Waters v. Spratt
| Decision Date | 12 December 1958 |
| Docket Number | No. 17839,17839 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eudoxie WATERS, Plaintiff and Respondent, v. Burnis SPRATT, Defendant and Appellant. . California |
Wesley E. Helm, Richmond, for appellant.
George W. Norris, Oakland (Ralph B. Westlake, Oakland, of counsel), for respondent.
Judgment was rendered determining that defendant is the natural father of plaintiff's child and ordering him to pay plaintiff $40 a month for the support of the child.
This judgment was supported by the findings of fact first filed but those findings were silent on two of the issues framed by the pleadings: whether plaintiff during the period of conception of the child was married to one Lawrence Waters and whether Lawrence had access to plaintiff during that period.
Defendant moved to set the judgment aside and enter a different judgment upon the ground that the conclusions of law were incorrect and not supported by the findings. He predicated his motion upon section 663 of the Code of Civil Procedure.
Plaintiff moved to amend the findings by adding one to the effect that plaintiff was married to Lawrence but that Lawrence did not have access during the period of conception. She predicated her motion upon section 473 of the Code of Civil Procedure.
The court denied both motions and ordered the nunc pro tunc filing of substituted findings which were the same as those first filed plus findings that Lawrence was married to plaintiff but did not have access to plaintiff at the time of conception.
The order for substitution contained these statements, among others:
Defendant has appealed from the judgment from the order denying his motion the vacate that judgment and enter a different judgment, and from the order which directed the nunc pro tunc filing of the substituted findings.
(1) The substituted findings determine all material facts in issue and are supported by the evidence. They, in turn, support the conclusions of law and the judgment.
Defendant questions the sufficiency of the evidence solely in relation to the finding that the husband did not have access during the period of conception, which period was during August and September of 1954.
Plaintiff testified that she did not have sexual relations with her husband after August 1953, at which time she separated from him. She denied that he called upon her during August or September, 1954, testifying that he was out of town at the time, in Law Vegas. The first time she saw him after their separation was in May of 1955, while she was pregnant. She later said she was about three or four months pregnant at the time she saw him, which would put the date back to about December of 1954, but she was positive she was pregnant when he returned from out of town.
Waters, the husband, testified that he separated from plaintiff in August of 1954, stayed in Las Vegas for about a year and a half, and when he next saw her, plaintiff was pregnant. He denied seeing her in September, 1954. He was apparently confusing August of 1953 with August of 1954, because, after his recollection was refreshed with the date of his marriage (March 9, 1953) he stated they were separated six or seven months thereafter, and that he did not see her in August or in September, 1954. This would be consistent with his testimony that he was away about a year and a half or almost two years, and that plaintiff was pregnant upon his return.
Plaintiff's mother testified that plaintiff and her husband separated in August of 1953, whereupon plaintiff came back home to live with her, and plaintiff's mother did not see Waters again until plaintiff was about five months pregnant.
Charles J. Wright, a deputy district attorney, testified that he discussed the paternity of the child with plaintiff in February, 1955, and she then told him she had seen her husband in September of 1954.
Dorothy Atkins testified that plaintiff's husband had visited plaintiff at her house in August or September of 1954. On rebuttal, plaintiff's mother denied this, as did her father.
The only testimony of access is that of Dorothy Atkins, and the prior statement plaintiff herself made to Mr. Wright, the deputy district attorney. Defendant relies principally on Mr. Wright's testimony, and the fact that plaintiff did not deny making this statement. (Her testimony was that she could not remember making this statement.) From the latter circumstances, defendant concludes that Mr. Wright's testimony was uncontradicted. The fact of making the statement was not directly denied, but the fact that the admission would tend to prove access was contradicted, not only by plaintiff's testimony, but by her husband's and that of her mother and father, with whom she was living at the time.
Evidence of an admission is not conclusive of the facts stated in the admission or of the inferences to be drawn from them. Gradwohl v. Harris, 29 Cal. 150, 155; Smith v. Whittier, 95 Cal. 279, 297, 30 P. 529; 19 Cal.Jur.2d p. 163, § 417. This being the case, it cannot be said that the finding of non-access is unsupported by the evidence, or that the court should have found access as a matter of law.
Defendant mistakenly relies upon language in Williams v. Moon, 98 Cal.App.2d 214, 219, 219 P.2d 902, 906, that 'If there is the reasonable possibility of access, the conclusive presumption arises and testimony as to nonintercourse is totally incompetent.' All the testimony was to the effect that the husband had access to the wife during the time the child was conceived, about July, 1945. The only contrary testimony was that the wife had 'separated' from her husband before that time and had not had intercourse with him since the 'separation.' However, they were living in the same house until at least June 29, 1945, and there was uncontradicted testimony that the husband was in the wife's home at least once late in July, 1945. Hill v. Johnson, 102 Cal.App.2d 94, 226 P.2d 655, also cited by defendant was a similar case where the husband and wife lived in the same house during the period of possible conception. In re Estate of Mills, 137 Cal. 298, 304, 70 P. 91; In re Estate of Walker, 176 Cal. 402, 408, 168 P. 689, and 180 Cal.478, 481, 181 P. 792, and Hargrave v. Hargrave, 9 Beav. 552, all relied upon in Williams v. Moon, recognize as sufficient to overcome the presumption of legitimacy a showing that the husband was entirely absent, so as to have no intercourse or communication of any kind with the mother or entirely absent at the time when the child must, in the course of nature, have been begotten. In Estate of Walker, supra, 180 Cal. 478, 491, 181 P. 792, the court stated that such a showing to overcome the presumption is subject to the ordinary rules concerning the burden of proof. 180 Cal. 492, 181 P. 797.
Here, there was directly conflicting testimony on...
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