Brown v. Superior Court

California Court of Appeal Oct 19, 1979 No. Civ. 47537Published

Before: White

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Holding. A paternity determination in a divorce decree is res judicata and cannot be relitigated absent a showing of extrinsic fraud or mistake, even if the father was aware of potential nonpaternity during the original proceedings. Consequently, the court vacated orders compelling blood tests and a deposition regarding paternity.

Issues

Whether a paternity determination in a prior divorce decree is res judicata in a subsequent child support modification proceeding.
Whether a party may compel blood testing and discovery to challenge paternity after a final divorce decree without showing extrinsic fraud or mistake.

Disposition. peremptory writ issued

Quotations verified verbatim against the opinion

“a paternity determination in an interlocutory decree of dissolution was res judicata on the issue in the absence of extrinsic fraud or extrinsic mistake.”

“It is too late now to reverse the legal paternity he established in 1968 when he requested and obtained his divorce decree.”

“the blood tests are directed to the ultimate issue, paternity. They will reveal nothing about whether extrinsic fraud was practiced upon Raymond Brown or whether there was some extrinsic mistake.”

[635]

Opinion

WHITE, P. J.

This petition is by a mother seeking an increase in child support payments, and challenges the right of the purported father to compel her and her child to submit to blood testing for paternity. It also challenges an order compelling the child to attend a deposition. The Attorney General, attorney for petitioner, contends that res judicata bars inquiry into the issue of paternity and that the blood testing and discovery is relevant only to the paternity issue.

Raymond Brown, real party in interest in this proceeding, obtained a default divorce decree in 1968, which decree recited, inter alia, that Bridgett Brown, born June 25, 1963, was his child. It required him to provide $50 per month for her support, and permitted him reasonable visitation rights. The same decree recited that Raymond Brown was adjudged not to be the father of Kimberley Anne Brown, born to petitioner on March 28, 1962.

Ten years later, petitioner, Raymond Brown’s ex-wife Aida Brown, moved to increase child support to $125 per month based upon an increase in Raymond Brown’s income. He defended, contending that Bridgett was not his child. In deposition testimony Raymond admitted that he had known from the time of her birth that she was not his child, but stated that he did not try to prove nonpaternity in the divorce proceedings because his attorney advised him it would be too difficult to prove. He has since obtained hearsay evidence that petitioner has informed Bridgett that another man is her father and has informed the man of the same.

In order to defend against the request for increased child support, Raymond Brown moved for blood tests of petitioner and Bridgett and sought to depose Bridgett. After hearing held April 5, 1979, the trial court ruled in Raymond’s favor on both issues, rejecting petitioner’s contention that the prior divorce decree was res judicata on the paternity issue. After a further hearing on May 24, 1979, the trial court denied reconsideration of its earlier ruling.

During the May 24, 1979, proceedings the trial court acknowledged that he was standing on thin ice legally. Any ice that may have existed on May 24, 1979 melted on July 20, 1979, when our decision in

Brown v. Superior Court

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WHITE, P. J.

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