Opinion
G053530
09-12-2017
R.L., Plaintiff and Respondent, v. A.D., Defendant and Appellant.
Law Offices of Michael Leight, Michael Leight and Michelle Leight for Defendant and Appellant. Law Office of Stephen M. Tornay and Stephen M. Tornay for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14P001556) OPINION Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge. Affirmed. Law Offices of Michael Leight, Michael Leight and Michelle Leight for Defendant and Appellant. Law Office of Stephen M. Tornay and Stephen M. Tornay for Plaintiff and Respondent.
A.D. (Mother) appeals from a judgment of paternity in R.L.'s (Father) favor. (Fam. Code, §§ 7611, subd. (d), 7630, subd. (b).) Mother argues the court erred by not applying the so-called marital presumption of Family Code section 7540, and she contends no substantial evidence supports the court's paternity finding. We affirm.
FACTS AND PROCEDURAL HISTORY
In accordance with well-established rules of appellate procedure, we present the evidence in the light most favorable to the court's order. (Adoption of A.S. (2012) 212 Cal.App.4th 188, 214-215.)
Mother married B.D. (Husband) in 2003. In 2008, Mother gave birth to A.L. (Minor), and Father petitioned to establish paternity of Minor in 2014.
At the evidentiary hearing, Father testified he met Mother in 2005. He knew she was married, but Mother led him to believe she had separated from Husband. Mother had one child before her marriage to Husband, and she and Husband had another child during their marriage.
Sometime in 2006 or 2007, Mother, her two children, and Father moved into a two-bedroom apartment. Although Father's name was not on the rental agreement, Mother and Father opened a joint bank account and they shared living expenses. In 2008, Mother and Father moved from one apartment to another, but they continued the same living and financial arrangements.
Mother became pregnant in March 2008. When Father learned Mother was pregnant, he joined her on a couple of Mother's medical appointments, and he attended a baby shower in her honor. When it came time for the birth in December, Father drove Mother to and from their apartment and the hospital. Both Mother and Father's families celebrated the birth in the hospital, and Father's family believed Minor was Father's child. While Mother gave Minor Father's last name, she did not list him on Minor's birth certificate.
For a couple of years after Minor's birth, Mother and Father continued to live together. Father's brother testified he made seven or eight visits to Father and Mother's apartment after Minor's birth. Father's brother said it was obvious Father lived with Mother, and it seemed to him that Father, Mother, Mother's two older children, and Minor interacted like a family.
Father said he moved out of their apartment in 2010 or 2011. Mother obtained a restraining order against Father, and she listed Father as Minor's parent in the paperwork. Father thought the restraining order prevented him from having any contact with Minor, and he did not have any contact for a couple of years. However, Father testified he now wanted custody and visitation, and he and Mother were unable to informally resolve their issues.
Mother testified she and Husband were living together when Minor was conceived in March 2008. She said they separated about six weeks after Mother discovered the pregnancy. Afterward, Mother and her children lived in a series of apartments, and Husband paid her expenses.
Mother said Father spent on average about one night a week at her apartment, and she denied that he lived with her. She also said he did not provide financial support. Mother produced a copy of a 2008 rental agreement for one of her apartments, and she was the only listed renter.
Mother asserted her intermittent relationship with Father ended in 2010 when she became "tired of the fighting . . . tired of the yelling . . . [and] physical abuse." Mother wanted Father excluded from Minor's life because of his "volatile behavior."
Mother explained she listed Father's name as Minor's parent on the temporary restraining order paperwork because someone told her to do it. The reason she did not list a father on Minor's birth certificate was she feared Father would "beat" her. Mother wanted Husband's name on Minor's birth certificate. Mother testified she was currently living with Husband, and he "is an amazing father to all three of my children."
Husband denied being impotent or sterile. He testified he and Mother were cohabitating in 2008, although he acknowledged she and her children were living in her own apartment. Husband admitted seeing men's clothing in the apartment, and he knew Father visited Mother, but Husband testified Father did not live with Mother. Husband said it would be catastrophic if Father became involved in Minor's life.
At the conclusion of the hearing, the court gave an oral statement of decision, noting in pertinent part, "Frankly, the evidence leads inescapably to the conclusion that the petitioner is [Minor's] father. . . . The conclusive presumption does not apply because [Mother] was not cohabiting with . . . [H]usband at the time. And without that presumption all of the evidence presented here today, all of the credible evidence supports the conclusion that petitioner is the father."
DISCUSSION
Mother appeals the court's decision to not apply the conclusive presumption of paternity for the child of a wife cohabiting with her husband. (Fam. Code, § 7540.) Mother asserts the evidence conclusively proves she and Husband were cohabitating when Minor was conceived. She labels testimony favorable to her position "reasonable, credible, and directly relevant to a determination of whether they were cohabiting" while Father's testimony was "dubious." Mother misapprehends the applicable standard of review.
Under the substantial evidence standard of review, an appellate court considers all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 359, pp. 408-410.) During this process, the reviewing court does not reweigh conflicts and disputes in the evidence, or reassess witness credibility. (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 697; Estate of Teel (1944) 25 Cal.2d 520, 526-527.)
Family Code section 7540 states, "Except 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." But, the presumption does not apply when the evidence demonstrates husband and wife were not cohabitating at the time of conception. (In re Elijah V. (2005) 127 Cal.App.4th 576, 586-587.)
The court believed Father. Father testified he and Mother started cohabitating in 2006 or 2007 through approximately 2010. During those years, Father and Mother held a joint bank account and shared living expenses. After Mother became pregnant in March 2008, Father provided Mother with care and support, and he continued to do so throughout her pregnancy, during the December birth, and for a couple of years thereafter.
The testimony of a single witness is sufficient to establish a fact. (Evid. Code, § 411; Machado v. Machado (1932) 122 Cal.App. 218, 220 [the testimony of a single witness is sufficient to establish a fact, if the testimony is believed by the trier of fact and not inherently improbable].) In this case, there is credible evidence showing Mother conceived Minor while she cohabitated with Father, and not Husband. The court correctly refused to apply Family Code section 7540, and substantial evidence supports the court's paternity finding.
On appeal, Mother also asks this court, in the first instance, to assume Husband is a presumed father and discuss the relative rights of a presumed father vis-a-vis a biological father. We decline to address this issue because it was never raised in the trial court.
Generally, a party may not raise a new contention on appeal because it is unfair to the party's opponent and the court. (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1227-1228.) While Mother would like this court to exercise our discretion and consider her new claim (See 9 Witkin, supra, § 322 at p. 383), we see no reason to deviate from the general rule in this case.
Mother's counsel also improperly raised a new factual issue for the first time at oral argument. Counsel argued there is no evidence in the record that Father and Mother ever had sexual intercourse which could have produced Minor. This issue was never raised in the trial court or even in any of the appellate briefing, so again we decline to consider it. However, we also note it is a misrepresentation of the evidence in the record. In response to a question by the court, Mother testified there were four "potential fathers," including Husband, Chewy, Daniel S., "and then obviously [Father]."
DISPOSITION
The judgment is affirmed. Father to recover his costs.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.