S.R.D. v. T.L.B. , 174 S.W.3d 502 ( 2005 )

OPINION

MINTON, Judge.

A finding in the divorce decree recognized the uncontested assertion that the marriage of S.D. and T.B. produced three minor children. The decree also incorporated a joint custody agreement that designated T.B. as primary residential custodian and obligated S.D. to pay child support. Six years post-decree, S.D. moved the family court to set aside the parentage finding as to the youngest child because DNA testing confirmed that she was not his child. Although S.D. wanted to continue in his role as a father to the child in every way except for the financial support of the child, the family court denied S.D.’s motion to end child support. Relying on equitable es-toppel principles, the family court concluded that S.D. waited too long to deny his full role as parent. Consistent with the best interests of the child standard, the family court concluded that any financial or emotional disruption of the parent-child relationship with the youngest child would be seriously detrimental to all three children. We find no abuse of discretion by the family court and affirm the order.

S.D. and T.B. were married in 1988. During the marriage, T.B. gave birth to three children: R.D., born December 9, 1989; B.D., born February 21, 1993; and H.D., born May 17, 1995. Although T.B. “threatened and intimated” to S.D. during their marriage that he was not H.D.’s father, S.D. treated each of the three children as his own. In his petition for dissolution, S.D. alleged that R.D., B.D., and H.D. were all born of the parties’ marriage; T.B. did not deny the allegation. And on dissolution of the marriage, S.D. agreed to joint custody and to pay child support for all three children.

For over six years after the divorce, S.D. did not challenge his paternity of H.D. But for reasons undisclosed in the record, in November 2003, S.D. had all three of the children DNA tested. The results indicated that while there was a 99.98 percent probability S.D. was the biological father of R.D. and B.D., there was no chance he was H.D.’s natural father.¹

Despite this knowledge, S.D. entered into an agreed order on January 22, 2004, modifying the existing parenting schedule for all three children and indicating his desire to continue in his paternal role. The parties also agreed to meet with Mitch Charney, a court-ordered parenting coordinator.

In Charney’s report to the family court, he acknowledged that DNA testing proved S.D. was not the biological father of H.D. Charney also noted that S.D. stated he was only willing to continue child support for R.D. and B.D. but wanted to have visitation and a parental relationship with all three children. Based on this information, Charney stated he felt it was “too late for [S.D.] to deny his role as a parent.” Therefore, Charney recommended that S.D. maintain his present financial and custodial role. Charney further noted that if the court chose to relieve S.D. of his financial responsibilities towards H.D., he should also be relieved of his parental rights and that T.B. should be given the sole care, custody, and control of the child. Under this circumstance, Charney cautioned that the court should arrange for “appropriate mental health intervention” for all three children.

S.D. responded to Charney’s report with a CR 60.02 motion to set aside the original finding declaring him to be H.D.’s biological father and with exceptions to the report itself. In his motion, S.D. argued that he “has no legal obligation to pay support for [H.D.], as he is not her biological father. However, [he] is the only father [whom] [H.D.] has ever known and to deny her the right to have visitation with him would cause her irreparable harm.” This arrangement, S.D. argued, was in H.D.’s best interest.

The family court denied S.D.’s motion. Agreeing with Charney’s recommendations, the court stated that “there is no doubt that the best interest of the child is for the father-daughter relationship to continue in the same manner as it has to this point in time. Any disruption in that relationship, financial or emotional[,] would pose potentially serious ramifications for the child.” The court also ruled that S.D. was estopped from seeking relief under CR 60.02(d) and (f) “in light of his own behavior.” Because S.D. had held himself out as H.D.’s father for over nine years,² even after the paternity test revealed otherwise, the court concluded that S.D. was H.D.’s legal father. As such, the court denied S.D.’s motion, reasoning that to do otherwise “would not be in the best interest of the child and could result in serious detriment to her, contrary to statutory law and public policy.”

S.D. argues on appeal to this Court that the Jefferson Family Court abused its discretion by denying his CR 60.02 motion. S.D. claims “that pursuant to CR 60.02(d) and (f) the trial court had the clear authority to set aside the previous order of support as it pertained to the youngest child [H.D.].”

In two published opinions, this Court has held that a CR 60.02 motion is a proper vehicle for challenging a judgment of paternity. In Cain v. Cain,³ a man filed a motion under CR 60.02(d) twelve years after entry of the decree of dissolution. The motion came in response to allegations made two years earlier by the man’s ex-wife that he was not the biological father of their youngest son. We held that the two-year lapse between the man learning of his questionable paternity and the filing of the CR 60.02 motion was a reasonable amount of time. And we concluded that the motion was proper and paternity could be reconsidered.

In Spears v. Spears,⁴ a married couple separated in June 1975 but did not petition for divorce until 1985. The husband testified that the parties had no children; however, the wife filed an entry of appearance wherein she claimed a daughter was born of the marriage in August 1975. The husband allegedly had no knowledge of the child and had never acknowledged the child as his own. The trial court granted the divorce and concluded that because the child was born of the marriage, the husband was presumed to be the biological father. On appeal, we reversed, concluding that because the husband had never held himself out as the child’s father and because no demand had ever been made on him for support, “it would be highly unfair and unjust” to refuse the CR 60.02 motion.

The facts of our case are distinguishable from the facts presented in Cain and Spears. In Cain, the father waited two years after learning he may not be his child’s natural parent before filing his CR 60.02 motion to reconsider paternity; here, S.D. waited over six years after he was first put on notice that he may not be H.D.’s father before filing his petition. In an affidavit filed before the family court, S.D. noted that T.B. informed him during the course of their marriage when H.D. was two years old that he may not be the child’s father. Because he “could not deal with it and chose not to deal with it,” he did not have DNA tests performed at that time. In fact, he waited some six years, until 2008, to file his CR 60.02 motion.

In Spears, the father never held himself out as the child’s father; rather, he first became aware of his child’s existence some ten years after the child was born. In the case at hand, S.D. assumed the role of H.D.’s father from the time she was born.

Moreover, S.D. has not established the grounds necessary under CR 60.02(d) or (f) to relieve him of his child support obligation. Under CR 60.02(d), a party must prove “fraud affecting the proceedings, other than perjury or falsified evidence” to obtain relief from a final judgment. S.D. argues T.B. perpetrated a fraud upon the court by faffing to deny in her response to his allegation in the divorce petition that three children were born of the marriage. But S.D. himself made the allegation in his verified petition for divorce, even though he was previously notified by T.B. that he might not be H.D.’s father.

Further, CR 60.02(f) provides relief when there is proof of “any other reason of an extraordinary nature justifying relief.” We do not believe this situation is of such an “extraordinary nature” to grant S.D.’s motion. As noted, S.D. had knowledge, albeit constructive knowledge, that H.D. may not be his child. Yet, he continued to portray himself as her father. The fact that he “chose not to deal” with the situation until some six years after he first learned of his questionable parentage does not, in our minds, constitute a reason of an extraordinary nature.

While we agree that the trial court had “clear authority” under CR 60.02 to set aside the previous order of support, it was within the court’s discretion not to exercise that authority. Rather than grant S.D.’s motion, the court held that S.D. was “estopped from seeking relief pursuant to CR 60.02(d) and (f) in light of his own behavior.” We agree with this conclusion.

Kentucky courts have yet to apply the doctrine of estoppel to a paternity dispute. We believe the matter presents an important issue of first impression; therefore, we will discuss the implications fully.

The substance of S.D.’s argument is best summarized in his own words, as follows:

In the case at bar as [S.D.] is not the biological father of [H.D.] he should not be under a court order to pay support for said child and he should have an order entered stating that he is not her biological father.

However, [notwithstanding] his position on this issue, the [sic] [S.D.] wishes the court to realize that he loves [H.D.] and he wants to continue to have a relationship with her. He does not wish to disrupt her life or for her to think he loves her any less than her two older siblings. This is why [S.D.] wants to continue to be an integral part of her life and to continue to have rights of visitation.

Kentucky adheres to the “presumption of legitimacy,” which assumes that a child born during lawful wedlock is the product of the husband and the wife.⁵ This presumption is not conclusive.⁶ “ ‘Though the presumption of paternity and legitimacy is one of the strongest known to law, it ... is rebuttable and may be overcome by factual evidence.’ ”⁷ The evidence necessary to overcome the presumption must be “ ‘so clear, distinct and convincing as to remove the question from the realm of reasonable doubt.’ ”⁸

The doctrine of equitable estop-pel is predicated upon the theory that

[w]here one has, by a course of conduct, with a full knowledge of the facts with reference to a particular right or title, induced another, in reliance upon such course of conduct, to act to his detriment, he will not thereafter be permitted in equity to assume a position or assert a title inconsistent with such course of conduct, and if he does he will be estopped to thus take advantage of his own wrong.⁹

The doctrine is often stated in terms of the following factors: (1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.¹⁰

As stated, equitable estoppel has yet to be applied to a custody dispute in Kentucky. But other jurisdictions have employed the doctrine to prevent a man who has held himself out as a child’s father from denying paternity.¹¹

In adopting the equitable estoppel theory in this case, we are persuaded by M.H.B. v. H.T.B.,¹² a case with a fact pattern practically indistinguishable from the present case. In M.H.B., a child, K.B., was born during wedlock. Shortly after the child’s birth, the husband, Henry, became aware that he might not be the biological father. Nevertheless, for the remainder of the marriage and for five years following the couple’s divorce, Henry “consistently conducted himself as the child’s father, successfully gained the child’s love and affection, and established himself as the little girl’s parental provider of emotional and material support.”¹³

As in the present case, three children were born during the couples’ marriage. Although Henry questioned his paternity of K.B., he nevertheless served as joint custodian with his ex-wife, Marilyn, for all three children. And, as in the present case, Henry eventually petitioned the court for primary custody of the children. Marilyn responded with a motion for an increase in child support. Shortly thereafter, Henry filed a counterclaim, alleging that he should be under no duty to provide child support for K.B. According to the Court, “[t]his was the first time that Henry had ever attempted to repudiate his paternal relationship with K.B.,”¹⁴ even though, at this point, the child was five years old. A later paternity test revealed that Henry was not KB.’s biological father.

In denying Henry’s motion to discontinue his child support obligation, the Supreme Court of New Jersey noted that Henry had knowledge since the child’s birth that he may not be the biological father; that his actions proved he “intended” to be the child’s father; and that the child relied on this fact. The Court concluded that the child would suffer “irreparable harm” if Henry were permitted to disclaim his paternity. And, relying on the doctrine of equitable estoppel, the Court held that Henry was precluded from denying the duty to provide child support for his youngest child. The Court held:

By both deed and word, Henry repeatedly and consistently recognized and confirmed the parent-child relationship between himself and K.B. He acted in every way like a father toward his own ■ child. He also stipulated to the child’s paternity. At the time of his divorce he promised to pay child support, which obligation was incorporated into the judgment of divorce.

The volitional nature of Henry’s conduct is underscored by Henry’s persistent attempts to gain custody of K.B., efforts that he continued on appeal from the trial court’s award of custody to Marilyn. He thus sought child custody even after blood tests conclusively demonstrated that, biologically, he was not K.B.’s father. Consequently, there can be no suggestion that Henry’s prior actions were merely accidental or inadvertent. His actions attest to the previously well-developed father-daughter bond, and convey all possible indicia of an affirmative and purposeful representation of continuing support, which constitutes a primary element of equitable estoppel.¹⁵

In the present case, we agree that from a purely genetic stand point, S.D. is not H.D.’s father. But there is no doubt that a man can be a child’s “legal father” without actually being her “biological father.” As defined by Black’s Law Dictionary, a “legal father” is simply “[t]he man recognized by law as the male parent of a child.”¹⁶ S.D. acknowledged his paternity of H.D. in both the petition for dissolution and the separation agreement. He also conducted himself as H.D.’s father for a period of over nine years. The record indicates that S.D. has continuously held himself out as H.D.’s father since the child’s birth in 1995; and, as S.D. himself admits, he has played “an integral part” throughout H.D.’s life.

The factors relevant to equitable estop-pel apply to this case. S.D. represented to H.D. that he was her father, even though he was aware this representation may be a biological fiction; H.D. was unaware of this fact; S.D. acted with the intention that H.D. would consider him as her father; and H.D. relied upon S.D.’s conduct to her detriment. Simply put, S.D. made a material misrepresentation to H.D., upon which H.D. relied, to H.D.’s detriment and prejudice.¹⁷

The dissent argues that our opinion unreasonably extends the New Jersey court’s decision in M.H.B. Relying on the case of J.W.P. v. W.W.,¹⁸ the dissent claims we have compromised the obligations of H.D.’s natural father by requiring S.D. to continue providing financial support. In J.W.P., the mother, J.W.P., was involved in an extramarital affair with W.W. J.W.P. and W.W. were both married at the time, but they separated from their respective spouses and moved in with each other for several months. During the course of their relationship, J.W.P. became pregnant. But W.W. denied paternity; and J.W.P. moved back into her marital residence with her husband, J.H.P. Although J.H.P. was aware J.W.P. was pregnant with W.W.’s child, he “was still interested in preserving their marriage.”¹⁹ Six months later, J.W.P. gave birth. A paternity test later revealed that W.W. was, with all certainty, the father of J.W.P.’s child.

Although W.W. denied his paternity, he also refused to relinquish his rights to allow J.H.P. to adopt the child.²⁰ But when J.W.P. sought financial support from W.W., W.W. refused to comply, arguing instead that J.H.P. should be estopped from denying paternity under the presumption of legitimacy.

The New Jersey Superior Court disagreed. Citing its previous decision in Miller v. Miller,²¹ the court held that the doctrine of paternity by estoppel was not “intended to compromise the natural parent’s obligation.”²² Rather, estoppel should be “used to provide a safety net for the child whose stepfather has affirmatively interfered with his right to be supported by his natural father.”²³ Referring to its decision in M.H.B., the court noted:

[T]he equitable estoppel doctrine articulated in Miller has been applied in cases in which a custodial mother has sought continued support for her children from their stepfather. Its application has consistently served the compelling need of the child to receive continuing financial support when the child has been effectively foreclosed from obtaining support from a natural parent by the stepfather’s conduct.²⁴

As the dissent notes, the record in the present case makes no mention of H.D.’s natural father. From what we can ascertain, H.D. has not met and does not know who her natural father is. We do not know if the natural father wants to be involved in H.D.’s life, or if he is even alive. The dissent asserts that the questionable status of H.D.’s natural father should preclude S.D. from further financial obligations for H.D.; the dissent also claims our opinion “extends New Jersey law further than New Jersey is willing to extend its own law.”

We must disagree with that contention. The facts of this case, like the facts in indicate that S.D.’s conduct towards H.D. — i.e., continuing his role as her father, even though he had knowledge he may not be — effectively foreclosed H.D. from obtaining support from her natural father. Had S.D. chosen to conduct a paternity test at the time he first learned in 1997 that paternity was questionable, our conclusion may have differed. In that situation, H.D. would have had the opportunity to learn the identity of her natural father and, perhaps, to form a bond with him. But, as it stands, because S.D. has continuously held himself out as H.D.’s father since the child’s birth, he has prevented H.D. from having a relationship, financial or otherwise, with her natural father. These facts differ from the facts in J.W.P. where the natural father was known to both parties and available to provide financial support to the child.

Therefore, we agree with the New Jersey Superior Court’s reasoning in M.H.B. and hold that in light of his past behavior and previous acknowledgement of H.D. as his own child, S.D. is estopped from seeking relief under CR 60.02. We further hold that because he is estopped from seeking relief, S.D. is obligated to continue paying child support for the child. Regardless of the DNA results, S.D. is H.D.’s “male parent” under the law; and since parenthood comes with economic, as well as emotional and physical responsibilities, S.D. cannot be relieved of H.D.’s financial support.

We believe our decision clearly comports with the “best interest of the child” standard.²⁵ KRS 403.270 states that custody disputes shall be determined “in accordance with the best interests of the child.” This standard is the guiding principle in custody determinations. As the family court found, allowing S.D. to renounce his fatherhood of H.D. and withdraw all financial support “would pose potentially serious ramifications for the child.” As the California District Court of Appeals noted in Clevenger v. Clevenger:

There is an innate immorality in the conduct of an adult who for over a decade accepts and proclaims a child as his own, but then, in order to be relieved of the child’s support, announces, and relies upon, his bastardy. This is a cruel weapon, which, works a lasting injury to the child and can bring in its aftermath social harm. The weapon should garner no profit to the wielder; the putative father should earn no premium by the assertion of the illegitimacy of the child... ,²⁶

The relationship of father and child is too sacred to be thrown off like an old cloak, used and unwanted. We are dealing with the care and education of a child during his minority and with the obligation of the party who has assumed as a father to discharge it. The law is not so insensitive as to countenance the breach of an obligation in so vital and deep a relation, undertaken, partially fulfilled, and suddenly sundered.²⁷

For the foregoing reasons, we hold that the doctrine of equitable estoppel precludes S.D. from denying his paternity and child support obligations towards H.D. This decision promotes the best interest of the child. Thus, the opinion of the family court is affirmed.

McANULTY, Judge, concurs.

HENRY, Judge, dissents and files separate opinion.

1 . According to S.D.'s affidavit, filed on May 20, 2004, he and T.B. entered into an "Agreed Confidentiality Statement” in which they recited their agreement not to disclose the DNA test results to any of the children. But during oral argument, counsel revealed that the parties had recently told H.D. that S.D. was not her biological father.

2 . The dissent disagrees with our conclusion that S.D. has held himself out as H.D.’s father for over nine years. H.D. was born in 1995. S.D. continued to portray himself as H.D.’s father until sometime in either 2004 or 2005, after he filed this appeal. Therefore, according to our calculations, S.D. has portrayed himself to H.D., her siblings, and to the public as H.D.’s father for over nine years.

3 . 777 S.W.2d 238 (Ky.App.1989).

4 . 784 S.W.2d 605 (Ky.App. 1990).

5 . Kentucky Revised Statutes (KRS) 406.011.

6 . Bartlett v. Commonwealth, 705 S.W.2d 470, 472 (Ky.1986).

7 . Id. at 472, quoting Tackett v. Tackett, 508 S.W.2d 790 (Ky.1974); see also, KRS 406.011, which states that "a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.”

8 . Bartlett, 705 S.W.2d at 472, quoting Simmons v. Simmons, 479 S.W.2d 585 (Ky.1972).

9 . Farmer v. Gipson, 201 Ky. 477, 257 S.W. 1, 2 (Ky.1923).

10 . J. Branham Erecting & Steel Service Company, Inc. v. Kentucky Unemployment Insurance Commission, 880 S.W.2d 896, 898 (Ky.App.1994).

11 .See J.C. v. J.S., 826 A.2d 1 (Pa.Super.Ct.2003) (petitioner who held himself out as child’s biological father for approximately six years, even though he knew he was not the child’s father, was estopped from later denying his child support obligations); Monmouth County Division of Social Services v. R.K., 334 N.J.Super. 177, 757 A.2d 319 (N.J.Super.2000) (man who acted as psychological father to ex-girlfriend’s children was equitably estopped from denying paternity even though DNA tests revealed he was not the biological father); Crago v. Kinzie, 106 Ohio Misc.2d 51, 733 N.E.2d 1219 (Ohio Misc.2000) (putative father’s “voluntary and unequivocal” actions towards children from the time of their birth constituted a "binding acknowledgement” and estopped him from denying paternity); Pietros v. Pietros, 638 A.2d 545 (R.I.1994) (father was equitably estopped from denying paternity based on his past conduct even though DNA tests proved he was indisputably not the child's father); D.L.B. v. D.J.B., 814 P.2d 1256 (Wyo.1991) (father equitably es-topped from denying paternity after he acknowledged paternity on child’s birth certificate and voluntarily promised to pay child support); Nygard v. Nygard, 156 Mich.App. 94, 401 N.W.2d 323 (Mich.Ct.App.1986) (petitioner, who assumed status as child’s father from time of birth until child was ten-years-old, estopped from denying paternity); Wade v. Wade, 536 So.2d 1158 (Fla.Dist.Ct.App.1988) (father who signed child's birth certificate, "had the child baptized as his son, carried the son as a military dependent and as a dependent for income tax purposes, and named the child as his son in his will,” even though he knew he was not the biological father, estopped from denying paternity); In re Marriage of Johnson, 88 Cal.App.3d 848, 152 Cal.Rptr. 121 (Cal.Dist.Ct.App.1979) (father estopped from denying paternity after acknowledging and holding son out as his own for almost seven years); but see Quintela v. Quintela, 4 Neb.App. 396, 544 N.W.2d 111 (Neb.App.1996) (father, who shared household with non-biological child for less than one year, not equitably estopped from denying paternity upon divorce from child’s mother as there was no proof of detriment to the child); Berrisford v. Berrisford, 322 N.W.2d 742 (Minn.1982) (father not estopped from denying paternity where relationship with child was short-lived and child could not have known of father’s misrepresentations).

Several courts have refused to apply the es-toppel doctrine without proof that the father's denial of paternity would result in economic detriment to the child. See B.E.B. v. R.L.B., 979 P.2d 514 (Alaska 1999) (holding that doctrine of "paternity by estoppel” may not be employed without proof of financial detriment or prejudice); Knill v. Knill, 306 Md. 527, 510 A.2d 546 (Md.1986) (father not estopped from denying paternity of child without proof of financial detriment to the child); Wiese v. Wiese, 699 P.2d 700 (Utah 1985) (father not estopped from denying paternity when there was no proof that father’s actions precluded son from pursuing a child support claim against his biological father).

12 . 100 N.J. 567, 498 A.2d 775 (N.J.1985).

13 . Id. at 775.

14 . Id. at 777.

15 . Id. at 778.

16 . Black's Law Dictionary (8th ed. 2004).

17 . The dissent makes much of the fact that H.D. is not a "party” to her parent’s divorce action and, therefore, not relevant to the equitable estoppel argument. While this may be true, Kentucky law clearly holds that the child's interest is paramount in a custody dispute. Should S.D. be permitted to abandon his parental obligations, his actions would undoubtedly have a profoundly detrimental effect not only upon H.D., but R.D. and B.D., as well. In those jurisdictions where equitable estoppel is applied to paternity actions, the courts have held that the object of the reasonable reliance for purposes of establishing estoppel is the affected child. See M.H.B. v. H.T.B., 498 A.2d at 778.

18 . 255 N.J.Super. 185, 604 A.2d 695 (1990).

19 . Id. at 187, 604 A.2d 695.

20 . Id. at 188, 604 A.2d 695.

21 . 97 N.J. 154, 478 A.2d 351 (1984).

22 . J.W.P., 255 N.J.Super. at 191, 604 A.2d 695.

23 . Id. (emphasis in original).

24 . Id. at 190-91, 604 A.2d 695 (emphasis added) (citation omitted).

25 . In a footnote, the dissent questions whether the application of equitable estoppel to paternity actions would be better addressed by the legislature rather than the courts. Although Kentucky does not have a particular statute addressing paternity by estoppel, the overriding statutory concern in custody actions is the best interest of the child. We believe that our decision best comports with this statutory requirement in ensuring that the best interests of H.D. are met. See Dissent, n. 37.

26 . 189 Cal.App.2d 658, 664, 11 Cal.Rptr. 707 (Cal.Dist.Ct.App.1961).

27 . Id. at 674, 11 Cal.Rptr. 707.