In Re Marriage of Johnson

Opinion

STEPHENS, Acting P. J.

Patricia M. Johnson (Patricia) appeals from that part of the judgment of dissolution of marriage to Andrew J. Johnson (Andrew) that denied her request for child support for the minor child James Joseph Johnson (Jimmy) based upon the court’s finding that Andrew was not the putative father of the child.

As Justice Tobriner (then an appellate court justice in the First District) so aptly opened the case of

Clevenger

v.

Clevenger,

“[w]e face here the difficult and unique problem of defining the duty of support which a husband owes to his wife’s illegitimate child when the husband, from the date of the birth of the child, accepts the child into his family, publicly acknowledges the child as his own and treats the child as if he

[850]

were legitimate.”

(Clevenger

v.

Clevenger

(1961) 189 Cal.App.2d 658, 662 [11 Cal.Rptr. 707, 90 A.L.R.2d 569].) Justice Tobriner then went on to point out that “under some circumstances the husband would be estopped to assert the illegitimacy of the child and thereby avoid liability for its support . . . .” (189 Cal.App.2d at p. 662.) Although the facts before that court were found to be insufficient as a basis for such an estoppel and the case was remanded for a determination of the issue, we find here that there are sufficient facts for imposition of liability based upon estoppel. Therefore, we hold that the elements formulated in

Clevenger

are present in this case and that Andrew is estopped to deny that he is the putative father of Jimmy.

Patricia and Andrew were married September 9, 1970, in Long Beach, California. Jimmy was bom 10 days prior to the wedding, on August 27, 1970; the parties have stipulated that he is not the natural child of Andrew. However, despite this fact, Andrew visited Patricia in the hospital, was allowed to hold the child (a privilege reserved for the parents themselves), and participated in selecting a name for Jimmy. Shortly after his birth, Jimmy was baptized and Andrew stood up with him, and told the priest that he was the child’s father; the baptismal record reflects this representation. Further, when Jimmy entered school, Andrew admitted he may have signed some papers as Jimmy’s father and that he did in fact attend parent-teacher conferences, identifying himself as Jimmy’s father.