Jackson v. Crowley

FRAMPTON, J. pro tem.* Plaintiff and cross-defendant appeals from the judgment entered July 10, 1960, wherein he was found to be the natural father of one Clyde Jackson, Jr., also known as Lee Roy Jackson, born to Marie Crowley, defendant and cross-complainant, and wherein he was ordered to pay the sum of $10 per week for the support of such minor child.

The testimony disclosed that defendant, Marie Crowley, was married to Robert Crowley in Las Vegas, Nevada, in 1942. Robert Crowley died in the latter part of 1959. He was a musician by occupation and traveled about with a band. She had five children by Robert, the last having been born October 20, 1955.

Marie Crowley met plaintiff in the early part of 1955. At the time of trial (March 18, 1960) she testified she had been separated from and had not lived with her husband for five years and had not seen him since 1954, but had talked to him by telephone once in 1957 after Clyde Jackson, Jr., was born. She testified further that she started having sexual relations with plaintiff in the early part of 1955 and continued to have such relations until about five months after the birth of Clyde Jackson, Jr., (February 4, 1957). She testified further that she and Jackson were to be married and that she did not have sexual relations with any other man during this time. The evidence shows that after the birth of Clyde Jackson, Jr., plaintiff contributed to his support and stated to defendant in the presence of her daughter that he knew it was his baby, that he would take care of it and did not want it “on the State. ’ ’

It further appears that plaintiff signed an acknowledgment that he was the father of Clyde Jackson, Jr., which document was on file with the Bureau of Public Assistance. The birth certificate for the child was first issued showing that defendant’s husband was the father. It was later changed to show that Jackson was the father because plaintiff wanted it changed.

[392] The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate. (Code Civ. Proc., § 1962, subd. 5.) It is a disputable presumption that a child born in lawful wedlock, there being no divorce from bed and board, is legitimate. (Code Civ. Proc., § 1963, subd. 31.) “It is thoroughly settled . . . that if there was access to the wife by the husband during the period that conception normally would occur, the presumption, except in certain cases not here relevant, is conclusive. (People v. Kelly, 77 Cal.App.2d 23, 26 [174 P.2d 342]; Dazey v. Dazey, 50 Cal.App.2d 15, 17 [122 P.2d 308]; People v. Hamilton, 88 Cal.App.2d 398, 400 [198 P.2d 907].)