Swain v. Swain

• Decision Date: 10 April 1967
• Citation: 250 Cal.App.2d 1,58 Cal.Rptr. 83
• Court: California Court of Appeals Court of Appeals
• Parties: Alpha Jo SWAIN, Plaintiff and Appellant, v. Thomas E. SWAIN, Defendant and Respondent.

Page 83

58 Cal.Rptr. 83

250 Cal.App.2d 1

Alpha Jo SWAIN, Plaintiff and Appellant, v. Thomas E. SWAIN, Defendant and Respondent.

Court of Appeal, Third District, California.

April 10, 1967.

Changaris, Trezza & Ithurburn, by Malcolm A. Misuraca, Yuba City, for appellant.

Manwell, Manwell, Ashburn & Hogan by Paul M. Hogan, Marysville, for respondent.

PIERCE, Presiding Justice.

This appeal is by the wife from an order by the trial court denying a motion to set aside an order vacating a portion of a divorce decree which declared defendant husband to be the father of a child, Diana. The record discloses he was not the natural father of the child nor had he adopted her. Grounds of the vacating order were that the court in originally making a declaration that Diana was the child of defendant had acted in excess of jurisdiction. Stated broadly, that is the sole question before this reviewing court.

The question, more specifically stated conversely, is an extremely compound one: It is:

(1) where a plaintiff wife makes a perjurious allegation in a verified complaint for divorce declaring a child not the child of the marriage to be one, and

(2) where the wife obtains a so-called 'appearance and waiver' from her husband in which the child is not even mentioned, and

(3) where an officer of the court, appointed for that purpose, investigating, finds out from the parties that the child is not the child of the marriage, and has not been adopted by the husband and so states in a report submitted to the court, and

(4) Where said report is read and considered by the court and filed as a part of the record and the truth of the matters stated therein is never challenged, and

(5) where the court at the hearing of the divorce forgets that the child is not the child of the parties and is encouraged so to forget by the wife (the husband not being present or represented) who repeats her statement that the child is that of the marriage and the court is thereby induced to sign a decree so finding, and

(6) where a year later the wife's attorney presents a final decree (in which the false statement is effectually compounded by repetition) to a successor judge who signs said decree, and

(7) where more than 6 months elapse before the husband moves for, and the trial court grants, an order vacating those portions of the decrees finding the husband to be the father of the child,

must a stepparent adoption thus created in absentia by misoperation of law be perpetuated by this court? The majority of this court holds that it need not and will affirm the judgment of the court below.

The appeal is upon (1) a clerk's transcript which includes the probation officer's report, and (2) the testimony taken at the hearing of the divorce. The facts before us on appeal show the following:

On April 16, 1962, Alpha Jo Swain filed a verified complaint alleging Inter alia: 'That there are two minor children as the issue of said marriage, Shirley J. Swain and Diana L. Swain.' She also alleged that defendant should be ordered to pay to plaintiff for the support of the minor children $156.90 per month until the entry of the final decree, $50 per month for each child thereafter. The complaint also alleged that plaintiff and defendant were married January 17, 1953, and had separated November 15, 1959. (The separation was thus over two years before the divorce action was brought.)

On April 19, 1962, there was signed, acknowledged and filed a statement by defendant Thomas E. Swain asserting that he 'appears,' that he 'admits service of copy of the summons and complaint,' and 'stipulates that the within action may be heard without further notice to defendant, on the default calendar or otherwise.' At this point it should be noted defendant does Not admit the allegations of the complaint, therefore he does not admit paternity of Diana; he does Not even state that he has read the complaint; he does Not consent that his default be taken. He was not represented by an attorney.

On May 10, 1962, upon the order of the late Honorable Arthur Coats, then Judge of the Superior Court of Sutter County, the assistant probation officer investigated the status of the children and submitted his report to the judge. The report was filed and is a part of the clerk's transcript before us on this appeal. The report is based upon information given by Both the plaintiff and the defendant. Pertinent here are the following statements: 'There was one child born the issue of this marriage: Shirley Jean, age eight years. Plaintiff also has a child, Diane (Diana) Lynn, age thirteen years, from a previous marriage; Diane uses the name of Swain although she has never been legally adopted by the defendant.' (Emphasis added.)

On May 11, 1962, Judge Coats signed a statement attached to the report. It states: 'I have read And considered the foregoing report of the Probation Officer.' (Emphasis supplied.) Presumably copies of the report were made available to plaintiff, her attorney and to defendant before the divorce was heard.

The transcript of the testimony taken when the interlocutory decree was heard on May 14, 1962, is a part of the record brought before this court. ¹

Swain did not appear at the hearing. Plaintiff and her witness appeared with plaintiff's attorney. The following questions and answers are set forth in the wife's testimony: 'Q. You and Mr. Swain have two children, is that correct? A. That's right. Q. Those children are both in your custody and control at this time? A. That's right. * * * Q. Mr. Swain is in the United States Air Force stationed at Beale Air Force Base? A. Yes. Q. Do you get from him now $156.90 a month, or get it from the Government, yes? (No answer.) Q. What you are asking the Court so far as support of the children is that he allow you this amount of money for the period of one year, at which time the allotment would stop and you want a Court order that he pay $50.00 a month for each child? A. That's right.' The court then asked whether he was out of the service at Beale and the attorney answered: 'He won't be out of the service, but part of this $156.90 she is getting is for her, and they won't stop the allotment until the final decree is entered. ² So when the final decree is entered, we would like the order just to say that she get $50.00 a month for each child. THE COURT: Very well.'

One matter absent from the reporter's transcript is as important as the testimony contained therein: the report of the probation officer is mentioned but the (then and now) undisputed fact contained therein that the child Diana was neither the natural nor adopted child of defendant husband was not disclosed to the judge. On the contrary, it was withheld from the judge who was expressly requested to find Diana to be the child of the parties, and to make allowance for her support beyond the period when there was any legal obligation of support by Swain. It will be noted that there is, to use Walter Lippmann's polite expression, a sizeable 'credibility gap' between Mrs. Swain's statement to the probation officer regarding Diana's paternity on the one hand and her complaint allegation and later testimony (led by her attorney) on the other hand. The significance of this will be discussed below.

On May 15, 1962, the wife's attorney prepared, the court signed and there was filed an interlocutory decree. It contains two references to Shirley J. Swain and Diana L. Swain, 'minor children of the parties hereto,' gives custody to plaintiff and $156.90 for their support until the entry of the final decree and thereafter $50 per month each 'until each of said children reaches the age of majority or until the further order of any court of competent jurisdiction.'

A final judgment of divorce was entered May 15, 1963, by Honorable John G. Hauck as Superior Court Judge of Sutter County, who had succeeded Judge Coats upon the latter's retirement. So far as the record indicates it was filed without affidavit (California Rules of Court, rule 233). It provided that the provision of the interlocutory decree wherein it made provision for custody and support of the children be made binding to the same effect as if therein set forth in full.

On May 21, 1965, Swain, then represented by an attorney, noticed a motion which included as a ground that the court had acted in excess of its jurisdiction in the interlocutory and final decrees in declaring Swain to be the father of Diana. ³

On June 15, 1965, Judge Hauck issued an order setting aside the provisions of the interlocutory and final decrees relating to the parentage and support of Diana upon the ground the court had acted in excess of jurisdiction

The former Mrs. Swain moved that this order be vacated, and as stated, has appealed from the order denying this latter motion.

It is, of course, hornbook law, that a stepfather's liability to support the child of his wife by a former marriage ordinarily ends in the absence of an adoption when he and the mother are divorced. (Civ.Code, § 209; Clevenger v. Clevenger, 189 Cal.App.2d 658, 665--666, 11 Cal.Rptr. 707, 90 A.L.R.2d 569; Anderson v. Anderson, 214 Cal. 414, 5 P.2d 881.) The late Judge Coats must be assumed to have been aware of this rule. This leads to an inevitable conclusion: that when he signed the interlocutory decree, after having heard Mrs. Swain give false testimony (in response to a leading question by her attorney) that Diana was the child of her marriage to Swain, Judge Coats had forgotten that both Swain and Mrs. Swain had informed his probation-officer-investigator who had informed him that that statement was not true.

When discussing the legal principles involved on this appeal, we keep in mind both the nature of the probation officer's report in domestic relations proceedings and the status of the probation officer himself in making it. In 1951 the Legislature created in Los Angeles and San Francisco Counties new ministerial officers of the court...