In Re Marriage of Groner

Opinion

THE COURT

Carlos Alberto Groner, petitioner, appeals from an interlocutory judgment of dissolution of marriage wherein he was decreed to be the father of the minor child Rosa Maria Groner and it was ordered that he pay a specified sum for her support. This appeal is presented on an agreed statement pursuant to rule 6, California Rules of Court.

Section 621

of the

Evidence Code, which restates without substantive change former section 1962, subdivision 5, of the Code of Civil Procedure (Ja

ckson

v.

Jackson,

67 Cal.2d 245, 247, fn. 1 [60 Cal.Rptr. 649, 430 P.2d 289]), provides: “Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate.” The question in the present case is whether that conclusive presumption—which in actuality is a substantive rule of law (see

Kusior

v.

Silver,

54 Cal.2d 603, 619 [7 Cal.Rptr. 129, 354 P.2d 657])—is operative when it can be estab

[117]

lished that the husband was sterile during the period of conception and unable to procreate.

The following facts are set forth in the agreed statement: “(a) That the minor child, Rosa Marie [sic] Groner was born to respondent on June 26, 1970, after a normal pregnancy of from 270 to- 277 days; the said child having been conceived on or about October 1, 1969. [1]] (b) Appellant husband and respondent wife were at the time of said conception living together as husband and wife and cohabiting, [fj (c) That at the time of said conception appellant was sexually sterile and unable to procreate. [¶] (d) That respondent testified that on or about the time of conception respondent had sexual intercourse with a third party who was not appellant. [¶] (e) Dr. George Nicola testified that appellant was at the time of said conception sexually sterile. The court reserved its ruling on respondent’s objection to said testimony, the case was submitted and the trial Court subsequently sustained the objection and held the appellant to be the father.”