry McDermott, appeals the trial court's determination that David James Rabb is the son of Jerry McDermott. We affirm.


On April 18, 1988, Muriel Patricia Rabb, on behalf of her minor son, David James Rabb, born July 7, 1985, brought this action for determination of paternity against the estate of Jerry M. McDermott, and Evangeline McDermott as the

estate's personal representative. McDermott died in an automobile accident on July 30, 1987.

The trial court's findings of fact indicated that Rabb and McDermott met in September 1981 and lived together in McDermott's home from December 1981 until late in 1983 or early in 1984. At the time McDermott had custody of his two sons from a prior marriage -- Trevor, born in 1975, and Damian, born in 1977.

While McDermott and Rabb lived together, they appeared to carry on a normal intimate relationship, and testimony was presented by individuals who had seen them sleeping in the same bed. Rabb testified that McDermott was concerned about her drug and alcohol problem and that this was one of the reasons the two separated and did not marry.

Rabb testified that after their separation, she and McDermott continued to see each other. Holiday cards signed by McDermott were introduced into evidence to show a continuing relationship. Rabb testified that she and McDermott had sexual intercourse on a number of occasions after they separated, and specifically that they had sexual intercourse in October 1984, during the time when David was conceived. Mrs. McDermott's counsel was not permitted to cross-examine Rabb as to whether she had sexual intercourse with any other men during this time period.

The evidence presented concerning McDermott's relationship with David after the child was born showed that the contact between the two was limited. McDermott came to visit Rabb the day after the child was born. Later on, McDermott occasionally provided milk, diapers, and toys. Although Rabb and McDermott would sometimes take all three boys on outings, the evidence did not show that McDermott ever took David anywhere without Rabb accompanying them.

David's birth certificate did not name a father. Rabb named "Rick Rosenbaum" as David's father on several applications for public assistance. However, Rabb testified

that she needed to name a father to obtain public assistance, and knew Rosenbaum to be sterile, so if DSHS initiated proceedings to collect child support from Rosenbaum, blood tests would show that Rosenbaum was not David's father.

According to Rabb, her reasons for not naming McDermott as the father of David included the fact that her general mental condition was affected by her ingestion of drugs and alcohol; McDermott did not want another child; McDermott was financially strained, and Rabb did not want the State to seek child support payments from him; Rabb was concerned that, because of her alcohol problem, McDermott might seek custody of David, as he had for his other sons; and finally, that McDermott had admitted to a homosexual relationship, and Rabb was concerned and embarrassed for herself and for her son.

Rabb's mother, Martha Sherry, testified that McDermott never denied that he was David's father, and she testified that David had physical characteristics similar to McDermott's boys, Trevor and Damian, whom she knew quite well because they had attended her day-care center. The trial court's findings indicated that it found Sherry to be very credible, and gave great weight to her testimony. Rabb also presented the testimony of Clinton Boutchyard, a close friend of McDermott's. Boutchyard testified that McDermott twice admitted to being David's father. The trial court also found Boutchyard to be very credible.

Mrs. McDermott's case consisted solely of her testimony, in which she stated that her son never told her that David was his child, but she admitted McDermott had never denied that fact either. Mrs. McDermott also stated her opinion that David did not resemble Trevor and Damian, but she also admitted that she had never seen David in person.

The trial court concluded that Jerry McDermott had fathered David Rabb, ordered that an amended birth certificate be issued, and awarded costs to Rabb and attorney's

fees for the guardian ad litem, payable by McDermott's estate. This ...

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