McKee v. McKee

KAUFMAN, P. J.

The plaintiff, Kathryn B. McKee, and defendant, James E. McKee, were married on June 13, 1952, and separated on November 1, 1953. " Plaintiff filed her original complaint for divorce on November 5, 1953, alleging one minor child, Michael, as the issue of the marriage. The parties resumed cohabitation and separated again on December 27, 1953. Plaintiff filed an amended complaint on August 1, 1955, alleging two minor children, Michael and David, born on October 24, 1954. By answer and cross-complaint, defendant denied that David was the issue of said marriage and alleged that the plaintiff was not the fit and proper person

[765]

to have custody of the first child, Michael. At the trial, the defendant dismissed his cross-complaint. The trial court, over plaintiff’s objections, admitted the testimony of defendant’s witness that the blood tests of the parties and the second child conclusively proved that the defendant could not be the father of David.

On May 7, 1956, the trial court rendered its memorandum decision and entered judgment accordingly, finding that: (1) the plaintiff was entitled to a divorce from the defendant on the grounds of extreme cruelty; (2) that the defendant is the father of Michael James McKee and David McKee; (3) the plaintiff is awarded the custody of the children; (4) defendant shall pay to plaintiff for the support and maintenance of the children; (5) plaintiff is not entitled to any support for herself from the defendant; (6) defendant shall pay the plaintiff her counsel fees.

This appeal is taken by the defendant from the portion of the interlocutory judgment of divorce awarding plaintiff the custody of the two minor children and ordering the defendant to pay for the support and maintenance of David, the second child. Defendant contends on appeal that because of an excessive period of gestation the conclusive presumption of legitimacy [Code Civ. Proc., § 1962, subd. 5] is not applicable here; that the trial court erred in not treating the blood tests as conclusive of the issue; and that the evidence showed that the plaintiff was not the proper person to have custody of Michael.

The evidence adduced at the trial is as follows: Both parties agreed that they lived together until December 27, 1953. The plaintiff testified that the last act of intercourse with the defendant occurred on December 24, 1953, and that she had no menstrual period after that time. On the basis of this testimony, David was born after a period of gestation of 304 days. . This testimony alone is sufficient to sustain the finding that David was the child of the parties. The defendant testified that the last act of intercourse occurred in the middle of November 1953. Plaintiff admitted that she had had intercourse with one Don Pox on January 28, 1954. The defendant admitted he had been convicted of bigamy and had lied to the court in connection with that proceeding.