Johns v. Kleinkopf

TOBRINER, J.

Claiming that they were “abandoned” by their mother, appellants appeal from a denial by the Superior Court of Alameda County of their application for an order freeing them from any obligation to support her. Appellants contend that the evidence demonstrates an abandonment and that respondent cannot rely upon the deposition of the mother which furnishes persuasive testimony against it. We believe that the appeal must fail; substantial evidence upholds the trial court’s conclusion that no abandonment occurred, and appellants cannot avoid the impact of the mother’s deposition.

This litigation follows the usual pattern of proceedings for release from the responsibility of support of a parent. Pursuant to section 206.7 of the Civil Code, appellants petitioned the Alameda County Board of Supervisors for an order freeing them from responsibility for the support of their mother, Mary A. Kleinkopf. The board having failed to act on the request within 30 days, appellants, pursuant to section 206.5 of the Civil Code, filed with the superior court an application for the sought order. The court granted the county of Alameda permission to intervene. After denying a motion for a new trial on the grounds of insufficiency of the evidence, that the decision is against the law and errors in law occurring at the trial, the court entered judgment denying the petition.

The history of the interrelations of the mother and the children begins, for the purposes of this litigation, with the separation of the parents in 1903, when appellants were small children, Helen being aged 3 and Howard 5. In 1904, the mother obtained a final divorce on the grounds of cruel and

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inhuman treatment, the court awarding custody of appellants to their father and omitting any reference to support requirements. During the two years immediately following the separation the children lived on a ranch near Marysville. Then in the fall of 1905 they moved to Oakland where they lived with their grandmother and aunt, the father’s sister. Helen never again lived with her mother. From 1908 to 1910 Howard lived with his father; thereafter, until he entered the Armed Forces in World War I, he lived with his mother.

Civil Code section 206.5 specifies the statutory provision as to abandonment. The child must show that “while he was a minor, he was abandoned by such parent, and such abandonment continued for a period of two or more years prior to the time such person reached the age of 18 years, and such parent during such period was physically and mentally able to support such person. ...” We have characterized abandonment in our decision in