Gene M. v. Annette G. CA4/2

California Court of Appeal

Gene M. v. Annette G. CA4/2

DecidedJune 21, 2013

DocketE054720

StatusUnpublished

This text of Gene M. v. Annette G. CA4/2 (Gene M. v. Annette G. CA4/2) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gene M. v. Annette G. CA4/2, (Cal. Ct. App. 2013).

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Opinion

Filed 6/21/13 Gene M. v. Annette G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

GENE M.,

Respondent, E054720

v. (Super.Ct.No. FAMRS1001434)

ANNETTE G., OPINION

Appellant;

KEVIN G.,

Claimant.

APPEAL from the Superior Court of San Bernardino County. Michael J.

Torchia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Stephen I. Gassner for Appellant.

Vivian T. Shallito for Respondent.

No appearance for Claimant.

1 Respondent Gene M. (Father) petitioned the family court to establish the

paternity of his daughter, A.G. (Fam. Code, § 7630.)1 The family court found Father is

A.G.‟s presumed father (§ 7611), and ordered Father and appellant Annette G.

(Mother), A.G.‟s mother, to participate in mediation for setting a visitation schedule.

Mother appeals the family court‟s ruling. Mother contends the family court erred

because (1) Father did not have standing to file the petition; (2) the court should have

granted Mother‟s motion to dismiss Father‟s petition; (3) the court should not have

considered the quality of Mother‟s marriage; and (4) there is “an irremediable matter of

the human condition.” We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Mother married Kevin G. (Husband) on September 4, 1999. At the time Mother

married Husband, she had a three-year-old son, A.O. A.O.‟s Father is James O. Mother

and Husband have two children together, S.G. and R.G. After R.G.‟s birth, in 2002,

Husband had a vasectomy. Mother and Husband separated for a three-month period.

In September 2008, Mother and Father met when Mother went to Father‟s

tanning salon to tan. Mother told Father she was “going through a divorce.” Mother

and Father began dating and engaging in sexual intercourse. Mother and Father went to

a jewelry store together and shopped for engagement ring settings. Mother did not use

birth control during the affair. Mother took a pregnancy test while at Father‟s tanning

salon—Father had purchased the test. The test was positive. Father attended Mother‟s

1 All further statutory references will be to the Family Code, unless otherwise indicated.

2 first pregnancy appointment with her doctor. Father believed Mother was excited about

the pregnancy; however, Mother was unhappy about it due to the problems it could

create in her life.

Father told Mother he wanted them to be a family. Mother said she would file

for divorce from Husband. Husband learned about Mother‟s pregnancy during a church

counseling session. The counseling session took place in August 2009. Also at the

counseling session, Mother disclosed she had been having a nine-month affair with

Father. Husband was upset and unhappy about the pregnancy because he knew the

baby was not his due to the vasectomy.

Father loved Mother. Father was under the impression that Mother was not

planning to stay married to Husband, because Mother often texted Father, “„I love

you,‟” and Mother and Father looked at engagement rings together. Father bought

Mother lunches, prenatal massages, vitamins, and maternity clothes. At an ultrasound

appointment, Mother and Father learned the baby was a girl. When the ultrasound

technician announced the baby was female, Mother and Father cried together. When

they left the appointment, they went to the car, hugged and continued crying. Once

inside the car, they called Father‟s father in North Carolina. Mother told Father‟s

father, “„You are going to be a grandpa. And it is a little baby girl.‟” Father was

looking forward to the birth of his daughter.

Mother and Father made plans to meet so they could go to Mother‟s second

ultrasound appointment together. Mother brought Husband to the meeting. Mother did

not tell Father about her plans to bring Husband to the meeting. When Husband saw

3 Father, Husband introduced himself to Father and told Father they needed to talk.

During the conversation both men cried and said they did not know what to do.

Husband told Father, “he didn‟t know what to think or what to do.” Father responded,

“„I‟m at the same place, you know. I got a child coming and I can‟t get the truth. I

don‟t know what is going on.‟”

Father felt Mother had tried to “pit” the two men against one another. Father had

paid approximately $250 for a 4-D ultrasound, so Father told Husband they should

attend the appointment since Father had already paid for the service. Father, Husband,

and Mother went to the ultrasound appointment; however, Husband remained outside,

despite an invitation from Father to participate in the appointment.

During Mother‟s pregnancy, Father told people Mother was pregnant with his

child. Mother updated Father on the progress of her pregnancy, such as when the fetus

was moving and kicking. Mother and Husband‟s relationship continued to be tense

during the pregnancy. However, Mother did not want to file for divorce. Mother told

Father she gave Husband divorce papers for Husband to file. Mother discussed with

Father how she would need Father to pay her mortgage when Husband left.

Mother eventually stopped communicating with Father when Father began

telling Mother he wanted to be present during the baby‟s birth. Father went to Mother‟s

father‟s house to tell Mother‟s father that he would provide for Mother and A.G.

Mother‟s father said Mother warned him Father might stop by, and “he had nothing to

say” to Father. The communication between Mother and Father ceased.

4 A.G. was born on April 10, 2010. Husband was present during A.G.‟s birth, and

Husband cut the umbilical cord. Husband is listed as the Father on A.G.‟s birth

certificate. Father was not present during the birth. Father is A.G.‟s biological father.

Mother did not notify Father of A.G.‟s birth. On April 17, 2010, Father called Mother.

Mother told Father A.G. had not yet been born and said, “„Don‟t call me.‟” On April

20, Father learned from another person that A.G. was born on April 10. Father called

Mother again. Mother told Father that A.G. was “beautiful” and “healthy”; however,

Mother would not allow Father to see A.G. On April 29, 2010, Father filed his petition

to establish A.G.‟s paternity and obtain visitation.

Mother and Father continued communicating via telephone calls, e-mails, and

text messages. Father continued to ask to see A.G. Mother told Father, “„Give me

time” or . . . „When the time is right.‟” At the end of June 2010, Mother relented and

brought A.G. to a department store to meet Father. Father spent approximately one

hour with the child and purchased bows for her hair. During the first week of July,

Mother, Father, and A.G. went to lunch together, and spent approximately three hours

together. Father attended two of A.G.‟s doctor appointments. Father was present when

A.G. received vaccine shots. Father was introduced at the appointments as A.G.‟s

father.

Father and Mother spent a Friday together. Father took care of A.G. while

Mother went to a massage appointment. Father gave A.G.

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