Opinion
A099553.
7-31-2003
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. KENNETH STRICKLAND, Defendant and Respondent.
The City and County of San Francisco (San Francisco) appeals, contending the trial court erred when it rejected San Franciscos attempt to obtain reimbursement for sums it paid to support a minor on public assistance. We conclude the trial court erroneously applied the presumption of paternity set forth in Family Code section 7540 and will remand for further proceedings.
All further section references will be to the Family Code.
Section 7540 states, in part, "the child of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage."
I. FACTUAL AND PROCEDURAL BACKGROUND
Davonne D. was born in October 1989. Her mother is Yvette D. When Davonne was born, Yvette was married to and was living with her husband, David D.
Yvette named David as Davonnes father on the childs birth certificate. David took Davonne into the family home and raised her as his daughter for a brief period of time.
Problems arose between David and Yvette while Davonne was still very young. David moved out of the family home before the childs first birthday. In 1991, David filed a petition for dissolution, naming Davonne as his daughter.
Yvette applied for public assistance in 1994, naming David as Davonnes father. Thereafter, in November 1994, San Francisco filed a complaint against David seeking a declaration of paternity and reimbursement for the amounts it had paid to support Davonne.
David had apparently begun to suspect Yvette had been unfaithful during their marriage. He filed an answer in which he admitted he was the father of Davonnes brother David, Jr., but denied he was Davonnes father.
Several factors highlighted the fact that David and Yvette had been married when Davonne was born, thus potentially giving rise to a presumption that David was Davonnes father under section 7540. David, Yvette, David, Jr., and Davonne all shared the same last name, and the answer David filed in the support action referred to documents David had filed in the dissolution action in Alameda County. Despite these facts, in May 1996, San Francisco and David executed a stipulation for paternity blood testing.
Nearly two years later, San Francisco changed its position. In February 1998, it moved to set aside the stipulation, arguing blood tests were unwarranted because David was presumed to be Davonnes father. The trial court denied the motion without prejudice in March 1998.
The blood tests were finally completed in May 1998. They showed David was not Davonnes father.
In light of this development and based on information from Yvette, San Francisco filed a new action in June 1998 against respondent Kenneth Strickland, alleging he was Davonnes father.
Strickland, acting in propria persona, executed a stipulation in which he agreed to genetic testing. However, after Strickland obtained counsel, he filed an answer in which he denied being Davonnes father. Strickland argued David was conclusively presumed to be Davonnes father under section 7540 because David was married to Yvette when the child was born.
In April 1999, San Francisco filed a motion to enforce Stricklands stipulation and to compel him to submit to genetic testing. The trial court denied the motion, ruling Strickland could not be forced to submit to testing because David was presumed to be Davonnes father. San Francisco filed an appeal from the courts order declining to enforce the stipulation.
While the appeal in the Strickland case was pending, San Francisco apparently filed a motion for judgment in the action against David, arguing he was presumed to be Davonnes father. The Honorable William Gargano denied the motion with prejudice, ruling that the conclusive presumption of paternity set forth in section 7540 did not apply and that David was not Davonnes father. San Francisco did not appeal Judge Garganos ruling. It is now final.
This court dismissed San Franciscos appeal in the Strickland case because the order in question was not appealable. (City and County of San Francisco v. Strickland (Aug. 24, 2000, A088031) [nonpub. opn.].) When the case returned to the trial court, San Francisco filed another motion for judgment. The matter was tried before the Honorable Rebecca Wightman, who heard testimony from David, Yvette and Strickland. After considering this evidence, Judge Wightman ruled in favor of Strickland, holding the conclusive presumption of paternity set forth in section 7540 provided him with a complete defense. This appeal followed.
II. DISCUSSION
On February 4, 2003, while this appeal was being briefed, San Francisco filed a motion asking us to take judicial notice of certain documents in other related court actions. We deferred ruling on the request until the merits of the appeal. Having now considered the unopposed request, we grant it. (See Cal. Rules of Court, rule 41(c).)
San Francisco contends the trial court erred when it ruled the presumption of paternity set forth in section 7540 provided Strickland with a complete defense to the paternity and support action.
Section 7540 states, in part, "the child of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." Here, as the trial court explained, all the requirements necessary to satisfy the statute are present. The parties stipulated that David and Yvette were married and living together when Davonne was born. David was not sterile, since he and Yvette had produced another child, David, Jr. Thus, the elements of section 7540 were satisfied.
However, the presumption of paternity set forth in section 7540 is subject to an exception. Section 7541, subdivision (a) states, "if the court finds that the conclusions of all the experts . . . based on blood tests performed . . . are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly." Section 7541, subdivision (b) then places a limitation on the exception described in subdivision (a). Specifically, the "notice of motion for blood tests under this section may be filed not later than two years from the childs date of birth . . . ." (Italics added.) Here, as the court explained, no party had filed a motion for blood testing within two years of Davonnes birth.
Finally, and most relevant for present purposes, although the presumption set forth in section 7540 is described as "conclusive," courts may refuse to apply it when to do so would not advance its underlying policies. Rather, courts apply a "balancing test" to determine whether the presumption should be applied. (See, e.g., Estate of Cornelious (1984) 35 Cal.3d 461, 198 Cal. Rptr. 543, 674 P.2d 245; Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 216 Cal. Rptr. 748, 703 P.2d 88;In re Lisa R. (1975) 13 Cal.3d 636.) The states interest in preserving the integrity of the family unit and promoting individual rather than state responsibility for child support is weighed against an individuals competing private interests against applying the presumption. (County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, 980-981.)
Applying that balancing test, we note first that there is no family unit to preserve. While David briefly took Davonne into the family home after she was born, he moved out before the childs first birthday. David and Yvette then separated nearly 13 years ago. David has denied being Davonnes father since at least March 1995, and all parties have known David was not in fact Davonnes father since May 1998 when the blood tests were completed.
The states interest in promoting individual rather than state responsibility for child support strongly supports the conclusion that the presumption should not be applied. Blood tests have established David is not Davonnes father, and a final judgment has been entered relieving David of any responsibility for the child. As we understand the record, Strickland is the only person who has been identified who might possibly be Davonnes father.
Stricklands paternity has never been established. It remains only a possibility at this point.
Weighed against these strong factors is Stricklands apparent desire to avoid financial and emotional responsibility for a child he may have fathered with a married woman many years ago. We do not view these interests as compelling. As another court explained in similar circumstances, the presumption set forth in section 7540 "was never intended as a financial prophylactic for men who have affairs with married women." (County of Orange v. Leslie B., supra, 14 Cal.App.4th at p. 981.)
Applying the presumption in this case would establish a legal fact that we and the parties know is not true in order to protect a public policy that does not exist. We decline to countenance such a result. We conclude the trial court erred when it ruled section 7540 provided Strickland with a complete defense to the paternity action.
III. DISPOSITION
The judgment is reversed. The case is remanded for further proceedings consistent with this opinion.
We concur: Simons, J., Gemello, J.