Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. CSS52151
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Morgan M. appeals after the superior court required him to submit to genetic testing, determined him to be the legal father of a child based on the test results, and ordered him to pay child support. Morgan contends that the court should have conclusively presumed another man, Miguel J., who was married to the child’s mother at the time of the child’s birth, to be the father of the child under Family Code section 7540 and applied the two-year limitation on blood testing under section 7541. For reasons that we will explain, we will affirm the judgment.
All further statutory references are to the Family Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
Eugenia R. and Miguel J. were married in Nevada in 1997. Eugenia gave birth to M. in Nevada nearly two years later in 1999. Miguel is named as the father on M.’s birth certificate, and he “acted as and presented himself to be” her father.
Eugenia has referred to her daughter as M.J., although it appears a Nevada court has stated that M.’s surname shall be changed to R.
Eugenia and Miguel’s divorce decree was filed in Nevada in April 2006. In the divorce decree, the Nevada court states that “there are no minor children the issue of this marriage.” It appears that the Nevada court determined in March 2006 that Miguel was not the biological father of M. based on genetic test results and that he had no custodial rights to her. The genetic testing took place in November 2005.
In December 2006, the Monterey County Department of Child Support Services (Department) filed a petition on behalf of Eugenia in Monterey County Superior Court seeking to establish Morgan as M.’s father and for an order for current child support, including medical support. In support of the petition, Eugenia stated that Miguel was not M.’s father based on genetic test results. She further stated that M. was conceived in August 1998 as a result of sexual intercourse between Morgan and her in California. Eugenia and Morgan never lived together.
Morgan filed a response to the petition in February 2007, denying that he was M.’s father. He believed that Eugenia and Miguel were married and cohabitating when M. was born, that Miguel is named as the father on M.’s birth certificate, and that Miguel had held himself out as M.’s father for more than five years.
In March 2007, the Department filed a motion for judgment regarding paternity, child support, and health insurance coverage. The Department also requested that the superior court order genetic testing. Morgan opposed the request. In written opposition he argued that under section 7540, Miguel was conclusively presumed to be M.’s father. Although section 7541 permits the conclusive presumption to be rebutted by blood tests, Morgan contended that a motion for those tests must be made not later than two years from the child’s birth date. Morgan argued that in this case, it appeared that blood tests had not been conducted on Miguel and M. until more than six years after M.’s birth. He asserted that policy considerations supported application of the presumption of section 7540 because M. had been raised to believe that Miguel is her father.
The Department and Morgan subsequently provided further briefing to the superior court, apparently in response to an inquiry by the court as to whether the conclusive presumption of section 7540 may be raised by a putative father or an outsider to the marriage. The Department and Morgan agreed in their respective briefs that the presumption may be raised by such an individual. The Department contended, however, that Morgan could not raise the conclusive presumption in this case because (1) there was no person who could be conclusively presumed to be the father of M. in view of the Nevada court’s determination regarding Miguel, and (2) public policy was not furthered by application of the presumption. The Department also argued that the full faith and credit clause of the federal Constitution required the court to give “force” to the Nevada judgment and “recognize” that Miguel is not M.’s father. Morgan responded that the presumption was applicable, notwithstanding the Nevada court’s determination as to Miguel, and application of the presumption would be consistent with California law and policy. He also argued that the full faith and credit clause did “not require acceptance of another State’s law in violation of its own legitimate policy.”
In an “ORDER AFTER SUBMISSION” dated August 2007, the superior court granted the Department’s request for genetic testing. The court explained that pursuant to the Nevada divorce decree, Miguel is not the legal father of M., and therefore the California presumption did not apply to him. Even without the Nevada court’s finding, the superior court determined that Morgan could not use the presumption “as a shield against his obligations as a parent if he is found to be the biological father.” Relying on County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976 (Leslie B.), the superior court considered the public policies underlying the presumption, including preservation of the integrity of the family unit, protection from the legal and social stigma of illegitimacy, and promotion of individual rather than state responsibility for child support. The court observed: “Here, there is no marital unit to preserve. Although there may be an interest in preserving the family unit even after divorce when the husband seeks to maintain a relationship with the child, lamentably, such is not the case here. [¶] As to the stigma of illegitimacy, DNA testing has already established that the child was not a child of Mother’s husband. If this Court applies the presumption, the child will have no father. [¶] And, application of the presumption does not promote the policy of individual responsibility if [Morgan] is the biological father and is allowed to shirk his financial obligations. As stated in Leslie B., ‘the presumption was never intended as a financial prophylactic for men who have affairs with married women.’ Id., at 981. [¶] Thus, there is no reason to apply the presumption from a public policy perspective. On balance, [Morgan’s] desire to escape financial responsibility for a child he may have fathered is not a compelling interest which would warrant application of the presumption.... [¶] The Court is not unmindful to the harm done to [Morgan] by the failure to establish parentage at an earlier date. Should [Morgan] be the child’s biological father, he will have missed out on the child’s first eight years of life. Nevertheless, it is far better to establish a relationship with his child at a later date than not at all.”
Genetic testing thereafter revealed that Morgan could not be excluded as the biological father of M.; the combined paternity index is 202,184 to one; and the probability of paternity is 99.99 percent.
In supplemental briefing filed in superior court, Morgan continued to argue that sections 7540 and 7541 applied to the case and that he should not be required to pay child support for M. Regarding the full faith and credit clause, he argued that Nevada’s ruling did not apply to him because he was not a party to that proceeding, the Nevada ruling was limited to whether Miguel was the biological father and did not address Morgan’s status, and the full faith and credit clause did not require a state to apply another state’s statutory law in violation of its own public policy. The Department in its supplemental brief contended that the presumption of section 7540 did not apply. It also asserted that genetic testing may be ordered under section 7551 and, in view of the recent results concerning Morgan, there was a rebuttable presumption under section 7555 that Morgan is M.’s father.
A hearing was held in early May 2008. The superior court took the matter under submission after hearing argument from counsel. In an “ORDER AFTER SUBMISSION” dated May 16, 2008, the court observed that the DNA sample collected from Morgan resulted in a paternity index of 100 or greater, and thus there was “rebuttable presumption that [he] is [M.]’s father.” The court found that the presumption had not been rebutted by a preponderance of the evidence. The court determined that Morgan “is the legal father” of M. and ordered him to pay child support effective January 1, 2007.
The copy of the order in Morgan’s appendix on appeal is not file-stamped.
On May 30, 2008, Morgan filed a notice of appeal from the May 16, 2008 order.
III. DISCUSSION
On our own motion we have augmented the record to include the judgment filed in this case on August 8, 2008, and the amended judgment filed on August 18, 2008. Relevant here, the amended judgment provides that Eugenia and Morgan are the parents of M. and that Morgan must pay child support as specified. We deem Morgan’s notice of appeal as filed immediately after entry of the amended judgment. (Cal. Rules of Court, rule 8.104(e)(2) [notice of appeal filed after superior court has announced its intended ruling but before it has rendered judgment may be treated by reviewing court as filed immediately after entry of judgment].)
On appeal, Morgan challenges the judgment requiring him to pay child support for M. First, relying on the presumption of section 7540 and the two-year limitation on blood testing under section 7541, he argues that Miguel was M.’s father and he (Morgan) could not be subjected to blood testing. He also contends that policy considerations support the application of the presumption and the two-year blood testing limit in this case. Second, he asserts that the full faith and credit clause of the federal Constitution “does not require California to set aside its own law and apply contrary Nevada law to a California citizen who would otherwise be protected from any obligations to a nine-year old Nevada child.” Third, he argues that the superior court in effect applied Nevada law to conclude that he was obligated to pay child support without first undertaking a conflict of laws inquiry.
We first address Morgan’s contention that sections 7540 and 7541 apply in this case and that policy considerations support their application.
Statutory interpretation is a question of law, which we review de novo. (Librers v. Black (2005) 129 Cal.App.4th 114, 124.) In addition, where, as here, the inquiry involves consideration of legal principles and their application to undisputed facts, our review is also de novo. (Ibid; see also Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176; Viking Ins. Co. v. State Farm Mut. Auto. Ins. Co. (1993) 17 Cal.App.4th 540, 546.)
Section 7540 states that “[e]xcept as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”
The presumption may be rebutted by blood tests. Section 7541 states that “if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.” (§ 7541, subd. (a).) The husband’s notice of motion for blood tests under section 7541, however, “may be filed not later than two years from the child’s date of birth....” (§ 7541, subd. (b).) Thus, “if a married man fails to request paternity testing within two years of the birth of a child to his wife, and he is neither infertile nor impotent, he will be conclusively presumed to be the child’s father.... [Citations.]” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 391; see also In re Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1444.) The “probable rationale” for allowing blood testing not later than two years from the child’s birth to dispute presumed paternity is that “ ‘[i]n the case of a young child the most palpable relation that anyone has to the child is a biological relationship.... But in the case of an older child the familial relationship between the child and the man purporting to be the child’s father is considerably more palpable than the biological relationship of actual paternity.’ ” (Estate of Cornelious (1984) 35 Cal.3d 461, 465 [discussing former Evidence Code section 621]; In re Marriage of Freeman, supra, 45 Cal.App.4th at p. 1446 [“under sections 7540 and 7541 biology will control determination of paternal responsibility for a limited period early in a child’s life and thereafter the predominant consideration must be the nature of the presumed father’s social relationship with the child”].)
Courts have refused to apply the presumption of section 7540 when its underlying policies are not furthered. (Leslie B., supra, 14 Cal.App.4th at p. 980 [discussing former Evidence Code section 621]; Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1234, fn. 2, 1236-1238 (Alicia R.) [discussing section 7540 and former Evidence Code section 621].) “Traditionally, it was stated that the presumption was designed to preserve the integrity of the family unit, protect children from the legal and social stigma of illegitimacy, and promote individual rather than state responsibility for child support. [Citations.]” (Leslie B., supra, 14 Cal.App.4th at p. 980.)
“Since the passage of the Uniform Parentage Act and its abolition of any incidents of illegitimacy, the ‘stigma’ of illegitimacy should not be considered in determining the constitutionality of applying the presumption. (Michelle W. v. Ronald W. [(1985)] 39 Cal.3d [354] at p. 362, fn. 5.)”
In Leslie B., the Court of Appeal refused to apply the presumption that the husband was the child’s father. The husband, Gregory, was still married to his wife, Catherine, when she had a sexual relationship with Leslie. (Leslie B., supra, 14 Cal.App.4th at p. 979.) Catherine gave birth to Jennifer in 1977, a few months before her divorce to Gregory became final. The men, Gregory and Leslie, learned about Jennifer’s birth more than 10 years later. After the district attorney filed an action to establish paternity and obtain support for Jennifer, the parties voluntarily took blood tests which showed a 99.25 percent probability that Leslie was Jennifer’s natural father and conclusively showed that Gregory was not. Leslie argued, however, that Gregory was conclusively presumed to be Jennifer’s legal father because Jennifer was conceived while Catherine was cohabitating with her husband, Gregory. (Leslie B., supra, 14 Cal.App.4th at p. 979.)
The Court of Appeal explained that in In re Lisa R. (1975) 13 Cal.3d 636, the California Supreme Court developed a balancing test to determine whether applying the presumption violated the due process rights of a putative father wishing to rebut it. This balancing test requires the weighing of the competing private and state interests. The Court of Appeal reasoned that “[l]ogic dictates the same test should apply to determine whether not applying the presumption violates the putative father’s due process rights.” (Leslie B., supra, 14 Cal.App.4th at p. 981.)
The Court of Appeal observed that “the presumption was never intended as a financial prophylactic for men who have affairs with married women.” (Leslie B., supra, 14 Cal.App.4th at p. 981.) The court concluded that based on the facts of the case before it, none of the policies underlying the presumption would be furthered if the presumption were applied and indeed application of the presumption “would lead to a ridiculous result.” (Id. at p. 983.) The court explained: “If Leslie prevailed Jennifer would be ‘given’ a father whom she knows is not her natural father, to preserve the integrity of a family unit that never existed. Catherine, Gregory and Jennifer have never lived together as a family, they share no ties other than those that exist due to a long-ago failed marriage of brief duration. Contrary to Leslie’s assertions, to apply the presumption will not remove ‘the stigma of illegitimacy’ from Jennifer. She knows Gregory is not her father. She has never been held out as his daughter. She believes Leslie is her father and blood tests have confirmed it. Finally, the state’s interest in establishing a source of child support is completely served by declaring Leslie to be the legal father. [¶] In contrast to how poorly the state’s interests would be served in this case by the application of the presumption of paternity, Jennifer’s interests are well served by avoiding the presumption. To name Leslie as her legal father entitles her to benefits she is currently unable to receive. She will be entitled to financial assistance from him and will finally have a legal as well as a biological father. While Leslie may suffer some financial hardship as a result of his being declared Jennifer’s legal father, this is far outweighed by the benefits to her.” (Ibid., fn. omitted.) Quoting “the learned trial judge,” the Court of Appeal concluded that “ ‘[a]pplying the [presumption] leads to an absurd result that defies reason and common sense. To apply the [presumption] is to rely upon a fiction to establish a legal fact which we know to be untrue, in order to protect policies which in this case do not exist.’ ” (Ibid.)
The Court of Appeal in Alicia R., supra, 29 Cal.App.4th 1232, similarly refused to apply the presumption that the child was a child of the marriage. While Alicia was still legally married to another, she entered into a marriage ceremony with Peter. (Id. at p. 1234.) Thereafter, she gave birth to Lindsay in September 1990. Peter was identified as the father on Lindsey’s birth certificate, and Lindsay knew Peter as her father. In 1993, a judgment of nullity was filed to the effect that the marriage between Alicia and Peter was void ab initio. The court also found that Peter was not Lindsay’s father based on blood tests. (Id. at p. 1235.)
Thereafter, in August 1993, Alicia sought to establish that Timothy, with whom she had had an affair, was the biological father of Lindsay and that he should pay child support. The superior court ordered the parties to take DNA tests, which established that Timothy was Lindsay’s biological father. (Alicia R., supra, 29 Cal.App.4th at p. 1235.) On appeal, Timothy argued that the superior court erred by ordering blood tests more than two years after Lindsay’s birth and by refusing to apply the conclusive presumption that Lindsay was a child of the marriage between Alicia and Peter. (Id. at p. 1236.)
The Court of Appeal disagreed. It explained: “Blood tests have established that [Timothy] is the child’s father and that [Peter] is not. There has been a judgment of nullity of the ‘marriage’ between [Alicia] and [Peter] and a finding by the superior court that there were no children from their union. [Alicia] no longer resides with [Peter] and there is no longer a parent/child relationship between [Peter] and the child. While the state has a legitimate interest in promoting marriage and not impugning a family unit, that interest cannot be served here where there is no marital union or family unit to disrupt. Additionally, the state’s interest in ensuring that the child is supported would be furthered by refusing to apply the presumption of Evidence Code former section 621 and requiring [Timothy] to support the child he fathered. [¶] We also agree with the observation of the trial court in Leslie B., that if we were to apply the presumption in this case it would lead ‘to an absurd result that defies reason and common sense.’ (County of Orange v. Leslie B., supra, 14 Cal.App.4th at p. 983.) We would be relying ‘upon a fiction to establish a legal fact which we know to be untrue, in order to protect policies which in this case do not exist.’ (Ibid.)” (Alicia R., supra, 29 Cal.App.4th at pp. 1237-1238.)
We find the reasoning of Leslie B. and Alicia R. applicable to the instant case and determine that the policies underlying section 7540 are not furthered if the presumption is applied in this case.
First, there is no marital or family unit to preserve. Although the state may have a substantial interest even after divorce “in preserving the extant familial relationship between the child and the presumed father, albeit in the context of support obligations and visitation rights flowing from the marital dissolution” (Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435, 1440), such is not the case here. Miguel apparently “acted as and presented himself to be” M.’s father for a period of time before the divorce from Eugenia. However, in 2006, the Nevada court determined that there were no children of the marriage between Eugenia and Miguel, Miguel is not the biological father of M., and Miguel has no custodial rights to M. As the superior court observed, “lamentably” this is not a case where the husband seeks to maintain a relationship with the child. To the contrary, in view of the legal proceedings in Nevada, it appears that there is no longer a family unit or a parent-child relationship between Miguel and M.
At the May 2008 hearing in superior court, Morgan’s attorney indicated that she was not suggesting that there was anything to enforce with respect to Miguel maintaining a relationship with M. Later, the Department’s attorney stated that she would “make an offer of proof that if [Eugenia] were asked she would say that [Miguel] has never seen [M.] since the divorce. There is no contact there whatsoever.”
Second, application of section 7540’s presumption in this case would not protect against any stigma of illegitimacy. The Nevada court has already determined that Miguel is not M.’s father based on genetic test results and that there were no children of the marriage between Eugenia and Miguel. Moreover, in view of the facts of this case, if the presumption is applied and Morgan is determined not to be M.’s father, M. will have no father.
Third, if M. is without a father, individual responsibility for her financial support will not be promoted. It appears that Miguel has no financial responsibility for M., and the only other potential source of financial support is from Morgan.
In sum, application of the presumption of section 7540 in this case will not further the policies underlying the presumption, including preserving the integrity of the family unit, protecting the child from the stigma of illegitimacy, and promoting individual rather than state responsibility for child support. Further, Morgan has not articulated a compelling reason as to why he should be allowed to escape financial responsibility for a child that he fathered with a married woman. As stated in Leslie B., supra, 14 Cal.App.4th at page 981, “the presumption was never intended as a financial prophylactic for men who have affairs with married women.” In this case, “ ‘[a]pplying the [presumption] leads to an absurd result that defies reason and common sense.’ ” (Id. at p. 983.)
We therefore decline to apply the presumption to establish that Miguel is the father, which is known to be untrue, in order to protect public policies that the presumption of Miguel’s paternity would not further. Instead, we believe that “[t]o name [Morgan] as [M.’s] legal father entitles her to benefits she is currently unable to receive. She will be entitled to financial assistance from him and will finally have a legal as well as a biological father. While [Morgan] may suffer some financial hardship as a result of his being declared [M.’s] legal father, this is far outweighed by the benefits to her.” (Leslie B., supra, 14 Cal.App.4th at p. 983.)
For the reasons that we have explained, we determine that the presumption under section 7540 does not apply in this case. In the absence of the presumption, Morgan does not otherwise dispute that the superior court correctly determined him to be the legal father of M. based on genetic test results and properly imposed child support obligations. (See §§ 7551 [court may order genetic testing in a civil action or proceeding if “paternity is a relevant fact”], 7555 [rebuttable presumption of paternity exists if court finds the paternity index is 100 or greater].) We therefore conclude that the superior court did not err in its rulings.
On appeal, Morgan also contends that the full faith and credit clause of the federal Constitution “does not require California to set aside its own law and apply contrary Nevada law to a California citizen who would otherwise be protected from any obligations to a nine-year old Nevada child.” He points out that he was not a party to the Nevada proceedings. He further argues that “the full faith and credit analysis does nothing to help [Eugenia] and the [Department] get child support from [him], because the ruling states only that Miguel is not required to pay support. Giving full faith and credit to the Nevada ruling that disestablished [Miguel’s] paternity does only that: it disestablishes Miguel’s paternity, but the ruling has no res judicata effect on Morgan.” He also asserts that a full faith and credit argument should be rejected because “[a] state is not required to apply another state’s statutory law in violation of its own legitimate public policy.”
In addition to making these contentions concerning the full faith and credit clause, Morgan also asserts that the superior court in effect applied Nevada law to conclude that he was obligated to pay child support without first undertaking a conflict of laws inquiry.
Article IV, section 1 of the United States Constitution provides that “[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Under the full faith and credit clause, “[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” (Baker v. General Motors Corp. (1998) 522 U.S. 222, 233.)
We do not understand Morgan to be arguing that we should disregard the Nevada court’s findings or judgment concerning Miguel and M. Rather, we understand Morgan to be asserting that irrespective of the Nevada court’s judgment, California law and policy dictate that on the facts presented in this case, he should not be obligated to pay child support for M. Morgan suggested at oral argument that if Eugenia, Miguel, and M. had been California residents, a different result would have occurred in a California proceeding, and that as the facts now stand in this case, his interests as a California resident outweigh those of M., a Nevada child.
As reflected in our analysis of whether the presumption under section 7540 should apply in this case and whether Morgan should be obligated to pay child support for M., we have applied California law and we have considered California’s policies. Because the superior court’s order, which stated that Morgan is M.’s father and that he is obligated to pay child support, is correct under California law and is not contrary to California’s policies, we have concluded that the superior court did not err in its rulings.
Lastly, in view of our determination that the presumption under section 7540 should not apply in this case, we need not address the Attorney General’s contention on appeal that Morgan failed to satisfy certain “prerequisites” of the presumption by presenting evidence that Eugenia and Miguel cohabitated at the time of M.’s conception and that Miguel was neither impotent nor sterile.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.