Poncho v. Bowdoin

• Decision Date: 07 December 2005
• Docket Number: No. 25,100.,25,100.
• Citation: 126 P.3d 1221,2006 NMCA 013
• Parties: Ariel PONCHO, Petitioner-Appellant, v. James BOWDOIN, Respondent-Appellee, v. Jamie W. PONCHO, Third Party Respondent-Appellee.
• Court: New Mexico Supreme Court

126 P.3d 1221

2006 NMCA 013

Ariel PONCHO, Petitioner-Appellant, v. James BOWDOIN, Respondent-Appellee, v. Jamie W. PONCHO, Third Party Respondent-Appellee.

No. 25,100.

Court of Appeals of New Mexico.

December 7, 2005.

David A. Standridge, Jr., Peter L. Robinson, Albuquerque, for Appellant.

James Bowdoin, Albuquerque, Pro Se Appellee.

Jamie W. Poncho, New Laguna, Pro Se Appellee.

OPINION

SUTIN, J.

{1} In this case, the biological mother of a child sought and was denied child support from the biological father of the child. The biological mother and biological father were never married. The child was conceived after consensual sexual relations. The biological father prevailed under an equitable adoption theory through which the responsibility for child support was transferred to another person held, for the purposes of child support, to have adopted the child by his conduct and through agreement of the parties.

{2} This case requires Solomon's wisdom in deciding which father is obligated to pay child support. James Bowdoin's short-lived relationship created Child. Following that, Bowdoin performed no parental duty except, perhaps, attempt to act in Child's best interest by agreeing to Child's adoption by a willing parent, Jamie W. Poncho (Poncho). Poncho's marriage to Child's mother, Ariel Poncho (Ariel), before Child's birth, and Poncho's close relationship with, financial support of, and agreement to adopt Child and be Child's father, was undoubtedly the beginning of a desired long-term relationship that may well have been in Child's best interest. Poncho's intentions and conduct appear to have been in good faith and sincere. However, after a relatively short time, about three years, the marriage fell apart. Poncho never initiated formal adoption proceedings and Poncho ultimately abandoned any intention of providing financial support for Child.

{3} After setting out the background in this case, we discuss the doctrine of equitable adoption. We conclude that Bowdoin cannot by agreement abandon or relinquish his obligation as biological father to support Child unless excused pursuant to court order. We further conclude that the doctrine of equitable adoption is not applicable in the circumstances of this case. We make no determination whether Poncho may have joint or several liability, or be subject to claims of indemnity or contribution, based on his agreements and conduct. Lastly, we determine that Bowdoin is responsible for one-half the paternity testing cost.

BACKGROUND

{4} We think it useful to recite the facts and proceedings in detail. Although we do not agree with the district court's application of equitable adoption, the background helps explain why the district court applied the doctrine in this case.

{5} Child was conceived in early 1997 while Ariel and James Bowdoin were dating. Soon afterward, Ariel met Jamie Poncho. Jamie offered to marry Ariel and adopt Child. In mid-1997, Ariel, Poncho, and Bowdoin met and all agreed that Poncho would marry Ariel; Poncho would take care of Ariel and Child; Poncho would support Child after birth and treat Child as his own; Bowdoin would not have anything to do with Child, would have no contact with Child, and would sign adoption papers at any time he was requested to do so; Ariel would not seek any support from Bowdoin; and Bowdoin would not be asked for anything nor would he ask for anything.

{6} Ariel and Poncho were married in September 1997 following Poncho's basic training, and Ariel moved to New York State where Poncho was stationed and undergoing advanced training. Child was born in November 1997. At birth, Child received the family name of Poncho and, with Poncho's and Ariel's consent, Poncho was named on Child's birth certificate as Child's father. Poncho was a combat medic in the United States Army and Child was listed as his dependent on Army records. Poncho and his employer's healthcare insurance paid for the expenses of pregnancy and birth. Child was raised as Poncho's son from birth, and Poncho and Ariel held Child out as Poncho's son. Child called Poncho "daddy" and knew no other father. Child knew Poncho's mother as his grandmother and as of trial had not been told that Poncho was not his father. With Ariel's consent, Child was enrolled as a member of Poncho's Tribe, Pueblo of Laguna, and was baptized as a Catholic in the Pueblo's church. However, when the Tribe later learned that Poncho was not Child's biological parent, Child was disenrolled as a member of the Tribe.

{7} In January 2001, Ariel filed an action for dissolution of her three-year marriage to Poncho. Their marital settlement agreement provided that Poncho would pay spousal support for eighteen months. According to what Ariel told Poncho, this was in lieu of child support. The marital settlement agreement provided for the annual exchange of financial information customarily used for adjusting child support. Poncho indicated in this divorce proceeding that he was willing and wanted to remain Child's father and to support Child financially. Poncho received visitation privileges. The court entered a final decree of dissolution in March 2001. As of the divorce, Poncho had not initiated adoption proceedings under the New Mexico Adoption Act (the Adoption Act), NMSA 1978, §§ 32A-5-1 to -45 (1993, as amended through 2005).

{8} Ariel also filed a separate action against Bowdoin under the New Mexico Uniform Parentage Act (the Parentage Act), NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 2004), to establish paternity and for child support. Bowdoin had not sought to see Child and had never made any inquiry concerning Child. Nor had Ariel ever requested any financial assistance from Bowdoin. In the Parentage Act lawsuit, Bowdoin denied paternity. Ariel introduced DNA evidence. The lawsuit went to trial toward the end of 2001, and the district court filed a thirteen-page memorandum decision in early 2002 that contained a recitation of facts and a legal analysis of the doctrine of equitable adoption.

{9} In its memorandum decision, the court concluded, based on the DNA and other evidence, that Bowdoin was Child's biological father but that Poncho was the adoptive father of Child "by virtue of an equitable adoption." The court also concluded that Bowdoin was "legally responsible for the support of [Child] unless and until [Poncho] becomes legally bound to support [Child]." The court then stated that, for Poncho to become legally bound to support Child, Poncho had to be joined as a party to the action and accept the decision of the court or be adjudicated as the adoptive father; a guardian ad litem had to be appointed for Child; Bowdoin had to comply with the Indian Child Welfare Act or establish why the Act did not apply; and the court had to be satisfied that it was in Child's best interest for Poncho to be Child's father in lieu of Bowdoin and to relieve Bowdoin from any parental obligation. Bowdoin was ordered to comply with these requirements within sixty days or the court would proceed to determine and award child support against Bowdoin. The court entered an order requiring what it had set out in its memorandum decision.

{10} Bowdoin moved for appointment of a guardian ad litem and to join Poncho, which the court granted. Poncho accepted service of various court-filed documents and consented to joinder. Poncho simultaneously filed an affidavit in which he consented to being joined as a party, stated that he had intended to intervene, and volunteered that the affidavit was made after seeking and obtaining advice from his attorney. He also stated his belief that it would be in Child's best interest that he, Poncho, be adjudicated as the adoptive father of Child in lieu of Bowdoin and relieve Bowdoin of that obligation. The affidavit also stated, among other things, that:

I was married to the natural mother of [Child] prior to his birth, I was present at and assisted in his birth, I am the only father or father figure that [Child] has ever known, I have bonded with [Child], and [Child] has bonded with me, as father and son, at all times since the birth of [Child] I have considered him as my son and I have treated him in all respects as my son. [Child] recognizes me as his father, and recognizes and refers to my mother as his grandmother.

{11} In hearings before the court, Poncho was represented by a staff judge advocate of the Department of the Army. Following this Court's dismissal in September 2002 of an appeal filed by Ariel due to lack of a final order, Bowdoin in March 2003 moved the court to enter an order joining Poncho, to appoint a guardian ad litem, to confirm equitable adoption by Poncho and lack of responsibility on Bowdoin's part to support Child. In April 2003, another counsel entered an appearance for Poncho and until October 2003, when he was permitted to withdraw, this counsel attended hearings on various motions and other matters. Poncho became pro se in October 2003.

{12} In September 2003, the court joined Poncho as a party and ordered Poncho to pay child support. A guardian ad litem was finally appointed. In November 2003, the court denied a motion by Ariel to dismiss Poncho, confirmed Poncho's obligation for child support that started in May 2003, and ordered Poncho to pay further child support amounts. In December 2003, Ariel moved for an order holding Poncho in contempt for failure to pay child support.

{13} As of March 2004, when the named guardian ad litem entered his appearance, neither Bowdoin nor Poncho had met with, or even contacted the guardian ad litem and no child support had been paid. Hearings occurred in March (merits) and June 2004 (presentment), at which neither Poncho nor the guardian ad litem was present. In between the hearings, the court issued a bench warrant for Poncho's arrest on a contempt charge for failure to pay child support. For the March hearing, the guardian ad litem filed "recommendations," consisting,...