Price v. Price

The answer to the following question must control the outcome of this appeal: does the nunc pro tunc date of an interlocutory divorce decree, or the actual calendar date on which it is entered, control the application of the conclusive presumption that a child born in wedlock is the issue of the husband?

Plaintiff, born March 25, 1962, sued the defendant, Roy Price, through her guardian ad litem, Vay Vawter (who is also her mother) alleging that he is her father and that he fails and refuses to provide for her support and education; it is alleged that her mother and father were not married to each other at the time of plaintiff’s conception, and that the mother was not then married to anyone else; that $350 per month is required for her maintenance and that the defendant has ample means to pay for such support and also reasonable attorney’s fees and court costs.

The minor plaintiff had the right, depending upon the true facts, to bring the action for support (Civ. Code, §196a; 8 Cal.Jur.2d, Bastards, § 24, p. 248; Pasquale v. Pasquale, 219 Cal. 408 [ 27 P.2d 76 ]), including attorney’s fees and costs. (Kyne v. Kyne, 74 Cal.App.2d 563 [ 169 P.2d 272 ].)

The complaint was filed June 21, 1965. Thereafter, at the hearing of an order to show cause, plaintiff attempted to in

Section 1962, subdivision 5 of the Code of Civil Procedure states:

“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, ...”

Obviously, this conclusive presumption is not effective as to persons who are no longer husband and wife. If the marriage was dissolved legally as of a date prior to the conception of the plaintiff the conclusive presumption that plaintiff is the daughter of Mr. Vawter would no longer apply. As the trial court believed in the applicability of the conclusive presumption, and that the plaintiff should, therefore, be found to be the daughter of Mr. Vawter, there must be a reversal if the court’s assumption is incorrect. Floyd Vawter and Vay Vawter were married in Reno, Nevada, in 1937. Notwithstanding the fact that they had three children of their own, serious marital differences developed between them and they separated in March I960; at that time, Mrs. Vawter obtained an interlocutory decree of divorce in Kern County; however, some months after this decree was acquired, the husband returned to live in the family home, being actuated, according to at least one version, by his desire to raise his children personally; according to the record, Mr. and Mrs. Vawter slept in separate rooms and they did not again have sexual intercourse at any time.

In 1961, Mrs. Vawter became friendly with the defendant, Roy Price; she testified, subject to the objection, that they had sexual intercourse with each other on numerous occasions. She became pregnant with the present minor child, Susan Darlene Price, who was born March 25, 1962. The interlocutory decree

The record establishes by uncontradicted evidence that Mr. Vawter was not sterile or impotent.

The Supreme Court has recently defined the connotation of “cohabiting” as used in subdivision 5 of section 1962 of the Code of Civil Procedure. Its meaning, as carefully analyzed in the opinion of Mr. Justice Dooling in Kusior v. Silver, 54 Cal.2d 603 , 611 [ 7 Cal.Rptr. 129 , 354 P.2d 657 ], is the dwelling together of husband and wife in family quarters: “Taken together, the Mills [Estate of Mills, 137 Cal. 298 ( 70 P. 91 , 92 Am.St.Rep. 175 )] and Walker [Estate of Walker, 176 Cal. 402 ( 168 P. 689 ) and 180 Cal. 478 ( 181 P. 792 )] cases clearly limited the application of the conclusive presumption of section 1962, subdivision 5, to cases where the parties were ‘living together . . . ostensibly as husband and wife’ (Mills) or ‘living together in the same house or apartments’ (Walker) and in all other eases applied only the rebuttable presumptions.’’

Appellant’s contention that two people are not “living together as husband and wife, ’ ’ even if using the same house or apartment and carrying on most of the usual activities of a family home, if they have abandoned the practice of sexual intercourse as between them, cannot be upheld in view of the analysis and discussion in the Kusior case, supra.

Similarly, the argument of appellant that this conclusive presumption is violative of the rights of the plaintiff under the Fourteenth Amendment to the United States Constitution (Wareham v. Wareham, 195 Cal.App.2d 64 [ 15 Cal.Rptr. 465 ]; Heiner v. Donnan, 285 U.S. 312 [ 52 S.Ct. 358 , 76 L.Ed. 772 ]; Schlesinger v. Wisconsin, 270 U.S. 230 [ 46 S.Ct. 260 , 70 L.Ed. 557 , 43 A.L.R. 1224 ]) cannot be approved by this court in view of the pronouncement to the contrary in Kusior v. Silver, supra, 54 Cal.2d 603 , 619.

Section 133 of the Civil Code reads as follows: “Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed and entered,

In opposition to this view of the law, it is contended by the respondent that the effect of the code section is limited to those cases where a second marriage has taken place after the date when a final judgment of divorce could have been entered and that the whole purpose, intent and function of the nunc pro tunc final decree of divorce is to protect second wives and husbands who married a second time under the assumption that they were finally divorced from their first wives when a year elapsed after the interlocutory decree. This viewpoint, however, is not accepted by the Supreme Court which held in Adoption of Graham, 58 Cal.2d 899 , at page 904 [ 27 Cal.Rptr. 163 , 377 P.2d 275 ]: “While the foregoing unquestionably states a most obvious purpose of the statute we are not prepared to hold that the statute serves no other purpose than to validate a later marriage. In differ