Kusior v. Silver

• Decision Date: 12 August 1960
• Citation: 354 P.2d 657,7 Cal.Rptr. 129,54 Cal.2d 603
• Court: California Supreme Court
• Parties: , 354 P.2d 657 Jacquellne KUSIOR, Appellant, v. Allan Jay SILVER, Respondent. L. A. 25304.

Page 129

7 Cal.Rptr. 129

54 Cal.2d 603, 354 P.2d 657

Jacquellne KUSIOR, Appellant, v. Allan Jay SILVER, Respondent.

L. A. 25304.

Supreme Court of California, In Bank.

Aug. 12, 1960.

Ernest M. Miller, Los Angeles, and Edward L. Lascher, Van Nuys, for appellant.

Cooper & Nelsen, Grant B. Cooper and Phyllis N. Cooper, Los Angeles, for respondent.

DOOLING, Justice.

Plaintiff appeals from a judgement for defendant in an action to establish the paternity and to provide for the support of her child. Plaintiff's child was born July 29, 1954, nine days after the entry of a final decree of divorce dissolving her marriage to Thaddeus Kusior.

It appears from the settled statement that plaintiff and her husband separated in February 1953, and that an interlocutory decree of divorce was secured in Jury 1953. The child was probably conceived in October or November 1953.

Both plaintiff and her husband testified that sexual relations between them ceased at the time of separation. However, Mr. Kusior exercised his right to visit their eight-year-old daughter at regular intervals. On these occasions, he would perform maintenance work on the property, and he took plaintiff and their daughter out to dinner on at least one occasion. Several times he remained in plaintiff's home until the early hours of the morning. Plaintiff testified: 'I had to have someone to talk to. Yes, we sat and talked until 3 or 4 in the morning.' Mr. Kusior continued these visits even after their daughter was sent east on a visit in May 1954, but plaintiff had long since been pregnant at that time.

Two neghbors testified that Mr. Kusior was seen by them, sometimes in the evenings, during the period of possible conception. They were unable to say whether he stayed all night but did state that plaintiff and her husband did 'not live together' after the separation.

Mrs. Nelson lived in the house as a roomer until some time in October. She testified that plaintiff did not live together with any man during that period, although she did see one man, not Mr. Kusior, both in the evening and the following morning. There were, however, as many as ten men who visited plaintiff; they would sit with her in the den and sometimes bring groceries. Mrs. Nelson also saw one man leave amidst a commotion at four o'clock one morning.

Plaintiff testified that she first had intercourse with defendant early in June 1953, and subsequently about four more times until she underwent an operation in September of that year. She testified that she had intercourse with defendant several times thereafter. He slept in the den the first time he came to her house, about the middle of October 1953, shortly after Mrs. Nelson moved out of the house. Mrs. Nelson testified that she never saw defendant until her appearance in court.

Plaintiff also testified that she went out with other men during the priod of possible conception, and also frequented a certain cocktail bar. She stated, however, that defendant was the only man with whom she had intercourse.

Blood tests were taken of the parties pursuant to section 1980.3 of the Code of Civil Procedure. These tests established that plaintiff's husband could not have been the father of the child but that defendant was within the class of persons who could have been.

The sufficiency of the evidence to support a judgment for defendant is not disputed, but plaintiff contends that certain instructions involving the effect of the blood tests and the presumptions of legitimacy were in error, and could have caused the jury to dispose of the proceedings by improperly determining that Mr. Kusior must be considered to be the child's father.

The trial court gave instructions based on the following sections of our code, which set forth conclusive and rebuttable presumptions of legitimacy. Code of Civil Procedure, § 1962, subdivision 5, provides: 'Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.' Section 1963, subdivision 31, sets forth as a disputable presumption: 'That a child born in lawful wedlock, there being no divorce from bed and board, is legitimate.' Civil Code, § 193, provides: 'All children born in wedlock are presumed to be legitimate.' Section 194 Makes that presumption applicable to all children born within then months of the 'dissolution of the marriage.' Section 195 Provides that the only persons who can dispute that presumption are the state in an action for support under section 270 of the Penal Code, or the 'husband or wife, or the descendant of one or both of them.'

The instructions given to the jury based on these sections were to the effect that a conclusive presumption, which none of the other evidence in the case can contradict, would apply if there was a failure to show that there was not 'a reasonable possibility of access.' The jury was also instructed that if they found that the conclusive presumption did not apply, then only the rebuttable presumption applies, and any evidence, including the blood tests, might be considered to rebut it. The relevant instructions are set forth below. ¹

Appellant contends that the instruc- tions defining the scope of the conclusive presumption were too broad in that 'cohabiting,' as used in subdivision 5 of section 1962 of the Code of Civil Procedure, should properly be construed as 'the living together of a man and woman ostensibly as husband and wife' (Estate of Mills, 137 Cal. 298, 301, 70 P. 92) and that certain comparatively recent cases in the District Courts of Appeal which have, or appear to have, broadened the definition of 'cohabiting,' as used in this section, to include 'a reasonable possibility of access' constitute an unwarranted extension of the meaning of that section. We have concluded from an examination of the decisions of this court dealing with the proper construction of section 1962, subdivision 5, that the definition contended for by appellant is clearly the one originally adopted by this court, and that the cases in the District Courts of Appeal which have, or appear to have, broadened this definition find no support in any decision of our court.

In re Mills' Estate, supra, 137 Cal. 298, at page 301, 70 P. 91, at page 92, which is apparently the first decision on the scope and effect of section 1962, subdivision 5, stated clearly and with no uncertainty: 'The word 'cohabiting,' as used in the above section, means the living together of a man and woman ostensibly as husband and wife. 1 Bish.Mar.Div., § 1669, and note 1.'

Respondent argues that this definition is not necessarily conclusive because in Mills the court was dealing with a case where the spouses were admittedly living together, and the court was not called upon to consider whether the word 'cohabiting' might have a more extensive meaning. However all doubt on this score was resolved by this court in its consideration of In re Walker's Estate on two successive appeals, 176 Cal. 402, 168 P. 689 and 180 Cal. 478, 181 P. 792. In Walker the spouses were not living together but the opportunity for intercourse existed. The court did not consider section 1962, subdivision 5, applicable but held on both appeals that the case was governed by the disputable presumption of section 194 of the Civil Code. That this was no mere oversight is apparent from the following quotation from the second Walker opinion: 'The English rule would seem to go so far as to permit evidence of nonintercourse even where the parties are cohabiting; i. e., living together in the same house or apartments. Such is not the rule in this state. Section 1962, subd. 5, Code Civ.Proc.; Estate of Mills, 137 Cal. 298, 70 Pac. 91, 92 Am.St.Rep. 175. But with this statutory exception the true rule in America, as well as England, is, we believe, that if it is possible by the laws of nature for the husband to be the father (that is, if there was coition and no impotency), no inquiry will be permitted into the probabilities of the case one way or the other, but the presumption of legitimacy is conclusive; ² and, on the other hand, it is always permitted to show that it was not possible by the laws of nature for the husband to be the father, as by showing impotency on his part, want of intercourse during the possible period of conception, or that the child is of a race or color such that it could not have been conceived by the husband.' Emphasis added; 180 Cal. 491, 181 P. 797.

Taken together, the Mills and Walker cases clearly limited the application of the conclusive presumption of section 1962, subdivision 5, to cases where the parties were 'living together * * * ostensibly as husband and wife' (Mills) or 'living together in the same house or apartments' (Walker) and in all other cases applied only the rebuttable presumptions. No later case in this court departing from this rule has been cited to us. Nelson v. Nelson, 7 Cal.2d 449, 60 P.2d 982, 983, cited by respondent, is consistent with this rule, as the court there stated: 'There is evidence tending to show that on at least two occasions, the first apparently having been abortive, the parties had lived and cohabited together as husband and wife for a period of several days with the desire and intent of reconciling their differences * * *.' 7 Cal.2d 452, 60 P.2d 982.

Although a variety of meanings have been ascribed by various courts to the words 'cohabit' and 'cohabitation' (see e. g., 14 C.J.S. pp. 1311-1312), their primary etymological meaning is living With or together, from the Latin 'co-' ('co- signifies in general with, together, in conjunction, jointly. * * *' Webster's New International Dictionary, 2d Ed., Unabr., p. 510) and 'habitare, to dwell, to have possession of (a place) * * *.' (Id., P. 520, derivation of 'cohabit'). 'Cohabit' is defined in the same work (p. 520) as: '1. To dwell or abide in company. Archaic. 2. To dwell or live together as husband and...