Vargas v. Vargas

WHITE, P. J. Enedina and Pedro, children born unto Jennie Villa on January 21, 1942, and May 25, 1945, appeal from a judgment for defendant in their action by their guardian ad litem to have defendant declared to be their father and to enforce his obligation to give them support and education suitable to his circumstances. (Civ. Code, § 196a.)

The court found that defendant did not have sexual inter[749]course with plaintiffs’ mother at the time either was conceived ; and that defendant is not the father of either of the plaintiffs. Plaintiffs, in their briefs, urge that those findings are not supported by the evidence.

The record on appeal is lengthy, and the only evidence not in conflict is that the children were born; that their birth and baptismal certificates show defendant as their father; that the information upon which the certificates were based was given by their mother; that the mother of plaintiffs was married on August 3, 1932, to one Joe Anaya, and that she and her said husband were not divorced until some time after May 25,1945.

Jennie Villa testified that she had not seen her said husband at any time after 1938 and that defendant was the father of the plaintiffs. She testified that at the time of conception she was living with defendant as his wife and that from 1938 to 1945 she did not have intercourse with any man other than defendant." Numerous friends and relatives, including a sister and a sister-in-law of the defendant and the minor plaintiffs, corroborated some of her testimony.

Defendant testified that he never at any time had had sexual intercourse with Jennie. He denied that he had ever at any time lived with her, and testified that he did not see her at any time in March, April or May of 1941, and that he did not see her at any time during the months of July, August or September, 1944.

Concerning the husband of Jennie Villa, in addition to her own testimony that she had not seen him since 1938, the record includes the testimony on cross-examination of Carmen Gujardo, called by plaintiffs, to the effect that she had seen him on the street once in 1951 or 1952 and Jennie had told her who he was; and the testimony of Joe Vargas, a brother of defendant, that on August 10, 1941, he heard Jennie Villa tell defendant that she had an argument with her husband, that he had hit her, and that she was planning to separate. The following is quoted from the defendant’s testimony: