Santa Barbara County v. Patrick H., B-011342

• Decision Date: 18 April 1986
• Docket Number: B-011342
• Citation: 225 Cal.Rptr. 478,179 Cal.App.3d 1206
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 179 Cal.App.3d 1206 179 Cal.App.3d 1206 COUNTY OF SANTA BARBARA, etc., et al., Plaintiffs and Respondents, v. PATRICK H., Defendant and Appellant. Civ.

Page 478

225 Cal.Rptr. 478

Previously published at 179 Cal.App.3d 1206

179 Cal.App.3d 1206

COUNTY OF SANTA BARBARA, etc., et al., Plaintiffs and Respondents, v. PATRICK H., Defendant and Appellant.

Civ. B-011342.

Court of Appeal, Second District, Division 6, California.

April 18, 1986.

Rehearing Granted May 14, 1986.

Frank M. Jodzio, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Norman H. Sokolow and Andrew D. Amerson, Supervising Deputy Attys. Gen., Thomas W. Sneddon, Jr., Dist. Atty., Santa Barbara and Ronald E. Magnuson, Deputy Dist. Atty., for plaintiffs and respondents.

OPINION ON REHEARING

STONE, Presiding Justice.

This is an appeal from a summary judgment. We reverse and remand for rehearing.

The marriage of appellant Patrick James H. and Tanya Paulette H. (Tanya) was dissolved in 1974. In that dissolution proceeding, appellant requested and obtained custody of Dawn Renee H. (Dawn), born October 30, 1968, and Sharon Marie H., born October 24, 1970. In 1984, Dawn elected to live with her mother Tanya in Santa Barbara County. Respondent Santa Barbara County disbursed welfare funds to Tanya and Dawn under its Aid to Families With Dependent Children program.

In May 1984, respondent filed a civil complaint against appellant for reimbursement of those funds pursuant to Welfare and Institutions Code section 11350. The complaint alleged in part that appellant and Tanya were the parents of Dawn, and sought reimbursement of $2,800 and ongoing child support in the amount of $280 per month.

In his answer to respondent's complaint, appellant denied he was Dawn's father, but stated that Tanya was her mother. Respondent thereafter filed a motion for summary judgment on the ground that appellant was collaterally estopped from raising the issue of paternity because of the prior dissolution action. Papers filed in that action showed that appellant petitioned for dissolution of his marriage with Tanya in 1973. On his petition, appellant identified the children of the marriage as Dawn H. and Sharon H. and requested custody of both minors. A default interlocutory judgment of dissolution was entered in 1974 and ordered that the custody and control of the minors be awarded to appellant. After Tanya failed to appear in the proceedings, appellant requested and received a final judgment of dissolution in the same year.

Following respondent's motion for summary judgment, appellant filed a declaration, again denying he was Dawn's father, along with a copy of Dawn's birth certificate and appellant's and Tanya's marriage license certificate. The birth certificate listed Dawn's name as "Dawn Renee H.," her mother as Tanya, and her father as James Michael Hughes. The marriage certificate showed that appellant and Tanya were married in May 1969, seven months after Dawn was born. Appellant's declaration stated in relevant part: "I had known my wife prior to the birth of her daughter, DAWN. In fact at the time that her daughter was born she and I talked about getting married. That is the reason that she gave her daughter [my] surname of H. on the birth certificate. At no time was it ever discussed that I was the father of the child. ... In late August 1973, I was contacted at work by a babysitter who indicated that my wife had asked her to babysit the children for an evening and that she did not return.... She indicated that she had the children but could no longer watch them, that my wife had not contacted her.... I immediately left work and.... picked up my children.... Approximately two or three weeks after I picked up the children I was able to talk to my wife telephonically who had informed me that she did not want the children as they did not fit in with her lifestyle and if I didn't want to take custody of DAWN that she was going to put DAWN in a foster home or in an ophanage [sic ] because she did not intend to care for her. I did not know what to do, I did not have sufficient funds to hire an attorney or even to get legal advice. I went down to court to obtain the papers for filing a dissolution of marriage and filed for it. I was concerned about DAWN. I wanted custody of her rather than having her placed in an orphanage or a foster home and I so indicated the fact that I wanted custody on the papers for dissolution which I filed.... I was never told that by putting down DAWN RENEE H. as a child of the marriage that I was the father of the child. My intentions were simply to take custody of DAWN rather than to have her placed in a foster home or orphanage. At no time did I intend anything else by the filing of the petition for dissolution or the subsequent court documents which were filed.... My intention merely was to prevent DAWN from being placed in a situation which she did not like or would have a which [sic ] detrimental effect upon her.... [Tanya] never appeared or filed any papers in the action and when I went to court to obtain the Interlocutory Judgment, the Court indicated that the Interlocutory Judgment which I had typed out had too many mistakes and I was to handwrite it which I did.... At no time was I questioned about whether or not I was the father of the children nor did the Court explaint [sic ] to me any ramifications of what I was doing. It appeared to be a perfunctorily action by the Court."

The trial court granted respondent's motion for summary judgment and ordered appellant to pay child support "notwithstanding the fact he is not the natural father of the child." In its order, the court cited Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707 which held that a husband is liable to support his wife's child under an estoppel theory where it is shown that he has represented to the child that he is the father with the intention that the child accept and act on that representation. The lower court in this matter further stated in its order: "Marriage of Johnson (1979) 88 Cal.App.3d 848 presents facts not unlike those of the instant case. In Johnson.... [t]he Court of Appeal held the husband was estopped from asserting the illegitimacy of his wife's child.... The child has [sic ] known the husband only as his father and had known no other in that capacity. Although the husband apparently never expressly represented to the child that he was his father, it was clear that his conduct was such that an implied representation to that fact was made.... The facts of the instant case support a finding of estoppel regarding the issue of parentage."

Appellant argues that the trial court erred by granting respondent's motion on the basis that the prior dissolution judgment was res judicata on the issue of paternity. He contends that the issue of paternity was not litigated in the former action and that, by granting respondent's motion, the trial court made a prohibitive factual determination of paternity. (Mission Ins. Group, Inc. v. Merco Construction Engineers, Inc. (1983) 147 Cal.App.3d 1059, 1064, 195 Cal.Rptr. 781.) Appellant further argues that his constitutional right to due process was violated because the trial court's action denied him a trial on the issue of Dawn's paternity.

Appellant has misread or misinterpreted the superior court record. The lower court based its judgment on the theory of estoppel by conduct, not on the doctrine of collateral estoppel or estoppel by "issue preclusion." (9 Witkin, Cal. Procedure (3rd ed. 1985) Judgment, § 253, p. 691; Todhunter v. Smith (1934) 219 Cal. 690, 695, 28 P.2d 916.) However, we agree with appellant that the issue of paternity was not adjudicated in the former dissolution proceeding and, therefore, that appellant is not collaterally estopped from asserting nonpaternity as a defense to the present suit. The effect of collateral estoppel is confined only to issues adjudicated in a former proceeding. Thus, where an issue was not litigated in a prior action, the resulting judgment is not conclusive on it whether rendered after a trial or by default. (Witkin,supra, § 281, p. 719; English v. English (1937) 9 Cal.2d 358, 361, 363, 70 P.2d 625.)

Although Code of Civil Procedure section 1911 states, "That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto," the meaning of "issues litigated" is far from clear. (Witkin, supra, § 254, p. 693.) " 'Despite the established principle that collateral estoppel results only on issues actually litigated [citation], it is often said that a judgment is binding as to all matters which were raised or which might have been raised.' " (Price v. Sixth Dist. Agricultural Assn. (1927) 201 Cal. 502, 511, 258 P. 387.) The correct interpretation of this statement is that "a former judgment is not collateral estoppel on issues which might have been raised but were not ; just as clearly it is a collateral estoppel on issues which were raised, even though some factual matters or legal arguments which could have been presented were not. (Bleek v. State Bd. of Optometry (1971) 18 Cal.App.3d 415, 429, 95 Cal.Rptr. 860; Witkin, supra, § 257, p. 696.)

We think the former distinction in the foregoing interpretation applies in this case. That is, the issue of Dawn's paternity might have been raised in the former dissolution action, but it was not. Consequently, there is no collateral estoppel since the issue was not litigated. From the face of the dissolution documents, as well as from appellant's declaration filed in the present case, it is apparent that the court simply awarded custody of Dawn to appellant without an express acknowledgment or admission by appellant that he was Dawn's father or an express finding by the court as to that issue. (Estate of Williams (1950) 36 Cal.2d 289, 292, 223 P.2d 248; Garcia v. Garcia (1957) 148 Cal.App.2d 147, 153, 306 P.2d 80.) (See also, Hurst v. Hurst (1964) 227 Cal.App.2d 859, 863-864.) The parties to a dissolution may seek a...