Esquivel v. Solano
Filed 9/6/06 Esquivel v. Solano CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
VERONICA ESQUIVEL,
Plaintiff and Appellant, A112045
v. (Sonoma County
Super. Ct. No. SFL26763)
JULIO SOLANO,
Defendant and Respondent.
______________________________________/
Veronica Esquivel appeals from an order dismissing her paternity action, and from an order denying her request for a statement of decision. She contends the trial court misapplied the presumption of paternity that is set forth in Family Code[1] section 7540.[2] We agree the court should have issued a statement of decision and will remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant is married to Onesimo Montes. In 1995, appellant and Montes needed money to buy a house so they contacted respondent Julio Solano, who is a mortgage broker. Appellant and respondent became friends, and eventually they began a sexual relationship. The relationship continued for seven years, and during that period, appellant became pregnant. On June 25, 2003, appellant gave birth to a daughter, Joseline Gisselle Montes Esquivel. Appellant named Montes as the father on the birth certificate.
Even though appellant named Montes as Joseline's father, appellant and Montes both believed respondent in fact fathered the child. Shortly after Joseline was born, appellant and Montes stopped living together, although neither filed for divorce. Montes visits Joseline rarely and what contact he does have occurs because she is there when he visits his other children.
When respondent discussed marrying appellant, she ended her relationship with her husband Montes, who moved in with his parents. However, she broke off her relationship with respondent when he became physically abusive.
On November 19, 2004, appellant filed a petition to have respondent named as Joseline's father.
On December 27, 2004, respondent filed a response. He neither admitted nor denied fathering Joseline. Instead, he asserted, as an affirmative defense, the marital presumption of paternity that is set forth in section 7540.
On January 5, 2005, appellant applied for and obtained an order that required respondent to show cause why he should not submit to paternity blood testing. Citing sections 7540, 7541 and 7611, respondent moved to quash the order to show cause on the grounds that appellant lacked standing to request such testing based on appellant's status as Montes' wife and Montes' conduct in holding himself out as father of the child whom Montes welcomed into his home. Respondent asserted appellant's petition was â€
