K.B. v. D.B., 91-P-1224

• Decision Date: 09 September 1994
• Docket Number: No. 91-P-1224,91-P-1224
• Citation: 37 Mass.App.Ct. 265,639 N.E.2d 725
• Court: Appeals Court of Massachusetts
• Parties: K.B. v. D.B. & another. 1

Page 725

639 N.E.2d 725

37 Mass.App.Ct. 265

K.B. v. D.B. & another. ¹

No. 91-P-1224.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 8, 1993.

Decided Sept. 9, 1994.

Maren Robinson, for wife.

Anthony W. Neal, for husband.

Marilyn Ray Smith, Sp. Asst. Atty. Gen., and Linda Swain Minkoff, for Massachusetts Dept. of Revenue Child Support Enforcement Div., amicus curiae, submitted a brief.

Before ARMSTRONG, GILLERMAN and IRELAND, JJ.

ARMSTRONG, Justice.

K.B., the husband, and D.B., the wife, were married September 25, 1977. A child, whom we call Sally, was born to D.B. on October 20, 1980. K.B., although doubting that Sally was his child, undertook nevertheless to act as father. The birth certificate so stated, and Sally went by the family name. A court-ordered blood test in 1987 established that K.B. could not be Sally's father. Rejecting D.B.'s contention (supported by the Department of Revenue) that K.B. should be estopped to assert his nonpaternity, a judge of the Probate Court dismissed D.B.'s action for separate support and, in K.B.'s divorce action, ruled that he was not Sally's father and had no obligation for child support. D.B. and, in the support action, the Department of Revenue, appeal from the judgments.

Because the judge's decision not to apply estoppel was in effect, a conclusion of fact, Simon v. Simon, 35 Mass.App.Ct. 705, 712, 625 N.E.2d 564 (1994), we sketch out the facts, as found by the judge, in some detail. After marrying, the parties stayed together for two years, roughly, separating in August, 1979. In late January, 1980, during the separation, the wife had sexual intercourse with another man who is presumably Sally's biological father. On February 8, 1980, after a phone call from the wife, K.B. spent the night with D.B. and they had sexual intercourse. D.B. told K.B. of her affair with the other man a few weeks before. On February 11, 1980, D.B. telephoned K.B. to say that she was pregnant. K.B. expressed doubt that he was the father, based both on the short time span from February 8 and on the fact that numerous instances of unprotected sex during their two years of married life together had failed to produce a pregnancy. K.B. urged abortion from the start; D.B., insisting K.B. was the father, resisted. In April she had ultrasound tests which showed that the pregnancy was of either ten or twelve weeks duration (the testimony is conflicting). The husband was told that ultrasound could not pinpoint the onset of the pregnancy precisely within the critical two or three week span, but he was told (according to D.B.) by a clinic doctor that there was a 99.9 percent chance he was the father. A clinic nurse testified that D.B. expressed uncertainty whether K.B. was the father. During the pregnancy, the judge found, D.B. told K.B.'s sister that a third party was the biological father. K.B. underwent fertility tests, but they did not exclude him as Sally's father.

D.B. refused blood tests prior to 1985. That year one was ordered by a District Court judge in a nonsupport action brought by the Department of Revenue. For reasons that are disputed, the wife did not appear, and the husband had to pay ninety dollars for the missed appointment. It was not until a probate judge ordered blood tests in 1987 that K.B. learned conclusively that he was not the father. ²

As mentioned above, K.B., despite his doubts and his inability to persuade D.B. to have an abortion, had determined by the end of the pregnancy to play the role of father. He attended Sally's birth, appeared as father on the birth certificate, arranged for Sally's baptism, and selected her godfather. For two years after Sally's birth, she and D.B. lived in K.B.'s Cambridge apartment. (K.B. vacated the apartment during D.B.'s pregnancy, and, while he may have spent time with D.B. there, the marriage never resumed in any meaningful sense and the parties were often apart.) K.B. purchased presents and baby supplies when Sally was born and Christmas and birthday gifts for about five years. He provided Sally with financial and emotional support, love, and affection. He sent her cards and purchased presents. One Christmas present was a toy box he made himself which he filled with toys. Cards were signed, "Love, Daddy" and addressed, "To my Dearest Daughter." K.B. signed an application for Sally's enrollment in school on which he was listed as the father, and D.B. was listed as the person to contact in an emergency. Between 1983 and 1986 K.B. frequently took Sally for the weekend; K.B.'s sister complained to D.B. that she ended up babysitting. Sally called K.B.'s sister "Auntie." Sally sometimes stayed at K.B.'s mother's house and participated in family events. K.B. visited Sally in the hospital when she had pneumonia. Once he responded to a telephone call from Sally at 3 A.M., claiming that she had been left alone. (He went to the apartment, but D.B. was there by the time he arrived. K.B. filed a neglect report under G.L. c. 119, § 51A.)

K.B. testified that, in the critical years after Sally's birth, he furnished support in the amount of twenty-five dollars per week, apparently to supplement support she was receiving from welfare. (The record does not specify who was paying the rent for the Cambridge apartment.) He also responded to some of her emergency needs for money. The judge found that K.B. furnished this support "because if [Sally] were his daughter he wanted to do the right thing and because he was informed he had a legal obligation to do so." Despite this support, nonsupport complaints were filed in 1983 and 1985. Of the latter we are told that the Department of Revenue was claiming support payments for the entire period 1980-1985; that K.B. was ordered to pay fifty dollars in weekly support, apparently on a temporary order; and that the case was dismissed after four months due to the wife's failure to appear to prosecute. (This was the proceeding, mentioned earlier, in which D.B. was ordered to submit to a blood test but missed the appointment.) When D.B. filed the present complaint for separate support in 1987, K.B. was ordered to (and did) pay ninety dollars per week, from March 12, 1987, on a temporary order, which remained in effect, notwithstanding the blood test, until July 1, 1991, when the judge entered her findings and rulings. ³

Discussion. Apart from consideration of estoppel, "[a] married man should have no duty to support a child born to his wife during their marriage but fathered by another man, any more than a wife should have a duty to support a child fathered by her husband during their marriage but born of another woman." Symonds v. Symonds, 385 Mass. 540, 544, 432 N.E.2d 700 (1982). The only meritorious question properly before us is whether the judge erred in ruling that K.B. was not estopped to raise the defense of nonpaternity. ⁴

On that question--whether one may lay down the burdens of fatherhood after voluntarily taking them on--State courts nationally have reached divergent results. None, so far as we have found, absolutely precludes estoppel. Some are very ready to apply it. See the leading case of Clevenger v. Clevenger, 189 Cal.App.2d 658, 664, 11 Cal.Rptr. 707 (1961) ("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."). See also Commonwealth ex rel Gonzalez v. Andreas, 245 Pa.Super. 307, 312, 369 A.2d 416 (1976) ("Absent any overriding equities in favor of the putative father, such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized."). Other courts, however, such as Knill v. Knill, 306 Md. 527, 510 A.2d 546 (1986), hold estoppel is to be applied only sparingly. The first group tend to focus on the loss to the child when the volunteer father asserts nonpaternity ("To be designated as an illegitimate child in preadolescence is an emotional trauma of lasting consequence. Having placed the cloak of legitimacy upon the child, having induced the child to rely upon its protection, the husband by abruptly removing it surely harms the child." CLEVENGER V. CLEVENGER, 189 CAL.APP.2D AT 671, 11 CAL.RPTR. 707 ).⁵ The second focuses on not discouraging husbands from voluntarily assuming the role of father to illegitimate children born to their spouses ("Such conduct is consistent with this State's public policy of strengthening the family, the basic unit of civilized society. We encourage spouses to undertake, where feasible, the support, guidance, and rearing of their spouse's children," Knill v. Knill, 306 Md. at 538-539, 510 A.2d 546; "[t]his type of family relationship should be encouraged rather than discouraged through the possible consequence of becoming permanently financially obligated for child support." In re Marriage of A.J.N. & J.M.N., 141 Wis.2d 99, 106, 414 N.W.2d 68 [1987] ). The common aim of the two groups is to foster the raising of illegitimate children within the protective wing of the family unit. The second group does so by encouraging husbands to assume the role of father voluntarily. The other does so by discouraging husbands from relinquishing that role.

The two groups diverge in their application of the technical elements of estoppel. These are usually stated as representation, reliance, and detriment. Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123, 596 N.E.2d 989 (1992). Cellucci v. Sun Oil Co., 2 Mass.App.Ct. 722, 728, 320 N.E.2d 919 (1974), S.C., 368 Mass. 811, 331 N.E.2d 813 (1975). National Med. Care, Inc. v. Zigelbaum, 18 Mass.App.Ct. 570, 580, 468 N.E.2d 868 (1984). The first two are rarely in issue, the first being the husband's representations to the child, by words, deeds, or both, that he is the father, and the second being the child's acceptance of him as such. ⁶ If confined to...