Carbone v. Superior Court

TRAYNOR, J.

Plaintiff, an illegitimate child, brought an action through her mother, her guardian

ad Mem,

against the defendant for support and a judicial declaration of paternity. The trial court issued an order directing defendant to show cause why he should not pay support, court costs, and attorney’s fees pending determination of the action. Upon defendant’s objection that the court had no jurisdiction to order him to make such payments until he was adjudged the father of the child, the court refused to proceed with the hearing or to take any evidence. Plaintiff thereupon petitioned this court for a writ of mandate to compel the respond

[770]

ent court to grant a hearing on the order to show cause, contending that the 1939 amendment to section 196a of the Civil Code gives the court power to order the payment of support, costs, and counsel fees

pendente lite

in an action brought under that section.

Section 196a provides: “The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, or by a guardian

ad litem

. . . and in such action the court shall have power to order and enforce performance thereof, the same as under sections 137, 137.5, 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.” The references to sections 137 and 137.5 in the last clause of the section were added in 1939.

Section 137 provides in part as follows: “When an action for divorce is pending, the court may, in its discretion, require the husband or wife, as the case may be, to pay as alimony any money necessary to enable the wife, or husband, to support herself and her children, or to support himself and his children, as the case may be, or to prosecute or defend the action.”

Under the plain language of section 196a as amended the court in an action to enforce the obligation of a father to support an illegitimate child has the same power to order the performance of that obligation as it has to order the performance of a husband’s obligation under section 137 in a suit for divorce by a wife. Under section 137 the court, when an action for divorce is pending, may in its discretion order the husband to pay as alimony any money necessary to enable the wife to support herself and her children or to prosecute the action. Therefore it may likewise in its discretion order the payment of money necessary for the support of the illegitimate child and the prosecution of the action pending its determination. (See 28 Cal. L. Rev. 442, 446.)