Hodge v. Gould

California Court of Appeal Jul 15, 1969 No. Civ. 9319Published

Before: Ault

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Holding. The court held that a pendente lite order for support, medical expenses, and attorney's fees in a paternity action is invalid when issued without the introduction of evidence to establish paternity by a preponderance of the evidence.

Issues

Whether a court may issue pendente lite support orders in a paternity action without receiving evidence to establish paternity.
Whether a conditional order based on future blood tests satisfies the requirement of proving paternity by a preponderance of the evidence.

Disposition. reversed

Quotations verified verbatim against the opinion

“In an action to establish the paternity of an illegitimate child, the court may make pendente lite orders for support, medical and hospital expenses and attorney’s fees, but before such orders can be made the plaintiff must establish the defendant to be the father of the child by a preponderance of the evidence.”

AULT, J. pro tem.

Patricia Annette Hodge filed a verified complaint in the Superior Court of San Diego County in which she alleged the defendant Richard Lee Gould was the father of her unborn child. She also obtained an order from the court directing the defendant to appear on April 2, 1968, and show cause, if any he had, why he should not be required to pay temporary support and maintenance for the unborn child, medical and hospital expenses incident to its birth and plaintiff’s attorney’s fees and costs in the action.

Before the April 2d hearing, defendant filed a verified answer in which he denied he was the father of the child and placed in issue plaintiff’s need for the funds requested and his own financial ability to pay. Defendant and his attorney appeared in court for the hearing on the order to show cause. After the attorney for the plaintiff made a brief recital of the facts alleged in the complaint, the following exchange took place between the court and- the attorney representing the defendant:

“Mr. Hunter : I would like to point out that at this particular time, if you will let me, a proceeding merely on the filing of a complaint for paternity is insufficient showing that the defendant is the father of this child to sustain any order by the Court in this connection at this time.

“The Court: I hear that all the time. You can have the blood tests made.

“Mr. Hunter: I would also like that at an appropriate time that a blood test be made.

“The Court: I’ll order him to pay all of the hospital and doctor bills and $350. attorney fees, and he’ll pay, if the blood tests bear out the paternity of the child on the presumption, he ’ll pay $125 a month for the support of the child. ’ ’

No evidence was introduced at the hearing. On April 12, 1968, the court signed a written order, ordering the defendant to pay all the medical and hospital expenses incident to the child’s birth, attorney’s fees to plaintiff’s attorney in the amount of $350 and support for the child after its birth in the sum of $125 per month “if defendant is not excluded as the

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father of the child by the blood tests.” Defendant appeals from the temporary order. Respondent has filed no brief in opposition.

Hodge v. Gould

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