Robinson v. Wilson
| Decision Date | 27 December 1974 |
| Citation | 118 Cal.Rptr. 569,44 Cal.App.3d 92 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Mabel ROBINSON and Joseph Robinson, by his guardian ad Litem, Mabel Robinson, Plaintiffs and Appellants, v. Clerow WILSON, also known as Flip Wilson, Defendant and Respondent. Civ. 43500. |
Gittler & Greenberg, David H. Greenberg and Sidney J. Gittler, Beverly Hills, for plaintiffs and appellants.
Kaplan, Livingston, Goodwin, Berkowitz & Selvin, Herman F. Selvin, Michael Bergman, John A. Schulman, and Sheldon W. Presser, Beverly Hills, for defendant and respondent.
Plaintiffs, Mabel Robinson (hereinafter referred to as Mabel) and Joseph Robinson (hereinafter referred to as Joseph), by his guardian ad litem, Mabel Robinson, appeal from a judgment dismissing their action against defendant Clerow Wilson for support and to establish paternity of Joseph. The suit as originally filed named only Mabel as plaintiff. Joseph was added as a plaintiff by a stipulation amending the complaint and an order granting Mabel's petition for appointment as guardian ad litem on January 26, 1973. On the same date a stipulation was entered into between plaintiffs and defendant concerning the conduct and effect of polygraph examinations to be administered to Mabel and to defendant. The full text of said stipulation is pertinent to this appeal and is reproduced below as a footnote. 1
The stipulation was entered into between the parties after an in-chambers conference on January 23, 1973, which was not reported. The court stated on the record, however, the result of the conference to be an agreement that the matter be continued and that 'the parties anticipate filing a rather extensive stipulation as to procedure, in the meantime, in the next few days.' The court's prior approval of the arrangement embodied in this stipulation and the reason for it were stated on the record by the court on a later occasion, as follows: 'I did very much approve of the parties' agreement' and that such approval was based upon the fact that 'both counsel I think, agreed in chambers that were the case to be tried, that ultimately (it) would develop into what we might call a straight swearing match between the plaintiff and the defendant with very little to corroborate the testimony of either one.'
Thereafter, on January 29, 1973, the polygraph examinations contemplated by the stipulation were administered to Mabel and to defendant by Kenneth W. Scarce, the examiner designated in accordance with the terms of the stipulation. On that date both parties' counsel signed a stipulation stating that counsel 'do hereby agree to the wording of the questions to be asked the parties as a part of their polygraph examinations . . ..' The stipulation did not attach as exhibits any list of questions, though apparently notes of questions to be used were discussed with counsel.
As a result of the polygraph examinations, the examiner reported that 'the results of the examination fall within Variation No. 4' (that defendant was telling the truth when he denied having sexual intercourse with Mabel during the period between August 16, 1971 and September 13, 1971, and that Mabel's contrary assertion was deception as was her denial of intercourse with other men during that period).
On February 20, 1973, a further hearing in the matter was conducted for the purpose of presenting the testimony of Mr. Scarce in accordance with the stipulation. The proceedings in that regard were not completed on that date and continued over into the following day. The testimony of Mr. Scarce is reported in a transcript which comprises 190 pages, the majority of which reports the cross-examination by counsel for plaintiffs.
Mr. Scarce's testimony included a full recital of his qualifications, an explanation of the polygraph and its operation, the witness' statement of his opinion that variation No. 4 had occurred, and a detailed specification of his reasons for such opinion in the course of which charts produced by the polygraph during the examination were shown to the court and the indications of truth and of deception embodied therein were pointed out.
At the conclusion of this testimony, counsel for plaintiffs raised two objections to any finding being made pursuant to the stipulation 'based upon' the results of the examinations and the testimony of Mr. Scarce. These were (1) that questions were asked of defendant and of Mabel which had not been previously submitted to counsel for approval, and (2) that the witness' testimony showed that his opinion was based in part upon the observation noted in his written report that Mabel all of which, he argued, was 'outside Mr. Scarce's area of expertise,' and 'outside the realm of the stipulation.' Counsel for plaintiffs concluded his argument in support of the objections by stating 'that Unless the court believes that the stipulation was followed to the letter of the agreement . . . then the court should find that the test results are inconclusive, and, therefore, order a full trial on the merits of the case with all the evidence to be presented.' (Emphasis added.)
At that point the trial court overruled both objections and orally announced his intended decision that the testimony of Mr. Scarce was persuasive that variation No. 4 had, in fact, occurred, and required dismissal of the action. In response to the oral demand of plaintiffs' counsel, the court instructed counsel for defendant to prepare findings of fact, conclusions of law and judgment of dismissal. Thereafter, proposed findings of fact, conclusions of law and judgment were submitted by counsel for defendant. Though no objections to the proposed findings were received, the court, on its own motion, deleted several paragraphs on the ground they 'contained evidentiary matter,' 2 and made minor revisions to others before incorporating them in a redraft which was signed by the court. The redraft was circulated to both counsel with a notice that it would be signed unless the court received objections from counsel within six days. When no objections were received, the findings, conclusions and the judgment dismissing the action were signed by the court.
Finding of Fact No. 1 recited the filing of the January 26, 1973 stipulation providing for polygraph examinations, and found that '(s)aid stipulation, subsequently introduced into evidence, accurately embodied the parties' agreement and was and is fair and equitable to each of the parties in all respects, and was approved by the Court.' Subsequent findings recited the pertinent provisions of the stipulation, the conduct of the examinations and the subsequent giving of testimony by Mr. Scarce, whom the court found to be 'competent, unbiased and clearly qualified as a polygraph expert.' The court then found that the polygraph examinations 'were in full compliance with the written stipulation of the parties.' The finding dispositive of the litigation, however, was finding No. 7, which reads as follows:
'The Court finds, based upon the testimony of the polygraph examiner and the physical results of the polygraph examinations (i.e., the charts) that Variation No. 4 has in fact occurred, i.e., that plaintiff Mabel Robinson was untruthful when she stated that she had sexual intercourse with defendant Flip Wilson between August 16, 1971, and September 13, 1971, that plaintiff Mabel Robinson was untruthful when she denied having had sexual intercourse with any man other than defendant Flip Wilson between August 16, 1971, and September 13, 1971, and that defendant Flip Wilson was truthful when he denied having sexual intercourse with plaintiff Mabel Robinson between August 16, 1971, and September 13, 1971.'
Finding No. 8 stated the ultimate fact (established by finding No. 7) that defendant 'is not the father of the minor child Joseph Robinson,' and finding No. 9 concluded that, pursuant to the stipulation, defendant's motion to dismiss the action 'must be granted.'
On appeal plaintiffs repudiate the stipulation for polygraph examinations on the ground that it was beyond the authority of Mabel, as guardian ad litem of Joseph, to enter into such stipulation and that such stipulation was, in any event, an invalid attempt to limit the court's power to receive all relevant evidence. Plaintiffs also claim that the examinations were not conducted in accordance with the stipulation and, therefore, the results were not admissible under the stipulation. Finally, plaintiffs contend that the polygraph examiner exceeded his authority under the stipulation and his qualifications by basing his opinion upon observation of alleged intentional overbreathing by Mabel. The issues thus presented are:
1. Was the stipulation for the conduct of the polygraph examinations valid?
2. Were the examinations conducted in accordance with the stipulation?
3. Did the polygraph examiner exceed his authority or state an opinion outside the area of his expertise?
Plaintiffs attack the stipulation for the conduct and use of the polygraph examinations on the ground that it was an agreement 'by stipulation to allow the results of a polygraph examination to be conclusive evidence' which in effect 'deprived the infant plaintiff-appellant of his day in court.' Two subsidiary propositions are involved in this attack. The first is that 'the guardian ad litem cannot waive or surrender any material rights of an infant litigant' and the second is that the stipulation was an invalid attempt 'to oust the court of the jurisdiction given to it by law to admit all evidence applicable to a cause and to render judgment accordingly.'
Plaintiffs' argument rests almost entirely upon the decision of this court in Berry v. Chaplin, 74...
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