MARK ALLAN v. PAULA

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Court of Appeal, Second District, Division 6, California.

MARK ALLAN B., Plaintiff and Appellant, v. PAULA V. aka Paula H., et al., Defendants and Respondents.

Civ. B026224.

Decided: February 19, 1988

Araiza & Araiza, Santa Paula, and Ken Allen, Ventura, for plaintiff and appellant. Andrew M. Wolf, Ventura, for defendants and respondents.

Plaintiff and appellant Mark B. appeals from a judgment in favor of defendants and respondents Paula V. and her minor son Joshua H. rendered pursuant to a motion for summary judgment.   We reverse.

FACTS

Paula V. and Randolph H. were married in Illinois on January 3, 1981.   Joshua H. was born on August 13, 1981.   In January of 1984 a judgment of dissolution of the marriage was entered in Illinois.

The judgment contains a finding “[t]hat one (1) child was born to the marriage of the parties, namely Joshua ․,” and orders Randolph H. to pay child support.   The judgment was entered upon Randolph H.'s default.

On April 23, 1986, Mark B. filed an action to establish that he is Joshua H.'s father, and for custody and visitation rights.   The action named Paula V. and Joshua H. as defendants.   Paula V. answered for herself and as guardian ad litem for Joshua H., denying Mark B.'s paternity.

In July of 1986 Paula V. filed a motion for summary judgment on behalf of herself and as guardian ad litem for Joshua H.

Paula V.'s affidavit in support of her motion recites her marriage to Randolph H., the birth of Joshua H. during the marriage, the subsequent dissolution of that marriage, and includes a copy of the Illinois judgment of dissolution.

She denied that she and Mark B. engaged in any acts of sexual intercourse on or around the time Joshua H. was conceived, declared that Randolph H. is the natural father of her son, and stated that he has paid child support pursuant to the Illinois decree.

She further declared that she had known Mark B. since she was 13 years old, that she lived with him for a time after the dissolution of her marriage, and that during the time they resided together Mark B. knew of the dissolution of her marriage and the payment of child support by Randolph.

Finally she anticipated Mark B.'s reliance on certain letters which she wrote in which she told Mark B. that he is Joshua H.'s father.   She states that the letters were written prior to the time she and Mark B. lived together, during a time when Mark B. was harassing her and while she was depressed as a result of the break-up of her marriage to Randolph H.

Mark B.'s affidavit in opposition to the motion states that Paula V. and he engaged in acts of sexual intercourse in October, November and December of 1983;  that he was informed by Paula V. he is the biological father of Joshua H.;   that he has believed that he is the biological father since October of 1983;  that he has supported Joshua H. over the years;  and that he has developed a deep and loving relationship with him.

Also attached to Mark B.'s moving papers are copies of letters purportedly sent to him by Paula V. which tell him Joshua H. is his son.

The trial court found that the Illinois judgment of dissolution of the marriage between Paula V. and Randolph H. resolved the issue of paternity, and granted judgment to Paula V. and Joshua.

DISCUSSION

Summary judgment is properly granted only if all papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.   The court must draw all reasonable inferences from the evidence set forth in the papers except where such inferences are contradicted by other inferences or evidence which raise a triable issue of fact.  (Code Civ.Proc., § 437c, subd. (c).)  In examining the supporting and opposing papers, the moving parties' affidavits or declarations are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.  (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851–852, 94 Cal.Rptr. 785, 484 P.2d 953;  Jos. Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 914, 167 Cal.Rptr. 510.)

I.

Mark B. contends that the Illinois dissolution decree cannot be asserted as a defense to his paternity action.   We agree.

It is conceded by Paula V. that because Mark B. was not a party to the Illinois dissolution action nor in privity with any party, the doctrines of res judicata and collateral estoppel do not apply to this action.

Paula V. argues, however, that even though the doctrine of res judicata does not strictly apply, the public policies of maintaining parent and child relationships and ensuring the finality of paternity judgments should allow her to raise the Illinois judgment as a bar to Mark B.'s action.

In support of her argument Paula V. cites Guardianship of Claralyn S. (1983) 148 Cal.App.3d 81, 195 Cal.Rptr. 646.   That case involved an action by a child's natural grandparents to be appointed guardians of the child.   The grandparents challenged the paternity of the putative father who had stipulated to paternity in previous actions for child support.   The court rejected the grandparents' challenge, holding that although they were not parties or privies in the support actions, the policies of maintaining parent and child relationships and ensuring the finality of paternity judgments barred them from relitigating paternity.

In Claralyn the parties seeking to challenge a prior determination of paternity are grandparents.   Although grandparents may have an interest in their grandchild's paternity, it is not as immediate an interest as the biological father of the child possesses.  (Cf., Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, where the Supreme Court held that an unwed father's right to the custody of his children is protected by the due process and equal protection clauses.)

Thus although the policies of maintaining parent and child relationships and ensuring the finality of paternity judgments may outweigh a grandparent's right to challenge a prior determination of paternity, the same may not be said of a putative father's right in the absence of the application of the traditional doctrines of res judicata or collateral estoppel.

 Paula V. argues that the Illinois decree must be given full faith and credit in California.   A foreign decree is entitled to full faith and credit in California only in so far as the foreign court has jurisdiction to pronounce the judgment or order.  (See 5 Witkin, Summary, Const.Law (8th ed. 1974) § 20 at p. 3264.)

 The question is whether Paula V.'s affidavit in support of the motion for summary judgment is sufficient to show that the Illinois court had jurisdiction to decide Mark B.'s status in relation to Joshua.

“A state may not exercise judicial jurisdiction over the status of a person unless a reasonable method is employed to give him notice of the action and unless he is afforded a reasonable opportunity to be heard.”  (Rest.2d Conf. of Laws § 69.)  “Unless these requirements [of notice and opportunity to be heard] are met, the decree will not be recognized as valid in other states and, if rendered in a State of the United States, will be void in the rendering State itself under the due process clause of the Fourteenth Amendment of the Constitution.”  (Id., com. a.)

Because there is nothing in Paula V.'s moving papers to show that Mark B. had notice and an opportunity to be heard in Illinois, the trial court erred when it relied on the Illinois decree to determine Mark B.'s status in relation to Joshua.

Finally Paula V. urges that the Illinois judgment is determinative of the parent and child relationship under Civil Code section 7010, subdivision (a).   That section provides in pertinent part:  “The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes․”

Section 7010 refers to a judgment or order rendered pursuant to an action brought under the Uniform Parentage Act (Civ.Code, § 7000 et seq.).   It does not refer to the Illinois dissolution decree.

II.**

III.

Because we have decided that the trial court erred in relying on the Illinois judgment, we need not decide whether Paula V. is estopped from using the Illinois judgment as a defense to Mark B's. action.

A portion of this opinion is unpublished.

The judgment is reversed.   Each party to bear their own costs on appeal.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.