Byers v. Byers

Byers v. Byers
1980 OK 149
618 P.2d 930
Decided: 10/07/1980
Supreme Court of Oklahoma

DEANA KAY BYERS, APPELLEE,
v.
STEVEN LEE BYERS, APPELLANT.

Appeal from the District Court, Garfield County; J. Russell Swanson, Judge.

¶0 At issue in a divorce action was husband's status as legal father of a child born to the wife during wedlock. Husband appeals from the trial court's order declaring him to be the child's legal father.

REVERSED.

Johnston, Franklin & Hladik by Ronald G. Franklin, Enid, for appellant.

Carter & Carter by Rowland F. Carter, Enid, for appellee.

OPALA, Justice:

[618 P.2d 931]

¶1 The first-impression question to be answered is whether one who knowingly marries a woman then pregnant by another man may be held liable for support of the child - as its legal father - in a divorce action brought by the mother less than six months after the child's birth. We hold that in the situation so described (a) the court could not impose upon the husband the legal status of the child's father, and (b) the mother should have been relegated to the pursuit of a statutory paternity suit against the biological father.

¶2 Mother was admittedly pregnant by another person when she met, in July 1977, her husband-to-be. The parties intermarried in September and lived together for some two and one-half months thereafter. The child, whose status is here in question, was born January 18, 1978. Mother's divorce action was brought the following June. It stands undisputed that Husband, [618 P.2d 932] who contests his legal paternity status, is not the child's natural father.

¶4 Under 10 O.S. 1971 § 83 Mother may bring a proceeding against the child's biological father to compel payment of support. Mother's marriage to the Husband before the child's birth will not bar a filiation suit, nor can it afford a defense to the putative father.

¶5 The court's authority to order child support in a divorce suit is derived from 12 O.S.Supp. 1974 § 1277 .

¶8 Any contention by Mother that (a) she married Husband only because he had agreed to support the child and (b) by his promise Husband assumed an enforceable duty of support which is in the nature of a contractual obligation, is likewise doomed to failure. The promise, if any was made, is not in writing. Any oral promise made upon consideration of marriage, other than one which falls into the category of mutual promises to marry, is unenforceable. It violates our statute of frauds.

¶9 For a possible analogy to the case at bar we have examined decisions from other jurisdictions which deal with the status of a child conceived in wedlock, with the husband's consent, by artificial insemination.

¶10 Those cases are clearly distinguishable from the case at bar. They are based largely upon either equitable estoppel or implied contract. These theories are inapposite to this case. First, Mother had conceived before she met Husband. Second, the "natural" father does not always become a legal father just because his sperm was used in the artificial insemination process. Nay, the sperm donor, who is quite often anonymous, cannot be made to respond. In this case, the episode of insemination occurred before wedlock and was brought about through natural rather than artificial means by one who was a stranger to the marriage during which the child happened to be born.

¶11 A situation most closely analogous to one before us is that of a stepfather-a man who marries a woman having a child by a previous marriage. Under the provisions of 10 O.S. 1971 § 15 , he is not obligated to support his wife's children by a former marriage. Neither is the natural father relieved of his legal obligation to support the children when the stepfather takes them into his home as members of his family.

¶12 Both the finding that the child was "of the parties' marriage" and the judgment imposing on the Husband the legal status of a father are erroneous in law.

¶13 Reversed.

¶14 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, HODGES, BARNES and HARGRAVE, JJ., concur.

¶15 SIMMS, J., concurs in result.

Footnotes:

1 By operation of 10 O.S.Supp. 1974 § 1.2 all children born in Oklahoma after July 1, 1974 are legitimate in law.

2 Ratzlaff v. State, 121 Okl. 263, 249 P. 934 [1926].

3 LeCrone v. LeCrone, Okl., 596 P.2d 1262 [1979].

4 10 O.S. 1971 § 1 .

5 10 O.S.Supp. 1973 § 3 . The cited section provides: "The presumption of legitimacy can be disputed only by the husband or wife or the descendant of one or both of them. Illegitimacy in such a case may be proved like any other fact. Provided that if the child is born during the course of the marriage and is reared by the husband and wife as a member of their family without disputing the child's legitimacy for a period of at least two (2) years, the presumption cannot be disputed by anyone."

6 10 O.S. 1971 § 1 and 10 O.S.Supp. 1974 § 1.1 .

7 Crozier v. Cohen, 299 F. Supp. 563 [W.D.Okl. 1969]; Clemons v. Clemons, 193 Okl. 412, 145 P.2d 928 [1944]; Eggstaff v. Phelps, 99 Okl. 54, 226 P. 82 [1924]. See anno. in 97 A.L.R.3d 347 on Modern Status of Law as to Equitable Adoption or Adoption by Estoppel [1980].

8 In re Estate of LaSarge, Okl., 526 P.2d 930 [1974]; Standridge v. State, Okl., 441 P.2d 417 [1968].

9 Kirkland v. Henry, Okl., 296 P.2d 165 [1956].

10 15 O.S. 1971 § 136 , subd. 3. See also Nickell v. Nickell, 207 Okl. 533, 251 P.2d 787 [1952].

11 People v. Sorensen, 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495 [1968]; Gursky v. Gursky, 39 Misc.2d 1083, 242 N.Y.S.2d 406 [1963]; see also C.M. v. C.C., 152 N.J. Super. 160, 377 A.2d 821 [1977].

12 Howard v. Howard, Okl., 331 P.2d 946 [1958].

13 Ratzlaff v. State, supra note 2.