Michael H. v. Gerald D.
| Decision Date | 07 May 1987 |
| Citation | 191 Cal.App.3d 995,236 Cal.Rptr. 810 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MICHAEL H., Plaintiff, Cross-Defendant and Appellant, v. GERALD D., Defendant, Cross-Defendant and Respondent, and Victoria D., Defendant, Cross-Complainant and Appellant. Civ. B015384, Civ. B018241. |
ACLU Foundation of Southern California, Paul Hoffman, Gary Williams, Patricia Erickson, as amicus curiae on behalf of plaintiff, cross-defendant and respondent, Michael H.
Larry Hoffman and Glen H. Schwartz, for defendant, cross-defendant and respondent, Gerald D.
Shear and Kushner, Leslie Ellen Shear and Elliot Kushner, guardian ad litem, for appellant, defendant and cross-complainant, Victoria D.
National Council for Children's Rights, Inc., Michael Louis Oddenino, as amicus curiae on behalf of appellant, defendant and cross-complainant, Victoria D.
Plaintiff, cross-defendant and appellant Michael H. brought this reverse paternity action against defendant, cross-defendant and respondent, Gerald D.; his wife, defendant and cross-defendant, Carole D.; and defendant, cross-complainant and appellant Victoria D.; to establish that he is Victoria D.'s biological father and to establish a father/child relationship with her. The trial court appointed a guardian ad litem/attorney to represent Victoria D.'s interests in the action and she filed a cross-complaint to establish a legal or de facto/psychological parent-child relationship with Gerald D. and/or Michael H. Gerald D. moved for summary judgment on the first amended complaint and the cross-complaint on the ground that there were no triable issues of fact regarding application of the conclusive presumption of Evidence Code section 621, subdivision (a), that the issue of a married woman cohabiting with her husband, who is not impotent or sterile, is a child of that marriage. The trial court granted the motion and Michael H. and Victoria D. separately appealed. 1
Carole D. and Gerald D. were married and commenced living together as husband and wife on May 9, 1976. While still married and living together as husband and wife, Carole conceived and, on May 11, 1981, gave birth to Victoria D. Carole D. had an extra-marital affair with Michael H. during the period the parties agree Carole D. conceived Victoria D.
After Victoria D. was born, Carole D. told Michael H. she believed the child could be his. On October 29, 1981, Carole D., Michael H. and Victoria D. had blood tests performed at the University of California at Los Angeles. Those tests show that there is a 98.07 percent probability that Michael H. is Victoria D.'s biological father. Carole D. separated from Gerald D. in October of 1981, and Gerald D. left Los Angeles for New York City where he had obtained employment. Thereafter, Carole D. and Victoria D. went to live with Michael H. in St. Thomas. They lived with him for three months, from January of 1982 to March of 1982.
Carole D. and Victoria D. returned to Los Angeles after leaving Michael H. They visited Gerald D. in New York one month in the spring of 1982, one month in the summer of 1982, and then went with him to Europe for three weeks in the fall of 1982. Thereafter, Carole D. and Gerald D. decided to reconcile.
On November 18, 1982, Michael H. brought the instant action.
In March of 1983 through July of 1983, Carole D. and Victoria D. lived with Gerald D. in New York. Carole D. and Victoria D. returned to Los Angeles in July, and in August of 1983, they again took up residence with Michael H. They lived with Michael H. until April of 1984, and during this time Carole D. acknowledged Michael H. as Victoria D.'s father and Victoria D. called him "daddy."
In March of 1984, shortly before Carole D. left Michael H., she signed a stipulation acknowledging that Michael H. was Victoria D.'s father. However, when she left Michael H., she instructed her attorney not to file the stipulation in court. In June of 1984, Carole D. and Gerald D. again reconciled.
Thereafter, both Michael H. and Victoria D., through her guardian ad litem/attorney, sought visitation rights for Michael H. pendente lite. 2
To assist the court in making appropriate visitation orders, Dr. Norman Stone was appointed to test and evaluate Michael H., Victoria D., Carole D. and Gerald D. In his evaluation report, Dr. Stone recommended that Michael H.'s interaction with Victoria D. be strictly limited and that he not be assigned major caretaking responsibilities, even to the extent of a " 'standard' " visitation schedule, because of the potential harm to Victoria D. However, Dr. Stone recommended that Michael H. be permitted to remain "a member of her family," because he perceived Michael H. "as the single adult in Victoria's life most committed to caring for her needs on a long-term basis."
Dr. Stone's evaluation of Michael H. indicated that Michael H.'s personality has failed to bring him the close relationships he seeks, leading him to feel victimized, and that those feelings exacerbate his sympathy-eliciting and aggressive pursuit of relationships, establishing a potentially endless cycle. While Dr. Stone found no evidence of any inappropriate sexual contact between Michael H. and Victoria D., he observed that Michael H. "exhibits virtually all of the characteristics associated with parents who engage in incestuous-type relationships."
Dr. Stone concluded that Carole D. was child-like and had a limited capacity to be intimate or self-sacrificing to the degree which normally characterizes relationships between parents and children and between Based on Dr. Stone's report, in October of 1984, the parties stipulated to a visitation schedule. It was filed by order of the court on October 13, 1984. This plan was followed until the court granted Gerald D.'s motion for summary judgment on January 28, 1985, with respect to the first amended complaint and the cross-complaint.
spouses. Gerald D. was found to be a kind and intelligent man who has a real attachment to both Carole D. and Victoria D. and who clearly demonstrates the capacity to be a fine parent.
Carole D. and Gerald D. are still married and living with Victoria D. (and their new two-month old baby boy) at this time.
Michael H. contends:
I. "The presumption in Evidence Code section 621 should apply to promote the best interests of the child.
II. "The actions of [Carole D. and Gerald D.] constitute an equitable bar to the application of section 621."
Victoria D. contends:
I. "The trial court erred in dismissing without trial that portion of the Victoria's cross-complaint which sought to preserve the psychological parent and child relationship between Victoria and Michael, and to establish visitation rights under Civil Code section 4601."
II. "Application of Evidence Code section 621 to terminate the relationship between Victoria and Michael deprived Victoria of her rights under the due process and equal protection provisions of the United States and California Constitutions to maintain a relationship with a biological parent with whom she had established a psychological relationship."
III. "The motion for summary judgment was premature, in that discovery was incomplete and had been thwarted by the refusal of Carole and Gerald to answer questions propounded at their depositions."
IV. "Triable issues of fact existed as to the issues of cohabitation, stability, custody/visitation, support, attorneys fees, and the existence of psychological parent-child relationship as well as the facts necessary to determine whether Evidence Code [section] 621 might be constitutionally applied."
V. "Gerald and Carole were estopped from denying that Michael had a legal, biological, and psychological relationship with Victoria."
VI. "Gerald's failure to timely file a separate statement of material facts required defeat of his motion for summary judgment."
I. Standard of Review
(Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 850, 200 Cal.Rptr. 674.)
II. The Trial Court Did Not Err in Denying the Request of Victoria D. That the Summary Judgment Motion Be Denied For Procedural Irregularity.
Victoria D. contends that the trial court erred in granting the summary judgment Code of Civil Procedure section 437c, subdivision (b), requires a party moving for summary judgment to include in his papers supporting the motion a statement of the facts he contends are undisputed and provides the failure to comply with said requirement "may in the court's discretion constitute a sufficient ground for denial of the motion." (Emphasis added.) Subdivision (a)...
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