Bonsall v. Bonsall

HERNDON, J.

The judgment here presented for review determines that defendant and respondent Levi Bonsall is the natural father of Deborah Bonsall, a minor. Plaintiffs and appellants, Steve and Jean Tabor, whose petition for the adoption of the child was then pending, brought the action to obtain an adjudication that respondent was not the father and thereby to avoid the necessity of obtaining his consent to the adoption. The child was joined as a party plaintiff and was represented by Steve Tabor as guardian ad litem. The judgment under review was entered after the granting of respondent’s motion for summary judgment.

In their complaint filed January 28, 1958, appellants alleged: that the child was born on May 26, 1956, and that her parents were Beverly Bonsall and Jack Cox Hiner; that since June 1, 1956, the child has been living continuously in the home of appellants Tabor; that on or about June 1, 1956, the Tabors filed a petition for her adoption and that said proceedings were still pending; that Beverly Bonsall, the natural mother, after first consenting to the adoption, had filed a petition for the withdrawal of such consent, and that the judge presiding in the adoption proceedings had made an order withholding approval of the mother’s attempted withdrawal of consent, and leaving the child in

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the custody of the Tabors pending further order of court.

In his answer, respondent Levi Bonsall denied that Jack Cox Hiner was the father of the child, and alleged that he, himself, was the father. By his affidavit in support of his motion for summary judgment, respondent alleged a former adjudication of the child’s paternity in an action brought pursuant to the provisions of section 231 of the Civil Code. He alleged that in the month of October, 1957, the former action was commenced in the Compton branch of the Los Angeles Superior Court, the plaintiff therein being designated as Deborah Dianne Bonsall by Beverly Bonsall, her guardian ad litem, and respondent being named as the sole defendant. A copy of the judgment rendered in the former action is incorporated into the affidavit. This former judgment appears to have been entered on March 4, 1958, and recites the following findings: “That Beverly Bonsall is the mother of the said minor; that the said Beverly Bonsall and the defendant Levi Bonsall were married on January 5th, 1947, and thereafter by final decree of this Court said marriage was dissolved on November 8th, 1955; that the birth of said minor occurred within ten (10) months of the date of said dissolution of said marriage; that thereafter the said Beverly Bonsall and Levi Bonsall, the defendant herein, remarried on July 29, 1956 and it further appearing that the said Beverly Bonsall and the defendant Levi Bonsall had cohabited with each other at various times prior to the birth of said child and particularly during a period of two (2) weeks in the month of September 1955, ...” Upon the foregoing findings, the judgment declares that respondent is the natural father of the child.