Ulrich v. Cornell
| Decision Date | 16 April 1991 |
| Docket Number | No. 90-1220,90-1220 |
| Citation | 469 N.W.2d 890,162 Wis.2d 462 |
| Parties | , 59 USLW 2759 In re the Marriage of John T. ULRICH, Jr., Petitioner-Appellant- Cross-Respondents, d v. Catherine A. CORNELL, Respondent-Cross-Appellant. |
| Court | Wisconsin Court of Appeals |
Warmington & Warmington, S.C. by Thomas E. Warmington, Waukesha, for petitioner-appellant-cross-respondent.
Glembocki & Masson, S.C., Milwaukee, for the respondent-cross-appellant.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
This case involves both an appeal and cross-appeal from the trial court's postjudgment order which held that John T. Ulrich (John) was estopped from denying an obligation to support Jesse Cornell (Jesse), his stepson. The trial court's order further held that Jesse's change in residence from John's home to that of his mother's, Catherine A. Cornell (Catherine), was an adequate justification for a reduction in Catherine's child support payments to John. The order permitted Catherine to stop paying John $75 per month in support, and ordered him to pay Catherine $10 per week to support Jesse. Finally, the order stated that there was an insufficient basis to award Catherine maintenance for her schooling. Because John is equitably estopped from denying support for Jesse, because there was a change of circumstances warranting elimination of Catherine's support payments for the two children of the marriage, and because John's ability to pay support was limited, it was proper to limit the support of Jesse to $10 per week. The trial court also properly denied Catherine's request for maintenance. We affirm.
Catherine was unmarried on July 27, 1977, when she gave birth to Jesse. A paternity action to determine Jesse's biological father was underway when Catherine married John on January 20, 1979. In agreement with John, Catherine filed for a termination of the parental rights of Jesse's natural father. John paid the legal expense for the termination of parental rights proceedings. The termination was ordered by Waukesha county circuit Judge Robert T. McGraw on July 27, 1980. On that same day, John signed a petition for the adoption of Jesse, however, the adoption procedure was never completed due to the financial constraints of the parties. Catherine testified that John had said he would adopt Jesse, and that she would never have sought the termination of Jesse's natural father's parental rights if John had not agreed.
During Catherine's and John's marriage, two children were born. Throughout the marriage John treated Jesse as his son and introduced him as such. During this time John also openly and publicly expressed his intent to support Jesse until he was eighteen years of age.
The divorce proceedings were held on April 15, 1986, and it was agreed that all three children would live with John. No support payments were ordered at the time of the divorce judgment and Catherine was given extensive visitation rights. The trial court subsequently ordered Catherine to pay $75 per month in child support and held maintenance for Catherine open, but did not order any to be paid. Jesse lived with John from the date of the divorce judgment until July of 1987, a period of fifteen months, when John returned Jesse to Catherine because of disciplinary problems. Catherine continued to pay the monthly $75 for child support, but did not receive any support from John for Jesse.
John filed an order to show cause on April 7, 1989, for additional child support from Catherine and to eliminate maintenance which had been left open in the divorce judgment. Catherine then filed an order to show cause on April 28, 1989, asking most significantly, for a decrease in child support payments to John, for John to pay her child support for Jesse, and for maintenance to help her defray educational expenses. On May 8, 1989, Assistant Family Court Commissioner Joan Hicks held a hearing on these issues and rendered her decision on September 15, 1989. The family court commissioner revised visitation for the two minor children of the marriage, denied John's request for increased support payment from Catherine, denied Catherine's request for decreased support for the two children of the marriage and her request for support for Jesse, and, finally, denied maintenance but held it open for future determination. The commissioner held that there was no change of circumstances Catherine timely filed for a de novo review, and the trial court held a hearing on December 18, 1989. The trial judge rendered his opinion from the bench that day which was later reduced to writing and entered. The trial court held that John was equitably estopped from not supporting Jesse because he was instrumental in the termination of the parental responsibility of the putative father and unequivocally stated throughout the marriage that he would support Jesse. The court noted that Catherine had relied on these statements to her detriment. The trial court suspended the $75 per month support payment flowing from her to John for the support of the two children of the marriage, and ordered John to pay her $10 per week in support for Jesse because it held Catherine had a change of circumstances since Jesse was now living with her. It further denied maintenance to Catherine.
warranting reduction in Catherine's $75 per month support payments and that the same was true on the issue of maintenance. The commissioner refused to [162 Wis.2d 467] employ equitable estoppel on Catherine's request for support for Jesse.
John first argues that the trial court erred in ordering him to pay support for Jesse because it did not have subject matter jurisdiction to do so, and there is no law in the state which permits such an award. John also argues that the trial court erred in relieving Catherine of the responsibility to pay child support. John's brief does not cite to any authority to support his argument to reverse the trial court order holding open maintenance. We, therefore, will not address this issue. 1
In response, Catherine argues that the trial court does have subject matter jurisdiction to order John to pay child support for Jesse, and that he is equitably estopped from denying such responsibility. Catherine also argues that the trial court erred in ordering John to pay her just $10 a week in child support, and that it should also have awarded her maintenance.
John contends that the trial court lacks subject matter jurisdiction whereby to order him to pay support for Jesse. The record reflects no indication that this issue was raised before the trial court. This court has held that the "[f]ailure to timely object to the court's competency to proceed constitutes a waiver of that objection." 2 This issue is waived.
John argues that there is no statute or common law provision in our state that permits a trial court to order an individual to provide child support for the child of an ex-spouse who is not legally that person's child. That is to say, that the person ordered to pay support is not either the natural or adoptive parent of the child. We hold that the trial court was correct in ordering John to pay support for Jesse under a theory of equitable estoppel.
The doctrine of estoppel has been thoroughly entrenched in our system of jurisprudence for many years. Although estoppel by some "has sometimes been quaintly defined [as] stopping a man's mouth from speaking the truth; and would seem, in some measure, to partake of severity, if not of injustice," 3 this is far from the truth. In fact, estoppel:
is in reality founded upon the soundest principles, as a rule of evidence. That a party has, by his own voluntary act, placed himself in a situation as to some matter of fact, that he is precluded from denying it; and in its application to the dealings and contracts of men in the affairs of human life, it is a salutary practical rule, that a man shall not be permitted to deny what he has once solemnly acknowledged. 4
On review, the trial court's application of the doctrine of equitable estoppel to a case involving child support is a question of law. 5 Questions of law are decided independently by appellate courts without giving deference to the trial court. 6
In A.M.N. v. A.J.N., this court held that for a trial court to employ the doctrine of equitable estoppel in stepparent child support cases requires finding: "(1) an unequivocal representation of intent to support the child; (2) reliance on that representation by the natural parent or child; and (3) detriment to the natural parent or child as a result of such reliance." 7 In A.M.N. the stepparent was not ordered to pay child support because he had only promised to love the child, not to support it, so equitable estoppel was not applied to enforce child support payments. 8
A number of other jurisdictions have likewise held that under the proper set of circumstances the doctrine of equitable estoppel is available as a means for making a stepparent pay child support. 9 In analyzing the public policy aspects of this decision, the California Court of Appeals said that:
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. This is a cruel weapon, which works a lasting injury to the child and can bring in its aftermath social harm. The weapon should garner no profit to the wielder; the putative father should earn no premium by the assertion of the illegitimacy of the child. If any legal hypothesis can prevent such an inducement to publication of illegitimacy, we should adopt that theory. We therefore examine each of the approaches suggested by respondent, and, although we do not believe this record sustains their...
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Ulrich v. Cornell, 90-1220
...the circuit court's decision by concluding that the "facts meet the test of equitable estoppel." In re Marriage of Ulrich v. Cornell, 162 Wis.2d 462, 472, 469 N.W.2d 890 (Ct.App.1991). The court's reasoning was that "there were unequivocal representations by John of his intent to support Je......