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

COUNTY OF SANTA BARBARA, etc., et al., Plaintiffs and Respondents, v. PATRICK H., Defendant and Appellant.

Civ. B–011342.

Decided: April 18, 1986

Frank M. Jodzio, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Norman H. Sokolow and Andrew D. Amerson, Supervising Deputy Attys. Gen., Thomas W. Sneddon, Jr., Dist. Atty., Santa Barbara and Ronald E. Magnuson, Deputy Dist. Atty., for plaintiffs and respondents.


This is an appeal from a summary judgment.   We reverse and remand for rehearing.

The marriage of appellant Patrick James H. and Tanya Paulette H. (Tanya) was dissolved in 1974.   In that dissolution proceeding, appellant requested and obtained custody of Dawn Renee H. (Dawn), born October 30, 1968, and Sharon Marie H., born October 24, 1970.   In 1984, Dawn elected to live with her mother Tanya in Santa Barbara County.   Respondent Santa Barbara County disbursed welfare funds to Tanya and Dawn under its Aid to Families With Dependent Children program.

In May 1984, respondent filed a civil complaint against appellant for reimbursement of those funds pursuant to Welfare and Institutions Code section 11350.   The complaint alleged in part that appellant and Tanya were the parents of Dawn, and sought reimbursement of $2,800 and ongoing child support in the amount of $280 per month.

In his answer to respondent's complaint, appellant denied he was Dawn's father, but stated that Tanya was her mother.   Respondent thereafter filed a motion for summary judgment on the ground that appellant was collaterally estopped from raising the issue of paternity because of the prior dissolution action.   Papers filed in that action showed that appellant petitioned for dissolution of his marriage with Tanya in 1973.   On his petition, appellant identified the children of the marriage as Dawn H. and Sharon H. and requested custody of both minors.   A default interlocutory judgment of dissolution was entered in 1974 and ordered that the custody and control of the minors be awarded to appellant.   After Tanya failed to appear in the proceedings, appellant requested and received a final judgment of dissolution in the same year.

Following respondent's motion for summary judgment, appellant filed a declaration, again denying he was Dawn's father, along with a copy of Dawn's birth certificate and appellant's and Tanya's marriage license certificate.   The birth certificate listed Dawn's name as “Dawn Renee H.,” her mother as Tanya, and her father as James Michael Hughes.   The marriage certificate showed that appellant and Tanya were married in May 1969, seven months after Dawn was born.   Appellant's declaration stated in relevant part:  “I had known my wife prior to the birth of her daughter, DAWN.   In fact at the time that her daughter was born she and I talked about getting married.   That is the reason that she gave her daughter [my] surname of H. on the birth certificate.   At no time was it ever discussed that I was the father of the child.  ․ In late August 1973, I was contacted at work by a babysitter who indicated that my wife had asked her to babysit the children for an evening and that she did not return․  She indicated that she had the children but could no longer watch them, that my wife had not contacted her․  I immediately left work and․  picked up my children․  Approximately two or three weeks after I picked up the children I was able to talk to my wife telephonically who had informed me that she did not want the children as they did not fit in with her lifestyle and if I didn't want to take custody of DAWN that she was going to put DAWN in a foster home or in an ophanage [sic ] because she did not intend to care for her.   I did not know what to do, I did not have sufficient funds to hire an attorney or even to get legal advice.   I went down to court to obtain the papers for filing a dissolution of marriage and filed for it.   I was concerned about DAWN.   I wanted custody of her rather than having her placed in an orphanage or a foster home and I so indicated the fact that I wanted custody on the papers for dissolution which I filed․  I was never told that by putting down DAWN RENEE H. as a child of the marriage that I was the father of the child.   My intentions were simply to take custody of DAWN rather than to have her placed in a foster home or orphanage.   At no time did I intend anything else by the filing of the petition for dissolution or the subsequent court documents which were filed․  My intention merely was to prevent DAWN from being placed in a situation which she did not like or would have a which [sic ] detrimental effect upon her․  [Tanya] never appeared or filed any papers in the action and when I went to court to obtain the Interlocutory Judgment, the Court indicated that the Interlocutory Judgment which I had typed out had too many mistakes and I was to handwrite it which I did․  At no time was I questioned about whether or not I was the father of the children nor did the Court explaint [sic ] to me any ramifications of what I was doing.   It appeared to be a perfunctorily action by the Court.”

The trial court granted respondent's motion for summary judgment and ordered appellant to pay child support “notwithstanding the fact he is not the natural father of the child.”   In its order, the court cited Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707 which held that a husband is liable to support his wife's child under an estoppel theory where it is shown that he has represented to the child that he is the father with the intention that the child accept and act on that representation.   The lower court in this matter further stated in its order:  “Marriage of Johnson (1979) 88 Cal.App.3d 848 [152 Cal.Rptr. 121] presents facts not unlike those of the instant case.   In Johnson․  [t]he Court of Appeal held the husband was estopped from asserting the illegitimacy of his wife's child․  The child has [sic ] known the husband only as his father and had known no other in that capacity.   Although the husband apparently never expressly represented to the child that he was his father, it was clear that his conduct was such that an implied representation to that fact was made․  The facts of the instant case support a finding of estoppel regarding the issue of parentage.”

Appellant argues that the trial court erred by granting respondent's motion on the basis that the prior dissolution judgment was res judicata on the issue of paternity.   He contends that the issue of paternity was not litigated in the former action and that, by granting respondent's motion, the trial court made a prohibitive factual determination of paternity.  (Mission Ins. Group, Inc. v. Merco Construction Engineers, Inc. (1983) 147 Cal.App.3d 1059, 1064, 195 Cal.Rptr. 781.)   Appellant further argues that his constitutional right to due process was violated because the trial court's action denied him a trial on the issue of Dawn's paternity.

 Appellant has misread or misinterpreted the superior court record.   The lower court based its judgment on the theory of estoppel by conduct, not on the doctrine of collateral estoppel or estoppel by “issue preclusion.”  (9 Witkin, Cal. Procedure (3rd ed. 1985) Judgment, § 253, p. 691;  Todhunter v. Smith (1934) 219 Cal. 690, 695, 28 P.2d 916.)   However, we agree with appellant that the issue of paternity was not adjudicated in the former dissolution proceeding and, therefore, that appellant is not collaterally estopped from asserting nonpaternity as a defense to the present suit.   The effect of collateral estoppel is confined only to issues adjudicated in a former proceeding.   Thus, where an issue was not litigated in a prior action, the resulting judgment is not conclusive on it whether rendered after a trial or by default.  (Witkin,supra, § 281, p. 719;  English v. English (1937) 9 Cal.2d 358, 361, 363, 70 P.2d 625.)

Although Code of Civil Procedure section 1911 states, “That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto,” the meaning of “issues litigated” is far from clear.   (Witkin, supra, § 254, p. 693.)  “ ‘Despite the established principle that collateral estoppel results only on issues actually litigated [citation], it is often said that a judgment is binding as to all matters which were raised or which might have been raised.’ ”  (Price v. Sixth Dist. Agricultural Assn. (1927) 201 Cal. 502, 511, 258 P. 387.)   The correct interpretation of this statement is that “a former judgment is not collateral estoppel on issues which might have been raised but were not ;  just as clearly it is a collateral estoppel on issues which were raised, even though some factual matters or legal arguments which could have been presented were not.  (Bleek v. State Bd. of Optometry (1971) 18 Cal.App.3d 415, 429, 95 Cal.Rptr. 860;  Witkin, supra, § 257, p. 696.)

 We think the former distinction in the foregoing interpretation applies in this case.   That is, the issue of Dawn's paternity might have been raised in the former dissolution action, but it was not.   Consequently, there is no collateral estoppel since the issue was not litigated.   From the face of the dissolution documents, as well as from appellant's declaration filed in the present case, it is apparent that the court simply awarded custody of Dawn to appellant without an express acknowledgment or admission by appellant that he was Dawn's father or an express finding by the court as to that issue.   (Estate of Williams (1950) 36 Cal.2d 289, 292, 223 P.2d 248;  Garcia v. Garcia (1957) 148 Cal.App.2d 147, 153, 306 P.2d 80.)  (See also, Hurst v. Hurst (1964) 227 Cal.App.2d 859, 863–864.)   The parties to a dissolution may seek a determination of parental rights, but such an issue is not essential to the action.  (Estate of Williams, supra.)

We do not imply by our holding that respondent is prevented from raising the defense of collateral estoppel simply because appellant received a default judgment in his dissolution.   Our decision is strictly limited to the facts of this case which indicate that Dawn's paternity was neither pleaded nor determined in the prior action.   A judgment obtained after a trial or by default is not conclusive on issues which were not litigated.  (English v. English, supra, 9 Cal.2d 363, 70 P.2d 625;  Estate of Williams, supra, 36 Cal.2d 292–293, 223 P.2d 248.)

 Respondent argues that appellant's representation in his dissolution petition that Dawn was a child of the marriage was a judicial admission which constituted an adjudication of paternity.  (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269, 147 Cal.Rptr. 1.)   We disagree.   There is no clue of an admission of paternity by appellant on the face of the dissolution record.   Furthermore, the cases respondent cites in support of its contention regarding the applicability of collateral estoppel are inapposite.   In Garcia v. Garcia, supra, 148 Cal.App.2d 147, 306 P.2d 80, the husband acknowledged that he was the natural father of his wife's child in a property settlement agreement which was incorporated in the interlocutory decree.  (p. 154, 306 P.2d 80.)   In the instant case, appellant made no such admission in the former action.   In County of San Diego v. Hotz (1985) 168 Cal.App.3d 605, 214 Cal.Rptr. 658, express findings were made in a prior dissolution action that the child was born to the parties during their marriage.  (pp. 608–609, 214 Cal.Rptr. 658.)   Here, appellant and Tanya were married after Dawn's birth.   In People v. Thompson (1979) 89 Cal.App.3d 193, 152 Cal.Rptr. 478, the wife and husband were cohabitating when their alleged child was conceived, therefore, the conclusive presumption of paternity under Evidence Code section 621 1 prevented appellant from defending the action for failure to support the minor child on the basis of nonpaternity.  (p. 197, 152 Cal.Rptr. 478.)   There was no showing in the present case that appellant and Tanya were living together when Dawn was conceived.

Finally, respondent cites County of Alameda v. Sampson (1980) 104 Cal.App.3d 584, 163 Cal.Rptr. 915.   In that case, appellant was estopped to deny parentage in an action for reimbursement of public assistance because he had been adjudicated the father of the minor children receiving the aid in a prior dissolution proceeding.  (p. 590, 163 Cal.Rptr. 915.)   The court in Sampson also found that appellant and the children's mother had allowed the dissolution decree to state that they were the children's parents in the former action in order to keep the true facts from the minors.   Here, appellant apparently acted from the best of motives;  he was compelled to seek custody of Dawn in the absence of a more suitable living alternative for the child.   More importantly, there was no determination of Dawn's paternity in the judgment of dissolution.

 Nonetheless, our primary concern in this appeal is whether appellant is estopped by his actions toward Dawn since her birth from disclaiming responsibility for her financial support.   The Court of Appeal in Clevenger v. Clevenger, supra, 189 Cal.App.2d 658, 11 Cal.Rptr. 707, first defined “the duty of support which a husband owes to his wife's illegitimate child when the husband, from the date of the birth of the child, accepts the child into his family, publicly acknowledges the child as his own and treats the child as if he were legitimate.”  (p. 662, 11 Cal.Rptr. 707.)   In holding that a stepfather would be liable for his stepchild's support if the facts established an estoppel, the court opined:  “The relationship of father and child is too sacred to be thrown off like an old cloak, used and unwanted.   We are dealing with the care and education of a child during his minority and with the obligation of the party who has assumed as a father to discharge it.   The law is not so insensitive as to countenance the breach of an obligation in so vital and deep a relation, undertaken, partially fulfilled, and suddenly sundered.”   (p. 674, 11 Cal.Rptr. 707.)

On the other hand, the court in Clevenger was unable to ascertain from the lower court record a sufficient basis for estoppel.  (p. 662, 11 Cal.Rptr. 707.)   The court observed that the record failed to show “that the husband represented himself to the child as his natural father.   Although the findings of fact state that appellant accepted the child, publicly acknowledged and treated the child as his own, the court did not find that the husband made a direct or implied representation to the child that he was the boy's father.   The child may have known that appellant was not his father.”  (pp. 670–671, 11 Cal.Rptr. 707.)   The court further held that a foundation for estoppel would exist only where the facts revealed (1) that the husband represented to his stepchild that he was the father, (2) that the husband intended that his representation be accepted and acted upon by the child, and (3) that the child was ignorant of the true facts, thus inducing the child to expect care and support from the husband and thereby preventing the child from seeking out his/her natural father.  (p. 671, 11 Cal.Rptr. 707.)   The opinion did not suggest that a husband who supports his wife's child by another man automatically incurs liability for the support of that child during its minority.   Rather, the court predicated estoppel upon a child's reliance on the representation of the putative father that he is the biological father.  (p. 674, 11 Cal.Rptr. 707.)

In the present case, it is evident that appellant received Dawn into his home and treated her as a member of his family.   He gave Dawn his surname, he petitioned for her custody and gave her a home for ten years after his marriage to her mother was terminated, and paid for Dawn's care from her birth up to 1984.   Nevertheless, we find that the lower court record fails to support the trial court's order that appellant is obligated to continue supporting Dawn.   The record is devoid of evidence that appellant told Dawn he was her natural father, that he intended Dawn to think of him in that regard, or that Dawn had no knowledge of the true facts and detrimentally relied on appellant's representations.

Respondent argues that the theory of estoppel should apply because appellant acknowledged he was Dawn's father in the papers he filed in the dissolution action, and that, as a result of this acknowledgment, he was given custody of Dawn and therefore benefited from her care and companionship.   We find no such acknowledgment by appellant nor is there any hint in respondent's argument as to whether appellant acknowledged to Dawn that he was her father.   (Clevenger v. Clevenger, supra, 189 Cal.App.2d 670–671, 674, 11 Cal.Rptr. 707.)   There is likewise no such showing in the trial court's order.   The court merely stated that this case is similar to In re Marriage of Johnson, supra, 88 Cal.App.3d 848, 849, 152 Cal.Rptr. 121, and thereby concluded that “[t]he facts of the instant case support a finding of estoppel regarding the issue of parentage.”

In Johnson, supra, the court found that the Clevenger estoppel elements were present.   The relationship of the stepfather and stepchild was long-lasting, about six years, and the stepfather had assumed the role of father from the moment of the child's birth.   The court concluded that, although the stepfather never represented to the child that he was his father, his conduct was an implied representation to that effect because it was clear that the stepfather had intended that the child accept him as his father and that the child was ignorant of the true facts.  (p. 852, 152 Cal.Rptr. 121.)  (See also, In re Marriage of Valle (1975) 53 Cal.App.3d 837, 126 Cal.Rptr. 38.)   Although appellant's family relationship with Dawn continued for over 15 years (from Dawn's birth in 1968 up to 1984) and he assumed the role of father, there is absolutely no indication that appellant intended Dawn to look upon him as her natural father or that Dawn was unaware that appellant was her stepfather.

The role adopted by stepfathers is often indistinguishable from that normally assumed by natural fathers in terms of the care and support provided to minor children.   That phenomenon should not be discouraged by anything less than a strict application of Clevenger.   The Clevenger case makes it clear that, in the absence of elements establishing an estoppel, the obligation of a stepfather is concurrent with the life of the relationship to his stepchild's mother.  (189 Cal.App.3d 665–666, 11 Cal.Rptr. 707.)  (See Evid. Code § 623, declaring:  “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.”)

We conclude that the trial court erred by relying on the Johnson case to find that parentage by estoppel was present.   The judgment is therefore reversed and remanded to superior court for a rehearing to determine whether a sufficient factual basis for estoppel exists according to the standards enunciated by Clevenger v. Clevenger, supra, 189 Cal.App.2d 658, 11 Cal.Rptr. 707.   If the court finds that such a basis is insufficient, we further hold that appellant is entitled to assert nonpaternity as a defense to the current action.   In view of our decision, it is unnecessary to discuss the merits of appellant's contention that the lower court deprived him of his right to procedural due process in accordance with County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 198 Cal.Rptr. 779, 674 P.2d 750.  (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65, 195 P.2d 1.)

The judgment is reversed and remanded to the superior court with directions.


1.   Subdivision (a) of this section states:  “[T]he issue of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”

STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.

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