Mulalley v. Mulalley

HOYT, J. pro tem.

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This proceeding was brought under the Uniform Reciprocal Enforcement of Support Act to compel appellant to support a child alleged to be the issue of his marriage to respondent. The appeal is from an order requiring appellant to support the child, made pursuant to a finding that the child is in need of and entitled to support from him.

The appellant, James Mulalley, and respondent, Delores Mulalley, were married in San Francisco in either June or

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November 1950. A son, Michael, was born in October 1951. Sometime later the parties separated, Delores moving with Michael to Seattle to live with her mother. From the time of the separation until 1958 appellant made support payments for the child and claimed him as a dependent son on his income tax returns. In 1956 another child, admittedly not appellant’s, was born to Delores.

In 1958, appellant filed an action to annul his purported marriage to Delores on the ground that her marriage to him was bigamous. In March 1959, a judgment nullifying the marriage was rendered by the superior court in San Francisco. Soon thereafter, respondent petitioned in a Washington State court under the Uniform Reciprocal Enforcement of Support Act for the support of Michael. The cause came to be heard in the superior court in San Francisco. Appellant denied being the child’s father. The court, in effect, adjudged him to be the father of Michael and ordered him to pay $50 a month for his support.

Appellant states that the issues presented on this appeal are “whether the Court committed reversible error in the following particulars: 1. Assuming that if the Court found that James Mulalley was not the father of Michael, that Michael would thereby be made illegitimate. 2. Refusing to consider the presumption of Civil Code Section 193 that ‘All children born in wedlock are presumed to be legitimate. ’ ”

In appellant’s view the trial court’s error stands proved by its statements during the hearing to the effect that appellant, to avoid support payments, was trying to make the child illegitimate. We do not agree. Evidence tending to establish the existence of a prior marriage consisted merely of the allegation of appellant that at the time of the marriage respondent was “married to another person and that said other person was and is still alive. ’ ’ Appellant also alleged that at the trial of the annulment proceeding he “introduced certain letters written by Delores Mulalley, the petitioner herein, wherein petitioner admitted that he was not the father of the child as alleged in her petition; ...” Respondent by affidavit denied these allegations and alleged that the admissions in the letters used by appellant in obtaining the annulment decree related to her second child, not to the child whose paternity is herein questioned. At this point one would expect appellant to produce the letters, but he failed to produce or account for them. Under these circumstances, the trial court could well have maintained