Ruddock v. Ohls

Opinion

Statement of the Case

Respondent Darrel Ohls and his wife, Diane E. Ohls, were divorced in Oregon on September 21, 1971. In its divorce decree, the Circuit Court of

According Full Faith and Credit to the Oregon Decree of Nonpaternity, It Is Binding Upon the Parties but Does Not Resolve the Independent Rights of the Minor Child

California is required to recognize the Oregon judgment as determinative of respondent’s nonpaternity of appellant Christina Ruddock as between the parties to the Oregon divorce action, Darrell L. Ohls (respondent) and appellant’s mother, Diane E. Ohls. Christina was not joined as a party nor was a guardian ad litem appointed.

“It is well settled that once a valid judgment has been rendered it must be accorded full faith and credit by eveiy other court within the United States even though the cause of action upon which the judgment was based is against the law and policy of the state in which enforcement is sought. [Citations.]” (Biewend v. Biewend (1941) 17 Cal.2d 108 , 111-112 [ 109 P.2d 701 , 132 A.L.R. 1264 ]; McGuire v. Brightman (1978) 79 Cal.App.3d 776 , 782 [ 145 Cal.Rptr. 256 ]; Thorley v. Superior Court (1978) 78 Cal.App.3d 900 , 907-908 [ 144 Cal.Rptr. 557 ].) Therefore, the determination of the Oregon court is binding upon the courts of California if Oregon had jurisdiction over the parties and subject matter, the parties were given reasonable notice and an opportunity to be heard, and the court rendered a final judgment. (Miller v. Superior Court (1978) 22 Cal.3d 923 , 930 [ 151 Cal.Rptr. 6 , 587 P.2d 723 ].) A party confronted with the bar of a foreign judgment has the right to show that it was in excess of jurisdiction, or affected by fraud if those issues were not expressly litigated in the foreign state. (Craig v. Superior Court (1975) 45 Cal.App.3d 675 , 680 [ 119 Cal.Rptr. 692 ], and cases cited therein.)

The issue presented is essentially not one of jurisdiction, but of res judicata with the concomitant consideration of identity of parties, issues and privity. The Oregon court had personal and subject matter jurisdiction over the husband and wife, but lacked personal jurisdiction over the nonparty minor child. Respondent seeks to bind the minor by the judgment on the basis the mother was acting in a full representative capacity with complete identity of interest. Under California law children who are not parties to a divorce action still may be bound by some aspects of a marital dissolution proceeding if the interests of the child are adequately represented by one of the parents.

The interest of a mother in proving paternity may be coextensive with the interest of the child to have paternity determined and support provided in some circumstances. There is nothing in the record showing that the Oregon proceeding was one in which, to use the language of Armstrong, appellant’s mother being entrusted with her care and maintenance acted as “a proper representative of [her] interests” {Armstrong, supra, at p. 951). If a judgment determining the existence of the parent-child relationship is to be binding upon the nonparty minor child, respondent has the burden of proving the minor was a party to the action or in some other manner is bound prospectively by the findings and judgment in the parents’ marital dissolution action.

A Minor Child Is Not Foreclosed From Establishing the Existence of the Parent-Child Relationship by a Decree of Marital Dissolution in Which She Has Not Joined as a Party in Interest .

A parent may not waive on behalf of children amounts reasonably due for present or future support, but between themselves an agreement is binding. {Hunter v. Hunter (1959) 170 Cal.App.2d 576 , 583 [ 339 P.2d 247 ].) While parents by their conduct or agreement cannot impair a child’s right to reasonable support, the parties may by agreement or waiver determine the manner in which reimbursement is received for sums already expended for their support in the past. (Graham v. Graham (1959) 174 Cal.App.2d 678 , 684 [ 345 P.2d 316 ]; Kaminski v. Kaminski (1970) 8 Cal.App.3d 563 , 566-567 [ 87 Cal.Rptr. 453 ].) In contrast to enforcement of a child’s right of a present or past support obligation, the establishment of the parent-child relationship is the most fundamental

Considering present-day realities, not every question of paternity raised and decided in a marital dissolution action involves a full adversary hearing on the subject. It is not uncommon for such an issue raised in the pleadings to be decided pro forma Because the motftej^is reticent to. be subjected to scrutiny about past dalliances. The emotional experience and psychological trauma of háving one’s personal - life unveiled",can act as a deterrent. Guilt feelings over the dissolution, favorable concessions on support or property can influence the vigor with which the paternity question is presented to the court. (See Everett v. Everett (1976) 57 Cal.App.3d 65 , 71 [ 129 Cal.Rptr. 8 ].) The availability of aid to families with dependent children (AFDC) may relieve the financial motivation for energetic pursuit of the responsible father. Lastly, the mpther may have ambivalent feelings about having the child tied, to -a past relationship or about having,to deal with the father o&i visitation and support. These considerations would require a review of the record to determine whether the mother acted in a proper representative capacity, and while not requiring a reweighing of the evidence, would nevertheless be a form of collateral attack.

We hold that in dealing with the prospective rights of a minor child to establish paternity, the child, if not formally a party, is not bound by a paternity determination in a marital dissolution action. The court is not required to be unaware of the prevalence of nonmarital and extramarital relationships in today’s society (Marvin v. Marvin (1976) 18 Cal.3d 660 , 683 [ 134 Cal.Rptr. 815 , 557 P.2d 106 ]). To bind the child by the discretion or indiscretion, as the case may be, of the mother in choosing counsel or trial tactics in a divorce action without formal joinder, is to confer upon the mother the right to determine a child’s most fundamental right next to life itsélf.

A fair reading of the Oregon decree indicates appellant’s mother appeared personally in the divorce proceeding and was represented by counsel; she requested the court to determine that respondent was the father of Christina and award child support. Oregon law required the mother to establish paternity by producing evidence in corroboration of

A Determination of Nonpaternity in a Marital Dissolution Action Is Not Res Judicata as to the Independent Rights of a Minor Child Without Formal Joinder of the Child.

Civil Code section 33 provides: “A minor cannot give a delegation of power, make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control.” Under Civil Code section 196a the court has jurisdiction to enforce performance of the support obligation to the same extent as in a suit for dissolution of marriage. Although under section 196a the mother of a child may file an action in her own name, the child is the real party in interest in a suit to establish paternity and obtain support. (Everett v. Everett, supra, 57 Cal.App.3d 65 ; Stargell v. Stargell (1968) 263 Cal.App.2d 504 [ 69 Cal.Rptr. 715 ]; Daniels v. Daniels (1956) 143 Cal.App.2d 430 [ 300 P.2d 335 ].) The status of the child as real party in interest tolls the statute of limitations on the issue of paternity during the minority of the child. (Perez v. Singh (1971) 21 Cal.App.3d 870 , 872 [ 97 Cal.Rptr. 920 ].) A father could not object to a judgment finding paternity on appeal because a guardian ad litem had not been appointed for the child. Under such circumstances it is presumed that the mother acted in a manner of such a guardian. (Van Buskirk v. Todd (1969) 269 Cal.App.2d 680 , 687 [ 75 Cal.Rptr. 280 ].)

The child has important rights of her own. (In re Marriage of O’Connell (1978) 80 Cal.App.3d 849 , 856 [ 146 Cal.Rptr. 26 ].) It is settled law in this state that a minor’s right to support and maintenance by his father may not be limited or contracted away by his parents. (Everett v. Everett, supra, 57 Cal.App.3d at p. 69; Civ. Code, § 7006, subd. (d); Fernandez v. Aburrea (1919) 42 Cal.App. 131 , 132 [ 183 P. 366 ]; see also Elkind v. Byck (1968) 68 Cal.2d 453 , 457 [ 67 Cal.Rptr. 404 , 439 P.2d 316 ]; Schumm v. Berg (1951) 37 Cal.2d 174 , 183 [ 231 P.2d 39 , 21 A.L.R.2d 1051 ]; Hunter v.

A mother is not acting as an agent of a child nor in a representative capacity in entering into an agreement not approved by the court providing support to be paid by a father who acknowledged paternity. (Schumm v. Berg, supra, 37 Cal.2d at p. 183.) The natural guardianship of a parent extends to the person of a child and not its property. (State of California v. Superior Court (1978) 86 Cal.App.3d 475 , 482 [ 150 Cal.Rptr. 308 ].) A minor may not prosecute a claim through the courts without the appointment of a guardian ad litem, a parent having preferential status in applying for such status. A parent cannot compromise or settle the claim of a minor without court approval. (Code Civ. Proc., § 372.) A court may refuse to decide the issue of paternity in a dissolution action if the child is not formally made a party to the action. (Daniels v. Daniels, supra, 143 Cal.App.2d at p. 433.) Any ruling upon the issue of paternity in a dissolution action cannot affect the rights of the child unless the divorce action is converted into a filiation proceeding under Civil Code section 7000 et seq., formerly section 231, in California or Oregon Revised Statutes 109.125 through 109.235 in Oregon. Although there are some differences in form, Oregon and California law is substantially similar on the subject of the various proceedings in which paternity may be determined. (See Fox v. Hohenshelt (1976) 275 Ore. 91 [ 549 P.2d 1117 ].)

“The ordinary divorce does not fall in the category of one maintained on behalf of the child. It is to be noted parenthetically that there runs all through the law of domestic relations a basic principle that husband and wife cannot impair or sacrifice the welfare of the child, legitimate or illegitimate, by any voluntary agreement between them. (See, as examples of this doctrine, Berry v. Chaplin, 74 Cal.App.2d 652 [ 169 P.2d 442 ]; Lewis v. Lewis, 174 Cal. 336 , 341 [ 163 P. 42 ].)” (Daniels v. Daniels, supra, 143 Cal.App.2d at pp. 435-436.)

In Gonzales v. Pacific Greyhound Lines (1950) 34 Cal.2d 749 , 753 [ 214 P.2d 809 ], the Supreme Court held a divorce decree determining the husband was not the child’s father and had no obligation to provide support was not admissible in a subsequent action for wrongful death of the father, stating: “While the interlocutory decree stood as a final adjudication between the husband and wife on the issues there submitted [citations], plaintiff was not a party to that litigation and he was not bound by the determination of his status therein. [Citation.]”

Consonant with these principles, the Uniform Parentage Act (Civ. Code, §§ 7000-7018), not in effect when the divorce action was filed in Oregon and adopted in California by Statutes 1975, chapter 1244, section 11, page 3199, originally provided that the child shall be made a party to the action, now permissive if the child is under 12 years old (Civ. Code, § 7008, amended by Stats. 1977, ch. 207, § 1.)

“Of course, bringing a paternity action in the name of the minor child through a guardian ad litem is a proper way of proceeding, since it is specified by statute, . . .” (Van Buskirk v. Todd, supra, 269 Cal.App.2d at p. 685.) The pleading and procedure followed should be liberally construed in favor of the child, as real party in interest, and viewed from its four corners in determining whether the mother was acting in a representative capacity. (Id., at p. 687.) Civil Code section 7008 was viewed as codifying the decisional law set forth in Van Buskirk. (See, e.g., Perez v. Department of Health (1977) 71 Cal.App.3d 923 , 927 [ 138 Cal.Rptr. 32 ].)

We will next examine the primary cases upon which appellant relies. Adoption of Stroope (1965) 232 Cal.App.2d 581 [ 43 Cal.Rptr. 40 ] involved a petition for adoption by a stepfather seeking to adopt his wife’s natural daughter alleging that her former husband was not the father and requesting a declaration that the mother was entitled to sole custody. A prior divorce action determined that the parties, the child’s mother and her former husband, had two children (the subject of the adoption) the issue of their marriage. The court held that since the child was not a party to the divorce action she was not bound by the determination in that proceeding. “The divorce decree [was] not res judicata as to her, nor is she estopped thereby from contesting the question of her legitimacy.” (Stroope, supra, at p. 585.)

A converse situation existed in Adamson v. Adamson (1962) 209 Cal.App.2d 492 [ 26 Cal.Rptr. 236 ] where the plaintiff wife alleged in a

In Armstrong, the court held that privity exists where the person involved is “ ‘ “. . . so identified in interest with another that he represents the same legal right.” ’ (Zaragosa v. Craven (1949) 33 Cal.2d 315 , 318 . . . see also 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 226, p. 3359.)” Under the circumstances in Armstrong the children’s mother was considered “. . . entrusted with their care and custody and was a proper representative of their interests.” (Armstrong v. Armstrong, supra, 15 Cal.3d at p. 951.) The court weighed all of the circumstances in respect to the interests of finality of judgments. Adamson and Stroope were distinguished on the basis prospective rather than retroactive relief was sought. (Armstrong, supra, atp. 952.)

In the absence of a full and fair adversary hearing resulting in a judgment on the merits on the issue of paternity a finding of nonpaternity is not binding on the child particularly if collusion is potentially involved or there is a stipulation or agreement by which the issue is decided with less than complete evidence before the court. (Everett v. Everett, supra, 57 Cal.App.3d 65 .)

The child has no control over the litigation, choice of tactics or right to appeal. (See Minton v. Cavaney (1961) 56 Cal.2d 576 , 581 [ 15 Cal.Rptr. 641 , 364 P.2d 473 ].) It was, therefore, error to grant the motion to strike the complaint on the basis that the minor’s rights had been adjudicated in

In summary, the cases prior to Armstrong suggest that the alleged father is in a “heads I win, tails you lose situation.” If there is a finding of paternity the judgment is considered to the child’s best interests and inures to his benefit. Procedural defects such as failure to join the child as a party or lack of a guardian ad litem will not relieve the father from the effects of the judgment. In contrast, many cases have afforded the child a second chance to establish paternity-and obtain supjport by reasoning res judicata is inapplicable because the prior determination in the dissolution action was binding only on the husband and wife and not upon the child who is not a party. The public policy favoring the establishment of paternity and requiring fathers to assume their support obligations is a highly beneficial one, but equally salutary is the interest in the finality of judgments. If either party wishes to insure finality to the paternity question in the marital dissolution action, they may do so by taking the simple step of joining the child, thus accommodating both policies in a single proceeding. The issue of paternity determined in a marital dissolution action is not binding upon the child unless joined as a party. (Civ. Code, §§ 4363, 4606, 7008; Cal. Rules of Court, rules 1250, 1251, 1254; Ore.Rev. Stat. § 109.125, subd. (c).) In contrast, in an action for support (Civ. Code, § 196a) or under the Uniform Parentage Act (Civ. Code, §§ 7000-7018) formally brought on behalf of the child, the judgment may be shown to be binding without actual joinder if the mother acted in a proper representative capacity.

The trial court correctly reasoned that if the issue of paternity raised and fully litigated in a marital dissolution action were not res judicata there would never be finality or legal certainty concerning the status of the family members. However, the record contains only the divorce decree indicating Christina had not been joined with the appointment of a guardian ad litem as could have been done under Oregon Revised Statutes 109.125. The trial court’s finding that Christina is bound by the Oregon judgment is not supported by substantial evidence in the record before us.

We have considered whether the rule of Armstrong should be applied prospectively to Christina’s individual rights by determining whether from the four corners of the divorce action it can be said the mother was

The judgment is reversed.

Franson, Acting P. J., and Hopper, I., concurred.