Marriage of Guardino, In re

• Decision Date: 21 June 1979
• Citation: 156 Cal.Rptr. 883,95 Cal.App.3d 77
• Parties: In re the MARRIAGE OF Vincent Paul and Helen GUARDINO. Vincent Paul GUARDINO, Respondent, v. Helen GUARDINO, Appellant. Civ. 44213.
• Court: California Court of Appeals Court of Appeals

Page 883

156 Cal.Rptr. 883

95 Cal.App.3d 77

In re the MARRIAGE OF Vincent Paul and Helen GUARDINO.

Vincent Paul GUARDINO, Respondent, v. Helen GUARDINO, Appellant.

Civ. 44213.

Court of Appeal, First District, Division 3, California.

June 21, 1979.

Rehearing Denied July 20, 1979.

Hearing Denied Aug. 15, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Jamie Jacobs-May, Deputy Attys. Gen., San Francisco, for appellant

Robert E. Cartwright, Lowell H. Sucherman, Cartwright, Sucherman, Slobodin & Fowler, Inc., Ralph Leon Isaacs, San Francisco, for respondent.

WHITE, Presiding Justice.

This is an appeal from a judgment of the San Francisco Superior Court setting aside portions of the interlocutory and final judgments of dissolution of the marriage of Helen and Vincent Guardino. Vincent, the petitioner below and respondent here, successfully moved to set aside those portions of the judgments of dissolution which declared that Vincent Paul Guardino, III, was issue of the marriage of Helen and Vincent Guardino and directing Vincent to pay child support. Vincent's motion, which was made after the time for other means of attack had passed, was based on allegations of fraud.

The relevant history of this appeal goes back to the summer of 1972 when appellant Helen Guardino, represented here by the Attorney General of California, was married to her first husband, Steve Quinones. Helen was 22 at the time and the mother of three children by her husband, Steve. In July 1972 Helen met petitioner and respondent, Vincent Paul Guardino, who was 19. Helen and Vincent began having sexual relations in August and continued to see each other, and apparently to have sex, until December of that year. Steve Quinones was served with a petition for dissolution of marriage on November 15, the interlocutory judgment of dissolution was filed March 9, 1973, and the final judgment entered on June 18, 1973. On May 24, 1973, Helen gave birth to a son, whom she named Vincent Paul Guardino, III, "Paul," whose birth certificate named Vincent Paul Guardino as father. The paternity of the child, who was born two months prematurely, is the underlying issue of this action.

Helen and Vincent were married on February 14, 1974, some nine months after the birth of the child. On July 1, 1974, Vincent filed a verified petition for dissolution of marriage and listed Paul as an issue of the marriage. He also signed a declaration of child custody dated June 24, 1974, declaring under penalty of perjury that the child was his son. On January 29, 1975, the default interlocutory judgment of dissolution was filed, providing that custody of the child was given to Helen and ordering Vincent to pay $125 a month child support. The final judgment, which incorporated all of the provisions of the interlocutory judgment was entered on September 29, 1975.

On May 14, 1976, an order of referral pursuant to Civil Code section 4702 was filed. Vincent was ordered to make the child support payments provided for in the dissolution decree to the probation department, and the San Francisco District Attorney was ordered to appear on behalf of the child, Paul, for whom the support had been ordered, or on behalf of Helen in any proceeding to enforce the orders.

Vincent filed a motion to set aside those portions of the interlocutory judgment which determined the paternity of Paul and which provided for child support. The supporting declaration of Vincent and accompanying points and authorities charged fraud. Helen's declaration and points and authorities in opposition were filed by the San Francisco District Attorney's office. Subsequently, on behalf of Helen, private counsel filed points and authorities in opposition to Vincent's supplemental declaration in support of his motion.

Vincent alleged that he was neither the natural nor the legal father of Paul, that the child was born while Helen was married to Steve, that Vincent was identified as the father on the child's birth certificate without Vincent's knowledge and consent, that Helen tricked, deceived and lied to him that he was the father of the child in order to obtain support money and care, that the attorney to whom Helen referred Vincent at the time of the dissolution was negligent in that he failed to inquire into the circumstances surrounding the birth of the child and to inform Vincent of the conclusive presumption under California law that the child was issue of the marriage of Helen and Steve. In his supplemental declaration, Vincent alleged that by reason of the false Helen in opposition alleged that Vincent was the father of Paul, that she had ceased to cohabit with her husband Steve after the entry of the interlocutory dissolution decree of March 9, 1973, that she had sexual intercourse only with Vincent from June 1972 until March 1974, that Vincent had insisted that he be listed as the child's father on the birth certificate, that he represented himself as the father of the child at the hospital at the time of birth, and at the home of friends and relatives, and that he became angry when informed that Steve was the legal father of the child.

misleading and fraudulent representations of Helen he mistakenly set forth in his petition for dissolution of marriage and, stated to the court in that action, that Paul was the issue of his marriage to Helen.

The district attorney was not allowed to participate in the hearings on the motion. Overruling objections thereto, the trial court made findings of fact and conclusions of law and adjudged in conformity with its earlier proposed intended decision that Vincent's motion should be granted, and that he was not the father of Paul.

The district attorney's office filed a timely appeal. Vincent made a motion to dismiss the appeal which was denied by this court.

On behalf of Helen, the Attorney General contends, and we agree, that the trial court abused its discretion by striking the contested provisions from the interlocutory and final judgments of dissolution because the allegations of respondent do not constitute fraud of a character sufficient to set aside a judgment. The Attorney General also argues that the conclusive presumption of paternity does not apply to the instant situation and that the court's order preventing the district attorney from participating in the hearing denied the child and the state due process of law. We agree and reverse the judgment.

DISCUSSION

1. The Standing of the District Attorney and Attorney General.

The May 14, 1976 order of referral under section 4702 of the Civil Code required Vincent to make child support payments directly to the probation department. Included in the order was the directive that the district attorney appear on behalf of the minor child and on behalf of the respondent, Helen, in any proceeding to enforce these orders. At the hearing on Vincent's motion to set aside the portions of the interlocutory agreement pertaining to the child's paternity and support, the trial court held that the only issue before the court was the paternity of the child, and that the district attorney had no interest in the case until that question was determined. On that basis, the district attorney was not allowed to participate in the hearing and Helen was represented by private counsel. On appeal, the Attorney General claims that this denied the child and the State of California due process of law. Basic to the claim raised by the Attorney General is the question of whether the district attorney below, and the Attorney General here are proper parties.

Clearly under Civil Code section 4702 ¹ and pursuant to the trial court's own order, the district attorney was empowered to appear on behalf of the child and his mother in any proceeding to enforce the support order. Although the proceeding on the issue of fraud from which the appeal was taken was not expressly concerned with enforcement of the support order, the outcome had a direct effect on that enforcement. The district attorney, as a representative of both the state and of the minor child and his mother as provided by statute, therefore, should have been allowed to participate in the proceedings.

Welfare and Institutions Code section 11475.1 supports this position. That section directs the district attorney to enforce the obligation of parents to support their children by appropriate civil or criminal action where the child is receiving public assistance, and where the child is not receiving public assistance, when requested to do so by the individual on whose behalf the enforcement efforts will be made, and also to determine the paternity of children born out of wedlock.

Even if the issue of paternity is unsettled, regardless of whether or not the child was born out of wedlock, under this section the district attorney has standing to appear in his representative capacity on behalf of the state and the minor and his mother. It is clear that in most cases, until the paternity question is determined, the directive to enforce the parental support obligation cannot be carried out.

As required by Welfare and Institutions Code section 11477, Helen had assigned to the state (county) all of her rights to receive accrued and future support from Vincent on behalf of the child as a condition of eligibility for public assistance. Helen and the state were thus in the relationship of the assignor-assignee. On this basis alone, we hold that the district attorney should have been allowed to participate in the proceeding which ultimately could and did set aside the judgment granting the right to receive support from Vincent. (See In re Marriage of Shore (1977) 71 Cal.App.3d 290, 139 Cal.Rptr. 340.)

Vincent claims that because the state was not a party to the proceeding in the trial court and the district attorney failed to become a party to the record by some means such as a motion to vacate, that the...