Day v. Heller
| Decision Date | 22 November 2002 |
| Docket Number | No. S-00-928.,S-00-928. |
| Parties | Robert E. DAY, Jr., Appellant, v. Robin E. HELLER, Appellee. |
| Court | Nebraska Supreme Court |
John W. Ballew, Jr., of Ballew, Schneider & Covalt, for appellant.
Robert F. Peterson and Mark L. Laughlin, of Laughlin, Peterson & Lang, Omaha, for appellee.
This appeal presents the question whether we will recognize a tort or assumpsit cause of action against a mother for her misrepresentation of biological fatherhood. Robert E. Day, Jr., alleges that for 12 years, his former wife, Robin E. Heller, represented that Robert was the biological father of a child born during their marriage. Robert now seeks damages for fraud, assumpsit, and intentional infliction of emotional distress. The district court entered summary judgment for Robin.
The Nebraska Court of Appeals reversed, holding that neither res judicata nor collateral estoppel barred Robert's action. Day v. Heller, 10 Neb.App. 886, 639 N.W.2d 158 (2002). The Court of Appeals' decision impliedly recognized tort and assumpsit causes of action for a mother's misrepresentation of biological fatherhood. Because we determine that Robert's tort and assumpsit causes of action are contrary to public policy, we reverse.
Robert and Robin married on August 30, 1986, and on July 14, 1987, Robin gave birth to a child, Adam. On May 31, 1991, the marriage was dissolved. Robin was granted custody of Adam, subject to Robert's reasonable visitation rights. The court ordered Robert to pay child support in the initial amount of $270 per month and to provide medical insurance coverage for Adam. According to Robert's petition, the trial court entered subsequent orders increasing Robert's child support obligation and requiring him to pay one-half of Robin's employment-related daycare costs for Adam. Also, the court entered a modification order in which Robert was ordered to pay one-half of Adam's uninsured medical expenses. Robert also alleged that he paid legal fees for enforcement of his visitation rights.
Robert alleged that at all times following Adam's birth, Robin represented to him that he was Adam's biological father. According to Robert's answers to Robin's interrogatories, Robin misled him as to the due date for Adam's birth, telling him that Adam was due 3 weeks before his actual due date. Robert alleges that it was not until July 1997, following the birth of his daughter with his current wife, that he first became suspicious of whether he was Adam's biological father. According to Robert, it was at this time that a doctor told him "`there is no reason to let a healthy baby and mom go over term in a pregnancy.'" This statement led Robert to count back from the time of Adam's birth to the likely time of conception. Robert realized that Adam's conception "would have taken place while [Robert] had been away from [Robin] for several weeks." Robert sought DNA testing in April 1999. (The record does not show how this was accomplished.) The testing, according to Robert's allegations, showed a 0-percent probability that Robert was Adam's father. Robert also alleged that he could not have, through due diligence, discovered before April 1999 that he was not Adam's biological father.
On May 19, 1999, Robert consented to the adoption of Adam by Robin's new husband, Patrick Heller. On July 27, Patrick adopted Adam.
On February 15, 2000, Robert filed the present action. Robert pled three causes of action. In his first cause of action, fraud, Robert alleged that Robin had intentionally and willfully concealed that another man was Adam's biological father; that Robin misrepresented and concealed Adam's biological parentage with the intention that Robert would rely on it, which he did; and that as a direct and proximate result of Robin's concealment, he suffered damages.
In his second cause of action, assumpsit, Robert alleged that since the entry of the decree in 1991, he had paid child support, employment-related daycare expenses, and health insurance for Adam. Robert alleged that because he is not Adam's biological father, Robin has been unjustly enriched, and that fairness and justice require Robin to repay him.
In his third cause of action, emotional distress, Robert alleged that Robin intentionally and recklessly misrepresented that Robert was Adam's father when she knew this was false and that she continued to conceal the fact from Robert; that Robin's conduct in misrepresenting and concealing the true paternity of Adam for nearly 12 years was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency; and that given the emotional bond that he formed with Adam, he suffered and continues to suffer emotional distress.
Robert sought damages for the following: (1) amounts he paid under the original and modified decree for child support, daycare costs, health insurance, and medical expenses; (2) costs he paid to exercise and enforce his visitation privileges with Adam; (3) general damages for Robin's alleged intentional infliction of emotional distress; and (4) attorney fees incurred in the present action.
Robin moved for summary judgment. The district court rejected Robin's argument that under res judicata and collateral estoppel, the recital of paternity in the dissolution decree barred Robert's claims. But, the court concluded that there were no genuine issues of material fact for each of Robert's causes of action and that Robin was therefore entitled to judgment as a matter of law. Robert appealed.
The Court of Appeals reversed. Day v. Heller, 10 Neb.App. 886, 639 N.W.2d 158 (2002). It determined that the trial court, instead of deciding whether any real issue of material fact existed, had attempted to decide the factual issues. It also determined that neither res judicata nor collateral estoppel barred Robert's action. The Court of Appeals noted that whether, after a dissolution proceeding has become final, a party can bring a tort action against a former spouse is an issue of first impression in Nebraska and concluded that such an action should be allowed. Id. In reversing, the Court of Appeals implicitly recognized that a party could maintain tort and assumpsit actions against a mother for her misrepresentation of biological fatherhood. We granted Robin's petition for further review.
Robin assigns that the Court of Appeals erred in determining that (1) res judicata and collateral estoppel do not bar Robert's claims and (2) factual issues exist which preclude summary judgment.
Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002).
In reviewing summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefits of all reasonable inferences deducible from the evidence. Id.
In an appellate review, the grant of a motion for summary judgment may be affirmed on any ground available to the trial court, even if it is not the same reasoning the trial court relied upon. Foreman v. AS Mid-America, 255 Neb. 323, 586 N.W.2d 290 (1998).
The Court of Appeals noted that whether a party can bring a tort claim against a former spouse after a dissolution proceeding has become final is a question of first impression in Nebraska. Nebraska abolished the interspousal tort immunity in Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979), and we agree with the Court of Appeals that a tort action against a former or current spouse is not inherently prohibited. This case, however, turns on a different question, Will Nebraska recognize a tort or assumpsit cause of action against a mother for her misrepresentation and concealment of biological fatherhood? Because we conclude that Robert's tort and assumpsit causes of action are contrary to public policy, we need not address Robin's res judicata and collateral estoppel arguments.
Robert's causes of action can be subdivided into two categories. The first consists of his fraud and assumpsit claims. These claims seek to recover for the creation of Robert's parent-child relationship with Adam. The second consists of Robert's intentional infliction of emotional distress claim. Liberally construed, this claim seeks to recover for the emotional harm suffered when a misrepresentation of biological fatherhood leads to the threatened destruction of a parent-child relationship. Because the two categories present different policy questions, we analyze them separately.
Robert's fraud claim seeks to recover the child support he was ordered to pay under the dissolution and supplemental decrees and the costs associated with the enforcement of his visitation rights. Similarly, Robert's assumpsit claim is for Robin's unjust enrichment as a result of receiving child support payments. We conclude that Robert's fraud and assumpsit causes of action are contrary to public policy.
As we read his petition, Robert's fraud and assumpsit claims are for Robin's misrepresentation that led Robert to make investments of time, emotion, and money in Adam that he would not have made had he known that Adam was not his biological son. In effect, Robert is saying, "He is not my son; I want my money back." Robert's fraud and assumpsit causes of action focus on the burdens of the parentchild relationship, while ignoring the benefits of the relationship. We do not believe that having a close and loving relationship "imposed" on one because of a misrepresentation of biological...
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