Gene M. v. Annette G. CA4/2

California Court of Appeal

Gene M. v. Annette G. CA4/2

California Court of Appeal·Decided June 21, 2013·No. E054720·Unpublished

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.

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

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.

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. her bottle and changed her diaper. Father told people A.G. was his daughter. On another occasion, Father cared for A.G. from 6:00 a.m. to 5:00 p.m., while Mother went to Orange County. Father

took A.G. to his salon, to his house, and out for a walk. During that time, Father fed A.G., changed her diapers, and changed her clothes. Father has bottles, diapers, baby lotion, and baby clothes at his house.

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