City and County of San Francisco v. Stanley

• Decision Date: 21 April 1994
• Docket Number: No. A061769,A061769
• Citation: 24 Cal.App.4th 1724,30 Cal.Rptr.2d 106
• Court: California Court of Appeals Court of Appeals
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. Mark STANLEY, Defendant and Respondent.

Page 106

30 Cal.Rptr.2d 106

24 Cal.App.4th 1724

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. Mark STANLEY, Defendant and Respondent.

No. A061769.

Court of Appeal, First District, Division 4, California.

April 21, 1994.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Carol Ann White, Statewide Child Support Coordinator, Mary A. Roth, Deputy Atty. Gen., San Francisco, for appellant.

Paige Wickland, Kadushin, Fancher & Wickland, San Francisco, for respondent.

POCHE, Acting Presiding Justice.

Plaintiff, City and County of San Francisco (city), appeals from an order modifying the amount of child support and ordering blood tests of the child, her mother and defendant, Mark Stanley.

In January of 1987 the city brought a complaint for child support, reimbursement of public assistance, and establishment of paternity against Mark Stanley (Stanley) on behalf of a little girl born in October 1985. Stanley, who was represented by counsel, answered the complaint asserting as an affirmative defense that another man was listed as the child's father on the birth certificate, that the mother had refused to communicate with him about the child and that he lacked information to know whether the child was his daughter. Once the district attorney moved for temporary support, the parties entered into a stipulation for paternity blood testing. That testing was apparently never done.

In early May 1988 Stanley substituted himself in propria persona for his counsel. At a hearing later in the month Stanley stipulated to being the parent of the little girl. An order issued establishing his paternity and directing him to pay child support in the amount of $140 monthly to the city.

In February 1993 the district attorney moved on Stanley's behalf to modify the order on the grounds that "claimant's income has substantially decreased since the date of the existing order." At the hearing on the motion, Stanley, representing himself asked the court to order blood testing of the child in order to verify his paternity. He was separated from his present wife who was unwilling to reconcile without verification that the little girl was indeed Stanley's daughter.

Counsel for the city vigorously opposed the testing, and asked the court if it would also order testing of the man who was listed on the birth certificate as the father. The court granted the testing request, but limited it to "these people [the mother, child and Stanley] under the authority of the court and the jurisdiction of the court." Stanley then stipulated to increased support of $204 a month. The city took a timely appeal from that portion of the order calling for blood testing.

Discussion

As an initial matter defendant contends that the order appealed from is non appealable. He is wrong. The order from which the city appeals is a post judgment order modifying child support. (Code Civ.Proc., § 904.1, subd. (a)(2); County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246, 1250, 14 Cal.Rptr.2d 665 [city appeals from order modifying amount of child support awarded in AFDC recoupment].)

An action by the county may be brought on behalf of a minor child solely to determine paternity and child support. (Welf. & Inst.Code, § 11350.1.) The issues in such actions are "limited strictly to the question of paternity ... and child support." (Welf. & Inst.Code, § 11350.1, subd. (a).) "A final determination of parentage may be made in any action under this section as an incident to obtaining an order for support." (Welf. & Inst.Code, § 11350.1, subd. (a).) Such an action was brought by the city on behalf of the minor in 1987. A final judgment was entered June 24, 1988, based upon a stipulation between the parties, finding Stanley to be the father of the child, and ordering him to pay child support for her, "[b]ased on the income evidence presented at the hearing."

Stanley moved to modify the support order in February 1993 on the grounds contained in the form pleading that his "income has substantially decreased since the date of the existing order." Thus, the asserted ground for making the motion to modify was the changed circumstance of Stanley's ability to pay. Child support orders are subject to modification upon a showing of a material change of circumstances. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548, 251 Cal.Rptr. 370.)

At the hearing on the motion to modify support, however, the commissioner expanded the scope of the order to include the question of blood testing. The city asserts that the request for blood testing was untimely on the basis that former Evidence Code section 892 (now Fam.Code § 7551) permits such testing where paternity is an issue unless to permit the testing will unduly delay the proceeding. The testing question here was well beyond being one of untimeliness. At the time the challenged blood testing was ordered paternity had long since been determined.

In the original proceeding by a document dated December 16, 1987, made while Stanley was represented by counsel, the parties stipulated to blood testing of Stanley, the mother and the child "to the end that the tests will be completed within 60 days of the date of this order," absent a written extension. ¹ Stanley did not participate in the testing he had agreed to, and some six months later in June of 1988 he stipulated to paternity.

"The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes...." (Fam.Code, § 7636.) Therefore, "[a] judgment of paternity, even if taken by default, is res judicata in any subsequent civil enforcement proceeding." (County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 488, 198 Cal.Rptr. 779, 674 P.2d 750.)

Notwithstanding the finality which is imputed to paternity determinations, there are a limited number of situations in which a judgment stemming from a Welfare and Institutions Code section 11350.1 hearing may be attacked. A parent who signed an agreement for entry of judgment may make a successful collateral attack on a final judgment of paternity if the parent acts promptly and can demonstrate both that he or she was not told of his or her right to trial and that he or she was...