Ventura Co. Dept. Child Support v. V.F.

Filed 8/23/07 Ventura Co. Dept. Child Support v. V.F. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

V.F. appeals from an order denying his motion to set aside a paternity judgment based on a DNA test which purportedly excluded him as the biological father of Lily F. The trial court ruled that the motion was untimely. (Fam. Code,  7646, subd. (a)(2).)^[1] We affirm. (County of Fresno v Sanchez (2005) 135 Cal.App.4th 15, 19-20.)

Facts and Procedural History

The record on appeal reflects the following timeline:

Lily F. was born in August 1998.

Two days after the child's birth, appellant signed a voluntary declaration of paternity stating that he was the child's father.

In October 1999, appellant sought and participated in a DNA paternity test to determine if he was Lilly's biological father. He was advised that the test excluded him as the biological father.

On October 7, 2004, five years later, a paternity judgment was entered against appellant following a court trial. The judgment declared appellant the father of Lily and ordered $254 a month child support. He did not appeal from this judgment. (See Infra, p. 4.)

On February 21, 2006, appellant filed a motion to set aside the judgment on the ground that he was not the child's biological father. The moving papers stated that the mother, Lisa K., fraudulently induced appellant to sign the child's birth certificate. A copy of the 1999 paternity test results was attached to the motion to set aside the judgment.

Ventura County Department of Child Support Services (DCSS) opposed the motion on the ground that it was untimely. The trial court agreed and said that "the law does put time limits on things so that matters are resolved and so that there's some finality, certainly, to something as crucial as this. [] . . . [A]ssuming that what [appellant] say[s] is true regarding what was going on when [appellant] signed that declaration of paternity two days after the child was born, [appellant] certainly knew in 1999 what his status was and did nothing. And for that reason, the [motion] today is denied."

Navarro and the Legislative Response

Relying on County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246 (Navarro), appellant argues that the trial court erred in not setting aside the judgment on equitable grounds. In Navarro, the defendant moved to vacate a five-year old default judgment after a paternity test excluded him as the father. The trial court found that the motion was untimely, citing the public interest in the finality of judgments. The Court of Appeal reversed: "Sometimes even more important policies than the finality of judgments are at stake, however. Mistakes do happen, and a profound mistake occurred here when appellant was charged with being the boys' father, an error the County concedes. Instead of remedying its mistake, the County retreats behind the procedural redoubt offered by the passage of time since it took appellant's default." (Id., at p. 249.)

By urgency legislation and soon after Navarro decision, the California Legislature enacted section 7645, et seq. which became operative October 28, 2004. (See County of Fresno v Sanchez, supra, 135 Cal.App.4th at pp. 19-20.) Section 7646, subdivision (a) states in pertinent part: "Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by the previously established [father] of a child . . . if genetic testing indicates that the previously established father of a child is not the biological father of the child. The motion shall be brought within one of the following time periods: []  (1) Within a two-year period commencing with the date on which the previously established father knew or should have known of a judgment that established him as the father of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision. []  (2) Within a two-year period commencing with the date of the child's birth if paternity was established by a voluntary declaration of paternity. . . . []  (3) In the case of any previously established father who is the legal father as a result of a default judgment as of the effective date of this section, within a two-year period commencing with the enactment of this section." (Emphasis added.)

Section 7645 et seq. supersedes Navarro and is a comprehensive statutory scheme for setting aside paternity judgments based on genetic testing. (County of Fresno v. Sanchez,supra,135 Cal.App.4th at pp. 19-20.) "Essentially, within a two-year period commencing with the established father's knowledge of the judgment, the child's birth if there was a voluntary declaration of paternity, or the effective date of this section if there was a default judgment, the established father can move to set aside or vacate the judgment of paternity if genetic testing indicates that he is not the biological father of the child. ( 7646.) The legislation also includes specific requirements for granting the motion and factors to be considered in determining whether, despite the genetic test, denial of the motion is in the best interest of the child. ( 7647 and 7648.)" (Id., at p. 19; see Infra, pp.5-6.)

Section 7646 commences with the words "Notwithstanding any other provision of law. . . ." "The phrase has a special legal connotation; it is considered an express legislative intent that the specific statute in which it is contained controls in the circumstances covered by that statute, despite the existence of some other law which might otherwise apply to require a different or contrary outcome. [Citations.]" (Souvannarath v. Hadden (2002) 95 Cal.App.4th 1115, 1125-1126.) It refers to both statutory and decisional authority. (See e.g., In re Marriage of Dover (1971) 15 Cal.App.3d 675, 678, fn. 3.)

Res Judicata

Nor is this a case where appellant had belated knowledge of the paternity claim. He acknowledged paternity, in writing, in 1998.^[2] Six years later he appeared in the paternity action, attached a copy of the paternity test results to his answer, and defended on the theory that he was not the biological father. The trial court discredited appellant's testimony, found that he was the child's father, and ordered child support. No appeal was taken from the judgment. It is long final. Based on principles of res judicata, appellant is estopped from denying that he is the child's father. (County of Alameda v. Sampson (1980) 104 Cal.App.3d 584, 590.)

Judicial Restraint

At oral argument, appellant argued that we should reiterate the rule and rationale of Navarro. He claims that principles of fairness require that we declare section 7645 unconstitutional. We exercise restraint for several reasons. Navarro is inapposite for two reasons: (1) it has been superseded by the Legislature (County of Fresno v. Sanchez, supra, 135 Cal.App.4th at p. 20); and (2) unlike the instant case, there "father" was not served with the summons and complaint before a default judgment was entered against him.

A declaration of unconstitutionality would be the height of judicial activism and do violence to the separation of powers doctrine. Like the trial court, we are required to follow the law, not rewrite it to suit appellant's sense of fairness. "Courts do not sit as 'super-legislatures' to determine the wisdom, desirability or propriety of a statute enacted by the Legislature. [Citations.]" (Estate of Horman (1971) 5 Cal.3d 62, 77.) The overall policy of the law is fairness. (Gardiner Solder Co. v. Supalloy Corp., Inc. (1991) 232 Cal.App.3d 1537, 1543.) But appellant has surely slept on his rights. (Civ. Code,  3527.) " ' "Rules of equity cannot be intruded in matters that are plain and fully covered by positive statute [citation]. Neither a fiction nor a maxim may nullify a statute [citation]. Nor will a court of equity ever lend its aid to accomplish by indirection what the law or its clearly defined policy forbids to be done directly [citation]." [Citation.]' (Katsivalis v. Serrano Reconveyance Co. (1977) 70 Cal.App.3d 200, 213 [138 Cal.Rptr. 620].)" (Gardiner Solder Co. v. Supalloy Corp., Inc., supra, 232 Cal.App. 3d at p. 1543; see also In re Marriage of Perez (1995) 35 Cal.App.4th 77, 81.)

We also observe that the Legislature, as a matter of policy, has determined that a genetic finding of non-paternity does not, in and of itself, require vacation of a paternity judgment. The trial court may deny a motion to set aside a paternity judgment, based on enumerated factors, if such is in the best interest of the child. ( 7648.) Were we to credit appellant's theory, we would have to set aside section 7648 in its entirety. Appellant has not demonstrated any constitutional impediment to the Legislature safeguarding the best interest of a child in these circumstances.

Extrinsic Fraud

Appellant's argument that the judgment should be set aside on equitable grounds is equally without merit. Although a trial court can exercise its inherent equitable power and vacate a judgment on the ground of fraud, it requires a showing of extrinsic fraud. (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.) "The essence of extrinsic fraud is one party's preventing the other from having his day in court." (Ibid.) Mother's false claim that appellant was the father is not the type of falsehood that qualifies as extrinsic fraud (Ibid.; see County of Los Angeles v. Navarro, supra, 120 Cal.App.4th at p. 249.)

A Parent May not Contract Away

The Right to Child Support

Finally, appellant is not entitled to equitable relief based on mother's promise not to seek child support. "It has long been the law in this state that a minor's right to support and maintenance by its [parent] may not be limited or contracted away by the parents." (In re Marriage of Crosby & Grooms (2004) 116 Cal.App.4th 201, 210; accord, County of Orange v. Smith (2002) 96 Cal.App.4th 955, 962 [a child's right to support cannot be abridged by his or her parents]; see also County of Shasta v. Caruthers (1995) 31 Cal.App.4th 1838, 1849 ["a minor's right to support and maintenance by its father may not be limited or contracted away by the parents"].)

The judgment is affirmed. Each party to bear their own costs on appeal. (Fresno v. Sanchez, supra, 133 Cal.App.4th at p. 195.

NOT TO BE PUBLISHED.

YEGAN, J.

I concur:

COFFEE, J.

I reluctantly concur with the majority. Once again I vent my frustration over the state of the law in paternity cases. In Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, a biologic father wished to pay child support and have reasonable visitation with his daughter. The mother was married to another man with whom she was cohabiting when the child was born. The parties including the husband knew that Rodney F. was the biologic father. Nevertheless, we were compelled to deny the biologic father's request because Family Code section 7540 establishes a conclusive presumption that the child is presumed to be a child of the marriage.

In my view the application of section 7540 to the facts in Rodney F. made no sense. I could not see what public policy would be advanced in the creation of a "fictional family" or in preventing a relationship between a daughter and loving father with whom she has "blood and genetic ties."

Here I am faced with the opposite side of the coin. A person who is not the father of a child is forced to pay child support. Notwithstanding his initial acknowledgement of paternity, the passage of time, and his failure to appeal the judgment, I would reverse the judgment---if I could. But I cannot. We judges are and should be constrained by constitutional and legislative enactments. That, however, does not prevent me from suggesting the Legislature reconsider section 7646. In my view the reasoning of County of Los Angeles v. Navarro (2004) 120 Cal.App.4th

246 notwithstanding its distinctions applies here. "Sometimes even more important policies than the finality of judgments are at stake . . . ." (Id., at p. 249.) Is anyone listening?

NOT TO BE PUBLISHED.

I concur:

GILBERT, P.J.

Douglas W. Daily, Commissioner

Superior Court County of Ventura

______________________________

Anthony J. Rista, for Defendant and Appellant.

No appearance for Respondent.

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^[1]All statutory citations are to the Family Code.

^[2]The declaration of paternity has "the same force and effect as a judgment of paternity issued by a court of competent jurisdiction." ( 7573.)