Chapin v. Superior Court In and For Kern County

• Decision Date: 02 February 1966
• Court: California Court of Appeals Court of Appeals
• Parties: Harold E. CHAPIN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND ROR the COUNTY OF KERN, Respondent; Shirley Ann CHAPIN, now known as Shirley Ann Giumarra, Real Party in Interest. Civ. 574.

Page 199

49 Cal.Rptr. 199

239 Cal.App.2d 851

Harold E. CHAPIN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND ROR the COUNTY OF KERN, Respondent Shirley Ann CHAPIN, now known as Shirley Ann Giumarra, Real Party in Interest.

Civ. 574.

District Court of Appeal, Fifth District, California.

Feb. 2, 1966.

King, Eyherabide, Cooney & Owen, and Stephen Eyherabide, Bakersfield, for petitioner.

No appearance for respondent.

Mack, Bianco & Means, and D. Bianco, Bakersfield, for real party in interest.

CONLEY, Presiding Justice.

Petitioner seeks a writ of mandate to compel the plaintiff in the case of 'Shirley Ann Chapin, now known as Shirley Ann Giumarra, Plaintiff, v. Harold Earl Chapin, defendant,' (Kern County number 47649) to answer certain of defendant's interrogatories, to compel the witness, Bob Murray, to answer questions in a deposition, and to permit petitioner and his counsel to examine books and records in Bob Murray's possession, in a proceeding to determine the present liability of the respective parties to make support payments for their 19-year-old daughter.

The divorce case was filed over 16 years ago and an order was then made awarding the custody of the child to the wife and requiring that the defendant husband pay her $30 a month as child support, unless in a given month the child should receive a government allotment equal to or exceeding $30. This provision was also incorporated in the final decree of divorce entered November 14, 1949; concededly, the defendant has regularly paid that amount ever since. The plaintiff, Shirley Ann Chapin, is now Shirley Ann Giumarra by reason of her second marriage; she has requested an order to show cause why the support provision should not be modified to require her first husband to pay an increased amount for the support of their daughter. The petitioner, through a separate set of documents, has asked that he be relieved completely from any duty to make payment for the maintenance of the child. Orders to show cause were duly issued.

In the defendant's petition for modification of the support order he alleges that her mother has led the daughter to expect many needless material things, that plaintiff and her present husband purchased a new 1964 Super Sports Chevrolet automobile for the child, paid her expenses for a tour of the United States in 1964 and a trip to Europe in the summer of 1965, and that the girl has been provided by her mother recently with numerous expensive items of clothing. Petitioner avers that plaintiff's second husband earns a salary of over $25,000 a year and that discovery proceedings would show the exact amount of the salary which is community property; he also alleges that plaintiff can well afford to support their daughter in the station of life to which she and her present husband have accustomed the girl, but that he cannot; he has remarried and has two children by his second marriage, 10 and 11 years old, and he says that he is struggling to support that family; he declares also that his daughter by his first marriage is averaging only D+ grades at the Bakersfield College, has been on probation as a student, and really should be employed and earning a salary instead of going to college.

Plaintiff married her present husband John G. Giumarra, on December 3, 1950; he admittedly has substantial interests in the Giumarra Vineyards Corporation, the Giumarra Brothers Fruit Company, and Giumarra Farms, Inc.; the deposition of Bob Murray, who is in charge of accounting as to these properties and has possession of the books and records, was duly set; in obedience to a subpoena, Bob Murray brought them to the place specified for his deposition, but, on the advice of counsel, he refused to permit defendant or his attorney to examine them, and for the same reason refused to answer numerous questions.

Within the time specified by law, plaintiff served and filed her answers to defendant's interrogatories; plaintiff objected to numerous interrogatories on the grounds that the questions were immaterial, because, as she correctly asserts, her present husband is not personally obligated to support a child by a former marriage. Petitioner thereupon filed a motion in the trial court to compel answers to the interrogatories and the deposition questions and for a view of the subpoenaed documents; a hearing was held in the superior court, and, while granting some minor relief, the court in effect denied defendant's motion. Petitioner argues that the superior court order deprived petitioner of a substantive right to discovery, and that he is hindered in preparing for the hearing of the orders to show cause.

The petitioner has adopted a correct procedure to test his right to discovery at this time. There is no separate appeal from the rulings of the trial court preventing discovery in depth as requested by the petitioner; if the petitioner is correct in his position, it would be the height of folly to require him to wait until a possible adverse judgment after the trial of the case in order to urge on appeal that discovery was improperly refused. (McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 159 P.2d 944; Dowell v. Superior Court, 47 Cal.2d 483, 486, 304 P.2d 1009; 3 Witkin, California Procedure, Extraordinary Writs, § 50, p. 2532, (1965 Supp.) Extraordinary Writs, § 50, pp. 986-987.)

Petitioner maintains that Shirley Ann (Chapin) Giumarra has 'profited financially' from her second marriage and that the court may consider this fact on the issue of the amount of child support defendant and plaintiff should pay, citing Cagwin v. Cagwin, 112 Cal.App.2d 14, 245 P.2d 379, that for purposes of discovery, relevancy to the subject matter of the pending action is the test (Coy v. Superior Court, 58 Cal.2d 210, 217, 23 Cal.Rptr. 393, 373 P.2d 457), and that such relevancy to the issues' (Pettie cept than relevancy to the issues' (Pettie v. Superior Court, 178 Cal.App.2d 680, 687, 3 Cal.Rptr. 267). Possible inadmissibility of subject matter at the trial is not a ground for objection here if the testimony sought appears 'reasonably calculated to lead to the discovery of admissible evidence.' (Code Civ.Proc. § 2016, subd. (b); Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 560, 7 Cal.Rptr. 109, 354 P.2d 637.) Petitioner maintains that he has the right to information concerning the nature and extent of bank accounts so that the source of deposits may be traced to ascertain whether the moneys on deposit are the separate or community property of plaintiff, and if community property, the extent of Mrs. Giumarra's community interest. (DeMayo v. Superior Court, 189 Cal.App.2d 392, 11 Cal.Rptr. 157.)

Section 196 of the Civil Code provides as follows:

'Obligation of Parents for the Support and Education of Their Children. The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability.'

Mrs. (Chapin) Giumarra was awarded custody of the minor child. There is authority to the effect that the trial judge should give appropriate weigth to this fact. (Blair v. Williams, 86 Cal.App. 676, 261 P. 539; In re Perry, 37 Cal.App. 189, 174 P. 105; People v. Champion, 30 Cal.App. 463, 158 P. 501.) It is sometimes said that the duty to support a child rests primarily upon the father (Metson v. Metson, 56 Cal.App.2d 328, 132 P.2d 513; Blair v. Williams, supra, 86 Cal.App. 676, 261 P. 539), due to the fact that the father is said by law to be the head of the family (Metson v. Metson, supra, 56 Cal.App.2d 328, 333, 132 P.2d 513; Civ.Code, § 156; Fox v. Industrial Acc. Com., 194 Cal. 173, 228 P. 38), but it is certain that, in proper circumstances, both parents owe a duty to support their child. As was said in an opinion written by Mr. Justice Mosk in the recent case of Nunes v. Nunes, 62 Cal.2d 33, 39, 41 Cal.Rptr. 5, 396 P.2d 37:

'The trial court has the power to require either father or mother or both to assist in the support of minor children (Civ.Code, § 196), and the community property, quasi-community property, and the separate property may be subjected to the support of children (Civ.Code, § 143).'

Certain it is that the parent of a minor child is primarily liable for the child's support and should be compelled to maintain the minor unless legally excused from that burden (Fagan v. Fagan, 43 Cal.App.2d 189, 110 P.2d 520), and it is equally certain that a mother as well as a father is charged with a duty to protect, nurture, and educate the child (White v. White, 71 Cal.App.2d 390, 163 P.2d 89).

A parent's duty of support does not necessarily end with the furnishing of mere necessities; a minor child is entitled to be maintained in a style and condition consonant with his parents' position in society; this duty of support is not even affected if the child is self-supporting or possessed of ample means of her own. (Pacific Employers Ins. Co. v. Industrial Accident Commission, 81 Cal.App.2d 37,...