Foster v. Gray

DEVINE, J.

This paternity ease is singular because the mother, an incompetent person, was unable to testify. The action was prosecuted by the infant by her guardian

ad litem,

her maternal grandmother, to compel defendant, who is alleged to be the infant’s father, to pay for her support. The trial court awarded judgment for plaintiff and denied a motion for new trial and motion to set aside the judgment.

Dawn Foster was born to Angela Foster on April 16, 1959, and the time of conception was established, by medical testimony, at a period from June 22, 1958, to August 22, 1958. In 1955, Angela had a brain tumor removed, and thereafter was mentally disturbed to such an extent that from September 1956 to March 1957 she was a patient at Napa State Hospital, and after her release she has been cared for by her parents, by a psychiatrist and by a psychologist.

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She lived with her parents ever since her discharge from the hospital, and seldom was she allowed out of their sight. She had been married to Franklin Foster, but separated in September 1956, and Mr. Foster testified that he had had no marital relations with Angela since that time. The date on which divorce proceedings were commenced is not clear from the record, but final decree of divorce was made on January-12, 1960.

Proof of the paternity by defendant of Angela’s child was accomplished by presenting a complex of circumstantial evidence. (1) There was a showing of nonaecess by the husband, by the testimony of the husband and of the parents of Angela. During the period of conception, there was a contest in court between the husband and Angela’s family for the custody of two other children, and the husband was not visiting his wife at all during the critical time. (2) It was shown that Angela was in the sole company of defendant on occasions during the period of conception. (3) On one occasion when Angela had been with defendant, although this occasion, in May 1958, probably was a month or two before the conception, Angela had complained to her mother of pain, and on examination it was found that her thighs were bruised, and the presence of semen about her underclothes was thought to have been detected by the mother, who dismissed the subject of intercourse as improbable after talking with her own husband, Angela’s father. (4) There was testimony accounting for all of Angela’s time as having been within her mother’s presence, except for brief and carefully timed visits to the neighborhood store, or occasions when Angela was in the company of other women; except as to one occasion when she was taken to a show by a male friend, who testified denying intercourse and who submitted to a blood test which showed that he could not have been the infant’s father. (5) The infant and defendant were seen by the judge for whatever resemblance there may have been. (6) A blood test showed that it was possible that defendant was the father, this factor simply eliminating one possible defense. (7) Most important of all, perhaps, was the admission which Mrs. Moody testified defendant had made of his paternity, on two occasions. A neighbor, Mrs. Sims, testified that she was in the Moody home and overheard the admission on one occasion. Contradictory evidence to much of the above was presented, including denials by defendant of intercourse and of the admissions, and testimony that Angela had been seen in the company of other