Serway v. Galentine

[88]

WILSON, J.

The purpose of this action is to obtain a decree that plaintiff Karen June Serway, now three years of age, is the legitimate child of plaintiff Stanford S. Serway. Defendant, the mother of the child, contested the action but furnished the evidence that indubitably sustains the findings and judgment in favor of plaintiffs.

Defendant was married to one Thomas Galentine on May 2, 1939, and lived with him as his wife until July 6, 1942. She gave the following testimony: In March, 1942, plaintiff Stanford Serway began living at the Galentine home in Los Angeles and while residing there had sexual intercourse with defendant on several occasions; about July 1, 1942, she gave birth to a child of which her husband was the father; she went home from the hospital with her baby on July 4, 1942; her husband was absent at the time; he returned on July 6, and immediately left their home and thereafter never had sexual intercourse with her; a few days later defendant and Serway went to Santa Barbara where they continued their illicit relations; defendant became pregnant in October, 1942; plaintiff Stanford Serway is the .father of plaintiff Karen, who was born on July 15, 1943; when Karen was born defendant had her name inserted in the birth certificate as “Karen June Serway” and named plaintiff Stanford Serway as the father; defendant filed an action for divorce against her husband and obtained an interlocutory decree of divorce in November, 1943.

Upon this evidence and that hereinafter referred to the court found and adjudged that plaintiff Stanford Serway is the father of plaintiff Karen, that he adopted her as his daughter under the provisions of section 230 of the Civil Code, and that she shall at all times hereafter be treated as and deemed to be the legitimate daughter of said plaintiff Stanford Serway.

I

The presumption of legitimacy.

Plaintiff Karen having been born prior to the entry of the interlocutory decree of divorce, appellant argues that she was born in wedlock and is therefore presumed to be legitimate. Section 193 of the Civil Code reads: “All children born in wedlock are presumed to be legitimate.” But this is a disputable presumption and may be overcome by evidence rebutting it. Section 195 provides that illegitimacy may be proved like any other fact. Defendant’s evidence that she had no sexual relations with her husband after the birth of her first child, more than one year prior to the birth of plaintiff Karen,