Laugenour v. Fogg

The question presented here, while it may not be simple, is at least definite and clear-cut.

From the nature of the case, as it will disclose itself, a detailed statement of the facts wnuld have as its sole result the embalming in buckram of a story that would serve only to arise as future embarrassment to innocent and blameless persons unhappily drawn into the controversy. Both parties agree that there is for determination but one point of law upon which the entire controversy hinges and the proceeding becomes in reality one following a practice adopted in some courts, namely, a certification of the question involved.

In the instant case the appellant presents the question as follows: Does section 230 of the Civil Code contem

The respondent presents the question, in slightly different form, as follows: Can a married man, the father of an illegitimate child, adopt such child under section 230 of the Civil Code by separating and living apart from his wife and living with the mother of said illegitimate child, and having said child live with them, and acknowledging the child as his own, without any consent having been given by the wife and without her even knowing of such illegitimacy?

To both of these questions may be added, concededly, the further statement that in both it is assumed to be understood, that there had been no divorce between the spouses.

The questions as respectively propounded could be narrowed down to the one simple query, as follows: Does section 230 of the Civil Code mean what it says or must it be construed as merely a moral precept intended for general guidance as inclination might determine?

Section 230 of the Civil Code reads as follows:

“The father of an illegitimate child, by publicly acknowledging it as his own, .receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such. ...” (Italics added.)

This section was adopted in 1872 and, throughout the changing conditions of the ensuing years, has not been amended. The section has been before the courts on many occasions when fortunes have been at stake and prominent families involved. Through all this time there has never been placed upon the language used any construction other than the plain words import.

The argument is stressed in the case before us that we should consider the plight of the illegitimate child as the foremost factor in the case. At the outset it may serve some purpose to dispose of this contention. In the case of Blythe v. Ayres, 96 Cal. 532 [ 31 Pac. 915 , 19 L. R.

“No doubt, illicit sexual relations sometimes impose hardships on innocent persons; but such is the result of all violations of law. The legislature could abolish all distinctions between legitimate and illegitimate children, but if it should do so, it would practically abolish marriage, and dethrone chastity as the queen of womanly virtues. ’ ’

For further general comments along the same line reference is made to the Estate of De Laveaga, 142 Cal. 158 [ 75 Pac. 790 ].

Cases without number could be cited and the subject, without citation, offers a wide field for rhetorical moralizing. We may pass over the earlier cases and come down to some of the more recent holdings on the application of the section under discussion.

In the Estate of Baird, 193 Cal. 225 [ 223 Pac. 974 ], we find this statement:

“This court declined in In re Jessup, 81 Cal. 408 , 434 [ 21 Pac. 976 , 22 Pac. 742 , 1028, 6 L. R. A. 594 ], to adhere to the view expressed in the first opinion written by Works, J., and concurred in by three justices, that in cases of adoption under section 230 the only strictness required should be proof of paternity; and-that the paternity being satisfactorily established by plenary proof courts should lean strongly in favor of a finding that the father had performed his duty and adopted the illegitimate child. It has been the rule ever since that the elements of paternity, public acknowledgment thereof, receipt of the child into the family of the father as his own, and otherwise treating him as legitimate, must each be established by a preponderance of the evidence, and that if the proof fails in respect to any one of them there is no adoption. ‘There can be no compliance with section 230 in the absence

of the conditions contemplated by that section and absolutely necessary to give it effect.' ” (See, also, Estate of Gird, 157 Cal. 534 [ 108 Pac. 499 , 137 Am. St. Rep. 131 ].)

In Estate of Flood, 217 Cal. 763 , 766 [ 21 Pac. (2d) 579 ], the court, after quoting the section, goes on to state:

“To establish her claim of legitimation under this section as construed by a number of decisions of this court, petitioner must sustain the burden of proof of the following elements:

(1) Illegitimacy ... (2) Paternity ... (3) Public acknowledgment . . . (4) Reception into the family with wife’s consent . . . given with knowledge of the illegitimacy; (5) Treatment as legitimate.”

And in the same case, to accentuate the necessity of compliance with each requirement, the court definitely determined that at the outset petitioner was the illegitimate child and that she was received into the family of the father with the consent of the wife and was there treated as though she were legitimate. But the court also held that this showing was far from sufficient and required establishment of the other essentials, namely, paternity, public acknowledgment and knowledge on the part of the wife that the petitioner was illegitimate. The court made no short cuts nor did it make any attempt to qualify the section in any respect. It stood squarely upon the terms of the section and insisted on full compliance with every requirement thereof.

The argument of the appellant here seems to be one of expediency and the doing of justice, as a mere abstraction, without reference to the provisions of the statute. The argument is that when the father of the illegitimate child severed his relations with his lawful wife he then became a man without a home of any kind with the right to re-establish a home elsewhere, with whom he chose and under whatever conditions he chose. This, too, regardless of the laws governing divorce and a separation. It is a strange contention and if adopted would mean the end of what we have heretofore deemed the backbone of any civilized country, to-wit, the home and family.

Section 230 has stood as it is now written for almost seventy years and has been the subject of litigation and construction from the very beginning. Not one word of the original section has been changed and no construction has ever even winked at such a result as is here sought. Millions in wealth have been at stake and almost every arguable theory

We can see no particular hardship resulting from an adherence to the rule which protects the entire social order. If a man or a woman has grounds justifying separation the law is certainly liberal enough to free them from the exacting bonds that have been voluntarily assumed. If it be deemed best to ignore the law and the general compact governing parental and family relations then, by the same token, the same law should not be sought as a refuge in eases where the misadventure might be turned into a benefit only for those ignoring it.

The judgment is affirmed.

Tuttle, J., and Thompson, Acting P. J., concurred.