K.B. v. N.B.

• Decision Date: 13 March 1991
• Docket Number: No. 04-86-00379-CV,04-86-00379-CV
• Citation: 811 S.W.2d 634
• Parties: K.B., Appellant, v. N.B., Appellee.
• Court: Texas Court of Appeals

Page 634

811 S.W.2d 634

K.B., Appellant, v. N.B., Appellee.

No. 04-86-00379-CV.

Court of Appeals of Texas,

San Antonio.

March 13, 1991.

Rehearing Denied May 22, 1991.

Thomas S. Terrell, Kerrville, David Rodriguez Weiner, Law Offices of Windle Turley, P.C., Dallas, for appellant.

Wallace T. Ferguson, Ferguson & Hix, Boerne, Kirk Patterson, James D. Stewart & Associates, Inc., San Antonio, for appellee.

Before REEVES, C.J., and PEEPLES and GARCIA, ¹ JJ.

OPINION

PEEPLES, Justice.

In this divorce case the only child of the marriage was conceived by artificial insemination. The husband ² contends that because the parties did not comply with the Texas artificial insemination statute, which required that his consent be in writing, the parent-child relationship does not exist and the court erred in making him pay child support. He also contends that the court erred in assessing tort damages against him and in dividing the marital estate. We reverse the judgment for damages. On all other issues, we affirm.

The parties married in 1977. Unable to have children because the husband had undergone a vasectomy that proved to be irreversible, they resorted to artificial insemination by third-party donor. A male child was born in 1982. When this divorce proceeding began, the husband formally denied paternity and resisted paying child support. He denied that he had consented orally, but the jury found that he had consented to the procedure and also that he had ratified it. He does not challenge the sufficiency of the evidence to support those findings. The jury also found that he had threatened to publicize the child's parentage if the wife sought child support or a share of the marital property, and it awarded $110,000 damages to the child. Concerning the marital estate, the jury found that two of the husband's corporations were his alter ego and that the marital homestead was community property. The court decreed that the parent-child relationship existed, gave the wife custody, ordered the husband to pay child support, awarded the child tort damages of $110,000, appointed a receiver to administer the alter ego businesses and pay the child support if the husband did not, and awarded the homestead to the wife. The husband challenges these and other rulings.

I.

The parties agree that the husband is not the child's biological father and that the presumption of legitimacy has been conclusively rebutted. See TEX.FAM.CODE ANN. § 12.02 (Vernon Supp.1991) (rebuttable presumption that child born during marriage is husband's legitimate child). The husband contends that because he did not consent to the insemination procedure in writing, the child's legitimacy cannot rest on § 12.03, which read as follows in 1982, when the child was conceived:

§ 12.03. Artificial Insemination

(a) If a husband consents to the artificial insemination of his wife, any resulting child is the legitimate child of both of them. The consent must be in writing and must be acknowledged.

TEX.FAM.CODE ANN. § 12.03 (Vernon 1986) (emphasis added). ³ Even though this statute makes written and acknowledged consent mandatory, the wife urges us to hold that oral consent suffices. The husband, of course, disagrees. In addition, though he does not directly attack the finding of ratification he does assert that because there was no written consent, under § 12.03 the court could not establish the parent-child relationship or require him to pay child support.

In view of § 12.03's clear requirement of a writing, we cannot accept the wife's suggestion that oral consent, without more, suffices. The legislature has every right to insist that important contractual relationships be evidenced by a writing, and when it has done so, the courts are not at liberty to ignore the statute. ⁴ Under settled principles of statutory construction, we must presume that the legislature had a purpose for each word. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). Here the legislature consciously devoted an entire sentence to the requirement of an acknowledged writing.

The wife urges us to follow In re Marriage of Adams, 174 Ill.App.3d 595, 124 Ill.Dec. 184, 528 N.E.2d 1075 (Ct.App.1988), rev'd on other grounds, ⁵ 133 Ill.2d 437, 141 Ill.Dec. 448, 551 N.E.2d 635 (1990), and R.S. v. R.S., 9 Kan.App.2d 39, 670 P.2d 923 (Ct.App.1983), in which courts faced with comparable written-consent statutes held that a husband can be estopped to deny the child support obligation. ⁶ Several courts have imposed child support obligations in artificial insemination cases where there was no statute requiring written consent. See, e.g., People v. Sorensen, 68 Cal.2d 280, 437 P.2d 495, 66 Cal.Rptr. 7, 25 A.L.R.3d 1093 (1968); Gursky v. Gursky, 39 Misc.2d 1083, 242 N.Y.S.2d 406 (Sup.Ct.1963); In re Baby Doe, 291 S.C. 389, 353 S.E.2d 877 (1987); Annotation, Legal Consequences of Human Artificial Insemination, 25 A.L.R.3d 1103 (1969).

Language in R.S. suggests that mere oral consent to artificial insemination in the presence of the physician will estop a husband from relying on a statute that says plainly that consent must be in writing. The R.S. court summarized its holding as follows:

We hold that when a husband consents to heterologous insemination of his wife, that consent is presumed to continue through the time the wife becomes pregnant unless the husband establishes by clear and convincing evidence that such consent had been withdrawn; and a husband who with his wife orally consents to the treating physician that his wife be heterologously inseminated for the purpose of producing a child of their own is estopped to deny that he is the father of the child, and he has impliedly agreed to support the child and act as its father.

670 P.2d at 928. Adams quoted this passage with approval. 124 Ill.Dec. at 604, 528 N.E.2d at 1084.

But the evidence in both cases established more than bare oral consent witnessed by the doctor. In R.S. the husband was fully aware of the artificial insemination, did not object to it, and apparently treated the child as his own for some time after birth. The trial court found "that the [husband] never revoked his consent and in fact acquiesced and ratified the process from time to time." See 670 P.2d at 925. Similarly, though the husband disputed much of the evidence in Adams, it appears that there was more than simple oral consent. The husband, who had undergone a vasectomy, discussed artificial insemination with his wife, visited the doctor's office with her, was aware that she became pregnant, participated in natural childbirth classes, acquiesced in being named father on the birth certificate, and did not disclaim parenthood until divorce proceedings were filed. See 124 Ill.Dec. at 605, 528 N.E.2d at 1085. Nevertheless, the Adams court appears to have held simply that an oral agreement can estop a husband to rely on the statute that requires a writing.

We are not willing to hold that oral consent will estop a husband from asserting § 12.03, or estop him from denying paternity or avoiding child support. That would nullify the requirement of a writing by enabling a litigant to prove an oral agreement without more by labeling it estoppel. But in this case, as in R.S. and Adams, there is much more, as is evidenced by the jury's finding of ratification.

Ratification occurs when a person who knows all the material facts confirms or adopts a prior act that did not then legally bind him and which he could have repudiated. See T & R Associates, Inc. v. City of Amarillo, 688 S.W.2d 622, 630 (Tex.App.--Amarillo 1985, writ ref'd n.r.e.); Wise v. Pena, 552 S.W.2d 196, 199 (Tex.Civ.App.--Corpus Christi 1977, writ dism'd). Essentially the same definition has been stated in three elements: (1) approval by act, word, or conduct, (2) with full knowledge of the facts of the earlier act, and (3) with the intention of giving validity to the earlier act. Motel Enterprises, Inc. v. Nobani, 784 S.W.2d 545, 547 (Tex.App.--Houston [1st Dist.] 1990, no writ); Jamail v. Thomas, 481 S.W.2d 485, 490 (Tex.Civ.App.--Houston [1st Dist.] 1972, writ ref'd n.r.e.).

Ratification may be inferred from conduct and need not be express. Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506, 508 (1943); Motel Enterprises, Inc. v. Nobani, 784 S.W.2d at 547; Spellman v. American Universal Invest. Co., 687 S.W.2d 27, 29 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.). The courts have stressed that one who asserts ratification must prove that the ratifying party acted upon full knowledge of all material facts. Land Title Co. v. Stigler, 609 S.W.2d 754, 756-57 (Tex.1980); Rourke v Garza, 530 S.W.2d 794, 805 (Tex.1975); Frazier v. Wynn, 472 S.W.2d 750, 753 (Tex.1971); Bodovsky v. Texoma Nat'l Bank, 584 S.W.2d 868, 872-73 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.).

The trial court gave a substantially correct definition of the elements of ratification, and the record contains sufficient proof of them. There was evidence that from the outset the husband had full knowledge of the facts and willingly participated in the artificial insemination. Wanting a child and unable to reverse his vasectomy, he chose artificial insemination instead of adoption. Together both spouses visited for an hour and a half with the infertility specialist and reviewed the procedure with her. They discussed such details as the physical characteristics they wanted the child to have. The infertility specialist confirmed that the husband was a willing and enthusiastic participant. The husband disputed much of this testimony, but in this court he does not challenge the factual support for the jury's finding. Moreover, he admitted that he participated in childbirth classes, became enthusiastic about the pregnancy as it progressed, was glad to have the child, named him "junior," and was listed as father on the birth certificate. He later spoke of "our baby." Several years went by before he tried to...