Crookham v. Smith

• Decision Date: 31 March 1977
• Citation: 68 Cal.App.3d 773,137 Cal.Rptr. 428
• Court: California Court of Appeals Court of Appeals
• Parties: Michael C. CROOKHAM, Cross-Complainant and Appellant, v. Antoinette Fink SMITH, Cross-Defendant and Respondent. Civ. 38763.

Page 428

137 Cal.Rptr. 428

68 Cal.App.3d 773

Michael C. CROOKHAM, Cross-Complainant and Appellant, v. Antoinette Fink SMITH, Cross-Defendant and Respondent.

Civ. 38763.

Court of Appeal, First District, Division 2, California.

March 31, 1977.

Kelly, Leal & Olimpia, Gary L. Olimpia, Raymond J. Davilla, Jr., Sunnyvale, for cross-complainant and appellant

Hopkins & Carley, Bruce H. Munro, Stephen H. Pettigrew, San Jose, for cross-defendant and respondent.

BRAY, ^* Associate Justice (Assigned).

Michael C. Crookham, cross-complainant and appellant, appeals from a1 judgment of the Superior Court of Santa Clara County, entered upon order granting motion for summary judgment. ¹

ISSUES PRESENTED

1) The natural father of an illegitimate child is not entitled to seek contribution from the natural mother for support payments to the county.

2) Section 11350.1 of the Welfare and Institutions Code is constitutional.

RECORD

The County of Santa Clara filed a complaint in the superior court alleging that as the result of a sexual relationship between defendant Michael C. Crookham and Antoinette Fink, the child Steven Fink was born August 3, 1964, and asking that the county be reimbursed for expenditures to date made in support of the child and that Crookham be ordered henceforth to pay it for the child's support. It appears that both parents of Steven have deserted him. Crookham answered the complaint with a general denial. However, thereafter, a stipulation was entered into between him and the county as a result of which judgment was entered against him that he pay $170 per month for the support and maintenance of said child.

Prior to the entry of this judgment, Crookham filed a cross-complaint against Antoinette Fink Smith as cross-defendant seeking contribution from her as the mother of Steven Fink of one-half of whatever sums cross-complainant might be ordered by the court to pay for Steven's support. Cross-defendant filed a motion for summary judgment on the cross-complaint. After a hearing thereon, the court granted the motion and judgment was granted on the order granting the motion. Cross-complainant appeals.

1) Cross-complainant is not entitled to contribution.

In pertinent part Welfare and Institutions Code section 11350.1 provides: 'Notwithstanding the provisions of any other statute, in any action brought by the district attorney for the support of a minor child or children, the action may be prosecuted in the name of the county on behalf of such minor child or children. The mother shall not be a necessary party in such action but may be subpoenaed as a witness. In an action under this section there shall be no joinder of actions, or coordination of actions, or cross-complaints, and the issues shall be limited strictly to the question of paternity, if applicable, and child support.'

In the instant case the District Attorney of Santa Clara County has brought this action in the name of the county for support of a minor child. This section expressly prohibits any cross-complaints. This prohibition alone is sufficient support for the action of the trial court in granting summary judgment.

Appellant refers to a further portion of section 11350.1 which states: 'Nothing herein contained shall be construed to prevent the parties from bringing an independent action under the Family Law Act or otherwise, and litigating the issue of support. In such event, the court in such proceedings shall make an independent determination on the issue of support which shall supersede the order made pursuant to this section.' Appellant seems to contend that his bringing a cross-complaint is the independent action referred to. It is not. It is a part of the district attorney's action on behalf of the county. Moreover, there is nothing in this section that implies that contribution will be between parents of a minor child.

Appellant refers to Civil Code section 242 which provides in part: '8every individual shall support his or her spouse and child, . . . The duty imposed by this section shall be subject to the provisions of Sections 196 (not applicable), 206 (reciprocal duties of parents and children in maintaining each other), . . .' There is no question but that a mother is required to support her minor child, but there is nothing in any of these sections which provides that she must contribute to what the father provides. The court can require her to pay for a child's support if she is able, but that is a long way from saying that the must contribute to what the father pays. It does not follow that because Welfare and Institutions Code section 11350 imposes liability on both parents for support of a deserted child that the one parent can require contribution from the other parent of any support he may pay for the child. Both parents are obligated to the child and to the county for the child's support but not to each other.

Britton v. Steinberg (1962), 208 Cal.App.2d 358, 24 Cal.Rptr. 831, relied on by appellant, is not in point. There the plaintiff, as guardian of the person and estate of her mother, brought an action against her two brothers to compel them to pay for the support of their mother. The action was brought pursuant to section 206 of the Civil Code which creates a legal duty in a child to support his parents. The cause of action belongs to the parent or guardian of the parent. The court ordered the defendant to pay $100 per month for the mother's support to the plaintiff as guardian, not to her as an individual. The statute expressly created a cause of action against the brothers. No contribution was ordered.

Section 196a of the Civil Code, applying to support of any child requires that its father must give him 'support and education suitable to his circumstances.' It provides further that a guardian may maintain an action against the father 'in behalf of a minor illegitimate child.' Section 196a does not give the father a cause of action for contribution.

Gluckman v. Gaines (1968), 266 Cal.App.2d 52, 54, 71 Cal.Rptr. 795, cited by appellant, supports the position that contribution does not apply here. There the action involved a complaint by a father against a son for support and maintenance under Civil Code section 206. The court noted that the obligation imposed by the section for the support of a parent is upon the children collectively and stated that the 'California Supreme Court in an early case held that where a parent was being supported by certain of her children and there was no threat of a withdrawal of that support, the parent was not entitled to maintain an action against another child for contribution (Duffy v. Yordi, supra, 149 Cal. 140, 84 P. 838), section 206 has more recently been construed to require several children to support the parent in proportion to their abilities to do so respectively. (Britton v. Steinberg, supra, 208 Cal.App.2d 358, 24 Cal.Rptr. 831.)' (At p. 54, 71 Cal.Rptr. at p. 797.) There is nothing in Gluckman that indicates that one parent is entitled to contribution from the other parent. Here the county, in its discretion, decided to bring the support action against the father alone. It could have included the mother also, as both parents are liable for the full support of the child. Its failure to do so does not give the father any right to contribution from the mother.

The county may still commence an action against Antoinette Fink for support of the child, as may also the guardian of Steven Fink.

Since the law expressly prohibits cross-complaints in support actions and expressly states that '(t)he mother shall not be a necessary party in such action' (Welf. & Inst.Code, § 11350.1) and because as a matter of law one parent has no right of contribution from the other parent in connection with child support, there is no triable issue of fact in this proceeding and the court properly granted...