Wareham v. Wareham

195 Cal. App. 2d 64, 15 Cal. Rptr. 465, 1961 Cal. App. LEXIS 1427

• Court: California Court of Appeal
• Decided: August 21, 1961
• Docket: Civ. 25093
• Status: Published

Opinions

LILLIE, J.

Plaintiff husband appeals from an order modifying an interlocutory divorce decree, which decree he previously had obtained by default. The order, among other things, declared plaintiff to be the father of a second child (Shelley Marie), born subsequent to the interlocutory judgment, awarded custody thereof to defendant, and ordered plaintiff to pay certain sums for the child’s support.

Plaintiff’s action for divorce was filed on May 27, 1959; an interlocutory decree was entered on July 25 of the same year. The decree awarded custody of the parties’ minor child, Charles Mitchell, to the defendant with reasonable visitation rights to plaintiff. Thereafter, on December 14, 1959, defendant secured an order directing plaintiff to show cause why (1) the decree should not be modified as to increase the amount payable for the support of Charles Mitchell, and (2) plaintiff should not pay for the medical care of an expected child and for its support. By subsequent amendment, defendant alleged that plaintiff was the father of said expected child. The allegation of his parenthood was denied by the plaintiff; upon the hearing, however, plaintiff admitted that he was not impotent during the period in question. Shelley Marie was born February 17, 1960.

Plaintiff contends that the adverse order below was based on evidence which “is inherently improbable, impossible and contrary to physical law’’; we have concluded that neither the law nor the facts (necessarily viewed in a light most favorable to the defendant) support such claims.

We summarize the evidence received by the trier of fact.¹ Defendant testified that she commenced her menstrual period on May 8 or 9, 1959. The date of this period was challenged by plaintiff who stated that he last had intercourse with his wife on May 13, 1959, and that she moved out of the family bed and into another room on May 15. Defendant also told a friend on May 17 that she was then “cramping” arid in her menstrual period. There was testimony that defendant, while at the hospital, assertedly stated to a male friend: “Yes, I will have you your baby boy.” As already mentioned, the complaint for divorce was filed on May 27, although plaintiff continued to reside at the family domicile until the following day (May 28).

Defendant, on the other hand, testified that she last had intercourse with her husband on May 24 or 25; she did not deny that she told a witness for the plaintiff on May 13 that she did not feel well and should be menstruating “any day now.” While acknowledging that she associated with other men immediately prior to the parties’ separation, she denied any intimacies with such persons and further testified that she had not had intercourse with any man other than her husband.

Blood tests of the parties and Shelley Marie were taken by a qualified expert² pursuant to the provisions of section 1980.3, Code of Civil Procedure. These tests show that plaintiff could not have been the father of Shelley Marie.

Plaintiff’s argument is as follows: (1) Although the child of a woman who has been married, born within 10 months after the dissolution of the marriage, is presumed to be legitimate (Civil Code, § 194), such presumption is only disputable and is conclusively overcome when blood tests establish that the mother’s husband could not be the father (Kusior v. Silver, supra, 54 Cal.2d 603, 620); and (2), the conclusive presumption of legitimacy declared in section 1962, subdivision 5, Code of Civil Procedure, is not here applicable because the defendant was not “cohabiting” with her husband at the time of possible conception (Kusior v. Silver, supra, pp. 609-616); there is a somewhat subsidiary claim, not vigorously pressed, that the birth of the child did not occur within the usual or normal operation of the laws of nature, for which further reason the conclusive presumption in question does not apply. (Estate of McNamara, 181 Cal. 82, 96-97 [183 P. 552, 7 A.L.R. 313].)

As the Kusior case, stipra, points out, in California we have “a dual system of presumptions” (54 Cal.2d 603, 620) relevant to the issue here. While the holding in that ease clearly sustains plaintiff’s position that the disputable presumption of legitimacy (Civ. Code, § 194) is conclusively rebutted when blood tests show that the mother’s husband could not be the father, the situation is otherwise when the provisions of the conclusive presumption (Code of Civ. Proc., § 1962, subd. 5) are applied to the facts at bar. The latter statute provides: “Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate” (emphasis added). Declared in Kusior v. Silver, 54 Cal.2d 603 [7 Cal.Rptr. 129, 354 P.2d 657], to be a substantive rule of law, the statute was amended in 1955 (subsequent to the adoption of our Uniform Blood Test Act in 1953) to include the phrase above italicized; the addition of such language, according to the court in that case, indicated an overall legislative intent that persons concerned may not avail themselves of any other provision of law, including the Uniform Blood Test Act, to dispute the presumption therein created (54 Cal.2d 603, 618-619). The applicability of this conclusive presumption to the present case depends on whether it can be said that defendant at the time of the child’s possible conception was “cohabiting” with plaintiff-husband.

In the Kusior case, supra, the court adopted the definition of “cohabiting” (as used in the statute) which is found in Estate of Mills, 137 Cal. 298, 301 [70 P. 91, 92 Am.St.Rep. 175] : “living together . . . ostensibly as husband and wife,” and Estate of Walker, 180 Cal. 478, 491 [181 P. 792]: “living together in the same house or apartments” (54 Cal.2d 603, 611, 616); mere opportunity for access, it was there concluded, is not sufficient. Plaintiff argues that there was no “cohabiting” within the meaning of the statute because the last act of intercourse with defendant-wife occurred on May 13, after which she moved out of the family bed and into another room, that this was followed by her menstrual period (commencing May 15), the filing of the divorce suit on May 27 and her departure from the family home the next day (May 28). He particularly stresses the inconsistencies in his wife’s testimony concerning the onset of her menstrual period —thus, on one occasion that its commencement was several days later (at or about the time plaintiff testified that intercourse was had). Such latter argument ignores the established rule that it is for the trier of fact to resolve conflicts, and this rule “applies as well to cases of inconsistencies and contradictions within the testimony of a single witness” (People v. Hecker, 179 Cal.App.2d 823, 827 [4 Cal.Rptr. 334]); furthermore, it is express statutory law that the trier of fact is the exclusive judge of the credibility of witnesses (Code Civ. Proc., § 1847). Unquestionably the trial judge impliedly determined, reconciling inconsistencies and resolving conflicts, that defendant’s mentrual period had ended on or before May 24 or 25 at which time, while the parties concededly were “living together ostensibly as husband and wife” and “in the same house or apartments,” an act of intercourse was accomplished which resulted in the conception of Shelley Marie. The situation in Kusior v. Silver, 54 Cal.2d 603 [7 Cal.Rptr. 129, 354 P.2d 657], of course, was altogether different; there the child’s mother and her husband were living apart by virtue of an interlocutory judgment of divorce, and there was only an opportunity for access. Regardless of the seeming inequities here present, the unanimous decision in the Kusior case, supra, is controlling.³

Finally, we do not follow the subsidiary claim that the period of gestation in the present ease was not normal— probably plaintiff is suggesting that defendant could not have conceived at the time claimed because (as he asserts) she was then menstruating. If the child was conceived on May 24 or 25, 1959 (which the trial court impliedly found), the period of gestation, ending on February 17, 1960, was anything but abnormal, being 269 or 270 days. It has been observed that “the periods of pregnancy range from 220 days to 330 days.” (Dazey v. Dazey, 50 Cal.App.2d 15, 20 [122 P.2d 308].)

The order is affirmed.

Wood, P. J., concurred.

1 Plaintiff’s opening brief makes rather extended references to defendant’s disputed mistreatment of Charles Mitchell when the latter child was in her custody—solely, it appears, to attack her credibility as a witness. The order of June 17, 1960, from which this appeal is taken, relates to Shelley Marie alone, and plaintiff’s whole argument is devoted to the question of the paternity of that child.

2 It has been said by way of dictum that “more than one expert must make the tests and agree upon the results ...” Kusior v. Silver, 54 Cal.2d 603, 620, footnote 5 [7 Cal.Rptr. 129, 354 P.2d 657]).

3 In Kusior v. Silver, 54 Cal.2d 603 [7 Cal.Rptr. 129, 354 P.2d 657], it was contended that the declared supremacy of the conclusive presumption was inconsistent with constitutional principles “in that there is no reasonable relationship between the presumption and the fact sought to be presumed in a case in which there is scientific evidence to the contrary [citation]”; however, appellant did not suggest that “the Legislature [had] no interest in or power to determine, as a matter of overriding social policy, that given a certain relationship between the husband and wife, the husband is to be held responsible for the child. There are significant reasons why the integrity of the family when husband and wife are living together as such should not be impugned. A conclusive presumption is in actuality a substantive rule of law and cannot be said to be unconstitutional unless it transcends such a power of the Legislature [citation].” (54 Cal.2d 603, 619.)