Donald J. v. Evna M.

• Decision Date: 19 June 1978
• Citation: 147 Cal.Rptr. 15,81 Cal.App.3d 929
• Court: California Court of Appeals Court of Appeals
• Parties: DONALD J., Plaintiff and Appellant, v. EVNA M. W., Defendant and Respondent. Civ. 3138.

Page 15

147 Cal.Rptr. 15

81 Cal.App.3d 929

DONALD J., Plaintiff and Appellant, v. EVNA M. W., Defendant and Respondent.

Civ. 3138.

Court of Appeal, Fifth District, California.

June 19, 1978.

Doty, Quinlan, Kershaw & Fanucchi, Bert C. Hoffman, Jr., and Edward L. Fanucchi, Fresno, for plaintiff and appellant.

Hawes & Brown and Edward L. Hawes, Fresno, for defendant and respondent.CC OPINION

CHARGIN, ^* Associate Justice (assigned).

The principal issues presented by this case are: (1) a man's right to bring an action for the purpose of obtaining a judicial determination that he is the natural father of a child born out of wedlock, and (2) the nature and extent of the rights possessed by a natural father of a child born out of wedlock to require that child to change its surname from that of its natural mother to that of its natural father, against the objection of the natural mother.

We recount the factual background of this litigation. Defendant Evna M.-W. (hereafter referred to as defendant mother) gave birth to a female child on November 2, 1971, whom she named Shalene M. ¹ Three years later on November 24, 1974, plaintiff herein, Donald J., commenced a declaratory relief action pursuant to former section 231 of the Civil Code ² to have himself declared the father of this child. In the complaint in that action plaintiff alleged that he and defendant mother never had been married to each other, that he was the natural father of Shalene, that at all times he had claimed to be the child's natural father and that he had done all things necessary to legitimate the child. By accompanying declaration, plaintiff stated that he had cohabited with defendant mother both prior and subsequent to the birth of the child, that he had visited the child regularly since her birth, that he had accepted the child into his family and that he had supported the child.

An order was filed in the declaratory relief action on February 25, 1975, which provided in pertinent part:

"It is stipulated that Plaintiff DONALD (J.), is the natural father of the minor child, SHALENE . . ., born November 2, 1971, to defendant Evna (M.-W.)."

Additionally, the order granted plaintiff visitation rights with Shalene and required plaintiff to provide child support and medical and hospitalization insurance for the child. Plaintiff regularly exercised his visitation rights and provided support and insurance in accordance with the order of the court.

On March 9, 1976, plaintiff caused to be filed an order to show cause in which he sought clarification of his visitation rights. Embodied in this order to show cause was a request by plaintiff to have the court enter a judgment (1) determining that plaintiff is the natural father of Shalene, (2) directing that Shalene use plaintiff's surname and (3) ordering the correction of the birth certificate of the child. These three issues appended to the order to show cause form the subject matter of the instant case.

Defendant mother contested all of plaintiff's requests. After a hearing at which no testimony was presented, an order was filed on April 15, 1976, in which the court resolved the dispute concerning the visitation rights and dismissed the causes of action for a determination of paternity and for a correction of the birth certificate on the ground that these two causes of action were not properly before the court. The court then allowed plaintiff time to file points and authorities with regard to the cause of action seeking to require Shalene to change her surname to that of plaintiff.

On July 9, 1976, a minute order was entered which provided:

"IT IS ORDERED that the plaintiff's request for order requiring the use of his name by the minor child is denied. Use of name cannot be prohibited unless fraud involved."

Plaintiff then appealed from this minute order. Thereafter, a formal written judgment was entered denying plaintiff's request that Shalene be required to change her surname to that of plaintiff; the judgment made no mention of the court's earlier dismissal of the causes of action for a determination of paternity and for a correction of the birth certificate.

I

At the outset we are confronted by several procedural matters.

First, plaintiff's requests for a determination of paternity, a change of Shalene's surname and a correction of the child's birth certificate were embodied in an order to show cause for a clarification of visitation rights. An order to show cause is, in effect, a notice of motion. (Difani v. Riverside County Oil Co. (1927) 201 Cal. 210, 213, 256 P. 210; McAuliffe v. Coughlin (1894) 105 Cal. 268, 270, 38 P. 730; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483, 114 Cal.Rptr. 356.) A motion is distinguishable from the more formal application for relief by petition or complaint. (People v. Ah Sam (1871) 41 Cal. 645, 650; Harris v. Board of Education (1957) 152 Cal.App.2d 677, 682, 313 P.2d 212; Colthurst v. Harris (1929) 97 Cal.App. 430, 432, 275 P. 868.) A motion is not an independent right or remedy; it is confined to incidental matters in the progress of a cause. A motion relates to some question that is collateral to the main object of the action and is connected with and dependent upon the principal remedy. (People v. Sparks (1952) 112 Cal.App.2d 120, 121, 246 P.2d 64.) It is not consonant with regular procedure to raise in a motion wholly distinct and independent matters which generally should be the subject of a formal petition or complaint. (See 56 Am.Jur.2d (1971) Motions, Rules, and Orders, § 4, p. 5.) It cannot be seriously disputed that plaintiff's requests for a determination of paternity, a change of Shalene's surname and a correction of the child's birth certificate should have been raised in a formal complaint separate and independent of the order to show cause for a clarification of visitation rights. Nevertheless, since defendant mother has not complained of the pleading irregularity in the instant case, we shall treat these three requests made by plaintiff as having been raised in a formal complaint separate and independent of the order to show cause. (See Cal. T. I. & T. Co. v. P'dm't Cable Co. (1897) 117 Cal. 237, 240, 49 P. 1.)

Second, plaintiff's notice of appeal was filed before the entry of the trial court's judgment. Pursuant to rule 2(c) of the California Rules of Court we will treat the premature notice of appeal as having been filed immediately after the rendition of that judgment. (Knodel v. Knodel (1975) 14 Cal.3d 752, 759, fn. 9, 122 Cal.Rptr. 521, 537 P.2d 353; Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239, 134 Cal.Rptr. 314.)

Third, a final judgment has not been entered in the instant case. Plaintiff's requests for a determination of paternity, a change of Shalene's surname and a correction of the child's birth certificate were brought in a single action; none of the three requests can be said to be a collateral matter distinct and severable from the general subject of the litigation. (See In re Marriage of Skelley (1976) 18 Cal.3d 365, 368, 134 Cal.Rptr. 197, 556 P.2d 297; Meehan v. Hopps (1955) 45 Cal.2d 213, 216-217, 288 P.2d 267; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 735, 137 Cal.Rptr. 568; 6 Witkin,Cal. Procedure (2d ed. 1971) Appeal, § 38, p. 4052.) Nor is this a case where there can be separate appealable judgments belonging to different parties. (See Wilson v. Sharp (1954) 42 Cal.2d 675, 677, 268 P.2d 1062; Aetna Cas., etc., Co. v. Pacific Gas & Elec. Co. (1953) 41 Cal.2d 785, 789, 264 P.2d 5; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 42, 48, pp. 4057, 4063.) As such it is necessary that one final judgment dispose of plaintiff's three causes of action. (See Tenhet v. Boswell (1976) 18 Cal.3d 150, 153, 133 Cal.Rptr. 10, 554 P.2d 330; Knodel v. Knodel, supra, 14 Cal.3d 752, 760, 122 Cal.Rptr. 521, 537 P.2d 353; Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701-702, 128 P.2d 357; In re Marriage of Van Sickle, supra, 68 Cal.App.3d 728, 734-735, 137 Cal.Rptr. 568; U. S. Financial v. Sullivan (1974) 37 Cal.App.3d 5, 11, 112 Cal.Rptr. 18; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 36, 46, 47, pp. 4050, 4060.) The judgment entered by the trial court merely purports to dispose of the change of surname issue; the judgment fails to reflect the earlier dismissal of plaintiff's requests for a determination of paternity and a correction of the birth certificate. In accordance with standard practice we will amend the trial court's judgment to reflect the dismissal of these two matters. (Tenhet v. Boswell, supra, 18 Cal.3d 150, 154-155, 133 Cal.Rptr. 10, 554 P.2d 330; Gombos v. Ashe (1958) 158 Cal.App.2d 517, 523-524, 322 P.2d 933.)

II

Turning to the merits of this appeal we initially conclude that the trial court erred in dismissing plaintiff's cause of action for a determination that he is the natural father of the child Shalene.

Section 7006 of the Civil Code allows a man in the position of plaintiff to bring an action to determine that he is the natural father of a particular child. ³ (See Civ.Code, § 7006, subds. (a), (b) and (c); see also In re Tricia M. (1977) 74 Cal.App.3d 125, 135-136, 141 Cal.Rptr. 554; Griffith v. Gibson (1977) 73 Cal.App.3d 465, 471, 142 Cal.Rptr. 176; Adoption of Rebecca B. (1977) 68 Cal.App.3d 193, 198, fn. 4, 137 Cal.Rptr. 100.) Nevertheless, the trial court dismissed plaintiff's cause of action for a determination that he is the natural father of Shalene on the ground that the cause of action was not properly before the court. But, as will become apparent from the discussion that follows, the trial court should not have summarily dismissed this cause of action since an important factor in plaintiff's cause of action to require Shalene to change her surname to that of plaintiff was a judicial determination that plaintiff is the natural father of Shalene.

If plaintiff is not the natural father of Shalene his right to object to that child's...