Hill v. Johnson

[95]

WILSON, J.

Plaintiff, a minor, alleging defendant to be Ms father, brought this action through his mother as guardian

ad litem

for support. Defendant answered denying paternity. Upon the hearing of an order to show cause why defendant should not pay for plaintiff’s support and for his attorney’s fees in the action a court commissioner made findings of fact as follows: That Ruth V. Hill gave birth to plaintiff on December 5, 1949; “plaintiff” became pregnant some time between February 13, 1949, and the end of the same month as the result of relations with defendant who is not her husband; “plaintiff” is married and occupied the same premises with her husband “at all times” but from January 1, 1949, until some time in March following they were not cohabiting as husband and wife; “Mrs. Hill’s husband, Leroy Hill, is not and could not possibly be the father of the minor child. ’ ’

The findings were approved by the court and an order was made directing defendant to pay $7.50 a week for plaintiff’s support and $150 on account of attorney’s fees. Defendant has appealed from the order.

Since plaintiff was only six months of age at the time of the hearing of the order to show cause and is a male we assume the court was in error in finding that “plaintiff” became pregnant or was married and that such findings were intended to refer to plaintiff’s mother and guardian

ad litem.

Even with benefit of such assumption the findings do not support the order.

The finding that the mother of plaintiff was living with her husband during the period when the child was conceived is supported by the evidence of both parties. There is no contention that he was impotent, in fact the evidence is to the contrary. He testified he had sexual relations with his wife in March of 1949. The finding that defendant is the father of the child is repelled by the conclusive presumption that “The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate; ’ ’ (Code Civ. Proc., § 1962(5).) Evidence is inadmissible to rebut a conclusive presumption and illegitimacy cannot be established by evidence that a husband and wife, while living together, did not have sexual relations.