Cnty. of Riverside v. Estabrook

242 Cal. Rptr. 3d 259, 30 Cal. App. 5th 1144
CourtCalifornia Court of Appeal, 5th District
DecidedJanuary 8, 2019
DocketE068516
StatusPublished
Cited by1 cases

This text of 242 Cal. Rptr. 3d 259 (Cnty. of Riverside v. Estabrook) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cnty. of Riverside v. Estabrook, 242 Cal. Rptr. 3d 259, 30 Cal. App. 5th 1144 (Cal. Ct. App. 2019).

Opinion

MILLER J.

*1147Plaintiff and appellant Riverside County Department of Child Support Services (the County) filed a complaint against defendant and respondent Michael Lee Estabrook (Father) seeking $288 per month in child support, as well as any healthcare expenses, for J.L., Father's alleged daughter, whose mother, J.L.1 (Mother), was receiving public assistance. ( Welf. & Inst. Code, § 11457, subd. (a).) Father requested a judgment of non-paternity. ( Fam. Code, § 7636.) The family court entered a judgment of non-paternity and dismissed the County's complaint with prejudice.

The County raises four issues on appeal. First, the County contends the family court erred by not ordering genetic testing. ( Fam. Code, § 7551.)1 Second, the County asserts the family court's decision to apply the marital presumption (§ 7540) is not supported by substantial evidence. Third, the County contends the family court erred by permitting Father to assert the marital presumption (§ 7540) because the presumption may only be raised by the spouses who are in the marriage. Fourth, the County contends the family court's finding of non-paternity ( § 7636 ) is not supported by substantial evidence. We reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

The County filed a complaint against Father, seeking $288 per month in child support, as well as any healthcare expenses for J.L., due to Mother receiving public assistance. Father filed a verified answer. Father wrote, "This is a child born to [Mother's] current marriage. [D.L. (Husband) ] signed a voluntary declaration of paternity as well as the birth certificate. I do not believe I am the father. [Husband] is presumed the father as the minor *262child was born to their marriage." The County filed a motion for judgment on the issues of parentage, child support, and healthcare expenses.

Father filed a motion to join Husband in the proceedings. Father contended the court needed "to determine parentage prior to making any child support orders." Father's attorney's declaration was included with the motion for *1148joinder. In the declaration, Father's attorney declared Husband was married to Mother during the conception and birth of J.L.; Husband was present during J.L.'s birth; Husband is named on J.L.'s birth certificate; Husband signed J.L.'s birth certificate; and Husband and Mother were cohabitating at the time J.L. was conceived.

Father filed a request for a judgement of non-paternity. Father attached his own declaration to the request. Father declared he was not J.L.'s father. Father asserted J.L. was born "during marriage," and that Husband held J.L. out as Husband's child. Further, Father declared, "Mother ... unequivocally stated that her husband whom she was married to and living with when the child was born is the father of the minor child."

The County filed a request for genetic testing, as well as an opposition to Father's request for a judgment of non-paternity. The County argued that Father could not use the marital presumption to shield himself from financially supporting J.L. The County contended only Husband and Mother could assert the marital presumption-not Father. The County contended genetic testing was mandated by section 7551, and that it would be premature to enter a judgment of non-paternity prior to receiving the results of the genetic tests.

Father filed a reply. Father asserted that Husband was presumed to be J.L.'s father because Husband was married to Mother. Father contended the marital presumption had to be overcome before the court could order genetic testing. Father contended it was not his burden "to overcome the conclusive presumption" that Husband was J.L.'s father. Father contended genetic testing was not mandated by section 7551 because parentage was not an issue in the case, due to Husband being J.L.'s presumed father.

The trial court held a hearing in the matter. The County asserted (1) genetic testing was mandatory upon the County's request for such tests; (2) there was no evidence supporting Father's assertion that the marital presumption applied to Husband and Mother; (3) only Husband and Mother could assert the marital presumption; and (4) Mother's public assistance application named Father as J.L.'s father. Father argued that Mother had been served with Father's request for a judgment of non-paternity, and she had not opposed his request.

The family court said that, because "[M]other was married at the time of the conception of this child, ... the marriage presumption is already there," and therefore Father did not have to assert the presumption nor prove the presumption applied. The County asserted (1) there was no evidence to support a finding that Husband and Mother were married when J.L. was *1149conceived; (2) Father could not assert the marriage presumption as a defense in a child support case; and (3) under section 7551, genetic testing was mandatory upon the County's request.

Father asserted the only evidence in the case had been provided by Father, and it reflected that J.L. was born during Mother and Husband's marriage. Father asserted it was now Mother's burden to disprove the marital presumption, but Mother was not participating in the case. Father contended the family court could not order *263genetic testing due to the marital presumption causing Husband to be J.L.'s presumed father.

The family court said, "If the mother was married to [Husband] at the time of the conception of the child, the presumption kicks in automatically. He doesn't have to raise it. The child is born during the marriage, the presumption kicks in automatically. He's not raising it." The court explained that the County failed to provide evidence that Father had an affair with Mother. The County asserted that Mother named Father on her public assistance application, which caused the County to request genetic testing of Father, and upon the County's request genetic testing was mandatory.

The family court said, "I don't agree with what you said, that the Court shall order genetic testing in this case. I don't agree with that." The court did not provide its interpretation of section 7551. The court concluded, "I would dismiss this with prejudice and grant the judgment for non-paternity. That's the order of the Court."

DISCUSSION

A. MANDATORY TESTING

The County contends the family court erred by not ordering genetic testing because such testing is mandatory upon the County's request.

" ' "When interpreting statutes, we begin with the plain, commonsense meaning of the language used by the Legislature. [Citation.] If the language is unambiguous, the plain meaning controls." ' " ( Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630, 181 Cal.Rptr.3d 1,

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Cite This Page — Counsel Stack

Bluebook (online)
242 Cal. Rptr. 3d 259, 30 Cal. App. 5th 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cnty-of-riverside-v-estabrook-calctapp5d-2019.