Wiese v. Wiese

• Decision Date: 07 March 1985
• Docket Number: No. 18715,18715
• Citation: 699 P.2d 700
• Parties: Carl Bruce WIESE, Plaintiff and Appellant, v. Christine M. WIESE, Defendant and Respondent.
• Court: Utah Supreme Court

Page 700

699 P.2d 700

Carl Bruce WIESE, Plaintiff and Appellant, v. Christine M. WIESE, Defendant and Respondent.

No. 18715.

Supreme Court of Utah.

March 7, 1985.

John T. Caine, Ogden, for plaintiff and appellant.

Stephen W. Farr, Ogden, for defendant and respondent.

HOWE, Justice:

Plaintiff Carl Bruce Wiese appeals from an order of the district court that he pay child support for his stepson.

Our standard of review in divorce proceedings allows us to disturb the action of the trial court only when the evidence clearly preponderates to the contrary or the trial court has abused its discretion or misapplied principles of law. Lord v. Shaw, Utah, 682 P.2d 853 (1984); Fletcher v. Fletcher, Utah, 615 P.2d 1218, 1222 (1980). Subject to those limitations, we are free to review both the facts and the law. Openshaw v. Openshaw, Utah, 639 P.2d 177, 178 (1981); Christensen v. Christensen, Utah, 628 P.2d 1297 (1981).

Defendant Christine M. Wiese was divorced from her first husband in January of 1973. She knew she was then pregnant, but she did not disclose that fact to the court. She had met the plaintiff about two weeks earlier. They married in August, 1973, shortly before her son was born to "give him a name" and to avoid the cost of adoption procedures. Although both knew that plaintiff was not the father of the boy, plaintiff allowed his name to be so shown on the birth certificate, and he treated the boy as his own during the marriage and supported him.

Plaintiff and defendant lived together for approximately 14 of the 36 months they were married. At the suggestion of the defendant, plaintiff took custody of her son when they were divorced in 1976 in a default proceeding. Plaintiff's attorney prepared the decree of divorce which reflected that the boy was "issue of the marriage" and "child of the parties." (We can only assume that they were prepared in this manner because plaintiff's attorney was not informed of the anomoly and had no reason to believe that the boy was not plaintiff's natural son; but the correctness of that assumption does not affect our holding.) Within three months after the divorce, however, defendant demanded the return of her son because plaintiff had left him in the care of plaintiff's parents while he was away in military training. Plaintiff complied and returned the three-year-old boy in November of 1976. He sent gifts and a savings bond to the boy for the following two Christmases. The parties did not make any child support arrangements, but plaintiff voluntarily sent money for the boy on an irregular basis until January, 1978. His last contact with the boy was a one-day visit in the summer of 1977 when the boy was four years old.

In an attempt to clarify the true nature of his relationship and obligation to the boy, plaintiff, in 1978, asked for modification of the divorce decree to reflect that he was not the father of the child. To accomplish this, plaintiff brought an independent common law action grounded in fraud as recognized by Rule 60(b) of the Utah Rules of Civil Procedure. Defendant was served with process, but failed to file any responsive pleadings or to appear at the hearing on the petition. The district court ordered that plaintiff was not obligated to pay child support until such time as defendant petitioned for it, but held the paternity issue in abeyance.

Nearly two and a half years later, defendant caused to be served on plaintiff an order to show cause why he should not pay child support. This action was taken in the divorce proceeding under the court's continuing jurisdiction. Plaintiff answered the order to show cause by raising the issue of paternity and seeking a modification of the divorce decree to reflect that he was not the father of the child. The court consolidated plaintiff's independent action with the order to show cause and ordered that they be set for a trial on their merits.

The trial court found that plaintiff failed to prove any fraud in support of his independent action and declined to modify the decree on that basis. However, in the divorce action the court specifically found that plaintiff was not the father but ordered him to pay child support, holding that plaintiff was equitably estopped from escaping the duty of support. Plaintiff does not appeal the trial court's denying relief in the independent action. He contends, however, that the court erred in not modifying the decree to reflect that he was not the father and in finding that he was equitably estopped from denying liability for support.

There was no duty at common law for a stepparent to support a stepchild. The legislature of this state has imposed that duty on stepparents only during the duration of the marriage. U.C.A., 1953, § 78-45-4.1. The use of an equitable estoppel theory to impose support obligations upon a stepfather was first developed in Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707 (1961) (citing Restatement (First) of Contracts § 90 (1932)). The trial court's findings indicate that it relied on Clevenger in reaching its holding. This Court has never applied the Clevenger rule to estop a nonbiological "father" from denying paternity. In Mace v. Webb, Utah, 614 P.2d 647 (1980), we stated in dictum that "in appropriate cases, a support obligation may be imposed on the basis of estoppel or implied contract." But we expressed a caveat that "the use of an estoppel theory to impose a support obligation on a man who is not the biological father of the child involved must be applied with caution." Id. at 649.

We have held that a party asserting equitable estoppel must prove that he detrimentally relied on the actions or representations of the party to be estopped. Morgan v. Board of State Lands, Utah, 549 P.2d 695 (1976). The trial court found that the boy detrimentally relied on the plaintiff because the latter caused the preparation of the stipulation which was the foundation for the decree of divorce, which decree found that the boy was the "issue of the marriage" and "the minor child of the parties." This representation, the findings continue, placed the child in a "position where it would be substantially impossible to successfully pursue a claim against the biological father."

We cannot agree with the latter finding. No evidence was adduced that it would be "substantially impossible" for the boy to pursue a claim against his biological father. Indeed, the record is totally barren of any evidence that the defendant has ever even approached her first husband (who we assume is the biological father) on the subject of support. We concur with the New Jersey Supreme Court's recent holding that the party asserting equitable estoppel must carry the burden to show that the stepfather's actions have precluded the obtaining of support from the biological father. Miller v. Miller, 97 N.J. 154, 478 A.2d 351, 358-359 (1984). In a well-reasoned opinion, the New Jersey Court held that the party alleging equitable estoppel had the burden to prove that the stepfather's conduct established the three prerequisites to equitable estoppel: representation, reliance, and detriment. As to the detriment requirement, the Court held that there must be evidence that the child will suffer because his stepparent's representation or conduct causes him to be cut off from his noncustodial natural parent's support. By way of example, detrimental action by the stepparent might exist where the custodial parent is unable to locate the other parent or for valid legal reasons is unable to obtain jurisdiction over him or her. The Court emphasized that the natural parent should always be considered the primary source for child support because society and its current laws assume that the natural parent will support his or her child. It concluded that before estoppel could be raised the stepparent "must take positive action interfering with the natural parent's support obligation to be bound." Id. 478 A.2d at 359.

It is true here that the plaintiff consented to be named as the father on the birth certificate and that he caused the decree of divorce between him and the defendant to reflect that the boy was issue of their marriage. However, that conduct in and of itself is insufficient to establish detriment. In the first place, the trial court made a specific finding that plaintiff was not the father of the boy and erred in not modifying the decree to reflect that finding. Secondly, no legal authority is cited for the proposition that plaintiff's representations to the 1976 divorce court preclude the boy, who was not a party to that action, from obtaining support from his biological father. Other jurisdictions have held that if a child is not a party to a previous action adjudging him the offspring of the parties, the child is not bound by that finding. See L___ v. R___, Mo.Ct.App., 518 S.W.2d 113 at 125 (1974) (and cases cited therein); A.B. v. C.D., 150 Ind.App. 535, 277 N.E.2d 599 (1971); Fuller v. Fuller, D.C., 247 A.2d 767 (1968). The fact that the plaintiff treated the boy as his own and supported him is likewise insufficient grounds for imposing the duty of support. Miller v. Miller, supra.

We reverse the judgment and order of support entered against the plaintiff without prejudice to the defendant to again bring an order to show cause for support when her efforts to obtain support from the biological father have been concluded. Only at that time can it be determined whether equitable estoppel will lie against the plaintiff. No costs on appeal are awarded.

Defendant's brief on appeal requests an increase of the trial court's award of attorney fees. However, since she did not file a cross-appeal on this issue, we decline to address her request.

HALL, C.J., STEWART, J. and BALLIF, District Judge, concur.

DURHAM, Justice (dissenting):

The majority opinion analyzes this case in terms of equitable estoppel and reverses because "detriment" has not been shown. I believe that the...