Brown v. Superior Court

• Decision Date: 19 October 1979
• Citation: 159 Cal.Rptr. 604,98 Cal.App.3d 633
• Court: California Court of Appeals Court of Appeals
• Parties: Aida BROWN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Raymond BROWN, Real Party in Interest. Civ. 47537.

Page 604

159 Cal.Rptr. 604

98 Cal.App.3d 633

Aida BROWN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent Raymond BROWN, Real Party in Interest.

Civ. 47537.

Court of Appeal, First District, Division 3, California.

Oct. 19, 1979.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for petitioner.

William P. Rhetta, San Francisco, for real party in interest.

WHITE, Presiding Justice.

This petition is by a mother seeking an increase in child support payments, and challenges the right of the purported father to compel her and her child to submit to blood testing for paternity. It also challenges an order compelling the child to attend a deposition. The Attorney General, attorney for petitioner, contends that res judicata bars inquiry into the issue of paternity and that the blood testing and discovery is relevant only to the paternity issue.

Raymond Brown, real party in interest in this proceeding, obtained a default divorce decree in 1968, which decree recited, inter alia, that Bridgett Brown, born June 25, 1963, was his child. It required him to provide $50 per month for her support, and permitted him reasonable visitation rights. The same decree recited that Raymond Brown was adjudged not to be the father of Kimberley Anne Brown, born to petitioner on March 28, 1962.

Ten years later, petitioner, Raymond Brown's ex-wife Aida Brown, moved to increase child support to $125 per month based upon an increase in Raymond Brown's income. He defended, contending that Bridgett was not his child. In deposition testimony Raymond admitted that he had known from the time of her birth that she was not his child, but stated that he did not try to prove non-paternity in the divorce proceedings because his attorney advised him it would be too difficult to prove. He has since obtained hearsay evidence that petitioner has informed Bridgett that another man is her father and has informed the man of the same.

In order to defend against the request for increased child support, Raymond Brown moved for blood tests of petitioner and Bridgett and sought to depose Bridgett. After hearing held April 5, 1979, the trial court ruled in Raymond's favor on both issues, rejecting petitioner's contention that the prior divorce decree was res judicata on the paternity issue. After a further hearing on May 24, 1979, the trial court denied reconsideration of its earlier ruling.

During the May 24, 1979 proceedings the trial court acknowledged that he was standing on thin ice legally. Any ice that may have existed on May 24, 1979 melted on July 20, 1979, when our decision in In re Marriage of Guardino (1979) 95 Cal.App.3d 77, 156 Cal.Rptr. 883, was certified for publication.

In Guardino we ruled that a paternity determination in an interlocutory decree of dissolution was res judicata on the issue in the absence of extrinsic fraud or extrinsic mistake. We concluded there that where a father was aware of the true facts at the time of dissolution and questioned his own paternity at the time, his failure to contest paternity during the dissolution proceedings barred him from subsequent attack. As we stated there, quoting from Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472, 82 Cal.Rptr. 489, 462 P.2d 17: "The principles of res judicata demand that the parties present their entire case in one proceeding. 'Public policy requires that pressure be brought upon litigants to use great care in preparing cases for trial and in ascertaining all the facts. A rule which would permit the re-opening of cases previously decided because of error or ignorance during the progress of...