GARLAND JACKSON, Plaintiff and Appellant, v. JACKIE CAROL JACKSON, Defendant and Respondent.
S. F. No. 22379
In Bank
Aug. 11, 1967.
245
No appearance for Defendant and Respondent.
McCOMB, J.— This is an appeal by plaintiff-husband in what was originally an annulment suit from the order of the trial court denying a motion to cancel all previous orders by which he was directed to pay attorney‘s fees, maintenance, and court costs.
Facts: Plaintiff, aged 21, and defendant were married in Nevada on November 9, 1964. They returned to California to live. On the morning of November 13, less than four days after the marriage ceremony, plaintiff discovered that his wife had left him. They have had no contact since that date.
Plaintiff filed suit for annulment in the Superior Court of San Joaquin County, alleging that his wife had no intent to live with him at the time they were married. Defendant answered with a denial and also alleged that she was pregnant with plaintiff‘s child. She asked for attorney‘s fees plus support and maintenance for herself and the unborn child.
The Superior Court of San Joaquin County ordered plaintiff to pay $50 per month for the support of defendant, prenatal care, hospital expenses and counsel fees. On defendant‘s motion the case was transferred to Stanislaus County, and after the child was born the court ordered plaintiff to pay hospital expenses, $50 per month child support, and to comply with the previous order of the San Joaquin County Superior Court with respect to counsel fees. The court also ordered plaintiff, defendant, and the child to submit to blood tests.
The tests were taken and, according to plaintiff‘s sworn affidavit, demonstrated that plaintiff could not have fathered the child. Plaintiff moved the court to terminate all prior court orders for support, doctor and medical expenses, and submitted the results of the blood tests as evidence in support of his motion.
The couple cohabited only three and one half to four days, and it is conceded that the child was born approximately nine months thereafter. The trial judge refused to admit the blood
Question: Were the blood tests admissible in evidence?
Yes. In Kusior v. Silver, 54 Cal.2d 603 [7 Cal.Rptr. 129, 354 P.2d 657], we held that blood tests were inadmissible to prove the husband had not fathered the wife‘s child in circumstances where the conclusive presumption applied.1
This is so because the so-called conclusive presumption is really not a presumption but rather a rule of substantive law.
Kusior v. Silver, supra, 54 Cal.2d 603, is not applicable to the facts of the present case. The judgment in that case was reversed because the plaintiff, who claimed that a man other than her husband fathered her child, was prejudiced by the court‘s instruction defining “cohabiting.” It was essential to the plaintiff‘s case to exclude her husband, from whom she had separated, as the father. The court instructed that the conclusive presumption (
It is settled that the husband is entitled to avoid the operation of the “conclusive presumption” by proof that although there was cohabitation it was impossible that the child was conceived during the period of cohabitation. (Estate of McNamara, 181 Cal. 82, 91-97 [183 P. 552, 7 A.L.R. 313];
The ruling of the trial court in the present case denied plaintiff a fair opportunity to prove that defendant‘s child was not conceived during the three and one half to four days the couple cohabited. If he is permitted to put in evidence the blood test results, then he could offer other evidence to prove that the child was not conceived during his brief cohabitation with his wife.
The couple were honeymooning in their apartment. Plaintiff was undoubtedly in the presence of his wife during most of this time and he should be able to account for her actions and whereabouts during the three and one half to four days of married life. Plaintiff must prove that the child was not conceived during the brief cohabitation; he must prove that it was not conceived when he was having sexual intercourse with his wife. The blood tests are evidence of this.
Blood grouping tests are scientifically reliable when used to exclude a male as a possible father. (Kusior v. Silver, supra, 54 Cal.2d at p. 617.) The adoption of the Uniform Act on Blood Tests to Determine Paternity (Stats. 1953, ch. 1426, p. 3013, now
Kusior v. Silver, supra, 54 Cal.2d 603, correctly holds, on the facts of that case, that the presumption of
When the issue is whether the child could possibly have been conceived during cohabitation, the evidentiary rule is “any competent evidence relevant to the question is admissible.” (Estate of Walker, supra, 180 Cal. at p. 491 [5].)
The order is reversed.
Traynor, C. J., Peters, J., and Mosk, J., concurred.
BURKE, J.— I dissent. Under
The opinion of the majority declares otherwise. It rules that such a child may be declared illegitimate if blood tests indicate that the husband could not have fathered the child. This ruling jeopardizes the integrity of the marriage state. It pierces the protective shield which the law has heretofore placed around children born to married couples and subjects their status as the legitimate issue of their parents to the vagaries of test tubes and chemistry. Heretofore it has been the public policy of this state, supported by the courts (see Kusior v. Silver (1960) 54 Cal.2d 603 [7 Cal.Rptr. 129, 354 P.2d 657]) that the greater good to be served is to preserve the legitimacy of children born to married people cohabiting together from attack.
However, the effect of today‘s ruling is to add another exception, based on blood test evidence, to the conclusive presumption of legitimacy set forth in
Plaintiff in the present case does not contend that he was impotent or that he did not cohabit with his wife, the only two situations in which the statute by its own terms makes the conclusive presumption inapplicable. The child was concededly born approximately nine months after cohabitation of the parties, i.e., the period of gestation was a normal one. I am convinced that the trial court was correct in ruling that under such circumstances the conclusive presumption of legitimacy precluded consideration of any blood tests whatever.
The order appealed from should be affirmed.
Tobriner, J., and Sullivan, J., concurred.