Dunn v. Dunn

STONE, J. pro tem.

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This action for support, medical and hospital expenses and attorneys’ fees was brought on behalf of plaintiff, an illegitimate child, by her mother. The defendant father did not deny paternity and by way of answer asked the court to “fix and award to the plaintiff a reasonable sum for medical and hospital expenses connected with the birth of the plaintiff and a reasonable sum per month for the support and maintenance of the plaintiff to be contributed and paid by the defendant.”

Following a hearing on an order to show cause, the

[840]

court awarded plaintiff certain sums for monthly support, attorneys’ fees and costs, hospital and medical expenses and a “layette and miscellaneous infant equipment.” The defendant appealed from only the awards for medical and hospital expenses and the layette, and upon the sole ground that these two items of expense had been paid for by the mother. Civil Code, section 196a,

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requires the mother as well as the father to support an illegitimate child. Appellant contends that since the action was brought by the child, the mother had no right to compel reimbursement from the father for sums the mother had paid for prenatal or postnatal care. This is a correct statement of the rule of law as enunciated in

Demartini

v.

Marini,

45 Cal.App. 418, 419 [187 P. 985], However, the defense is not available to defendant, since he did not raise the issue of payment in the trial court. First, defendant did not raise the issue by his pleadings. The answer which defendant filed prior to the hearing alleges “Defendant affirmatively alleges that at all times pertinent hereto, before the filing of the above-entitled action, and before plaintiff was represented by her counsel of record herein, that the defendant has acknowledged the paternity of the plaintiff, and has shown his willingness to the mother of the plaintiff and her present and former counsel, to pay reasonable support for the plaintiff and to pay reasonable medical and hospital bills incurred in connection with the birth of said plaintiff.” Second, during the hearing, defendant failed to raise the defense of payment. He made no objection to the introduction into evidence of the items composing the hospital and medical expenses or layette costs upon the ground of payment, although he did object on other grounds.