Marriage of Johnson, In re

• Decision Date: 26 January 1979
• Citation: 88 Cal.App.3d 848,152 Cal.Rptr. 121
• Parties: In re the MARRIAGE OF Patricia and Andrew JOHNSON. Patricia M. JOHNSON, Appellant, v. Andrew J. JOHNSON, Respondent. Civ. 53294.
• Court: California Court of Appeals Court of Appeals

Page 121

152 Cal.Rptr. 121

88 Cal.App.3d 848

In re the MARRIAGE OF Patricia and Andrew JOHNSON Patricia M. JOHNSON, Appellant, v. Andrew J. JOHNSON, Respondent.

Civ. 53294.

Court of Appeal, Second District, Division 5, California.

Jan. 26, 1979.

Hearing Denied March 29, 1979.

Robert W. Homan, Torrance for appellant.

Charles Glass, Jr., Gardena, for respondent.

STEPHENS, Acting Presiding Justice.

Patricia M. Johnson (Patricia) appeals from that part of the judgment of dissolution of marriage to Andrew J. Johnson (Andrew) that denied her request for child support for the minor child James Joseph Johnson (Jimmy) based upon the court's finding that Andrew was not the putative father of the child.

As Justice Tobriner (then an appellate court justice in the First District) so aptly opened the case of Clevenger v. Clevenger, "(w)e face here the difficult and unique problem of defining the duty of support which a husband owes to his wife's illegitimate child when the husband, from the date of the birth of the child, accepts the child into his family, publicly acknowledges the child as his own and treats the child as if he were legitimate." (Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 662, 11 Cal.Rptr. 707, 708.) Justice Tobriner then went on to point out that "under some circumstances the husband would be estopped to assert the illegitimacy of the child and thereby avoid liability for its support . . . ." (189 Cal.App.2d at p. 662, 11 Cal.Rptr. at p. 708.) Although the facts before that court were found to be insufficient as a basis for such an estoppel and the case was remanded for a determination of the issue, we find here that there are sufficient facts for imposition of liability based upon estoppel. Therefore, we hold that the elements formulated in Clevenger are present in this case and that Andrew is estopped to deny that he is the putative father of Jimmy.

Patricia and Andrew were married September 9, 1970, in Long Beach, California. Jimmy was born 10 days prior to the wedding, on August 27, 1970; the parties have stipulated that he is not the natural child of Andrew. However, despite this fact, Andrew visited Patricia in the hospital, was allowed to hold the child (a privilege reserved for the parents themselves), and participated in selecting a name for Jimmy. Shortly after his birth, Jimmy was baptized and Andrew stood up with him, and told the priest that he was the child's father; the baptismal record reflects this representation. Further, when Jimmy entered school, Andrew admitted he may have signed some papers as Jimmy's father and that he did in fact attend parent-teacher conferences, identifying himself as Jimmy's father.

Contrary to the above, Andrew claims that he never actually told anyone other than the priest that he was Jimmy's father, although he admitted that his conduct was such that people "assumed" that he was Jimmy's father. He never told Jimmy that he was Not his father and Jimmy calls Andrew "Daddy." However, Andrew claims that he discussed with Patricia his intention to tell Jimmy the truth, i. e., that he was not his real father, when Jimmy was old enough to understand. Patricia confirmed that this was Andrew's expressed intention, although she felt that he should not so inform the child. Andrew testified that he loves Jimmy, has expressed feelings of affection toward him and has received expressions of love and affection in return from the child. He continued to see Jimmy after he and Patricia were separated and discontinued such visitations only when he felt that it hurt him in trying to fight the award of child support.

In defining the elements necessary for a husband to be estopped from asserting the illegitimacy of his wife's child in order to avoid its support, the court in Clevenger said if the facts should show that "the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts, we would have the foundation of the elements of estoppel. (Citations omitted.)" (189 Cal.App.2d at p. 671, 11 Cal.Rptr. at p. 714.)

Further, in In re Marriage of Valle (1975) 53 Cal.App.3d 837, 126 Cal.Rptr. 38, the court applied the foregoing to a situation where the husband and wife had brought the husband's brother's children from Mexico on forged birth certificates listing the husband and wife as the children's parents and reared them as their own. However, when the parties sought to dissolve their marriage, the husband appealed the award of child support on the basis that he was not the children's father. The trial court's finding that he was estopped from denying paternity of the children was upheld on appeal, the court relying on Clevenger as "governing authority." (53 Cal.App.3d at p. 841, 126 Cal.Rptr. 38.)

After citing the elements that Clevenger held were necessary for estoppel, the court in Valle summarized the record and found that it "abundantly...