Clevenger v. Clevenger

• Decision Date: 03 March 1961
• Citation: 11 Cal.Rptr. 707,189 Cal.App.2d 658
• Court: California Court of Appeals Court of Appeals
• Parties: , 90 A.L.R.2d 569 Catherine M. CLEVENGER, Plaintiff, Cross-Defendant and Respondent, v. Earl J. CLEVENGER, Defendant, Cross-Complainant and Appellant. Civ. 18983.

Page 707

11 Cal.Rptr. 707

189 Cal.App.2d 658, 90 A.L.R.2d 569

Catherine M. CLEVENGER, Plaintiff, Cross-Defendant and Respondent, v. Earl J. CLEVENGER, Defendant, Cross-Complainant and Appellant.

Civ. 18983.

District Court of Appeal, First District, Division 1, California.

March 3, 1961.

Rehearing Denied March 31, 1961.

Marvin C. Hix, San Francisco, for appellant.

Sidney N. Brandis, San Francisco, for respondent.

TOBRINER, Justice.

We face here the difficult and unique problem of defining the duty of support which a husband owes to his wife's illegitimate child when the husband, from the date of the birth of the child, accepts the child into his family, publicly acknowledges the child as his own and treats the child as if he were legitimate. We shall point out that while under some circumstances the husband would be estopped to assert the illegitimacy of the child and thereby avoid liability for its support, we cannot ascertain in this record a sufficient basis for such an estoppel. Likewise, although the husband's express agreement to provide for the child may be enforceable, the record does not substantiate that agreement here. Finally, we find no merit to the husband's remaining claims that he should have been awarded a divorce on his cross-complaint and that the court erred in granting an additional attorney's fee and costs on appeal.

The respondent wife commenced this action for divorce upon the ground of extreme cruelty, praying the court for the custody of the minor child 'of the parties hereto,' for support and maintenance of herself and the minor child, for the community property and for attorney's fees and costs. Appellant husband filed both an answer controverting the charges and a cross-complaint alleging cruelty and excessive drinking on the part of respondent. The husband further averred that the child was not his child. The wife answered the cross-complaint, denying its allegations and asserting that appellant 'condoned said alleged association with another man who is alleged to be the father of the child * * * and forgave * * * [respondent] and freely cohabited with her * * *.'

Respondent wife's case for divorce rested upon the testimony of three witnesses: her own, her sister's and her stepfather's. The wife recounted many instances when her husband drank heavily and physically assaulted her, inflicting serious injury. Respondent's sister testified that several times appellant in her presence castigated his wife with malodorous names, including the opprobrium of 'bum,' and that at one juncture, appellant, while intoxicated, attacked and injured both his wife and the deponent, an incident which led to appellant's arrest. The stepfather corroborated the testimony as to appellant's name-calling, frequent drinking, and conflict with his wife. On one occasion the stepfather saw appellant beat his wife. The witness further testified that the wife herself did not drink heavily but only socially.

Appellant based his claim for a divorce upon his own and his mother's testimony. Appellant denied ever having struck his wife, but admitted pushing her away 'to protect' himself from her scratching. He asserted that respondent could 'drink pretty heavily'; that after drinking she would call him vulgar names, argue with him, fight and scratch him. Appellant's version of the episode involving the alleged beating of respondent and her sister directly contradicted their story. He contended that he had been sleeping and awoke to find the sister scratching him; he pushed her away and she fell; his wife called the police. He denied being intoxicated at the time. Appellant's mother declared that she had never seen her son intoxicated, but, to the contrary, she had at times observed respondent in an intoxicated condition; she had witnessed respondent fighting with and scratching appellant.

As to the child, respondent's counsel stated, 'We admit that he [appellant] is not the natural father.' The record shows that the child was conceived when the husband and wife were separated, appellant being at the time 'in the Service in the discipline barracks in Fort Missoula, Montana,' and respondent residing in San Francisco. 'When he did come home,' according to the wife, 'we went back together and there was to be no * * * question about the child * * *.' In regard to the hospital arrangements for the birth of the child, the wife testified that the husband 'indicated to the hospital' that he was the father; the husband, however, asserted, 'I think all the arrangements were made before I ever was discharged * * *.' The birth certificate showed the name of the child as John Anthony Clevenger and that the attending physician certified that the information contained in it 'was furnished by Mr. and Mrs. Clevenger related to this child as parents.' The husband testified that he accepted the child into the family; the husband stated that he 'showed a lot of affection' to the child and 'to the best of * * * [his] ability * * * acted as a father' to the child. At the time of the filing of the complaint, the boy was 'approximately eleven years of age.'

The court found that although appellant is not 'the natural father of John Anthony Clevenger' appellant 'from the time of said child's birth accepted said child into his family; that he publicly acknowledged said minor child as his own; that defendant treated said minor child as if it were a legitimate child.' Awarding the custody of the minor child to respondent, the court ordered appellant to pay $50 per month to respondent for the support of the child.

The court granted respondent $25 per month as alimony and divided the property of the parties as follows: the rather small equitable interest in the house and the furnishings to respondent and the automobile to appellant. The judgment further provided that each party discharge one-half of the community debts and that appellant pay $300 for respondent's attorney fees. At a later date, after appellant's appeal, the court, on respondent's motion ordered an additional $300 for attorney's fees and $100 for costs on appeal.

We shall consider separately each of appellant's points on appeal: that the court erred in requiring appellant to pay for the support of the child; that it erred in not granting the prayer of appellant's cross-complaint for a divorce, which, according to appellant, followed from his uncontradicted testimony; that the court erred in allowing the additional attorney's fees and costs upon appeal.

Since every presumption supports the judgment and since basic moral and social considerations impel the full protection of the child, we should affirm the order if it can be rested upon any valid legal basis. There is an innate immorality in the conduct of an adult who for over a decade accepts and proclaims a child as his own, but then, in order to be relieved of the child's support, announces, and relies upon his bastardy. This is a cruel weapon, which works a lasting injury to the child and can bring in its aftermath social harm. The weapon should garner no profit to the wielder; the putative father should earn no premium by the assertion of the illegitimacy of the child. If any legal hypothesis can prevent such an inducement to publication of illegitimacy, we should adopt that theory. We therefore examine each of the approaches suggested by respondent, and, although we do not believe this record sustains their application here, we point out that if the facts would establish an express agreement for the maintenance of the child or an estoppel as to the child, as we explain it, the husband would be liable for the child's support. ¹

Respondent's first theory, incorporated in the conclusions of law of the trial court 'That defendant legitimated the minor child John Anthony Clevenger,' cannot be upheld under the relevant statutes. Section 230 of the Civil Code providing that 'The father of an illegitimate child' legitimates the child by acknowledging it as his own, receiving it into his family and otherwise treating it as a legitimate child, applies to such conduct only by the child's father. Indeed, the cases (Estate of Baird, 1920, 182 Cal. 338, 347, 188 P. 43; Estate of Flood, 1933, 217 Cal. 763, 767, 21 P.2d 579; Estate of Lund, 1945, 26 Cal.2d 472, 492, 159 P.2d 643), hold that as a condition to such legitimation the charged party must be the natural father. In view of the stipulation to the contrary in the instant case, section 230 of the Civil Code does not apply.

Respondent's second hypothesis, that the husband stands in the relation of stepfather to the child and therefore becomes liable for his support, does not sustain the judgment. Section 209 of the Civil Code, which defines the duty of a husband who receives his wife's children by a former husband 'into his family and supports them,' declares that 'it is presumed that he does so as a parent, and, where such is the case, they are not liable to him for their support, nor he to them for their services.'

The obligation of the stepfather, however, is concurrent with the life of the relationship. In Trudell v. Leatherby, 1931, 212 Cal. 678, 300 P. 7, a minor instituted an action to recover damages against his stepmother for personal injuries in an automobile accident. Holding that the stepmother occupied the status of a parent, the court reversed a judgment in favor of the stepchild upon the basis of the general rule that a child could not sue its parents in tort. In so ruling, the court held that while the acceptance of the stepchild into the family created the relation of loco parentis between the child and the stepparent, the obligation ran only so long as the relationship continued. The court cites 29 Cyc., page 1667, to the effect that: "A stepfather does not, merely by reason of the relation, stand in loco parentis to his stepchild; but where the stepfather received the stepchild into his family and treats it as a member thereof, he stands in...