Alicia R. v. Timothy M., 29 Cal. App. 4th 1232
Nov 27, 1994OUTCOME: The trial court order for child support, attorney fees, and costs was affirmed because the trial court did not err in refusing to apply the marriage presumption in determining the child's biological father.
Respondent mother had relations with several men, including her husband, at the same time. The trial court ordered blood tests that showed that appellant father was the biological father of minor child ... and was not respondent's former husband. Appellant contended pursuant to Cal. Evid. Code § 621 that the action to establish paternity and the court-ordered blood test occurred more than two years after the child's birth and that the child was, thus, conclusively presumed to be the child of respondent's marriage. The court found that the blood tests had established that appellant was the father and respondent's former marriage did not produce any children Therefore, the court held that the application of the presumption in the case would have led to an absurd result. Additionally, the state's interest in ensuring that the child was supported would be furthered by refusing to apply § 621 and requiring appellant to support the child that he fathered. On the issue of attorney fees, the court held that the evidence of appellant's employment as a plastic surgeon made it reasonable likely that he would have had the ability to pay and there was no abuse of discretion in making the award.
