Jackson v. Wallace

California Court of Appeal Jun 30, 1976 No. Civ. No. 46900Published

Before: Ashby

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Holding. The court held that while the trial court correctly determined the children were not legitimated under Civil Code section 230 due to a lack of spousal consent, the judgment must be reversed because newly produced evidence of a bigamous marriage between the parties renders the children legitimate under California law.

Issues

Whether the father of children born of a meretricious relationship can legitimize them under Civil Code section 230 without the consent of his legal wife.
Whether children born of a bigamous marriage are legitimate under California law.
Whether an appellate court may consider new evidence of a marriage to determine the legitimacy of children despite the plaintiff's failure to disclose such evidence at trial.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The requirements of Civil Code section 230 were not met by plaintiff.”

“Although the trial court was correct in denying plaintiff a declaration of legitimacy based on the evidence before it, the judgment of the court was based on the false premise that the children were not legitimate, and for that reason must be reversed.”

Opinion

ASHBY, J. This is an appeal by plaintiff from a judgment for defendant.

[786]Plaintiff married Diedre Jackson in 1967. Four to six months later she left him. They never resumed a husband and wife relationship after that time. Plaintiff never obtained a divorce from Diedre.

On May 31, 1974, plaintiff filed a complaint alleging that from 1969 to June 9, 1973, plaintiff and defendant, Carolyn Banister Wallace, cohabited as husband and wife in Los Angeles.1 Two children were born to them during that period of time; Sidney C. Jackson, Jr., was born on February 24, 1970, and Orlando Forrest Jackson, born on August 13, 1971. During the period of time from February 24, 1970, to June 9, 1973, plaintiff represented defendant as his wife and Sidney, Jr., and Orlando as his children. In the prayer portion of the complaint, plaintiff requested (1) that Sidney C. Jackson, Jr., and Orlando Jackson be declared legitimate within the provisions of Civil Code section 230; (2) that reasonable visitation rights be granted the plaintiff; and (3) that plaintiff be permitted to contribute to the support of the minor children, Sidney C. Jackson, Jr., and Orlando Jackson.

The matter was heard on October 3, 1974. The evidence showed that plaintiff publicly acknowledged the children as his own. However, there was. no evidence that Diedre Jackson, who was still plaintiff’s legal wife, had consented to receive the children into the family, as required by the lánguage of Civil Code section 230, or, since she and plaintiff had not lived together since 1967, that she was even aware of the existence of the children.

The trial court held that “there has been no legitimation of these children under Civil Code Section 230; that there is no right of visitation or support without the consent of the Respondent in this matter, and the judgment is granted in favor of the Defendant.”2

Discussion

The requirements of Civil Code section 230 were not met by plaintiff. [787]wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.” (Italics added.)

Jackson v. Wallace

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