M.L.H. v. COMMONWEALTH OF KENTUCKY, EX REL. CABINET FOR HEALTH & FAMILY SERVICES;
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RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002360-MR
M.L.H.
APPELLANT
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 05-CI-00079
v.
COMMONWEALTH OF KENTUCKY, EX REL.
CABINET FOR HEALTH & FAMILY SERVICES;
and J.A.H.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON, GUIDUGLI, AND VANMETER, JUDGES.
VANMETER, JUDGE:
M.L.H. appeals from an order entered by the
Montgomery Circuit Court in a postdissolution proceeding
declaring his paternity by estoppel and requiring him to pay
child support.
For the reasons stated, we affirm.
M.L.H. and J.A.H. married some five months after
J.A.H.’s son was born in 1998.
It is undisputed that the child
was conceived prior to the couple’s relationship and that M.L.H.
knew all along that the child was not his.
However, M.L.H.
agreed to be named as the father on the child’s birth
certificate and the child was given his last name.
M.L.H.
treated the child as his biological son and the child believed
that M.L.H. was his biological father.
In April 2005, the parties entered into a separation
and property settlement agreement which was filed with the
circuit court.
The parties agreed that J.A.H. would have full
custody of the minor child “born to the marriage,” that
visitation would be at the parties’ discretion, and that there
would be “no set child support as [the parties] will take care
of all of the monetary needs of the minor child while in her
and/or his care.”
However, before a decree of dissolution was
entered, the Commonwealth of Kentucky, ex rel. Cabinet for
Health and Family Services, and J.A.H. filed a motion seeking to
establish M.L.H.’s child support obligation based on the
parties’ incomes and the Kentucky child support guidelines.
Some two weeks later, however, the parties filed a joint
document acknowledging that they had knowingly agreed to deviate
from the child support guidelines, and that the only state
assistance J.A.H. received on behalf of the child was medical
insurance which she purchased for $20 per month.
Although the court then entered a judgment adopting
the parties’ settlement agreement and dissolving the marriage,
it subsequently determined that because M.L.H.’s paternity had
been established by estoppel, he should not be “relieved of his
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responsibility as a father.”
The court therefore entered an
order establishing M.L.H.’s child support obligation.
This
appeal followed.
A panel of this court recently conducted an exhaustive
analysis of the issue of paternity by estoppel.
In S.R.D. v.
T.L.B., 174 S.W.3d 502 (Ky.App. 2005), the court defined the
doctrine of equitable estoppel as follows:
Where one has, by a course of conduct, with
a full knowledge of the facts with reference
to a particular right or title, induced
another, in reliance upon such course of
conduct, to act to his detriment, he will
not thereafter be permitted in equity to
assume a position or assert a title
inconsistent with such course of conduct,
and if he does he will be estopped to thus
take advantage of his own wrong.
Id. at 506 (quoting Farmer v. Gipson, 201 Ky. 477, 257
S.W. 1, 2 (1923)).
The court stated further:
The doctrine is often stated in terms of the
following factors: (1) Conduct, including
acts, language and silence, amounting to a
representation or concealment of material
facts; (2) the estopped party is aware of
these facts; (3) these facts are unknown to
the other party; (4) the estopped party must
act with the intention or expectation his
conduct will be acted upon, and (5) the
other party in fact relied on this conduct
to his detriment.
Id. at 506 (citing J. Branham Erecting & Steel Serv. Co. v.
Kentucky Unemployment Ins. Comm’n, 880 S.W.2d 896, 898 (Ky.App.
1994)).
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Applying the doctrine of equitable estoppel to the
facts before it, the S.R.D. court noted that although the wife
had asserted that the husband might not be the father of the
youngest of three children born during the marriage, the husband
treated all three children as his own.
However, when the
youngest was eight years old and the parties had been divorced
some six years, the husband obtained DNA testing which confirmed
that he was not the biological father of the youngest child.
The husband then filed a CR 60.02 motion seeking to terminate
his child support obligation for that child, although he wished
to continue acting as the child’s father in all other respects.
The trial court denied the motion as not being in the child’s
best interest, noting that for a substantial period the husband
had held himself out as the child’s father even in the face of
doubt.
This court agreed, stating that although the husband
knew for many years that he might not be the youngest child’s
biological father, he treated her as his own and intended that
she would believe that he was her father.
The child relied on
that representation and had no knowledge that another man might
be her biological father.
As stated by the court, the husband
“made a material misrepresentation to [the child], upon which
[she] relied, to [her] detriment and prejudice” because the
husband’s conduct effectively foreclosed the child from having
any financial or other relationship with her biological father.
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Id. at 508-09.
This court concluded that the trial court did
not abuse its discretion by finding that equitable estoppel
precluded the husband from denying his paternity and his
financial obligations toward the child.
Here, as in S.R.D., M.L.H. was named on the child’s
birth certificate, and he raised and held the child out as his
own even though he in fact was not the child’s biological
father.
Although here no element of marital deceit led to the
husband’s uncertainty about his paternity as in S.R.D., in both
cases the children were led to believe that they were the
husbands’ biological offspring.
Moreover, in the matter now
before us, M.L.H. furthered the misrepresentation to the child
by listing his name on the child’s birth certificate although
the parties were unmarried and it was undisputed that he was not
the biological father.
As M.L.H. thereafter held himself out as
the child’s father for over six years, including through the
initial dissolution proceedings, we must conclude that he was
equitably estopped by his own behavior from denying his child
support obligations on behalf of the child.
Thus, the trial
court did not err by finding that M.L.H. is obligated to provide
child support.
The court’s order is affirmed.
ABRAMSON, JUDGE, CONCURS.
GUIDUGLI, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
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GUIDUGLI, JUDGE, DISSENTING.
I respectfully dissent.
The majority herein believes S.R.D. v. T.L.B., 174 S.W.3d 502
(Ky.App. 2005), to be controlling.
I disagree that the facts
herein are sufficiently similar with the S.R.D. case and further
I disagree with the holding of that case establishing paternity
by estoppel.
Rather, I believe Judge Henry’s dissent in S.R.D.
accurately states the law relative to the reason paternity by
estoppel should not be adopted by the courts.
In addition, I
believe this to be an issue that needs to be addressed first by
the legislative branch and not the judicial branch of
government.
At appropriate hearings before legislative
committees, the social, economic, emotional, and any other
impact such a major change in existing law would have, could be
properly explored.
There are numerous issues that must first be
addressed, such as how paternity by estoppel promotes family
life, how it impacts blended family relationships, who is
primarily responsible for child support (i.e., the natural
father, the first step-father, the second step-father, or a
combination), can the natural father be relieved of his child
support obligation if a step-father takes over a paternal
relationship, and the time-frame of when one becomes a father by
estoppel (One year?
Two years?
Five years?).
From a legal
standpoint, how does an attorney now advise a client who is
contemplating marriage to another who has children?
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The list of
unanswered questions is great.
Based upon the reasons listed
above, those set forth in the dissent of S.R.D., prior case law,
and other reasons too numerous to mention herein, I respectfully
dissent.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Angela A. Patrick
Mt. Sterling, Kentucky
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