BARBER v. BARBER

BARBER v. BARBER
2003 OK 52
77 P.3d 576
Case Number: 93086
Decided: 05/20/2003
Modified: 09/08/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

PATTI BARBER,

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III

¶0 In a published opinion, the Court of Civil Appeals, Division III, reversed the trial court's order that allowed Appellant/Cross-Appellee to challenge to the presumption of paternity in Appellee/Cross-Appellant created by 10 O.S.2001, § 2(A)(1). The Court of Civil Appeals did not address the issue of visitation raised by Appellant/Cross-Appellee.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
ORDER OF THE TRIAL COURT AFFIRMED IN PART AND REVERSED
IN PART AND CASE REMANDED FOR PROCEEDINGS
CONSISTENT WITH TODAY'S PRONOUNCEMENT.

Gerald J. Lovoi, Tulsa, Oklahoma, attorney for Defendant /Appellant/Cross-Appellee Patti Barber.
M. Jean Holmes, Michael James King, Winters, King & Associates, Inc., Tulsa, Oklahoma, and Sherrie Thompson McAllister, Harris, McMahan & Peters, P.C., Tulsa, Oklahoma, attorneys for Gary D. Barber, Jr., Plaintiff/Appellee/Cross-Appellant.
Sean McKee, Attorney at Law, Tulsa, Oklahoma, for Bonita Barber and Gary Barber, Sr., Interveners.

WINCHESTER, J.

¶1 This matter concerns the right of a biological mother to dispute the presumption of paternity created by

FACTS AND PROCEDURAL HISTORY

¶2 The parties, Defendant/Appellant/Cross-Appellee Patti Barber, (hereinafter "Biological Mother") and Plaintiff/Appellee/Cross-Appellant Gary D. Barber, Jr., (hereinafter "Husband") were married in 1989 and a daughter was born of the marriage. Custody and visitation rights concerning the parties' daughter is not at issue herein. Custody and visitation rights concerning a son, born to Biological Mother after she was impregnated by another man, form the basis for the paternity issue presented herein. At the time Biological Mother became pregnant with this second child, she and Husband had separated. Subsequently, they reconciled. The son was born March 29, 1994. The record establishes that Biological Mother's Husband knew he might not be the father of Biological Mother's son, even during Biological Mother's pregnancy. Biological Mother allowed Husband's name to be placed on her son's birth certificate. The record establishes that the parties agreed they would rear Biological Mother's son together. Husband filed for divorce when Biological Mother's son was approximately nineteen months old. After awarding temporary custody of both children to Biological Mother, the trial court determined Biological Mother and Husband were unfit and placed the children with Husband's parents, who are the daughter's paternal grandparents but who are unrelated to Biological Mother's son. Biological Mother contested paternity under

¶3 Husband asserts Biological Mother is estopped from challenging paternity or that he should be treated as her son's father under a theory of "equitable parenthood," or "equitable adoption" or in Biological Mother's son's best interest. Biological Mother contends that she should not be forced to allow her son to have a relationship with Husband and his parents, since Husband is not her son's biological father. She also contends her son's best interest is met by disallowing Husband access to him.

¶4 The Court of Civil Appeals, Division III, applied the principle of equitable estoppel to prevent Biological Mother's timely challenge to the marital presumption contained in

STANDARD OF REVIEW

¶5 The issues before us arise from the court's ruling on matters of law, to-wit: whether Biological Mother was equitably estopped from contesting paternity, and whether Husband and Husband's parents were entitled to visitation rights with the son even though Husband is not the biological or adoptive father. We note that were the "best interests of the child" a consideration, then the issue would become a fact question, dictating a different standard of review. However, since both of these issues are matters of law, our review is de novo. "An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Manley v. Brown,

CHALLENGES TO THE MARITAL PRESUMPTION

¶6 The statutory language of § 2(B) is clear that the marital presumption of paternity may be challenged under § 3 by Biological Mother within two years of her son's birth. The statute does not reference the common law principle of equitable estoppel in the context of an analysis regarding whether the presumption should be challenged. Indeed, the common law does not make provisions for paternity suits, and we decline to call upon an equitable tenet of the common law to carve an exception to the legislature's clear intent in this regard.

¶7 The theory of promissory estoppel is grounded in the Restatement (Second) of Contracts § 90 and is incorporated into Oklahoma common law. Russell v. Board of County Commissioners, Carter County,

"(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. * * * "

We articulated the elements necessary to establish promissory estoppel in Russell v. Board of County Commissioners, Carter County,

1.a clear and unambiguous promise;

2.foreseeability by the promisor that the promisee would rely upon it;

3.reasonable reliance upon the promise to the promisee's detriment;

4.hardship or unfairness can be avoided only by the promise's enforcement.

¶8 In the case at bar, Husband's theory of promissory estoppel seems to arise from his contention that he and Biological Mother, at some point prior to his request for divorce, agreed to rear Biological Mother's son "together." Even if we were at liberty to consider the application of promissory estoppel to the instant facts, which we are not, it is apparent that the four elements we set forth in Russell, supra, are not present herein. No factual disputes exist to open the door for a theory of promissory estoppel, were it possible to do so. The record reflects that Husband filed for divorce from Biological Mother, thus rendering it impossible for the parties to rear her son "together." Indeed, Husband commenced the very action that precluded Biological Mother from fulfilling her half of their "promise" to rear her son as though he were Husband's. It cannot be said that Husband relied on this joint promise to his detriment. The record does not contain any reference to hardship or unfairness to Husband in allowing Biological Mother to contest the marital presumption, because he in fact is not the biological father of her son. Further, the record is undisputed that Biological Mother challenged paternity within the statutory two-year time period. The record further reflects it is undisputed that the DNA testing established Husband is not the biological father of Biological Mother's son. Accordingly, we determine Husband's argument that Biological Mother is equitably estopped from contesting paternity lacks merit.

VISITATION ISSUES

¶9 Biological Mother contends that because Husband is not the biological father of son, he is not entitled to visitation rights, nor are Husband's parents. We agree. A parent's right to companionship, care, custody and management of her child is a basic fundamental right protected by the United States and Oklahoma Constitutions. Leake v. Grissom,

¶10 Therefore, we hold that the trial court erred when it awarded visitation rights with Biological Mother's son to Husband and Husband's parents. We also hold that the Court of Appeals erred when it applied principles of equitable estoppel to Biological Mother's successful challenge to the marital presumption of Husband's paternity. We determine that all of Husband's arguments in the instant matter lack merit. This case is remanded to the trial court for further proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
ORDER OF THE TRIAL COURT AFFIRMED IN PART AND REVERSED
IN PART AND CASE REMANDED FOR PROCEEDINGS
CONSISTENT WITH TODAY'S PRONOUNCEMENT.

CONCUR - WATT, C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ.

CONCUR IN PART; DISSENT IN PART - OPALA, V.C.J., HARGRAVE, SUMMERS, JJ.

FOOTNOTES

1 10 O.S.2001, § 3 provides:
Persons entitled to dispute presumption - Time limit
A. The presumption of paternity created pursuant to Section 2 of this title may be disputed only by the husband or wife, the putative father or their descendants. Paternity may be established pursuant to Section 70 of this title.
B. If a 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.

2 10 O.S.2001, § 2(A)(1) provides:
Presumption of paternity
A. Except as otherwise provided by Section 215 of Title 84 of the Oklahoma Statutes, a man is presumed to be the natural father of a child for all intents and purposes if:
1. He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within ten (10) months after the termination of the marriage by death, annulment, declaration of invalidity, divorce or dissolution, or after a decree of separation is entered by a court. A child born before wedlock becomes legitimate by the subsequent marriage of his parents even if the marriage is, was or could be declared invalid. Any child born within the ten-month period specified in this subsection which is born during a subsequent marriage to another person shall be presumed to be the legitimate child of that subsequent marriage;
2. Before the child's birth, he and the child's natural mother have cohabitated and the child is born within ten (10) months after the termination of cohabitation. As used in this paragraph, the term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law;
3. While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child for a period of at least two (2) years;
4. The United States Immigration and Naturalization Service made or accepted a determination that he was the father of the child at the time of the child's entry into the United States and he had the opportunity at the time of the child's entry into the United States to admit or deny the paternal relationship; or
5. Statistical probability of paternity is established at ninety-five percent (95%) or more by scientifically reliable genetic tests, including but not limited to blood tests.
B. The presumption of paternity created pursuant to this section may be disputed pursuant to Section 3 of
this title.