Marriage of Groner, In re
Decision Date | 26 January 1972 |
Citation | 23 Cal.App.3d 115,99 Cal.Rptr. 765 |
Court | California Court of Appeals Court of Appeals |
Parties | Carlos Alberto GRONER, Petitioner and Appellant, v. Maria Magdalena GRONER, Respondent. Civ. 38570. |
Sol P. Ajalat, Los Angeles, for appellant.
Sillas & Castillo, and Jose Mariano Castillo, Los Angeles, for respondent.
Carlos Alberto Groner, petitioner, appeals from an interlocutory judgment of dissolution of marriage wherein he was decreed to be the father of the minor child Rosa Maria Groner and it was ordered that he pay a specified sum for her support. port. This appeal is presented on an agreed statement pursuant to rule 6, California Rules of Court.
Section 621 of the Evidence Code, which restates without substantive change former section 1962, subdivision 5, of the Code of Civil Procedure (Jackson v. Jackson, 67 Cal.2d 245, 247, 60 Cal.Rptr. 649, 430 P.2d 289, fn. 1), provides: 'Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate.' The question in the present case is whether that conclusive presumption--which in actuality is a substantive rule of law (see Kusior v. Silver, 54 Cal.2d 603, 619, 7 Cal.Rptr. 129, 354 P.2d 657)--is operative when it can be established that the husband was sterile during the period of conception and unable to procreate.
The following facts are set forth in the agreed statement:
In Hughes v. Hughes, 125 Cal.App.2d 781, 271 P.2d 172 the effect of the sexual sterility of the husband upon the operation of the conclusive presumption of legitimacy which was at that time embodied in section 1962, Subdivision 5, of the Code of Civil Procedure was considered by the Court of Appeal, which stated (at page 786, 271 P.2d at page 175): (See also Benes v. Young, 187 Cal.App.2d 270, 9 Cal.Rptr. 500.)
Under the governing law as expressed in Hughes v. Hughes, Supra, 125 Cal.App.2d 781, 271 P.2d 172, the trial court erred in sustaining the respondent's objection to the testimony of Dr. Nicola as to the petitioner's sterility. Assuming that Dr. Nicola was properly qualified to express an expert opinion, his testimony should have been received in evidence and subjected to the trial judge's exercise of his function as the trier of facts to determine the credibility and the weight to be given such testimony. (See Francis v. Sauve, 222 Cal.App.2d 102, 119, 34 Cal.Rptr. 754.)
The respondent, however, contends that the court in Hughes 'misinterpreted' section 1962, subdivision 5, of the Code of Civil Procedure and that the condition of sterility is not sufficient to avoid application of the conclusive presumption of legitimacy now enbodied in section 621 of the Evidence Code. While the reasoning of the opinion in Hughes may be subject to criticism, that case, as will be explained hereinafter, must be held to express the governing law.
Hughes v. Hughes, Supra, 125 Cal.App.2d 781, 271 P.2d 172, was decided on June 7, 1954, and the Supreme Court denied a petition for a hearing on August 4, 1954. Section 1962, subdivision 5, was amended in 1955 (Stats.1955, ch. 948, § 3, p. 1835) by the addition of the emphasized words: '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.' The effect of this amendment was explained in Kusior v. Silver, Supra, 54 Cal.2d 603, at page 618, 7 Cal.Rptr. 129, at page 139, 354 P.2d 657 at page 667 as follows: ...
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...is presumed to be cognizant of judicial decisions relevant to the subject matter of a statute. (In re Marriage of Groner (1972) 23 Cal.App.3d 115, 118-119, 99 Cal.Rptr. 765.) Applying those interpretative guidelines leads to the same conclusion reached by several other California courts, i.......
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