Filed 10/23/14 R.M. v. A.C. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



R.M.,                                                               D064834

         Respondent,

         v.                                                         (Super. Ct. No. ED86667)

A.C.,

         Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Darlene A.

White, Commissioner. Affirmed.

         Dunne & Dunne and Anthony J. Dunne for Appellant.

         Victor Mordey for Respondent.

         In 2009, A.C. gave birth to S. R.M. is S.'s biological father. A.C. allowed R.M. to

regularly see S. for several years, but when A.C. stopped allowing him to visit, R.M. filed

this action seeking to establish paternity and for orders granting him joint custody and

reasonable visitation. In conjunction with his action, R.M. requested and obtained an

order for DNA testing that revealed he was S.'s biological father. However, shortly after

R.M. filed this action, A.C. married Javier C., and she opposed R.M.'s application on the
grounds that Javier should be declared the presumed father of S. The court's judgment

found R.M. was S.'s legal father, entered a judgment declaring A.C. and R.M. are S.'s

parents, and set the matter for further consideration of the custody and visitation issues.

       A.C. appeals the judgment. She contends that, under Gabriel P. v. Suedi D.

(2006) 141 Cal.App.4th 850 (Gabriel P.), the court was sua sponte required to join Javier

as an indispensable party and it was reversible error to enter the judgment in Javier's

absence. A.C. also argues the court erred when it did not consider whether she and Javier

were putative spouses and/or common law spouses at the time of S.'s conception and

birth within the meaning of Family Code1 section 7540.

                                              I

                               FACTUAL BACKGROUND

       R.M. met A.C. at a dance club in the spring of 2008 and began a romantic

relationship that lasted until early 2009, during which time she became pregnant with S.

During this period, A.C. never mentioned she was in a relationship with Javier, much less

claimed she was married to him. However, about three months before S.'s birth, A.C.

told R.M. that, while she had been seeing R.M., she had also been seeing the father of her

other child, and she and this man had decided to get back together. Shortly thereafter,

A.C. disappeared.




1      All further statutory references are to the Family Code unless otherwise specified.

                                              2
       A few months after S.'s birth, R.M. was able to find A.C., and they resumed a

friendly relationship.2 During 2010 and 2011 R.M. was able to regularly visit and

develop a relationship with S., albeit without Javier's knowledge, although there were

periods of time during which A.C. did not maintain contact with R.M. However, after

A.C. again unilaterally terminated his ability to visit S. in late 2011, R.M. filed the

present action in early 2012.3 During this time, R.M. believed Javier was A.C.'s

"boyfriend."

                                              II

                             PROCEDURAL BACKGROUND

       A. The Petition and DNA Testing Order

       R.M. filed the present action in February 2012 against A.C. seeking an order

establishing R.M. was S.'s parent, and for orders granting R.M. joint custody and

reasonable visitation. A.C. opposed R.M.'s petition, alleging Javier should be considered

S.'s father because Javier raised S. since his birth, and this social relationship is more

important than the biological relationship.

       R.M. subsequently requested an order for DNA testing. A.C. opposed the motion,

asserting she and Javier were married in Mexico in 2000 and S. was born during that

marriage, which raised the conclusive presumption under section 7540 that Javier was

S.'s father. A.C. also asserted Javier had raised S. from birth within the presumption


2      Around the same time, Javier learned S. was not his child. However, he and A.C.
went to counseling and he held out S. as his child.

3      A few months after R.M. filed this action, A.C. and Javier married in California.
                                            3
provided by section 7611, subdivision (d). At a contested hearing, R.M. asserted the

conclusive presumption under section 7540 had no application because (1) the document

submitted by A.C. to prove the existence of the Mexican marriage should be excluded

from evidence because of improper authentication, and (2) expert testimony would show

the document submitted by A.C. to prove the existence of the Mexican marriage was a

forgery. After hearing the evidence concerning the alleged Mexican marriage, the court

concluded A.C. had not satisfied her burden of showing she and Javier qualified for the

conclusive section 7540 presumption, and granted R.M.'s request for DNA testing. The

results of those tests confirmed R.M. was S.'s biological father.

       B. The Paternity Hearing

       The court subsequently held a contested trial on whether to grant R.M.'s request

for a declaration that he was S.'s father. A.C. opposed R.M.'s request to be declared S.'s

father by resurrecting her claim that Javier was conclusively presumed to be S.'s father

under section 7540, and by reasserting Javier should be deemed S.'s father under the

presumption provided by section 7611, subdivision (d). After noting the absence of proof

of a valid marriage precluded a paternity judgment under section 7540 declaring Javier to

be S.'s father, the court observed that Javier (despite knowledge of the pending

proceedings and having ample opportunity) had not elected to intervene in the action to

seek a declaration of paternity, and expressed doubts it could declare Javier to be S.'s

father without Javier's voluntary participation in the proceedings.

       The court then heard the evidence and solicited the parties' legal arguments on

R.M.'s petition. A.C. argued the court should deny R.M.'s petition and instead declare

                                             4
Javier to be S.'s father. She also asserted, without citation to authority, the court sua

sponte could order Javier joined as a party to declare him S.'s father. R.M. asserted he

was entitled to a declaration that he was S.'s father and, because Javier had elected not to

intervene despite R.M.'s attempts on many occasions to alert Javier that he would need to

intervene if he wished to assert a competing right to be adjudged S.'s father, there was no

person whose competing interest in being declared S.'s father was superior to R.M.'s

interest.

       The court's statement of decision found R.M. was the biological father of S., had

held S. out as his own child since before birth, exercised visitation when allowed by A.C.,

and had continued to seek a relationship with him. Because Javier had ample notice and

opportunity to assert his legal rights but did not do so, the court found there was neither a

competing father nor any presumption that would prevent R.M. from being adjudicated

S.'s father. The court entered a judgment of paternity declaring R.M. to be S.'s father.

A.C. appeals.

                                              III

                                        ANALYSIS

       A. The Indispensable Party Claim

       A.C. argues the court did not have the authority to enter judgment declaring R.M.

to be S.'s father because the court was required to, but did not, order Javier joined

pursuant to Code of Civil Procedure section 389 as an indispensable party. A.C. argues

Javier was an indispensable party under Gabriel P., supra, 141 Cal.App.4th 850. She

alternatively argues Javier was an indispensable party because he would have standing

                                              5
(as a presumed parent under § 7611) to pursue a petition to establish his own parental

relationship with S., thereby risking multiple inconsistent judgments.

       We are not persuaded by A.C.'s arguments, for several reasons. First, we are

convinced Gabriel P. provides no basis for reversing the judgment in this case. In

Gabriel P., the biological father filed an action against the mother seeking a declaration

of paternity for Seanna, but did not join mother's boyfriend, who had previously executed

a valid "voluntary declaration of paternity" as to Seanna under section 7571 et seq.

(Gabriel P., supra, 141 Cal.App.4th at p. 855.) A valid voluntary declaration of

paternity, unless set aside, has the same force and effect as a judgment of paternity by a

court (§ 7573) and may not be set aside except as provided under section 7575, which

specifically requires the court to consider (among other things) "[t]he request of the man

who signed the voluntary declaration that the parent-child relationship continue." (Id. at

subd. (b)(1)(D).) The trial court in Gabriel P. set aside the voluntary declaration of

paternity, based on test results indicating the boyfriend was not the biological father. The

appellate court reversed, concluding the boyfriend was a necessary party to an action

seeking to set aside a document that has the same force as a judgment of paternity,

because (1) County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1345 held

a voluntary declarant "must be made a party to any proceeding to set a voluntary

declaration aside," and (2) the statute compels a court to consider the relationship

between the voluntary declarant and the child when considering whether to set aside a

voluntary declaration. (Gabriel P., at p. 865.) Here, there is no voluntary declaration by

Javier having the same effect as a competing judgment as to Javier's paternity of S., and

                                             6
no statutory or decisional mandate that Javier be joined in an action seeking to declare

R.M.'s paternity of S., which renders Gabriel P.'s discussion of necessary parties

inapposite to the present action.

       A.C. also asserts Javier was an indispensable party because he would have

standing to seek a judgment establishing his own parental relationship with S., thereby

risking multiple inconsistent judgments. Although Javier may have been a "proper"

party, "[t]hose who may be 'proper' parties to a controversy are not always necessary or

indispensable parties" (Jones v. Feichtmeir (1949) 95 Cal.App.2d 341, 345), and the mere

fact a judgment might indirectly affect the interests of a third person does not make that

third person an indispensable party. (Las Virgenes Educators Assn. v. Las Virgenes

Unified School Dist. (2001) 86 Cal.App.4th 1, 8-9.) Although Javier may be indirectly

affected by the judgment that R.M. was a parent of S., that did not make Javier an

indispensable party to R.M.'s action.4

       B. The Marriage Claim

       A.C. argues the trial court erred when it did not consider whether the section 7540

conclusive presumption, which could have barred R.M. from his requested relief (cf.

Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233), could have been triggered by virtue

of A.C. and Javier being either common law spouses under the laws of Mexico (within

4      Indeed, A.C.'s claim appears to be that Javier's interest as a presumed father under
section 7611 was necessarily terminated by the declaration that R.M. was a parent of S.
However, under section 7612, subdivision (c), "a court may find that more than two
persons with a claim to parentage under this division are parents if the court finds that
recognizing only two parents would be detrimental to the child." Thus, under the
statutory scheme, a declaration that R.M. is a parent of S. does not preclude Javier from
seeking to establish that he is also a parent of S.
                                               7
the meaning of § 308) or putative spouses (within the meaning of § 2251). However, it

does not appear that A.C. raised either of these arguments below, and each of these

newly-minted arguments appears to involve factual questions requiring resolution by the

trier of fact. (Cf. In re Marriage of Smyklo (1986) 180 Cal.App.3d 1095, 1097-1099

[determination of validity of a common law marriage reviewed under substantial

evidence standard]; In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 756-757

[determination of putative spouse status reviewed under substantial evidence standard],

disapproved on other grounds in Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113,

1126, 1128, fn. 12.) Because a party may not assert for the first time on appeal theories

that turn on factual questions not raised and resolved below (Strasberg v. Odyssey Group,

Inc. (1996) 51 Cal.App.4th 906, 920; McDonald's Corp. v. Board of Supervisors (1998)

63 Cal.App.4th 612, 617-618), we decline to consider either of these new theories.

                                     DISPOSITION

       The judgment is affirmed. R.M. is entitled to costs on appeal.




                                                                          McDONALD, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.



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