Stargell v. Stargell

• Decision Date: 26 June 1968
• Citation: 263 Cal.App.2d 504,69 Cal.Rptr. 715
• Court: California Court of Appeals Court of Appeals
• Parties: Precious Wilbern Vernell STARGELL, acting by and through Gussie M. Porter, her guardian ad litem, Plaintiff and Appellant, v. Wilver STARGELL, Defendant and Respondent. Civ. 24688.

Page 715

69 Cal.Rptr. 715

263 Cal.App.2d 504

Precious Wilbern Vernell STARGELL, acting by and through Gussie M. Porter, her guardian ad litem, Plaintiff and Appellant, v. Wilver STARGELL, Defendant and Respondent.

Civ. 24688.

Court of Appeal, First District, Division 1, California.

June 26, 1968.

Stern, Stotter & Rosenberg, San Francisco, for appellant.

Danaher, Fletcher, Gunn & Ware, Palo Alto, for respondent.

MOLINARI, Presiding Justice.

Plaintiff minor, by her guardian ad litem, appeals from an order modifying child support payments.

In 1964, the superior court entered a judgment establishing that plaintiff is the illegitimate daughter of Brenda Joyce Hyde and defendant, Wilver Stargell, and ordered him to pay $75 a month for child support plus certain medical expenses. In December 1966, plaintiff sought to modify the judgment for support by increasing the previous award to $150 per month. After a hearing the court increased the payments to $110 per month. In appealing from this order plaintiff contends that the trial court abused its discretion in allocating the cost of plaintiff's maintenance equally between Mrs. Hyde and defendant; that the trial court applied a standard of support to plaintiff different than the standard it uses for legitimate children; that the trial court erred in refusing to consider as relevant the amount defendant is paying as support for another of his children; and that the trial court did not weigh the respective social and economic circumstances of the parties.

Defendant is a ball player for the Pittsburgh Pirates Athletic Club, presently earning $22,000 a year or $1,833 a month. At the time of the original judgment in 1964, he was earning $10,000. He has a daughter, Wendy, of a former marriage, who was born about a month before plaintiff, and is paying $150 a month for her support. Defendant's monthly expenses at the time of the hearing totaled $1,848.97. These expenses included about $25 per month city wages tax; $360 per month withholding tax; $60 per month payment towards his pension; $10 per month athletic club dues; $475 per month payment on a debt to the Athletic Club of $7,300; rent, food, utilities and clothing expenses of $380 per month; a total of $157 per month for expenses and payments on a new Buick Riviera automobile; and $35 per month for incidentals. He was also paying $100 to the mother of plaintiff ($75 for support and $25 for arrearages) and $100 in alimony to his former wife, the mother of Wendy, as well as $150 for Wendy's support. The alimony, however, ceased in December of 1966. About three weeks before the hearing in this proceeding, defendant remarried.

Plaintiff's mother, Brenda Hyde, at the time of the hearing had been married about three years. In addition to plaintiff, then four years old, Mrs. Hyde and her husband are raising a child of their marriage, Lance, aged two and one-half years at the time of the hearing. Mrs. Hyde was employed by Continental Can Company, earning about $309.60 monthly, and her husband was employed by Safeway Stores, earning about $468.70 monthly. The monthly expenses for the Hydes were as follows: $73 for nursery school for plaintiff; $60 for baby-sitting expenses; $85 for rent; $150 for food; and $10 for clothes for plaintiff. The trial court computed the expenses for plaintiff to be $220 per month.

Civil Code, section 196a ¹ provides that 'The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances,' and that in a proceeding to enforce such obligations 'the court shall have power to order and enforce performance thereof, the same as is the case with respect to legitimate children, in a suit for divorce by a wife.' Under this section the liability for support of an illegitimate child is the mutual obligation of both the father and mother. (Reed v. Hayward, 23 Cal.2d 336, 340, 144 P.2d 561; Myers v. Harrington, 70 Cal.App. 680, 683--684, 234 P. 412; Kemppainen v. Hester, 113 Cal.App.2d 472, 475, 248 P.2d 103.) Accordingly, insofar as the obligation of both parents to support is concerned, section 196a declares a public policy that illegitimate and legitimate children are to be treated alike. (Estate of Woodward, 230 Cal.App.2d 113, 118. 40 Cal.Rptr. 781, 12 A.L.R.3d 1134.) Accordingly, the support order is to be made by the trial court in the exercise of its sound discretion, taking account of the child's needs, the financial ability of the father, and the financial circumstances of the mother. (Kyne v. Kyne, 70 Cal.App.2d 80, 83, 160 P.2d 910; Wong v. Wong Hing Young, 80 Cal.App.2d 391, 395, 181 P.2d 741; Whiteside v. Wilkerson, 211 Cal. 752, 753, 297 P. 15; Gambetta v. Gambetta, 30 Cal.App. 261, 263, 157 P. 1141.) 'The sole issue, after paternity is established, is the amount for support that is reasonable under the circumstances. In fixing the amount the trial court has a wide discretion, and the appellate court will not interfere with the amount fixed unless there has been an abuse of discretion. (Citations.)' (Wong v. Wong Hing Young, supra, 80 Cal.App.2d at p. 395, 181 P.2d at p. 744; see Kyne v. Kyne, supra, 70 Cal.App.2d at p. 83, 160 P.2d 910.) It should be noted, moreover, that the father's duty of support does not end with the furnishing of mere necessities if he is able to afford more. (Bailey v. Superior Court, 215 Cal. 548, 555, 11 P.2d 865; Berry v. Chaplin, 74 Cal.App.2d 669, 672, 169 P.2d 453; Wong v. Wong Hing Young, supra, 80 Cal.App.2d at p. 395, 181 P.2d 741.)

Here it is contended, not that the sum of $110 per month for child support is necessarily so inadequate as to constitute an abuse of discretion, but rather that the method by which the court arrived at said sum was wrong in that the court did not consider the circumstances of the parties but merely allocated the child's needs equally between its parents. It appears from the record, however, that the court was aware of and explicitly considered all of the evidence which we have summarized relating to the child's needs and the circumstances of both parents. The trial court made it clear that its order was predicated upon defendant's present circumstances, taking into consideration his large financial obligations, and noted that upon a change of such circumstances the award was properly modifiable. It was upon the basis of defendant's financial difficulties and the financial circumstances of both parents that the trial court concluded that it could do no more than equate his ability to contribute to the support of the child with that of the child's mother. We, accordingly, conclude that the trial court did not abuse its discretion in allocating the costs of plaintiff's support as it did.

Adverting to plaintiff's contention that the trial court applied a standard of support to plaintiff different than the standard...