L. M. S. v. S. L. S., 81-267
| Decision Date | 13 October 1981 |
| Docket Number | No. 81-267,81-267 |
| Citation | 105 Wis.2d 118,312 N.W.2d 853 |
| Parties | In re the Marriage of: L.M.S., Petitioner-Respondent, v. S.L.S., Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
Robert F. Dopkins, Wausau, for respondent-appellant.
James H. Whiting, Antigo, for petitioner-respondent.
Before FOLEY, P. J., and DEAN and CANE, JJ.
In this divorce action, the trial court granted the wife custody of the minor child born during the marriage and ordered the husband to pay support for the child. On appeal, the husband contends that he should not be ordered to support the child because he is not the biological father. He argues that the "paternity agreement" is not sustained by the evidence, and, even if the agreement exists, it is not a legal basis for holding him liable to support the child.
The couple married in 1974, and a child was born during the marriage in 1977. It is conceded by the parties that due to the husband's sterility, he is not the child's biological father. The husband, desirous of having a child, often discussed with his wife different ways of having children. Artificial insemination was considered but dismissed because of the required expense and travel. Attempts at adoption proved unsuccessful. The husband suggested that his wife become pregnant by another man and agreed to acknowledge the child as his own. At the husband's insistence the wife agreed, had sexual intercourse with the surrogate father, and became pregnant.
When the child was born, the husband was at the hospital and permitted his name to be placed on the birth certificate as the father. He also declared the child as a dependent on his federal and state tax returns. In addition, when applying for Social Security disability, the husband wrote on the application that the child was his son. Until the time of the divorce, the husband held himself out to the public as the child's natural father and supported the child as his. The surrogate father complied with the terms of the agreement and never established any relationship with the child or mother. His parental rights were voluntarily terminated in another circuit court.
At trial, the wife testified that she agreed with her husband to conceive a child by having sexual relations with a surrogate father. The husband denied the agreement. The trial court, believing the wife's testimony, found that the husband had agreed to the wife's conception of a child. Based on this finding, the court concluded that, as a matter of law, the husband was obligated to pay support for the child.
On appeal, findings of fact by the trial court will not be upset unless they are against the great weight and clear preponderance of the evidence. In addition, where there is conflicting testimony, the trial court is the ultimate arbiter of the witness's credibility. Cogswell v. Robertshaw Controls Co., 87 Wis.2d 243, 249, 274 N.W.2d 647, 650 (1979). Accordingly, we will not disturb the trial court's factual findings.
Whether a husband who has agreed to his wife's impregnation by another man should be required to support a child born during the marriage, but not fathered by him, is a question of first impression in this court. Although there have been a number of decisions on similar questions in other jurisdictions, the results are conflicting. 1
As a general rule, a husband is not liable to support a child born to his wife but not procreated by him. See cases collected in Annot., 90 A.L.R.2d 583, 584 (1950). Section 52.055, Stats., dealing with failure to support, refers only to a "parent" who intentionally refuses to "provide for the necessary and adequate support of his child." (Emphasis supplied.)
When a husband consents to having a surrogate father impregnate his wife so that they may have a child of their marriage, several arguments are made for finding a husband's support obligation. Some states hold the husband liable for support under similar circumstances, where pregnancy resulted from artificial insemination, on an implied contract theory. In these cases, the children were labeled illegitimate, but the husband was held liable for support because of his consent. The husband's consent implied a promise to furnish support to resulting children, which, with the wife's reliance thereon, constituted a contract. Anonymous v. Anonymous, 41 Misc.2d 886, 246 N.Y.S.2d 835 (Sup.Ct.1964); Gursky v. Gursky, 39 Misc.2d 1083, 242 N.Y.S.2d 406 (Sup...
To continue reading
Request your trial
-
Interest of Z.J.H., In re
...Two cases upon which Sporleder relies, A.M.N. v. A.J.N., 141 Wis.2d 99, 414 N.W.2d 68 (Ct.App.1987); In re Marriage of L.M.S. v. S.L.S., 105 Wis.2d 118, 312 N.W.2d 853 (Ct.App.1981), both involved cases where a husband of a wife who bore a child by another man attempted to escape his suppor......
-
Gatsby v. Gatsby
...29, 401 P.3d 492, 501 (2017) ; Laura WW. v. Peter WW. , 51 A.D.3d 211, 856 N.Y.S.2d 258, 262 (2008) ; L.M.S. v. S.L.S. , 105 Wis.2d 118, 312 N.W.2d 853, 855 (Ct. App. Wis. 1981). ...
-
In re Parentage of MJ
...occurs unless established by clear and convincing evidence that consent has been revoked or rescinded); In re Marriage of L.M.S., 105 Wis.2d 118, 122-23, 312 N.W.2d 853, 855 (App.1981) (sterile man who suggested to his wife that she become pregnant by another man and promised that he would ......
-
Marriage of Adams, In re
...meet that burden. Although not dealing with artificial insemination, the Kansas court found the case of In re Marriage of L.M.S. v. S.L.S. (Wis.App.1981), 105 Wis.2d 118, 312 N.W.2d 853, to be analogous to the case before it. In that case, the husband, who was sterile, and who wanted his wi......