Maier v. Noonan

• Decision Date: 06 October 1959
• Citation: 344 P.2d 373,174 Cal.App.2d 260
• Parties: John Martin (Noonan) MAIER, an Infant, by his guardian ad litem, Rosalie Pat Maier, Plaintiff and Respondent, v. John Manley NOONAN, Defendant and Appellant. Civ. 23880.
• Court: California Court of Appeals

Page 373

344 P.2d 373

174 Cal.App.2d 260

John Martin (Noonan) MAIER, an Infant, by his guardian ad litem, Rosalie Pat Maier, Plaintiff and Respondent, v.John Manley NOONAN, Defendant and Appellant.

Civ. 23880.

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

Oct. 6, 1959.

Hearing Denied Dec. 2, 1959.

Dockweiler & Dockweiler, Los Angeles, for appellant.

Philip M. Gilbert, Los Angeles, for respondent.

FOURT, Acting Presiding Justice.

This is an appeal from a judgment which in effect declared that the appellant was the father of the plaintiff infant child and which judgment further provided for the support and maintenance of said infant, plaintiff.

A resume of the evidence favorable to the plaintiff(which if believed by the jury, was sufficient to support the verdict), is as follows: Rosalie Pat Maier, hereinafter referred to as Rosalie, is the mother of John Martin Noonan Maier, born June 7, 1952 and hereinafter referred to as John.Rosalie met John Manley Noonan, hereinafter referred to as Noonan in August, 1949.Noonan was a policeman in the city of Los Angeles.Rosalie and Noonan engaged in acts of sexual intercourse shortly after they met and continued with such acts over a considerable period of time.On September 13, 1951 and on September 18, 1951, Rosalie met Noonan and on each occasion they had sexual relations with each other.Later, Rosalie telephoned Noonan and told him that she was pregnant and needed help.After the child was born Rosalie saw Noonan every two months or so and asked him for assistance which he refused.

During all of the times in question Noonan was married and lived with his wife and two children.Rosalie was married to Fred Maier in 1940 or 1941 and was not finally divorced from him during any of the times in question in this case.Rosalie and Fred Maier separated in August, 1951 and he returned to live with her under the same roof about three or four months later.On September 13, 1951 and on September 18, 1951, Rosalie was staying with a friend, Lillian Mills, in Los Angeles and was not on said dates living under the same roof with her husband.

The plaintiff child was present in court and the jury had an opportunity to observe him.The jury returned a verdict to the effect that Noonan was the father and that Rosalie was the mother of John.The judge, pursuant to a stipulation, set the amounts which Noonan was to pay for the support and maintenance of John.

Pursuant to a stipulation at the time of oral argument this court now has before it the entire Superior Court file.That file discloses, among other things, that the complaint in this case was filed on July 23, 1954, and answered on July 28, 1954.An order to show cause was filed on behalf of the plaintiff wherein attorney's fees, costs and support and maintenance were sought.A hearing was held and for the purposes then at hand it was ruled that Noonan was not the father of the plaintiff child.The findings of fact by the commissioner in that proceeding indicate that Rosalie testified that she met Noonan in July, 1949 and that they engaged in acts of intercourse two or three times a week until September, 1951, and that she registered the child as being the child of her and her husband, that she resided with her husband and had sexual relations with him in August, 1947, that her husband was impotent.There was in that hearing no other evidence of impotency upon the part of her husband, even though he was in court at the time of the hearing.It was also found by the commissioner that Rosalie's husband had had access to Rosalie at all times.

Judge J. T. B. Warne presided at the first trial which was held on November 14 to 16, 1955.The jury returned a verdict that Noonan was the father of the plaintiff child.At the motion for a new trial there was presented for consideration an affidavit of an attorney, Henry W. Shatford.The affidavit of Shatford set forth, among other things, that he was an attorney at law, that he had represented the Bergs in an action against Fred C. Maier and Rosalie Pat Maier, that plaintiffs in that action recovered a judgment which was entered about June 24, 1954, that about three weeks after the entry of that judgment Rosalie called the affiant on the telephone at which time a conversation, in substance as follows, took place:

'Mrs. Maier: Are you the attorney that tried that automobile case against me?

'Mr. Shatford: Yes.

'Mrs. Maier: Could you represent me in a lawsuit?

'Mr. Shatford: No, I would not care to, particularly since we have just concluded our action against you.

'Mrs. Maier: Well, can I ask you a question?

'Mr. Shatford: Yes.

'Mrs. Maier: Can I get child support for a child that I had by a police officer?

'Mr. Shatford: That depends.You were married at the time, weren't you?

'Mrs. Maier: Yes.

'Mr. Shatford: And did you have sexual intercourse with your husband and live with him within ten months prior to the birth of the child?

'Mrs. Maier: Why, sure.

'Mr. Shatford: Well, if you had intercourse with your husband then he wasn't impotent and it is my opinion that the presumption is that the child would be the child of you and your husband and you couldn't collect any support, but I would suggest that rather than take my word for it, you consult with an attorney in Whittier where you live.

'Mrs. Maier: Okay.Thanks.'

Further, that on Tuesday, November 15, 1955, while eating lunch affiant read a news story about Rosalie suing a police officer for child support; that affiant thereafter ascertained that Rosalie contended her husband was impotent and had been so for many months prior to the birth of the child in question; that affiant regarded it as a fraud on the court for Rosalie to testify that her husband was impotent when she had advised the affiant that her husband was not.Affiant further stated that the affidavit was made on the basis of good conscience and after full consideration of the matter of privilege and further that affiant 'is willing for the court to be the judge of this issue should the plaintiff in the above entitled action desire to raise the same,' affiant further placed no blame on counsel for Rosalie and then concluded that the affidavit was freely made to the end that all of the facts might be laid before the court in the furtherance of justice.

Rosalie filed an affidavit wherein she set forth, among other things, that she had read the Shatford affidavit and that it was true that Shatford was an attorney and that he had represented the Bergs in an action against Rosalie and her husband Fred Maier and she then set forth:

'That your affiant at no time discussed her personal problems or any question pertaining to child support, determination of parental relationship or any other matter concerning her son, John Martin Noonan Maier, with Henry W. Shatford.

'That the conversation set forth in the affidavit of Henry W. Shatford is entirely untrue, without foundation and malicious.'(Emphasis added.)

A motion for a new trial was granted on February 2, 1956, on the basis of the newly discovered evidence and insufficiency of the evidence.An appeal was taken by the plaintiff and later abandoned.

In a pre-trial order dated April 3, 1957, prior to the second trial it is set forth '* * * stipulated that the mother was married to another man at the time that the child was...