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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hubbard v. Hubbard (03/29/2002) sp-5554

Hubbard v. Hubbard (03/29/2002) sp-5554

     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.


                              )    Supreme Court No. S-9562
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-99-4066 CI
AMY L. HUBBARD,               )    O P I N I O N
              Appellee.              )    [No. 5554 -  March  29,

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:  William T. Ford, Anchorage, for
          Appellant.   Amy L. Hubbard,  pro  se,  Eagle
          River, Alaska.

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

          MATTHEWS, Justice.


           Timothy Hubbard was held to be equitably estopped from

disestablishing paternity of his stepson, Joshua.  On  appeal  he

challenges  the  sufficiency  of  the  evidence  concerning   the

financial harm requirement of such a determination.  We  conclude

that  the  evidence  was  sufficient  to  support  a  finding  of

financial harm.


          Amy Hoover (subsequently, Hubbard) gave birth to a son,

Joshua,  in October 1991.  Joshua's biological father  was  David

Walters,  a resident of Ohio.  Alaska's Child Support Enforcement

Division  (CSED)  brought a child support action against  Walters

after Joshua was born.  Walters acknowledged paternity of Joshua,

and agreed in writing to pay child support of $500 per month.

           Amy  married Timothy Hubbard in April 1994.  By mutual

agreement  with  Timothy, Amy asked CSED to terminate  the  child

support  case against Walters.  Timothy and Amy also had  Walters

sign  a form relinquishing his parental rights and consenting  to

Joshua's  adoption by Timothy.1  But Joshua was never adopted  by

Timothy, and Walters's parental rights were never terminated by a

court.   Timothy did, however, legitimate Joshua  by  having  his

name  placed on Joshua's birth certificate.2  During Timothy  and

Amy's marriage, Joshua viewed Timothy as his father.

           Timothy and Amy separated in October 1997.  As part of

the divorce proceedings, Timothy sought to have his paternity  of

Joshua  disestablished.  Superior Court Judge  John  Reese  found

Timothy  to be equitably estopped from disestablishing paternity,

finding both emotional and financial harm.  As to emotional  harm

the court found:

          I  think Tim has - aside from the litigation,
          Tim  has acted honorably at all times towards
          Josh and that's why Josh loves him as much as
          he  does and for him to - you can't just pull
          the  plug.  Otherwise there would be no  such
          thing  as  equitable  estoppel  in  paternity
               . . . .

          Joshua   would   be   terribly   harmed    by
          disestablishment.   Mr.   Hubbard   has   put
          himself  in this position willingly,  knowing
          the  risks,  knowing the  situation  and  the
          favors involved, knowing what his obligations
          are.    And  he  made  his  heart  and   soul
          available  to  Joshua and he can't,  at  this
          late  date,  withdraw from  that  commitment.
          The  law does not allow it so the request for
          disestablishment is denied.
With respect to financial harm the court found:

          Mr.  Hubbard participated in the decision  to
          drop  the  [CSED]  proceedings  against   Mr.
          Walters  for  child support.  He intended  to
          adopt  Joshua.  Paperwork was  prepared.   He
          participated  in  that.  When  that  adoption
          became  impractical because of the  move,  he
          swore  under oath that he was Joshua's father
          in  the Ohio documents and intended by  that,
          among  other things, to have his name put  on
          the  birth  certificate as the father,  which
          apparently has happened.  And he continued to
          act as a father toward Joshua in every way.
               . . . .

          All  the elements of estoppel are present and
          it   is   strong  evidence  there  would   be
          financial detriment[:] the cost of interstate
          litigation,  perhaps  the  risk   of   losing
          interstate litigation.  Mr. Walters certainly
          has  an estoppel argument that he could raise
          himself  in  defense  of  a  paternity  case.
          Whether  support  from Mr. Walters  could  be
          enforced,  what kind of support is  available
          to  Mr. Walters with the family array that he
          has.  We have no evidence of his income.   We
          do  have  evidence  that  he  has  two  older
          children  whose support obligation would,  of
          course,   come  off  the  top  before   other
          calculations  would occur  so  that  I  think
          there's  quite a bit of evidence  that  there
          would  be financial difficulties involved  in
          pursuing Mr. Walters for support.
           The court entered its findings of fact and conclusions

of law in January 2000.  Timothy appeals.


           In  an  estoppel  case, the superior  court's  factual

findings are reviewed for clear error.3  Whether the doctrine  of

equitable estoppel may be applied under the facts as found  is  a

question of law which this court reviews independently.4


           A  putative  father cannot be equitably estopped  from

disestablishing paternity unless his child has been prejudiced by

his   or   her  reliance  on  the  father's  representations   of

paternity.5   Evidence  in  the  record  supports  Judge  Reese's

findings, which Timothy does not seriously dispute, that  Timothy

represented  himself  as Joshua's father, and  that  Joshua  both

personally  and as represented by Amy reasonably relied  on  that

representation.  Resolution of this case thus turns entirely upon

the  question  whether Joshua was prejudiced  by  that  reliance:

Timothy argues that Joshua was not, while Amy argues that he was.

           At  one  time, proof that a child would be emotionally

harmed  by disestablishment of paternity was sufficient  to  show

prejudice.6   That  broad standard no longer  applies.   Instead,

evidence  of financial harm is required to support a  finding  of

equitable estoppel.7

           A  biological father's duty of support arises  at  the

birth  of  his child.8  The biological father's duty  of  support

exists, moreover, even if another man's presumptive paternity has

not  yet  been  disestablished.9  What  financial  harm  then  is

sufficient to give rise to an estoppel against a stepfather which

requires the stepfather to make child support payments after  his

divorce  from  the children's mother?  While each  case  is  fact

sensitive, our case law and a case on which we relied  in  B.E.B.

provide some useful standards and illustrations.

           In  Wright v. Black we noted that financial  detriment

would  exist  where  "the  child  is  deprived  of  the  mother's

potential action to hold the natural father responsible  for  the

support  of  the child; . . ."10  While that may be  the  typical

example  of sufficient financial harm, the lead case on which  we

relied in B.E.B., Miller v. Miller,11 went into more detail:

          To  prove  equitable estoppel, the  custodial
          parent  has the burden to establish not  only
          representation  of support and  reliance  but
          also  detriment, i.e., that the children will
          suffer future financial detriment as a result
          of the stepparent's representation or conduct
          that  caused the children to be cut off  from
          their      natural     parent's     financial
          support. . . .
          For  example,  at the final  hearing  if  the
          custodial parent demonstrates that he or  she
          (1)  does  not  know the whereabouts  of  the
          natural  parent; (2) cannot locate the  other
          natural   parent;   or  (3)   cannot   secure
          jurisdiction  over  the  natural  parent  for
          valid  legal  reasons, and that  the  natural
          parent's unavailability is due to the actions
          of  the stepparent, a trial court could  hold
          that  the  stepparent is  equitably  estopped
          from  denying his or her duty to support  the
          If,  as  in the present case, the wife  knows
          where  the  natural father is,  she  has  the
          burden  to bring him before the court and  to
          seek  child support from him. Once  in  court
          the  burden is on the natural father to  show
          why he should not, in equity, be required  to
          pay  child support for his children.  If  the
          court  finds  that the natural father  should
          not  be required to pay child support due  to
          the  stepfather's conduct, the natural father
          having   relied  thereon  and  having  placed
          himself in such a position that he is  unable
          to   meet  that  obligation,  the  stepparent
          should  be  responsible  for  the  children's
          continued   support.  This,  of  course,   is
          subject  to  modification or change  whenever
          the    natural    father   can    meet    his
          obligation. . . .
          It  is  only when a stepparent by his or  her
          conduct   actively   interferes   with    the
          children's support from their natural  parent
          that he or she may be equitably estopped from
          denying  his  or  her  duty  to  support  the
          children.  . . .  If a stepparent  marries  a
          divorced  parent  who is  not  receiving  any
          child  support,  or if during their  marriage
          the natural parent stops paying child support
          without interference from the stepparent, the
          stepparent  does  not  thereby  inherit   the
          permanent   support   obligations   of    the
          nonpaying natural parent. The stepparent must
          take  positive  action interfering  with  the
          natural  parent's  support obligation  to  be
          In the present case the facts support an estoppel based

on,  to  use  the language of Miller, Timothy's "positive  action

interfering with the natural parent's support obligation . . . ."

As noted, as a consequence of a child support enforcement action,

Walters had signed an agreement agreeing to pay child support  of

$500 per month.  Amy testified that she had this action withdrawn

"at the urging of" Timothy.  Her testimony was confirmed by Amy's

aunt,  Nancy  Biggerstaff, with whom the family  lived  while  in

Anchorage.  She testified that Timothy and Amy "wanted  [Walters]

out  of  the picture."  She also stated that "they had me prepare

the  documents  . . . the consent to adopt and of relinquishment.

We  forwarded that to [Walters]."  These facts adequately support

the  finding of the trial court that Timothy participated in  the

decision  to  terminate  the  child support  proceedings  against

Walters.   Taken  together  with  the  cost  and  uncertainty  of

reinstituting support proceedings against Walters as found by the

trial  court  we  conclude  that the record  supports  the  trial

court's  conclusion that the financial harm element  of  estoppel

has been satisfied.


           For  the  reasons stated the judgment of the  superior

court is AFFIRMED.

      1     In the relinquishment of parental rights that Walters
signed,  he  agreed that "the minor child shall  hereafter  be  a
stranger to me for all purposes . . . ."

      2     This  occurred when the parties were living in  North
Carolina.  Joshua was born in Ohio.  Timothy's counsel represents
that  under  Ohio  law this creates a rebuttable  presumption  of
paternity and that since Timothy is not Joshua's natural  father,
this   presumption   has   been   rebutted.    We   accept   this
representation and conclusion for the purposes of this case.

      3     See Wright v. Black, 856 P.2d 477, 479 (Alaska 1993),
overruled in part on other grounds by B.E.B. v. R.L.B., 979  P.2d
514, 520 n.47 (Alaska 1999).

     4    See Wright, 856 P.2d at 479 n.2.

     5    See B.E.B., 979 P.2d at 516.

     6    See Wright, 856 P.2d at 481.

     7    B.E.B., 979 P.2d at 520.  There are a number of reasons
for  the rule requiring financial prejudice.  As we explained  in

          The  duty  of support has traditionally  been
          rooted  in  the  biological  ties  between  a
          parent   and  a  child.   This  well-accepted
          principle weighs heavily in favor of  a  rule
          that  makes estoppel the exception,  not  the
          norm.   Yet under [the] 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."
Id.  at  519  (footnote  omitted).  Moreover,  requiring  a  non-
biological father to assume a post-divorce support obligation  is
unlikely  to  encourage a lasting bond between the non-biological
father  and the child.  By contrast, estoppel based on  emotional
harm  may discourage the husband of the mother of the child  from
assuming  a  parent-like  role during the  marriage.   For  these
reasons  we concluded in B.E.B. "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."  Id. at 520.

      8    See State, Dep't of Revenue, Child Support Enforcement
Div. v. Kovac, 984 P.2d 1109, 1112 (Alaska 1999).

     9    See id.

     10   856 P.2d 477, 481 (Alaska 1993).

     11   478 A.2d 351 (N.J. 1984).

     12   Id. at 358-59.