Gallina v. Antonelli

SHOEMAKER, Acting P. J.

Plaintiff Robert Gallina, a minor, brought this filiation proceeding through his guardian

ad litem,

Sara Rose Gallina, to have it adjudged that defendant Robert Antonelli was the father of plaintiff and under a duty to support him. The trial court, sitting without a jury, entered judgment for defendant. Plaintiff appeals therefrom.

, Appellant’s first contention is that the evidence was insufficient as a matter of law to support the trial court’s finding that respondent was not his father. This argument is without merit. The evidence relative to paternity consisted of the conflicting testimony of appellant’s mother, Sara Rose Gallina, and of respondent Robert Antonelli. This conflict in the evidence presented a question of fact for the trial judge, and it cannot be said as a matter of law that he erred in choosing to believe respondent rather than Miss Gallina.

Neither is there any merit to appellant’s contention that respondent’s testimony was inherently improbable because he admitted acts of sexual intercourse with Miss Gallina and denied only that they had occurred during the period when, in the ordinary course of nature, appellant must have been conceived. It must be remembered that Miss Gallina herself testified that she and respondent had terminated their

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relationship in 1957. Respondent’s testimony that the relationship was never reestablished is certainly no more improbable than Miss Gallina’s testimony that she and respondent were reunited for one further act of intercourse at the approximate time of appellant’s conception.

Appellant’s second contention is that the trial court erred in admitting evidence of Miss Gallina’s sexual relations with other men prior to the date of appellant’s conception.

Appellant is clearly correct in such contention. The law is well settled that, in filiation proceedings, evidence of the immorality of the mother prior to the period of possible conception is inadmissible, and it is error even to ask questions which are designed to imply acts of immorality for the purpose of showing bad character, or for impeachment.

(Estate of Gird