Wolff v. Doolan

DORAN, J. This is an appeal by plaintiff from the judgment and also from an order denying plaintiff’s motion for a new trial.

[854]As stated in plaintiff’s opening brief,

“This is an action for child support under Civil Code Section 196a, and attorney’s fees and Court costs, the plaintiff claiming that the defendant is the father of a minor child born to the plaintiff, and requesting that the defendant be ordered to pay plaintiff the sum of $50.00 per month for the support of the minor child.” At the trial, plaintiff’s attorney took the position as stated, viz., “I think there is only one question involved that we haven’t agreed on, and that is whether or not there is the likelihood of the former husband being the father of the child, and I think that is the only question.”

It is contended on appeal that the evidence is insufficient to support the judgment; that the court erred in denying plaintiff’s motion for a new trial and, “That the court erred in making its conclusion of law” that said minor child, Robert H. Wolff, is the child of plaintiff Dorothy I. Wolff, and the said Roy Wolff.”

With regard to appellant’s last mentioned contention it should be noted that the conclusions of law recited “that ' the defendant, William Howard Doolan, is not the father of said minor child, Robert H. Wolff.” The further conclusion “that said minor child, Robert H. Wolff, is the child of plaintiff, Dorothy I. Wolff, and said Roy Wolff,” is mere surplusage, and in no way affects the position of appellant in the within action. Incidentally, Roy Wolff is not a party to the action.

The record reveals, as recited in the court’s findings that the child was born May 17, 1945; “That said Roy Wolff and Dorothy I. Wolff were married January 31, 1931, that a complaint for divorce was filed by the said Roy Wolff against Dorothy I. Wolff on March 9, 1945, in the Superior Court of the State of California, in and for the County of Los Angeles; that an Interlocutory Decree of Divorce was rendered to said Roy Wolff against the said Dorothy I. Wolff on April 11, 1945, and that the said marriage was dissolved by a Final Decree of Divorce on April 19,1946; that said complaint for divorce was filed two (2) months and nine (9) days before date of birth of said child; that said Interlocutory Decree of Divorce was rendered one (1) month and eight (8) days before the birth of said minor child; that said Final Decree of Divorce was rendered eleven (11) months after birth of said child.”