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Court of Appeal, Fifth District, California.

Garland JACKSON, Plaintiff and Appellant. v. Jackie Carol JACKSON, Defendant and Respondent.

Civ. 687.

Decided: January 23, 1967

Cullen A. Stinnett, Sacramento, for appellant. No appearance on appeal for respondent.

This is an appeal by a plaintiff-husband in what was originally an annulment suit, from the order of denial of a motion to cancel all previous orders by which he was directed to pay attorney's fees, maintenance, and court costs; the trial court allowed an amendment of the original annulment action so that plaintiff could also ask for a divorce.

It may be questioned whether the law permitted an appeal. But we think that the order denying the remedy sought by the plaintiff and appellant is properly appealable. The whole controversy is based upon what amounts to a judgment on a collateral matter, which in itself is final. The orders awarding temporary alimony, costs, and counsel fees constitute ultimate determination of collateral matters ‘distinct and severable from the general subject of the litigation.’ They require the appellant to pay immediately to the defendant wife the sums in question, and there is no provision in the law or in the orders to delay payment or to prevent the issuance of writs of execution. The determinations in question, although collateral, are in effect final judgments in independent proceedings, and the dissatisfied party should be afforded a right to appeal to an upper court. (Fish v. Fish, 216 Cal. 14, 13 P.2d 375; Anglo-Californian Bank v. Superior Court, 153 Cal. 753, 755, 96 P. 803; Colma Vegetable Ass'n v. Superior Court, 75 Cal.App. 91, 95, 242 P. 82; Cline v. Superior Court, 35 Cal.App. 150, 152, 169 P. 453; Leeper v. Superior Court, 62 Cal.App. 736, 217 P. 811; Robbins v. Mulcrevy, 101 Cal.App. 300, 301, 281 P. 668; Stoner v. Superior Court, 67 Cal.App.2d 760, 761, 155 P.2d 697.) The present order denied and effort on the part of appellant, by showing that blood tests demonstrated that he could not have been the father of the child, to cancel all previous orders made against him by the court requiring the payment of attorney's fees, costs and hospital and support money, pending the trial of the main action, and we hold that the appeal in the case was legitimately taken from a procedural standpoint.

While the marriage lasted only four (or, according to the respondent, five) days, the court based its rulings upon the determination that there was cohabitation accompanied by sexual intercourse between the parties. After the defendant went to her parents' home to live, she discovered that she was pregnant, and the award of attorney's fees and suit money, as well as hospital and suit money, as well as hospital and living expenses was the result.

The case of Kusior v. Silver, 54 Cal.2d 603, 7 Cal.Rptr. 129, 354 P.2d 657, is conclusive against the appellant. Whether we like it or not, we are bound to hold in accordance with the law as established by the Supreme Court in that case. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

The fact that cohabitation was for only a few days, rather than a long time, makes no difference in the applicable principle. There is no contention that the husband was impotent, or that he did not cohabit with his wife. In the circumstances, the presumption is conclusive that he was the father of the child, and evidence to the effect that, according to blood tests, he could not be, should be excluded, as held by the trial court.

Section 1962 of the Code of Civil Procedure provides:

‘The following presumptions, and no others, are deemed conclusive:

‘* * *

‘5. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.’

This provision of law has been repeatedly held to mean exactly what it says. (Kusior v. Silver, supra, 54 Cal.2d 603, 7 Cal.Rptr. 129, 345 P.2d 657; In re Estate of Walker, 180 Cal. 478, 181 P. 792; In re Estate of Mills, 137 Cal. 298, 70 P. 91; Hughes v. Hughes, 125 Cal.App.2d 781, 271 P.2d 172.) There is no escape from the conclusion reached in the Kusior case that the presumption here in question is indeed conclusive.

The argument made by the appellant that the effect reached in the Kusior case, supra, 54 Cal.2d 603, is unconstitutional is conclusively answered in that opinion written by Mr. Justice Dooling, at page 619, 7 Cal.Rptr. at page 139, 354 P.2d at page 667, where it is said:

‘Appellant contends that such a construction is not consistent with constitutional principles in that there is no reasonable relationship between the presumption and the fact sought to be presumed in a case in which there is scientific evidence to the contrary. Kirchhubel v. Munro, 149 Cal.App.2d 243, 249, 308 P.2d 432. However, appellant does not suggest that the Legislature has no interest in or power to determine, as a matter of overriding social policy, that given a certain relationship between the husband and wife, the husband is to be held responsible for the child. There are significant reasons why the integrity of the family when husband and wife are living together as such should not be impugned. A conclusive presumption is in actuality a substantive rule of law and cannot be said to be unconstitutional unless if transcends such a power of the Legislature Morgan, Federal Constitutional Limitations Upon Presumptions Created by State Legislation, Harvard Legal Essays (1934) 323, 328.’

Appellant's contention that the Legislature cannot enact a conclusive presumption in a situation of this kind is so contrary to the experience of the federal and state governments that it cannot stand up against a contrary viewpoint. The conclusive presumptions, as set forth in section 1962 of the Code of Civil Procedure, are at the very basis of important elements of social policy as to which the legislative bodies involved may legitimately act.

In 31A C.J.S. Evidence § 115, page 197, it is said:

‘The rule with respect to irrebuttable presumptions rests on grounds of expediency or policy so compelling in character as to override the generally fundamental requirement of law that fact questions must be resolved according to proof; and evidence of certain kinds of facts is excluded because its admission would injure some other cause more than it would help the cause of truth, and because avoidance of that injury is considered of more consequence than possible harm to the cause of truth.’

(See United States v. Provident Trust Co., 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793.)

In 18 California Jurisprudence, Second Edition, Evidence, section 67, pages 490–491, it is stated:

‘Conclusive presumptions are evidence of the most potent character, so much so that they may not be contradicted by other evidence. In fact, evidence to the contrary may not even be admitted. The jury is bound to find in accordance with a conclusive presumption.’

(In re Estate of Mills, supra, 137 Cal. 298, 70 P. 91; Gayton v. Pacific Fruit Express Co., 127 Cal.App. 50, 15 P.2d 217; 18 Cal.Jur.2d, Evidence, § 71, pp. 500–501; 1 The California Family Lawyer, California Continuing Education of the Bar (1962), § 18.44, pp. 756–757.)

The order is affirmed.

CONLEY, Presiding Justice.

STONE and GARGANO, JJ., concur.