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B.E.B. v. R.L.B. (5/14/99), 979 P 2d 514

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


B.E.B.,                       )
                              )    Supreme Court No. S-7586
               Appellant,     )
                              )    Superior Court No.
     v.                       )    4FA-95-0254 CI
R.L.B.,                       )    O P I N I O N
               Appellee.      )    [No. 5114 - May 14, 1999]

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                    Richard D. Savell, Judge.

          Appearances:  Alan J. Hooper, Law Office of
Alan J. Hooper, Fairbanks, for Appellant.  Rita T. Allee,
Fairbanks, for Appellee.

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          BRYNER, Justice.

          This case requires us to chart the boundaries of the
paternity by estoppel doctrine.  B.E.B. was not the biological
father of his wife R.L.B.'s newborn son, K., but for several years
treated K. as his own son.  When B.E.B. and R.L.B. eventually
divorced, the superior court ordered B.E.B. to make ongoing child
support payments, finding that, in order to prevent K. from
suffering emotional harm, B.E.B. should be estopped from denying
paternity.  We reverse, adopting the majority view of paternity by
estoppel.  Under this view, we apply the doctrine to prevent
financial, not emotional, harm.
          B.E.B. and R.L.B. were married in 1979.  They had one
child in 1977 and one in 1979.  In 1981 B.E.B. had a vasectomy. 
Eight years later, in 1989, R.L.B. gave birth to a third child, K. 
Over the next three years, B.E.B. treated K. as his own son,
intended K. to think of him as his father, and represented to the
world that K. was his child.  B.E.B. was the only adult male role
model in K.'s life.  K. even called B.E.B. "daddy."
          B.E.B. and R.L.B. separated in November 1993.  While
B.E.B. maintained regular contact with his two older children, he
distanced himself from K., denying that K. was his son.  K.
nevertheless continued to think of B.E.B. as his father.
          Fourteen months after separating from B.E.B., R.L.B.
filed for divorce, requesting child support for her three children. 
In response, B.E.B. denied paternity of K.  Trial was scheduled for
the first week of October 1995.  Prior to trial, B.E.B. moved for
an order requiring DNA testing to determine whether he was K.'s
father; this motion was unopposed.  The court granted B.E.B.'s
motion in August 1995.  Problems arose in obtaining the blood
tests, however, and the results of the tests were not available as
the date for the divorce trial approached.  B.E.B. moved for a
continuance, but the court denied the motion.  The court stated
that it would bifurcate the trial, trying all issues unrelated to
paternity first and reserving paternity-related issues until the
DNA test results were completed.   
          Trial began on October 10, 1995, with B.E.B. appearing
pro se.  At the outset, the court confirmed that the trial would be
bifurcated.  Despite the bifurcation order, the court allowed
R.L.B. to testify during the first day of trial about some aspects
of her paternity by estoppel claim, including the nature of K. and
B.E.B.'s relationship.  B.E.B. did not object to this testimony.
Nevertheless, on several occasions after this testimony, the court
reminded the parties of its bifurcation order.  For example, when
B.E.B. attempted to cross-examine R.L.B. about adultery, the court
interrupted, emphasizing that "we are not litigating paternity in
this case."  Soon after, the court repeated that "[w]e are not
going to decide paternity of K. in . . . this hearing because
you've asked it to be delayed, and if the evidence is as you say,
the Court will consider their defense and decide what happens.  But
that's not this case."  At the end of the first day of trial, the
court mused: "So this one-day case has become a two-day case.  And
without consideration of paternity."
           But as trial resumed the following morning, the trial
court announced that it would allow the parties to present evidence
on the issue of estoppel: 
          I don't want any of the parties to be misled
by a statement I made yesterday about what issues are being tried
here.  I have permitted, and there has been no objection to the
testimony introduced that is intended to support the estoppel
defense to disestablishment of paternity.
The court went on to say that, "pending the results of testing,"it
would not consider the issue of K. being "the biological child"and
would leave the record open for admission of the DNA test results. 
The court concluded this announcement by saying, "you people can
talk about relationships, bonds and things like that."Both parties
agreed to this arrangement without further question or comment. 
          The trial ended on the second day, and the court directed
B.E.B. to pay interim support for all of the children in R.L.B.'s
custody, including K.  Shortly thereafter, the DNA tests were
completed.  The tests conclusively established that B.E.B. was not
K.'s biological father.  On October 20 B.E.B. submitted the test
results to the court and asked it to reconsider the interim child
support order as to K.  He later filed a post-trial motion in which
he noted that his vasectomy predated K.'s birth.  B.E.B. alleged
that R.L.B. had fraudulently led him to believe that K. was his
child.  He offered to produce evidence of R.L.B.'s fraudulent
conduct in response to R.L.B.'s claim of paternity by estoppel.
          Despite B.E.B.'s allegations, the court denied further
hearing.  Relying on this court's decision in Wright v. Black, [Fn.
1] the court observed that paternity by estoppel is "intended to
avoid unfairness and emotional harm to the child from frustrating
the child's expectation of care and support to adulthood . . . ." 
The court found that B.E.B. and K.'s relationship was established
during K.'s first five years.  Noting that these years were
arguably K.'s most formative, the court held that B.E.B. was
estopped from denying paternity.  The court also rejected B.E.B.'s
request for a hearing on his claim of fraud, ruling that he should
have submitted his evidence earlier:  "Trial was the time to assert
that he had had a vasectomy.  Trial was the time to assert that
[R.L.B.] had lied and used fraudulent means to cause him to believe
[K.] was his child.  Trial was the time to assert that the factors
of equitable estoppel should not apply to him."
          B.E.B. appeals, arguing that the court wrongfully
deprived him of an opportunity to present his evidence of fraud,
and that the court misapplied the doctrine of paternity by
     A.   The Trial Court Found Paternity by Estoppel Based on
Evidence of Potential Emotional Harm to K.

          The trial court found that K. would suffer emotional
damage if B.E.B. were allowed to abandon the paternal role that he
had voluntarily established with the boy.  To protect K. from this
emotional harm, the court estopped B.E.B. from denying paternity
and ordered him to continue paying for K.'s support. B.E.B.
maintains that the court applied the doctrine of paternity by
estoppel too broadly. [Fn. 2]
     B.   Alaska's Prior Cases on Paternity by Estoppel Support a
Broad "Emotional Harm"Standard of Prejudice. 
          Given this court's prior decisions on paternity by
estoppel, the trial court's view of the doctrine is understandable. 
We first acknowledged the doctrine of paternity by estoppel more
than a decade ago in H.P.A. v. S.C.A. [Fn. 3]  There we observed
that "[u]nder normal circumstances it is the biological parents who
shoulder the legal responsibility for the welfare of their
offspring."[Fn. 4]  But we also recognized that "[t]here are
situations . . . where a person's conduct towards an infant can
give rise to a constructive parental relationship such that one can
be adjudged a legal parent even if not biologically the same."[Fn.
          We traced paternity by estoppel to the well-established
rule of equitable estoppel, which is traditionally invoked upon
proof of three elements: conduct or words amounting to a
representation, reasonable reliance, and resulting prejudice. [Fn.
6]  Citing the California Court of Appeal's 1961 ruling in
Clevenger v. Clevenger, [Fn. 7] we indicated that, in the paternity
context, the first two elements of estoppel -- representation and
reliance -- would be met when: (1) the husband directly or
implicitly represented to the child that he is the father; (2) the
husband intended the child to rely on this representation; (3) the
child did rely on it and treated the husband as a father; and (4)
the child remained ignorant of the true facts. [Fn. 8]  But we had
no occasion in H.P.A. to consider the third element of estoppel --
prejudice.  Without mentioning this element, we remanded the case
to the trial court, because its findings on estoppel failed to
address H.P.A.'s allegation that his wife had misled him as to the
existence of paternity. [Fn. 9]
          We addressed the third element of paternity by estoppel
when we next considered the doctrine eight years later in Wright v.
Black. [Fn. 10]  In Wright, we stated that "the application of
equitable estoppel to paternity cases advances sound policies in
the law[.]"[Fn. 11]  We cited Clevenger for the proposition that,
in a case involving paternity by estoppel, the traditional
requirement of prejudice can be met in one of three ways:
          (1) the child is deprived of the mother's
potential action to hold the natural father responsible for the
support of the child; (2) the child gives his love and affection to
the husband, expecting care and support until adulthood.  Denying
paternity later inflicts an emotional injury on the child; (3) the
child, who has held himself out as legitimate, suffers a social
injury when that status is removed.[ [Fn. 12]]

          We went on to apply Clevenger's formulation of the
prejudice requirement, affirming the trial court's decision, which
barred Michael Wright from denying his paternal duty to support his
former wife Robyn's five-year-old son, Damon. [Fn. 13]  Because
Damon had come to rely on Michael as his father, and because this
reliance would have made it difficult for Damon to sever his bonds
to Michael without suffering emotional harm, we held that the
Clevenger standards had been met. [Fn. 14]  
          Our third and most recent decision on paternity by
estoppel is K.E. v. J.W. [Fn. 15]  There, in a divorce proceeding,
the wife, K.E., requested the trial court to hold her husband,
J.W., responsible for post-divorce support of L.E.  L.E. was born
to K.E. during the marriage, but was not biologically J.W.'s
daughter. [Fn. 16]  The trial court declined to estop J.W. from
denying paternity and refused K.E.'s request for child support,
even though J.W. had treated L.E. as his daughter for two years
before he separated from K.E. [Fn. 17]  We affirmed the trial
court's decision. [Fn. 18]  While we acknowledged the Clevenger
standard as being applicable, [Fn. 19] we concluded that the court
was not clearly erroneous in finding that the Clevenger prejudice
standard had not been met under the specific facts presented --
particularly because J.W. had worked away from home and had
actually spent only 90 to 180 days with L.E. during the two years
before the parties separated. [Fn. 20]
     C.   The Alternative View of Paternity by Estoppel Favors a
Narrower Test of Prejudice Focusing on Financial, Rather Than
Emotional, Harm.
          R.L.B. urges us to follow the lead of our prior cases by
applying the Clevenger test here.  She argues that the record
supports the trial court's finding that K.'s strong, voluntarily
fostered ties to B.E.B. cannot be severed without considerable
emotional trauma.  In contrast, B.E.B. cites a substantial body of
cases in which courts have expressly declined to apply Clevenger's
broad test of emotional harm.  These courts assert that the
doctrine of paternity by estoppel should ordinarily be invoked only
upon a showing of economic, rather than emotional, prejudice.  
          In K.B. v. D.B., [Fn. 21] the Massachusetts Appeals Court
reviewed the conflicting cases on paternity by estoppel and
identified two competing policies that these cases promote. [Fn.
22]  K.B. described Clevenger, on the one hand, as the leading
proponent of a policy that focuses on preserving paternal ties
after the break-up of a marriage. [Fn. 23]  This policy,
recognizing that the bonds between a parent and a young child can
seldom be severed without serious emotional harm to the child,
strongly discourages non-biological fathers from abandoning
parental relationships that they have willingly fostered:
          The reversal of [the non-biological parent's
original representation of parenthood], through the publication of
the illegitimacy of the child, inflicts deep injury upon [the
child].  To be designated as an illegitimate child in
preadolescence is an emotional trauma of lasting consequence. 
Having placed the cloak of legitimacy upon the child, having
induced the child to rely upon its protection, the [adult] by
abruptly removing it surely harms the child.[ [Fn. 24]]
Several jurisdictions have followed Clevenger in holding that
prejudice in such cases can be based on proof of potential
emotional harm. [Fn. 25]   
          On the other hand, the K.B. court described Knill v.
Knill [Fn. 26] as a leading case favoring a policy that focuses on
establishing paternal ties while a marriage is still healthy. [Fn.
27]  This policy strongly encourages a putative parent to assume
the role of an actual parent without fear of later repercussions.
[Fn. 28]  In Knill, the Maryland Court of Appeals disagreed with
the idea that the need to spare a child from the emotional harm
caused when a non-biological parent withdraws support justifies the
doctrine of paternity by estoppel. [Fn. 29]  The court explained
its preference for a policy that strives to foster harmony while
the family remains intact:
          In this case, Charles knew that Stephen was
not his son and, nevertheless, treated him as his son and as a
member of the Knill family. Such conduct is consistent with this
State's public policy of strengthening the family, the basic unit
of civilized society.  We encourage spouses to undertake, where
feasible, the support, guidance, and rearing of their spouses'
children . . . .[ [Fn. 30]]

The court in Knill thus concluded that Charles "should not be
penalized for his conduct under the circumstances."[Fn. 31]  It
opted for a rule limiting estoppel to cases of "financial
detriment"[Fn. 32] -- that is, cases in which the non-biological
parent's conduct "actively interferes with the children's support
from their natural parent."[Fn. 33]
          In favoring the narrow test of financial prejudice over
Clevenger's broader emotional harm standard, the Knill court relied
on the New Jersey Supreme Court's decision in Miller v. Miller.
[Fn. 34] The Miller court reasoned that "the development of
'emotional bonding' . . . is not sufficient to invoke the doctrine
of equitable estoppel[,]"[Fn. 35] because
          to hold otherwise would create enormous policy
difficulties.  A stepparent who tried to create a warm family
atmosphere with his or her stepchildren would be penalized by being
forced to pay support for them in the event of a divorce.  At the
same time, a stepparent who refused to have anything to do with his
or her stepchildren beyond supporting them would be rewarded by not
having to pay support in the event of a divorce.[ [Fn. 36]]
          Many states now follow the narrow approach to paternity
by estoppel described in Knill and Miller, requiring prejudicial
reliance to be proved by evidence of financial harm. [Fn. 37]
     D.   Despite Our Prior Decisions, We Conclude that the
Narrower "Financial Harm"Test of Prejudice Must Apply in Paternity
by Estoppel Cases.

          Although H.P.A., K.E., and Wright undeniably suggest that
Clevenger's broader emotional harm test applies in Alaska, the test
is not as firmly embedded in our law as it may at first appear.  We
have never carefully examined the Clevenger test of emotional
prejudice.  As pointed out above, in H.P.A. we mentioned
Clevenger's discussion of the first two elements of estoppel --
representation and reliance -- but not its formulation of the third
element -- prejudice. [Fn. 38]  In K.E. we simply concluded that
Clevenger's test of prejudice had not been met. [Fn. 39]  Only in
Wright did we expressly apply Clevenger's emotional harm standard.
[Fn. 40]  But in so doing, we did not consider the alternative,
narrower view of paternity by estoppel. [Fn. 41]  In fact, the
parties in Wright do not seem to have alerted us to the large body
of cases that are at odds with Clevenger, since the applicable
estoppel standard was evidently uncontested.  We thus appear to
have accepted Clevenger as a conventional description of a
uniformly accepted doctrine. [Fn. 42]
          Having now considered the issue in light of the divergent
case law, we are persuaded to follow the alternative view of
paternity by estoppel.  Our preference arises from legal and
practical considerations.  The duty of support has traditionally
been rooted in the biological ties between a parent and a child.
[Fn. 43]  This well-accepted principle weighs heavily in favor of
a rule that makes estoppel the exception, not the norm.  Yet under
Clevenger's broad emotional harm standard, the exception would
dominate: "To rule . . . that the exception applies whenever a
child has reached an age when he or she could have a meaningful
appreciation of paternity would make the exception the rule and the
'rule' applicable only to one and two year olds."[Fn. 44]
          Moreover, Clevenger's broad rule, centering as it does on
a child's emotional well-being after the break-up of a marriage,
tacitly assumes that requiring a non-biological parent to pay post-
divorce support will encourage a lasting emotional bond.  This
assumption is highly questionable.  
          It is far from obvious that precluding a non-biological
father from challenging paternity can effectively protect his
child's emotional well-being.  An order requiring the father to pay
support or barring him from challenging paternity will hardly
prevent him from publicly claiming that he is not actually the
child's father.  Of course, it is arguable that if the father knows
that he will not be able to shirk his support obligation by
challenging paternity, he might be deterred from attempting the
challenge.  But any such deterrence would be more than offset by
the risk that a court order requiring the non-biological father to
pay support might itself destroy an otherwise healthy paternal bond
by driving a destructive wedge of bitterness and resentment between
the father and his child.  In short, the Clevenger rule is not
grounded in reality.  To encourage ongoing bonds between a non-
biological father and son is certainly desirable; but, as a
practical matter, Clevenger's emotional harm standard is not likely
to accomplish this commendable goal. [Fn. 45] 
          In contrast, the narrower rule, described in cases like
Knill and Miller, strives to attain a more realistic goal.  It
recognizes "the desirability of encouraging [non-biological
parents] to assume voluntarily support of children without the fear
that doing so may obligate them permanently."[Fn. 46]  This goal
is no less significant or desirable than Clevenger's policy of
protecting children's emotional well-being.  At the same time, the
financial prejudice requirement substantially furthers the stated
goal of encouraging voluntary relationships.  Thus, unlike
Clevenger's interpretation of paternity by estoppel, this
alternative interpretation of the doctrine seems well suited to
accomplish its goal. 
          We therefore hold that the risk of emotional harm
inherent in severing a child's relationship with a psychological
parent cannot itself suffice as a basis for invoking the doctrine
of paternity by estoppel; to support a finding of estoppel, the
evidence must show financial prejudice. [Fn. 47] 
          Because we conclude that the trial court relied on an
incorrect legal standard, we REVERSE the order and REMAND this case
for a further hearing on this issue.  On remand, the superior court
may find estoppel only upon a showing that K.'s reliance on
B.E.B.'s parental conduct resulted in financial prejudice. 


Footnote 1:

     856 P.2d 477 (Alaska 1993).

Footnote 2:

     Whether circumstances justifying estoppel exist is generally
a question of fact that we review for clear error.  See Wright, 856
P.2d at 479.  But "[w]hether the superior court has the power to
apply the doctrine of equitable estoppel to cases where a father
denies paternity is . . . a question of law[,]"which we review
independently.  Id. 

Footnote 3:

     704 P.2d 205 (Alaska 1985).

Footnote 4:

     Id. at 208.

Footnote 5:


Footnote 6:

     See id. (quoting Jamison v. Consolidated Utils., 576 P.2d 97,
102 (Alaska 1972)).

Footnote 7:

     11 Cal. Rptr. 707 (1961).

Footnote 8:

     See H.P.A., 704 P.2d at 208 (citing Clevenger, 11 Cal. Rptr.
at 714); see also K.E. v. J.W., 899 P.2d 133, 134-35 (Alaska 1995)
(interpreting these four criteria as covering the representation
and reliance elements of equitable estoppel in the paternity

Footnote 9:

     H.P.A., 704 P.2d at 208-09.

Footnote 10:

     856 P.2d 477 (Alaska 1993).

Footnote 11:

     Id. at 481.

Footnote 12:

     Id. at 481 (citing Clevenger, 11 Cal. Rptr. at 714-15); see
also K.E., 899 P.2d at 135.  

Footnote 13:

     See Wright, 856 P.2d at 481.

Footnote 14:

     See id.

Footnote 15:

     899 P.2d 133 (Alaska 1995). 

Footnote 16:

     See id.

Footnote 17:

     See id. at 134.

Footnote 18:

     See id. at 135.

Footnote 19:

     See id. at 134-35.

Footnote 20:

     See id. at 135.

Footnote 21:

     639 N.E.2d 725 (Mass. App. 1994).

Footnote 22:

     Id. at 728-30; see also Quintela v. Quintela, 544 N.W.2d 111,
117-20 (Neb. App. 1996) (discussing paternity by estoppel cases).

Footnote 23:

     See K.B., 639 N.E.2d at 728.

Footnote 24:

     11 Cal. Rptr. at 714-15.

Footnote 25:

     See, e.g., Pietros v. Pietros, 638 A.2d 545, 547 (R.I. 1994). 
See generally K.B., 639 N.E.2d at 728-30, and Quintela, 544 N.W.2d
at 118-19 (both citing numerous cases).  Cf. Natalie A. Minton,
Equitable Estoppel Precludes Husband in Divorce Proceeding From
Refuting Paternity to Avoid Child-Support Payments -- Pietros v.
Pietros, 638 A.2d 545 (R.I. 1994), 29 Suffolk U. L. Rev. 625, 630

Footnote 26:

     510 A.2d 546 (Md. 1986).

Footnote 27:

     See K.B., 639 N.E.2d at 728.

Footnote 28:

     See id.

Footnote 29:

     See Knill, 510 A.2d at 551-52.

Footnote 30:


Footnote 31:


Footnote 32:

     Id. at 551.

Footnote 33:

     Id. at 550 (quoting Miller v. Miller, 478 A.2d 351, 359 (N.J.

Footnote 34:

     478 A.2d 351 (N.J. 1984).

Footnote 35:

     Id. at 358.

Footnote 36:


Footnote 37:

     See, e.g., K.A.T. v. C.A.B., 645 A.2d 570, 573 (D.C. 1994);
Wiese v. Wiese, 699 P.2d 700, 702 (Utah 1985).  See generally
Quintela v. Quintela, 544 N.W.2d 111, 117-19 (Neb. App. 1996); K.B.
v. D.B., 639 N.E.2d 725, 728-29 (Mass. App. 1994); Knill, 510 A.2d
at 548-50 (citing cases in which courts adopt increasingly popular,
narrow requirement of financial detriment).

Footnote 38:

     See H.P.A. v. S.C.A., 704 P.2d 205, 208-09 (Alaska 1985).

Footnote 39:

     See K.E. v. J.W., 899 P.2d 133, 135 (Alaska 1995).

Footnote 40:

     See Wright v. Black, 856 P.2d 477, 481 (Alaska 1993).

Footnote 41:

     See id. at 480-81.

Footnote 42:

     See id. 

Footnote 43:

     See H.P.A., 704 P.2d at 207 ("Under normal circumstances it is
the biological parents who shoulder the legal responsibility for
the welfare of their off-spring.").

Footnote 44:

     K.B. v. D.B., 639 N.E.2d 725, 731 (Mass. App. 1994).  Indeed,
it appears that California law effectively precludes non-biological
fathers from challenging paternity more than two years after a
child is born.  See, e.g., In re Marriage of Freeman, 53 Cal. Rptr.
2d 439, 444-45 (1996) (citing Cal. Fam. Code sec. 7541).

Footnote 45:

     Clevenger additionally focused on the social injury that
results when a child previously thought to be legitimate is
recognized as having been born out of wedlock.  Our reasons for
rejecting the policy of preventing emotional harm as a basis for
following Clevenger also lead us to reject Clevenger's "social

Footnote 46:

     K.B., 639 N.E.2d at 729. 

Footnote 47:

     To the extent that Wright, 856 P.2d 477, may be read as
adopting the emotional harm standard of prejudice, we overrule that