NPA v. WBA

• Decision Date: 16 May 1989
• Docket Number: No. 0576-88-3,0576-88-3
• Parties: NPA v. WBA. Record
• Court: Virginia Court of Appeals

Page 178

380 S.E.2d 178

8 Va.App. 246

NPA v. WBA.

Record No. 0576-88-3.

Court of Appeals of Virginia.

May 16, 1989.

Harvey S. Lutins (Lutins & Shapiro, Roanoke, on brief), for appellant.

No brief or argument for appellee.

Panel: KOONTZ, C.J., and BENTON and COLEMAN, JJ.

COLEMAN, Judge.

In this appeal we decide whether a husband (WBA) who is not the biological father of his wife's child can be required to support the child after divorce when he has reared and supported the child for the five years since birth under the false belief that he was the child's father. In the divorce proceeding the trial court ordered, pursuant to Code § 20-49.3, that the wife (NPA), the husband, and two children submit to the human leukocyte antigen (HLA) blood test to determine paternity. The HLA test results established conclusively that the husband was not the biological father of the five year old male child, but was the father of the three year old daughter. The trial court ruled that the husband is not liable for the support of his former wife's son. No issue is raised concerning the daughter.

On appeal the wife contends that her former husband should be required to support the child based on one of several legal theories applied in similar cases in Virginia or other jurisdictions: (1) common law adoption; (2) in loco parentis; (3) implied contract; or (4) equitable estoppel. We find that on the facts before us none of these doctrines provide a basis to require the husband to support the child. Thus, the trial court properly ruled that the husband was not liable for support of the son.

The parties married in September 1977. They had marital problems which caused them to separate between April 1980 and 1981, during which time both parties dated other people. They reconciled and resumed cohabitation in 1981. The wife testified that, before the reconciliation, she told her husband that in October 1980 she had sexual intercourse with another man. She testified that during the separation she and her husband also had sexual intercourse on numerous occasions.

Shortly after their reconciliation the wife discovered that she was pregnant. She gave birth to a son in May 1981. She testified that her husband was upset by her pregnancy. She told him that if he had any doubts about being the father he should have a blood test while she was in the hospital, but if he did not he should never again raise the issue. The husband testified that he accepted his wife's statement that he was the child's father and did not request that the blood test be administered. After the child's birth, the parties resumed their marriage and proceeded with the responsibility of rearing the child. The parties gave the child the husband's surname. Both parties testified that the husband treated the child as his own throughout the remaining years of the marriage. A second child, a daughter, was born to the marriage a few years after the son's birth.

In May 1985 the wife filed for divorce and requested child and spousal support, child custody and equitable distribution. The parties agreed upon temporary support and child custody. The husband filed an answer and cross-bill alleging that the wife caused the dissolution of the marriage. In an amended cross-bill he also alleged that he was not the biological father of the two children. The trial court ordered HLA testing. The results of the HLA test established that the husband was the biological father of the daughter, but that it was genetically impossible for him to be the natural father of the male child. The trial court granted the wife a divorce, ordered the husband to pay spousal support and $250 per month child support for the daughter. Based on the HLA test results, the trial court found that, because the husband was not the biological father of the child, and because he had neither adopted the child nor contracted to support the child, he had no legal support obligation. The wife challenges the trial court's child support ruling and contends that the husband has assumed and owes a legal duty to support her son.

The general rule in Virginia is that a parent owes a duty of support only to his or her natural or legally adopted child. See T ... v. T ..., 216 Va. 867, 869, 224 S.E.2d 148, 150 (1976). Furthermore, "[a] husband is not liable, merely because of his status as husband, for the support of his wife's illegitimate child born before or after marriage." Id. However, when a child is born in wedlock the law presumes legitimacy and the presumption can be rebutted only by "strong, distinct, satisfactory and conclusive" evidence. Cassady v. Martin, 220 Va. 1093, 1097, 266 S.E.2d 104, 106 (1980) (quoting Scott v. Hillenberg, 85 Va. 245, 246-47, 7 S.E. 377, 378 (1888)); see also Gibson v. Gibson, 207 Va. 821, 825, 153 S.E.2d 189, 192 (1967). Code § 20-49.4 specifies various factors which can be considered to determine paternity. The HLA blood test can determine the probability of paternity to a high degree, but it also can, by a system of comparing genetic markers, conclusively exclude a person as a biological parent of a child. Bridgeman v. Commonwealth, 3 Va.App. 523, 526, 351 S.E.2d 598, 600 (1986). In the present case the husband's evidence, consisting of the HLA test results which conclusively disproved paternity and the wife's admission that she had sexual intercourse with another man during the separation, was sufficient to rebut the presumption of legitimacy.

The appellant argues, however, that regardless whether the husband is her son's biological father, this court should hold that he has a legal duty to support the child under one of the four theories mentioned by the Virginia Supreme Court in T ... v. T ..., 216 Va. 867, 224 S.E.2d 148 (1976). In T ... v. T ..., the Court recognized that other jurisdictions have held a husband liable for support of his wife's illegitimate child under one of several theories, depending upon the circumstances: (1) expressed oral contract; (2) estoppel; (3) common law adoption; or (4) the husband standing in loco parentis to the child. 216 Va. at 869, 224 S.E.2d at 150. T ... v. T ... held that a husband who had full knowledge of the facts was liable for support of his former wife's illegitimate son based upon a partially performed express oral contract to support the child "as if it were his own." The wife also contends that the Supreme Court tacitly approved the other doctrines mentioned in T ....

First, we find no support in T ... for the theory of common law adoption. With regard to the other theories mentioned in T ..., we need not decide whether they were in fact approved. On the facts of the case, we conclude that they would not require the husband to support this child.

I.

Adoption in Virginia is solely a creature of statute. The common law as it developed in Virginia did not recognize adoption other than by statutory process. Harmon v. D'Adamo, 195 Va. 125, 129, 77 S.E.2d 318, 320 (1953); Shephard v. Sovereign Camp, 166 Va. 488, 495, 186 S.E. 113, 116 (1936). We find nothing in T ... to support a theory of common law adoption in Virginia. Since Virginia does not recognize common law adoption, the rights and responsibilities incidental thereto, such as support, likewise do not exist.

II.

The theory of in loco parentis, provides, in effect, that a stepparent or one who knowingly and voluntarily assumes the role of parent to a child may obtain certain legally cognizable rights and obligations the same as if between "a parent and child" but only so long as the relationship which gave rise to the rights and duties continues to exist. Doughty v. Thornton, 151 Va. 785, 792, 145 S.E. 249, 251 (1928). The theory is inapplicable on these facts.

The husband did not knowingly and voluntarily accept another man's child into his care. See id. at 792, 145 S.E. at 251. Instead, on the erroneous assumption that he was the child's natural father, he brought the child into his home and under his care. We are mindful that the child, who well may have an affinity for the husband as his father, is an innocent victim of his parent's problems. However, in the absence of consanguinity, legal adoption, or a knowing and voluntary assumption of the obligation to provide support, the law will not compel one who has stood in the place of a parent to support the child after the relationship has ceased. Essential to the status of in loco parentis is an intent to assume and continue a parental relationship. A. S. v. B. S., 139 N.J.Super. 366, 367-68, 354 A.2d 100, 101 (1976). The husband did not, with full knowledge of the facts, at any time voluntarily assume the role of a parent to this child.

Furthermore, when the relationship which brought about the status of in loco parentis is terminated, "the reciprocal rights, duties, and obligations of parent and child" do not survive independent of the relationship, except by agreement or goodwill. Doughty, 151 Va. at 792, 145 S.E. at 251; see also Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707 (1961) (the obligation assumed by stepparent to support a stepchild is not a continuing one, but may be abandoned at any time, and ordinarily ceases with the divorce...