Mathis v. Williams

McGOLDRICK, J. pro tem.

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Respondent filed an action to establish appellant as the father of her child born on December 7, 1956, and to enforce support obligations, pursuant to the provisions of 196a, Civil Code. The trial court found appellant to be the father of the child and ordered him to pay support money. Appellant moved for a new trial which was denied and appeals from that order and from the judgment.

From the settled statement, the following appears: Respondent was the wife of one Andrew Mathis when the child was conceived. She was never divorced, although separated from him on December 16, 1955. She testified she was never alone with him after that date. Both spouses testified that they had no sexual intercourse with each other since their separation. A conflict exists in the evidence as to whether Mathis had personally seen respondent following the separation, viz., the probation officer who had been charged with supervising Mathis during the period from December 1, 1955, through July 1956, testified that respondent had complained to him on many occasions from the latter part of December 1955, through February 1956, that her husband was “bothering” her and that respondent had stated that Mathis had broken into her kitchen, beaten her and thrown groceries around. Respondent, however, denied ever having called the officer to make such complaints. Mathis testified that on March 2 at or about 1 o’clock a.m., he attempted to see respondent but had been arrested in the hallway at the address where she was staying, for disturbing the peace. A properly authenticated police report indicated that respondent had been the complaining witness, although respondent denied this. Mathis

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testified he had been incarcerated thereafter until April 12, 1956, for this offense, plus an additional conviction for nonsupport of respondent’s other child. In this connection, however, respondent testified that Mathis was released from custody on April 8, 1956, and she had seen him for the first time since their separation on April 11 and again in June of 1956. Both times, he was in the company of appellant. Later on in her testimony, respondent denied having seen or talked to Mathis from December 16, 1955, to and including April 11, 1956.

Respondent testified she met appellant on March 19, 1956, and first had intercourse with him on the night of March 23, 1956, although she later admitted she was not certain of the latter date; that she subsequently had intercourse with appellant two or three times a week until July 21 or 23, 1956. Appellant, however, testified he met respondent in a bar on or about April 28, 1956. He offered evidence, both documentary and through the testimony of other witnesses, which indicated he had been at work on the night of March 23, 1956. He admitted, however, he had visited respondent at her home on the night following their first meeting and that their first act of intercourse had occurred that week end and that intercourse had continued one, two, three or more times a week until approximately July 22, 1956, the date on which he had been served with summons and complaint in the instant action.