CARBONE v. SUPERIOR COURT IN AND FOR NAPA COUNTY (1941)

By means of a writ of mandamus the mother and guardian ad litem of an illegitimate child seeks to compel the Superior Court of Napa County to make an order for costs, counsel fees and maintenance of the child pending the trial of a suit for support under the provisions of section 196a of the Civil Code. It is claimed that section of the code, as amended in 1939, authorizes the allowance of such payments from an alleged father of an illegitimate child, pendente lite, even before the paternity has been determined, just as a husband or wife may become liable therefor in a suit for divorce under section 137 of the same code.

The petition alleges that a complaint was filed in the Superior Court of Napa County by Peggy Fredericks, the mother and guardian ad litem of Diane Lee Carbone, an illegitimate infant child, under section 196a of the Civil Code, claiming that the defendant, Leo Carbone, is the father of the child, and demanding judgment for her support. The defendant in that action was never married to Peggy Fredericks. That suit has not been tried, nor has the paternity of the child been established. An order to show cause was issued against the defendant, directing him to furnish reason why he should not pay costs, counsel fees and maintenance during the pendency of the action. After hearing, the proceeding to show cause was dismissed. This petition for a writ of mandamus was then filed.

The only question to be determined is whether the alleged father of an illegitimate child, to whom the mother was never married, may be compelled to pay costs, counsel fees and support money under section 196a of the Civil Code before the paternity of the child has been established.

It is true that the paternity of an illegitimate child may be established in the same suit in which the support of the child is sought to be enforced. Sec. 196a, Civ.Code; Kyne v. Kyne, 38 Cal.App.2d 122, 100 P.2d 806. The paternity of the child may also be separately established under section 231 of the Civil Code. There is no doubt that costs, counsel fees and maintenance of an illegitimate child may be enforced against the father after the paternity has been first established. We are, however, of the opinion that costs, counsel fees and maintenance may not be enforced against a defendant in a suit for support of an illegitimate child, under section 196a of the Civil Code, until after the paternity of the child has first been established. Schallman v. Haas, 33 Cal.App. 28, 164 P. 336. The very purpose of the last-mentioned section, as it is expressed therein, is to enforce the legal obligation of “the father as well as the mother, of an illegitimate child” to support and educate their offspring. No rights or obligations under that section may vest in the absence of proof of the parentage of the child. That section, as amended in 1939, merely authorizes the court “to order and enforce performance” of the previously-determined obligations thereunder, in the same manner that alimony or maintenance may be enforced by execution or otherwise in a divorce proceeding under section 137 of the Civil Code. If the legislature had intended by the enactment of section 196a to authorize the collection of costs, counsel fees or maintenance pendente lite against a defendant merely because he was accused of being the father of an illegitimate child, it would have been very easy to have so expressed it. Section 137 of the Civil Code clearly provides that: “During the pendency of any such [[[divorce] action the court may, in its discretion, require the husband or wife, as the case may be, to pay * alimony,” etc. No such language appears in section 196a. Evidently the legislature meant, by reference to the various sections with relation to divorce proceedings, that a parent's obligation to support his illegitimate child could be enforced in the same manner provided for in those sections after the paternity had been first established. Before that status has been determined there is no obligation to support the child which could be enforced by either equity or law.

It would be a very unjust and dangerous rule that would permit the imposition of costs and maintenance pendente lite against an innocent person merely because he was wrongfully accused of being the father of an illegitimate child. Such a rule might encourage irresponsible persons to collect from various innocent individuals in a succession of suits maintained without merit.

It is argued that society has an interest in seeing that the parents of children properly maintain and care for their offspring. That is true. But society is presumed to possess a higher standard of justice than to attempt to enforce the maintenance and support of illegitimate children upon innocent persons, or upon anyone until his parentage of the child has been first established in the manner required by law.

In the Schallman case, supra, in which a hearing by the Supreme Court was denied, after the paternity of an illegitimate child had been first established in a suit brought for that purpose under section 196a of the Civil Code, an order for costs and counsel fees was subsequently made for the purpose of prosecuting the appeal. That order was reversed. In response to the contention of the respondent that section 196a authorized the allowance of costs and counsel fees pendente lite, just as they are allowed in divorce proceedings, the court said [33 Cal.App. 28, 164 P. 338]: “But there is no analogy between divorce suits or any other action between a husband and wife pertaining to or involving their marital relation and obligations and an action founded upon section 196a of the Civil Code. No more than in any other of the various classes of actions has a court the inherent power, if, indeed, it can have or be given any power in that respect at all, to require a litigant in a case of this character to provide his adversary with the means necessary to defray the costs and expenses incident to the prosecution or resisting of an appeal or for the support of such adversary, pending the disposition of the cause on appeal. This proposition necessarily follows from the fact that the essential issue to be determined in an action of this kind is contested. The gist or gravamen of this action is the paternity of the alleged illegitimate child.”

On principle it is equally true that costs, counsel fees and maintenance during the trial of a cause under section 196a may not be charged against an alleged father of an illegitimate child, until the paternity has been finally established. If such payments may not be collected for prosecution of an appeal from the judgment they certainly are improper charges to be imposed during the trial of the cause.

In the Kyne case, supra, the paternity of the illegitimate child was determined at a trial of the cause. The court ordered the defendant to pay for the support of the child from the date of its birth. From that judgment an appeal was perfected. The question of the right to impose upon the defendant costs, counsel fees or maintenance pendente lite was not involved in that case. There is nothing in that case in conflict with what we have previously said regarding the necessity of first proving the paternity of the illegitimate child before the obligation for its support or the costs of suit may be imposed upon a litigant.

The writ of mandamus is denied.

THOMPSON, Justice.

We concur: PULLEN, P.J.; TUTTLE, J.