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T.P.D. v. A.C.D., and Alaska Dept. of Revenue, CSED (5/28/99), 981 P 2d 116
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.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-8183/8243
Appellant and )
) Superior Court No.
v. ) 3AN-94-10138 CI
A.C.D., and STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF REVENUE, )
CHILD SUPPORT ENFORCEMENT )
Appellee and ) [No. 5127 - May 28, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Carl J.D. Bauman, Sean P.
Edwards, Hughes, Thorsness, Powell, Huddleston & Bauman, LLC,
Anchorage, for Appellant and Cross-Appellee. Diane L. Wendlandt,
Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Appellee and Cross-Appellant.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
This case involves a paternity disestablishment action.
Although appellant (Tom) [Fn. 1] is not the biological father of
nine-year-old Allie, the superior court held that he is her legal
father by operation of the doctrine of laches. Tom's appeal
presents the question whether a parental relationship may be
established by laches. The cross-appeal presented by CSED on its
own behalf and on behalf of Alice, Tom's former wife and Allie's
mother, challenges the court's conclusion that Allie was aware that
Tom was not her biological father; CSED therefore argues that the
court should have applied the doctrine of paternity by estoppel.
Although the court did not err in refusing to find paternity by
estoppel, we conclude that laches is an unsound basis for
adjudicating legal paternity and therefore reverse.
II. FACTS AND PROCEEDINGS
A. Factual Background
Tom and Alice first met in February 1989 when Alice was
several months pregnant. They were married one month later. Alice
gave birth to Allie in June 1989. Although he was not in fact
Allie's biological father, Tom was presumed to be her natural
father because he was married to Alice at the time of Allie's
birth. Tom's name was placed on Allie's birth certificate as her
father pursuant to AS 18.50.160(d).
Tom and Alice separated in October 1993. Alice retained
custody of Allie and applied for public assistance shortly after
the separation. As a condition of receiving Aid to Families with
Dependent Children, Alice assigned her right to collect child
support to the State. In January 1994 CSED issued a support order
requiring Tom to pay ongoing child support of $319 per month and
establishing arrears at $1,595. Tom appealed the order and CSED
issued a modified support order in June 1994 establishing Tom's
ongoing support at $293 per month and arrears at $2,187.
B. Procedural Background
On November 10, 1994, Tom filed a complaint in superior
court seeking to disestablish his paternity of Allie and to
terminate his duty of support. Alice admitted that Tom was not
Allie's biological father, counterclaimed for divorce, and
requested sole legal and physical custody of Allie. CSED opposed
Tom's attempt to disestablish paternity, and stated that it would
continue to collect child support from Tom until his paternity was
disestablished by court order. While the parties agree that Tom is
not Allie's biological father, CSED asserted that equitable
estoppel and the doctrine of laches prevented Tom from denying his
Tom amended his complaint twice. First, he changed his
position and sought to establish legal paternity and requested
primary custody of Allie. Second, he reverted to his original
request that the court enter an order disestablishing paternity and
terminating his duty of support.
Both CSED and Tom moved for summary judgment. The
superior court granted summary judgment to CSED. The court held
that Tom had rebutted the presumption of biological fatherhood by
clear and convincing evidence, and that he was not equitably
estopped from denying paternity. But the court held that Tom was
barred from denying paternity by the doctrine of laches. This
appeal and cross-appeal followed.
III. STANDARD OF REVIEW
This court reviews grants of summary judgment de novo to
"determine whether any genuine issue of material fact exists and
whether the moving party is entitled to judgment on the law
applicable to the established facts."[Fn. 2] "All factual
inferences are drawn in favor of the non-moving party, and the
existence of a dispute regarding any material fact precludes
summary judgment."[Fn. 3] On questions of law, we apply our
independent judgment and adopt the rule of law most persuasive in
light of precedent, reason, and policy. [Fn. 4]
A. The Presumption of Biological Fatherhood
As a general rule, only biological and adoptive parents
are legally responsible for the welfare of their children. [Fn. 5]
A child born to a married woman is presumed to be the offspring of
her husband. [Fn. 6] The husband's name is entered on the child's
birth certificate as the father unless paternity has been otherwise
adjudicated or the mother, the husband, and the biological father
execute affidavits as to the true state of affairs. [Fn. 7] The
presumption of a husband's paternity can be rebutted by clear and
convincing evidence. [Fn. 8]
Tom was presumed to be Allie's biological father and his
name was placed on her birth certificate because he was married to
Alice when Allie was born. The trial court properly concluded that
Tom had rebutted the presumption of paternity since all parties
agree that he is not Allie's biological father.
B. The Constructive Parental Relationship and Legal
1. Equitable estoppel
A man's conduct toward a child can give rise to a
constructive parental relationship so that he can be adjudged the
legal, although not the biological, father with a duty of support.
[Fn. 9] This result has been reached by invoking equitable
estoppel to prevent the denial of fatherhood. [Fn. 10]
Equitable estoppel has three elements: (1) a represent-
ation by word or conduct, (2) reasonable reliance on that repre-
sentation, and (3) prejudice caused by the reliance. [Fn. 11] In
paternity disestablishment cases, the elements of representation
and reasonable reliance are satisfied if
(1) the husband represented directly or
implicitly to the child that he is the father, (2) the husband
intended his representation to be accepted and acted on by the
child, (3) the child relied on the representation and treated the
husband as a father and gave his love and affection to the husband,
and (4) the child was ignorant of the true facts.[ [Fn. 12]]
With respect to the third element, prejudice, we have
recently narrowed the type of conduct which can qualify. In B.E.B.
v. R.L.B., ___ P.2d ___, Op. No. 5114 (Alaska, May 14, 1999), we
held that the only prejudice that can be considered is the
impairment of the right to obtain support from the natural father.
Previously we had indicated that two other types of prejudice could
be considered: "serious and lasting emotional injury from the
denial of paternity,"and "social injury from the removal of the
status of legitimacy."[Fn. 13]
In the instant case, the superior court held that CSED's
equitable estoppel defense failed because the reliance requirement
was not satisfied. Alice testified that she had told Allie that
Tom was not her biological father when Allie was approximately
three years old. More specifically, Alice testified that the
subject arose when Allie asked about an adopted friend who had "two
dads": "I explained to my daughter that Mommie was pregnant at the
time, and the person that I was with at that time was not ready to
be a parent, [and] that I met your dad, [Tom]. He wanted to be
your daddy . . . ."
CSED argues that this statement would not be understood
by a three-year-old lacking knowledge of human reproduction and so,
effectively at least, Allie remained "ignorant of the true facts."
But CSED offers no factual support for its contention that Allie
was unaware that Tom's fatherhood was in some way different because
he was not responsible for her mother's pregnancy. The reliance
standard assumes that the child has at least some rudimentary
understanding of fatherhood. A child capable of understanding
fatherhood to the degree necessary to establish reliance should
also understand an explanation like the one which Alice gave to
Allie. [Fn. 14] Thus we agree with the trial court that reliance
as required by our case law has been shown not to exist in the
2. The doctrine of laches
The trial court found that the doctrine of laches barred
Tom's complaint. Laches is available as an equitable defense when
a plaintiff unreasonably delays seeking relief and a defendant
suffers prejudice as a result of the delay. [Fn. 15]
Although Alice knows the identity of Allie's biological
father and neither she nor CSED have attempted to locate him, the
trial court in finding laches stated that Tom's "long delay has
prejudiced the ability for CSED and [Alice] to seek out the actual
biological father and hold him liable for support." In finding
prejudice to Alice and CSED, the trial court made a finding which
would also satisfy the economic prejudice element of equitable
The trial court measured Tom's delay from the date of
Allie's birth. Quoting Keener, [Fn. 16] the court wrote:
"[T]he period of delay for laches begins to
run when the party discovers or could have discovered the wrong of
which he complains, . . . or where, in light of any resulting
prejudice to the defendant, it becomes reasonable to expect the
plaintiff to act upon the wrong." The wrong from which [Tom] seeks
redress is the fact that he was listed as the father on the birth
certificate. [Tom] was aware of this wrong from the very
Tom argues that the court erred in concluding that the
period of delay began at Allie's birth. He claims that he could
not have sought to disestablish his paternity then without putting
a burdensome strain on the new marriage and did not object to
supporting Allie while he was married to and living with Alice. He
contends that it was not until CSED sought to impose a support
obligation on him in January of 1994, a few months after the
parties separated, that he can be charged with the duty of timely
action for laches purposes. And he contends that since he
contested CSED's efforts administratively and judicially in a
timely manner, no basis exists for concluding that he was guilty of
We agree with Tom that to apply the delay period for
laches from Allie's birth would be inappropriate. It was
reasonable for Tom, in view of the parties' recent marriage, not to
bring a paternity disestablishment proceeding at that point. He no
doubt believed that the marriage would last and that he would
support Allie during her childhood.
Tom also argues that laches has not been judicially
recognized as a doctrine capable of barring a putative father from
asserting non-paternity. He contends that it should not receive
recognition because it expands the paternity-by-estoppel doctrine.
CSED agrees as a matter of Alaska case law that laches has not been
applied in cases similar to the present one. But it contends that
little reason exists not to recognize the defense since it relates
closely to the estoppel doctrine which we do recognize. CSED also
cites two cases from other jurisdictions which have applied laches
to bar a man from denying paternity.
We turn first to the cases cited by CSED. The first is
In re the Marriage of Boer. [Fn. 17] In this case the husband had
strong grounds to believe the child, born in 1967, was not his
since at the time of conception the parties were not cohabiting.
[Fn. 18] The parties reconciled one month before the birth of the
child and at the time of their 1972 dissolution the husband agreed
that the child was "of the marriage"and agreed to pay child
support. [Fn. 19] Some years later the husband collaterally
attacked the dissolution decree, contending that the child was not
his. [Fn. 20] The appellate court affirmed the trial court's
denial of relief. [Fn. 21] An alternative ground for this decision
was laches: "The husband had ample opportunity to contest
paternity in the dissolution proceeding and chose otherwise. The
husband's conduct contains all the necessary elements to conclude
that he is barred by laches."[Fn. 22] We note that in this case
the court indicated that the husband had a duty to act when
dissolution proceedings were brought, not five years earlier at the
birth of the child.
The second case is Arvizu v. Fernandez. [Fn. 23] Here
the husband became convinced after the divorce decree that the
child was not his, but delayed for more than a decade in asserting
his non-paternity. [Fn. 24] In the interim two post-judgment
proceedings had occurred at which he could have asserted non-
paternity but did not. [Fn. 25] The Arizona Court of Appeals held
that the claim of non-paternity was barred by laches. [Fn. 26]
Since the "father ha[d] waited at least twelve years and ha[d]
neglected several opportunities to bring his claim to the court's
attention,"the court held his delay unreasonable. [Fn. 27]
Both of these cases employ the doctrine of laches in a
post-separation -- indeed, post-divorce -- context. They do not
support using the doctrine to establish paternity before a judicial
decree has been entered.
We believe that laches should not be available as an
independent defense in paternity disestablishment actions which are
brought prior to a judicial decree establishing paternity.
Paternity by estoppel is an exception to the rule that only
biological or adoptive parents are responsible for child support
payments. If a party could defeat a paternity disestablishment
action by proving the prejudice element alone, without a
representation of paternity and reliance, the paternity by estoppel
exception would be broadened beyond recognition. As we recently
stated in B.E.B., paternity by estoppel is "the exception, not the
norm."[Fn. 28] In our view there should not be a second exception
which imposes a legal obligation of support on a husband who has
not represented himself to be a child's father, or on one who has
made such a representation which has not been relied on. [Fn. 29]
C. The Termination Date for Tom's Duty of Support
Because a constructive parental relationship and legal
fatherhood were not established, Tom's duty of support will
terminate. Tom and CSED agree in theory that termination should
relate back to the date that the husband files his complaint to
disestablish paternity. [Fn. 30] However, because of the unusual
facts involved in the present case, the parties dispute the
application of this theory. After filing the initial complaint
which sought to disestablish paternity, Tom filed an amended
complaint seeking to establish paternity, and later again amended
his complaint to seek disestablishment. Tom argues that the
termination date should relate back to date of the original
complaint, while CSED contends that relation back should extend
only to the date he filed his second amended complaint.
In our view the correct answer is that the termination
should be effective as of the date the first complaint was filed.
Civil Rule 15(c) provides that "[w]henever"an amended claim is
based on the same facts as the initial claim it "relates back to
the date of the original pleading." This test, which, at least
literally, admits of no exceptions, is satisfied here. Further,
CSED apparently did not change its position in reliance on the
first amended complaint. Tom filed that complaint on December 22,
1994, yet the parties stipulated on December 27, 1994, to stop the
distribution of child support payments received by CSED and instead
to place them in escrow. We conclude therefore that Tom's support
obligation ended as of the date he filed his original complaint.
The judgment is REVERSED and this case is REMANDED with
instructions to enter judgment in favor of appellant on his claim
of non-paternity and to terminate his child support obligation as
of November 10, 1994.
We use pseudonyms for the names of the individual parties and
Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995).
Schumacher v. City and Borough of Yakutat, 946 P.2d 1255, 1256
See Great Am. Ins. Co. v. Bar Club, Inc., 921 P.2d 626, 627
See H.P.A. v. S.C.A., 704 P.2d 205, 208 (Alaska 1985).
See Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993).
See AS 18.50.160(d), which provides
If the mother was married at conception,
during the pregnancy, or at birth, the name of the husband shall be
entered on the certificate as the father of the child unless
(1) paternity has been lawfully
determined otherwise by a tribunal, in which case the name of the
father, if determined by a tribunal, shall be entered; or
(2) both the mother and the mother's
husband execute affidavits attesting that the husband is not the
father and that another man is the father, and the mother and the
other man execute affidavits attesting that the other man is the
father, so long as the affidavits meet the requirements of (g) of
See Smith, 845 P.2d at 1092.
See H.P.A., 704 P.2d at 208.
See K.E. v. J.W., 899 P.2d 133, 134 (Alaska 1995).
Id. at 134-35.
K.E. 899 P.2d at 135.
The reliance element of equitable estoppel has always had an
objective as well as a subjective component, thus requiring
"reasonable"reliance as well as personal or subjective reliance.
See, e.g., Usibelli Coal Mine, Inc. v. State, Dep't of Natural
Resources, 921 P.2d 1134, 1147 (Alaska 1996); K.E. v. J.W., 899
P.2d 133, 134 (Alaska 1995); Jamison v. Consolidated Utils., Inc.,
576 P.2d 97, 101-02 (Alaska 1978). Applying an objective standard
to children is difficult. In the law of negligence the reasonable
person standard when applied to children is formulated in terms of
what it is reasonable to expect of a child of "like age,
intelligence, and experience." Patterson v. Cushman, 394 P.2d 657,
660 (Alaska 1964). We assume that a similar standard should apply
to questions concerning the reasonableness of a child's reliance.
Because we decided B.E.B. after the present case already
had been briefed and argued, the parties' focus on Allie's
emotional reliance is understandable. Under B.E.B., analysis of
the reliance element arguably would shift to some degree from the
child to the mother and would concentrate more on economic than on
emotional considerations. However, our conclusion that CSED has
failed to establish estoppel under the pre-B.E.B. theory it argues
makes it unnecessary for us to address these issues.
See Keener v. State, 889 P.2d 1063, 1066 (Alaska 1995).
889 P.2d at 1067 (citation omitted).
559 P.2d 529 (Or. App. 1977).
Id. at 530.
Id. (emphasis added).
902 P.2d 830 (Ariz. App. 1995).
Id. at 832-34.
Id. at 831-32.
Id. at 834.
Id. at 834.
B.E.B. v. R.L.B., __ P.2d __, Op. No 5114 at 14 (Alaska, May
We note that effective January 1, 1996, the legislature
imposed a three-year statute of limitations applicable to disesta-
blishment proceedings brought administratively before CSED. This
period runs from the child's birth or "three years after the
petitioner knew or should have known of the father's putative
paternity of the child, whichever is later." AS 25.27.166(b)(2);
Ch. 57, sec. 28, SLA 1995. This statute is inapplicable here,
this case was brought before the effective date of the statute and
in a judicial rather than an administrative proceeding.
CSED's agreement is consistent with its concession in State,
CSED v. Wetherelt, 931 P.2d 383, 391 n.15 (Alaska 1997). There it
agreed to refund support collected from the husband after the
filing date of his first pleading asserting non-paternity.