HOBBS v. CHRISTENSON (1988)

In this appeal we are asked to establish a new tort, to wit, that on reaching majority, a child conceived and born out of wedlock, can sue her natural father for compensatory damages, because he did not support her during her minority;  or, in the alternative, that this child can sue her natural father for retroactive child support.

Plaintiff and appellant Christa Hobbs filed a complaint for tortious failure to support a child, unjust enrichment, intentional infliction of severe emotional distress, and retroactive child support against defendant and respondent John Christenson.¹  The trial court granted respondent's demurrer to the first amended complaint without leave to amend on the ground that it failed to state a cause of action.   This appeal followed.

Appellant's first amended complaint alleges that she was born on September 1, 1967, and that she is the daughter of respondent.   Appellant's mother, Linda Hobbs (Linda) attended high school in California where respondent was her teacher and therapist.   Linda graduated from high school when she was 17;  and the following year, she became pregnant by respondent.   Respondent told her that she should not get an abortion, but instead should go to a home for unwed mothers and, after the birth, place the child for adoption.

Linda did in fact live in a home for unwed mothers until appellant was born;  however, after appellant's birth Linda refused to place her for adoption.   Linda was on welfare at the time of appellant's birth, but respondent told her he would not pay child support because she had refused his wishes to have appellant adopted.   Thereafter, respondent left his teaching position at the high school and secreted himself from appellant and Linda.

Linda was unable to ascertain respondent's whereabouts until appellant was almost 17–years–old.   Respondent abandoned appellant when she was six-weeks-old, when he knew that Linda had a limited education and was without financial resources to adequately educate, house, clothe and take care of appellant.   The abandonment was intentional, so that respondent would not have to pay child support.   By reason of respondent's actions appellant was forced, at times, to live during her minority in roach-infested buildings, where prostitution and drug dealings were common, and in cramped and unsanitary surroundings in neighborhoods that were unsafe.

Appellant further alleges that respondent was earning a substantial income during her minority and could have afforded a reasonable amount of child support which would have considerably improved her living conditions.   Respondent had a duty during her minority to support her, based upon sections 196, 196a, 206, and 242 of the Civil Code.²

In 1984, the County of Los Angeles filed a paternity action against respondent which caused him to stipulate to a Judgment of Paternity.   At the time the action was filed appellant was 17;  and respondent agreed to pay the sum of $425 a month child support until appellant reached the age of majority.

Appellant's first cause of action sounds in tort and seeks compensatory and punitive damages for appellant's pain, suffering, humiliation, and mental distress caused by respondent's malicious abandonment of her to escape paying child support.

Appellant's second cause of action is for unjust enrichment claiming respondent benefited by his failure to pay child support.   Her third cause of action seeks damages for emotional distress and her fourth cause of action is for retroactive child support.

The trial court sustained respondent's demurrer based on well established California decisional law that respondent had no legal obligation to provide child support prior to judicial determination of his paternity (see Kyne v. Kyne (1940) 38 Cal.App.2d 122, 100 P.2d 806;  Carbone v. Superior Court (1941) 18 Cal.2d 768, 117 P.2d 872;  Krog v. Krog (1948) 32 Cal.2d 812, 198 P.2d 510), and there can be no cause of action for retroactive child support.  (See Parker v. Parker (1928) 203 Cal. 787, 266 P. 283;  Ford v. Ford (1972) 24 Cal.App.3d 62, 100 Cal.Rptr. 817;  In re Marriage of Koppelman (1984) 159 Cal.App.3d 627, 205 Cal.Rptr. 629, disapproved on other grounds by In re Marriage of Fabian (1986) 41 Cal.3d 440, 224 Cal.Rptr. 333, 715 P.2d 253.)

THE TORT CAUSE OF ACTION

 Recognizing she must overcome well established precedent, appellant seeks to establish a cause of action in tort for compensatory damages that will compensate her for the years she was denied the life style she was entitled to had respondent paid child support.³  Similar causes of action here and in other states by children conceived and born out of wedlock, have been dismissed because courts are reluctant to open up a Pandora's box of litigation that springs from the consensual sexual acts of individuals.   Appellant states that the law provides a remedy for every wrong, but this is not necessarily true.   There are wrongs of betrayal, brutal words and heartless disregard of the feelings of others that are beyond effective legal remedy and any practical administration of law.  (Prosser & Keeton, Torts (5th ed.1984) ch. 1, §§ 1 and 4, pp. 1–2, 20–23;  Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 642, 643, 164 Cal.Rptr. 618.)   To attempt to correct such wrongs or give relief from their effects “may do more social damage than if the law leaves them alone.”  (Ploscowe, An Action for “Wrongful Life” (1963) 38 N.Y.U.L.Rev. 1078, 1080, and Stephen K. v. Roni L., Id.)

Here, we have an action by a daughter against her father who, despite his subsequent conduct, did give her life.   Unfortunately her situation is not novel.   Many children are born out of wedlock;  and the mother disdains legal action to resolve paternity and child support so that she alone will have total control over the child, or for other personal reasons.   We should not open the door for a new action against a parent, who has not anticipated or planned for it, by a child who has reached majority, where the damages, based on a great deal of speculation,⁴ could be burdensome.   Furthermore, a tort of this magnitude could encourage a multitude of tort actions by children against their parents for alleged wrongs occurring during their minority.   Such a possibility was recognized in Zepeda v. Zepeda (1963) 41 Ill.App.2d 240, 190 N.E.2d 849, discussed in the New York University Law Review, supra.   In Zepeda, a child, conceived and born out of wedlock, brought an action against his father who had falsely induced the mother to have intercourse based upon a promise of marriage.   The child, as in this case, sought damages for the deprivation of his right to have a normal home, based on his stigmatization as a bastard.   The court concluded a tort was committed against plaintiff but recoiled from the consequences of giving the child a remedy in such a case.

The law review comment agreed with the court's decision and noted, “Consider what would happen if we adopt the principle of giving a child a right of action against his parents because of the fact that the child was brought into the world in a disadvantaged state.   Such a principle would obviously prove to apply to both legitimate and illegitimate children.   It would give every child of an alcoholic a right of action against his parents;  every child of a quarrelsome couple a right to sue his parents on the theory that the parents should have known that their incompatibility would adversely affect their child.   This principle could be relied on in a suit by a child born with a congenital defect or by a child who sues his mother for taking drugs during pregnancy which resulted in his being a cripple.   We do not believe that the law should provide a basis for such interfamilial warfare.”  (38 N.Y.U.L.Rev. at 1080.)

In Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 164 Cal.Rptr. 618, this court (District Two, Division One) refrained from granting relief in a “wrongful birth” case.   Stephen K. sought to recover from Roni L. general and punitive damages.   It was alleged that Roni L., the child's mother, falsely represented that she was taking birth control pills.   Stephen then engaged in sexual intercourse with Roni L. which resulted in the birth of a baby girl unwanted by him.   As a “proximate result” of Roni's conduct he became obligated to support the child financially and had suffered “mental agony and distress.”   In rejecting Stephen's complaint, the court concluded that, as a matter of public policy, the court should not involve itself with consequences that occur from a consensual sexual relationship.

For the above reasons, we agree the demurrer to appellant's tort cause of action was properly sustained.

THE CAUSE OF ACTION FOR RETROACTIVE CHILD SUPPORT

 No California courts to our knowledge have ordered retroactive child support in a civil case except where authorized by statute (Welf. & Inst.Code, infra ).   However, we have found no California case where a putative father, knowing he is the parent of a child, intentionally secretes himself in order to avoid paying child support.   This is the crucial allegation in this case that we must accept as true as this is an appeal from the sustaining of respondent's demurrer.   Most California cases refusing retroactive child support are the typical family law and parental determination cases filed pursuant to the numerous Civil Code sections cited in footnote two.

As appellant points out, retroactive child support is not a novel concept in California.   California's Aid to Families With Dependent Children Program (AFDC) requires a father to reimburse the county when it makes support payments to a child even though there has been no court order for the support and maintenance of the child.  (See Welf. & Inst.Code, § 11350,⁵ and Amie v. Superior Court of Riverside County (1979) 99 Cal.App.3d 421, 160 Cal.Rptr. 271, that upheld such action by a county.)

Penal Code section 270 ⁶ defines two different statutory offenses:  (1) failure to support a child, and (2) failure to support a child after knowledge of adjudication of paternity.   In the former, paternity is adjudicated for the first time at the criminal trial and, if established, the father is prosecuted for his prior failure to support his child.   In Smith v. Superior Court (1980) 110 Cal.App.3d 422, 168 Cal.Rptr. 24, the appellate court confirmed that a person can be convicted for willful failure to support in the absence of any prior adjudication of parenthood.  (See also, People v. Gregori (1983) 144 Cal.App.3d 353, 192 Cal.Rptr. 555.)

Other states have ordered retroactive child support payments.   A State of Washington case, Nettles v. Beckley (1982) 32 Wash.App. 606, 648 P.2d 508, is remarkably similar to appellant's case.   Scott, the minor child, was born in 1966.   Thirteen years later Scott and his mother filed a paternity action against the alleged father.   After a trial, the court found the defendant had fathered the child and ordered him to pay $10,000 child support for the period from June 25, 1966, his date of birth, through February 28, 1981.   The father appealed, primarily on grounds of laches and the statute of limitations.   The court noted that a child conceived and born out of wedlock, has a common law, and in Washington a statutory, right to support from his or her parents.   The child may bring an action on his or her own behalf without being barred by the statute of limitations or laches because these defenses are stayed during the child's minority.   The court specifically stated, “Mr. Beckley (the father) contends the claim for back child support is barred by the statute of limitations or laches.   We disagree.  ‘The right of an illegitimate child to assert a claim for parental support is too fundamental to permit its forfeiture by its mother's failure to timely institute a [paternity suit].’  (Citation.)   Illegitimate children like legitimate children are entitled to support from their parents.  (Citations.)  [¶] RCW 26.26.150(1) provides:  ‘If existence of the father and child relationship is declared, or paternity has been ․ adjudicated under this chapter or under prior law, the obligation of the father may be enforced in the same or other proceedings by ․ the child, ․’  [¶] This statute clearly gives the child the right to bring an action for back child support, and because of the child's minority, the statute of limitations is tolled.⁷  [¶] ‘․ The court may limit the father's liability for the past support to the child to the proportion of the expenses already incurred as the court deems just:  Provided, however;’ that the court shall not limit or affect in any manner the right of nonparties, including the State of Washington, to seek reimbursement for support and other services previously furnished to the child.' ”  (Nettles, 648 P.2d at pp. 510–511.)   (Italics in the original.)   The code section referred to here was in Washington's Uniform Parentage Act and the court subsequently stated, “This statute clearly gives the child the right to bring an action for back child support ․” (Id.)   In conclusion the court found that there had been no abuse of discretion on the part of the trial court in awarding $10,000 in retroactive support.  (See also Kaur v. Singh Chawla (1974) 11 Wash.App. 362, 522 P.2d 1198.)

In a recent State of Iowa case, Gremillion ex rel. Gremillion v. Erenberg (1987) 402 N.W.2d 410, the Iowa Supreme Court held that retroactive allowance of child support is allowable.   The same argument as urged here by respondent was made by the defendant father, namely that an allowance of support prior to the time that he was adjudicated the father was improper.   The Supreme Court disagreed and affirmed (with modification) the trial court order of retroactive child support.

The California Legislature has fashioned a large body of law with numerous procedures for establishing and enforcing the father's or mother's duty for child support.   There are the Civil and Welfare and Institutions Code sections and Penal Code sections cited, supra, the Family Law Act (Civ.Code, §§ 4000 et seq., 4700–4707) and Uniform Parentage Act (Civ.Code, §§ 7000–7021).   This law and the decisions interpreting it would appear to cover most child support situations except appellant's;  it has fallen between the cracks.   A natural father who secretes himself before a judicial determination of his fatherhood to avoid paying child support has little fear of liability except for possible penal prosecution, (apparently not enthusiastically pursued) or a repayment hearing under the Welfare and Institutions Code.   We believe a remedy to appellant's dilemma is appropriate.   At least to the facts of this case, the reasoning of the Washington and Iowa cases is compelling, if justice is to be achieved.  Nettles v. Beckley, supra, 32 Wash.App. 606, 648 P.2d 508, relied on a section of the Uniform Parentage Act (RCW 26.26.150(1)) in granting retroactive child support.   California has adopted the UPA and our section 7012 is identical to Washington's section RCW 26.26.150(1).   We are not prepared to interpret the section as broadly as the Washington court because such a decision would overrule some well-decided California cases refusing retroactive child support in a number of situations.   We do conclude, however, that, under section 7012 and in the absence of any California case holding to the contrary, appellant has pleaded a cause of action for retroactive child support.   So there can be no misunderstanding, our decision relates only to an alleged cause of action where the defendant parent knew or should have known he or she was the natural father or mother of the child and secretes himself or herself to avoid legal action for child support.   Of course, these allegations must be proven at trial;  and if they are not, retroactive child support would be improper under prior California court decisions.   Determining the amount due is not, as argued, too difficult or insurmountable to prove.   A 13–year period of delay occurred in the Washington case.   The same standards used in other support hearings for determining the amount owed must be used, namely the needs of the child and the parents' ability to pay.   Damages for the so-called social wrongs are not at issue.

Appellant's cause of action for unjust enrichment is rendered moot by this decision.   The cause of action for emotional distress is denied for the same reasons we denied the tort action.

The judgment sustaining the demurrer to the cause of action for retroactive child support is reversed.   The judgment sustaining the demurrer to all other causes of actions is affirmed.   Costs to appellant.

FOOTNOTES

FOOTNOTE.  

1.   These causes of action were pleaded in appellant's first amended complaint, the operative one on appeal.

2.   Section 196 provides:  “The father and mother of a child have an equal responsibility to support and educate their child in the manner suitable to the child's circumstances, taking into consideration the respective earnings or earning capacities of the parents.”Section 196a provides:  “The father as well as the mother of a child must give him support and education suitable to his circumstances.   A civil suit to enforce such obligations may be maintained in behalf of a minor child, and in such action the court shall have power to order and enforce performance thereof, the same as in a suit for dissolution of marriage.”Section 206 provides:  “It is the duty of the father, the mother, and the children of any person in need who is unable to maintain himself by work, to maintain such person to the extent of their ability.   The promise of an adult child to pay for necessaries previously furnished to such parent is binding.   A person who is receiving aid to the aged shall be deemed to be a person in need who is unable to maintain himself by work.”Section 242 provides:  “Every individual shall support his or her spouse and child, and shall support his or her parent when in need.   The duty imposed by this section shall be subject to the provisions of Chapter 2 (commencing with Section 4720) of Title 5 of Part 5 of Division 4 and Sections 196, 206, 246, 4700, 4700.1, 4700.5, 4700.7, 4700.9, 4801, 5131 and 5132.”

3.   Appellant urges us to follow the reasoning in Smith v. Superior Court for County of Los Angeles (1984) 151 Cal.App.3d 491, 198 Cal.Rptr. 829, where a new tort was recognized for intentional destruction of evidence by a defendant before trial.

4.   Appellant's tort cause of action is dissimilar from an action for back child support because it seeks general damages for growing up in a poor environment and all of the collateral disadvantages related thereto.   The speculative nature of such damages is obvious.

5.   Section 11350 provides:  “In any case of separation or desertion of a parent or parents from a child or children which results in aid under this chapter being granted to such family, the noncustodial parent or parents shall be obligated to the county for an amount equal to:  [¶ ] (a) The amount specified in an order for the support and maintenance of such family issued by a court of competent jurisdiction;  or in the absence of such court order, [¶ ] (b) The amount of aid paid to the family during such period of separation or desertion limited by such parent's reasonable ability to pay during that period in which the aid was granted;  ․”

6.   Section 270 provides:  “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such fine or imprisonment.   If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment ․”

7.   California is in accord on the issue of laches and statute of limitations.   In Perez v. Singh (1971) 21 Cal.App.3d 870, 97 Cal.Rptr. 920, the mother of a minor child sought determination of paternity and child support 14 years after the child's birth.   The court held the statute of limitations on the paternity issue was tolled during the minority of the child, and the obligation of the father to support his child, legitimate or illegitimate, is a continuing one against which the statute of limitations does not run during the time the child needs such support.

HASTINGS, Associate Justice *. FN* Retired Associate Justice of the Court of Appeal serving as a senior judge by order of the chairperson of the Judicial Council.

FEINERMAN, P.J., and ASHBY, J., concur.