Cinders v. Lewis

DORAN, J.

As set forth in the appellant’s brief, “This is an appeal from the judgment of the trial court wherein and whereby the defendant, Clyde N. Lewis, was found to be the father of an illegitimate child born to plaintiff, in wedlock, and which child was ordered to be supported by said defendant, as the father thereof, until the further order of this court. ” The material facts, according to said brief, are briefly stated as follows: “(a) plaintiff was a married woman, the wife of one Frank Cinders; (b) while purportedly separated, which frequently occurred, plaintiff and her said husband lived in the same neighborhood of Los Angeles at all essential periods; (c) that plaintiff obtained an interlocutory decree of divorce from her said husband on April 1, 1946, ... (d) that the conception admittedly occurred in March, 1946, at which time plaintiff and her husband remained friendly, and he frequently visited her home; (e) that the only evidence of non-intercourse is that given by husband and wife, over objections.”

“Plaintiff testified that she became intimate with the defendant on October 3, 1945; . . . that she became pregnant and a daughter was born on December 11, 1946”; that the defendant promised to pay $20 per month on the hospital and doctor bills; that on the official birth certificate plaintiff gave the husband’s name, Frank Cinders, as being the child’s father; that plaintiff and defendant had intercourse from October, 1945, to February 17 or 18, 1946; that plaintiff “started a calendar” on defendant in February, 1946, which was later destroyed; that intercourse between the parties also occurred on March 7 or 8, 1946. The divorce action was filed by plaintiff on January 4, 1946. Plaintiff had three other children by Frank Cinders.

The husband testified that separation occurred in January, 1946, and that no sexual relations were had between husband and wife after the separation, and that Cinders

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was not the father of the child. The defendant Clyde Lewis testified that no intercourse occurred with the plaintiff in March or April, 1946, but “I might have had the first day or two of February,” 1946; that in March, 1947, the husband told Lewis, “My wife and I are going back together.”

The appellant contends that the trial court “erred in the admission of evidence” by the husband and wife to the effect that there was no intercourse after separation and that the husband was not the father of the child born to Mrs. Cinders. In this connection are cited