Opinion
No. CV 08 5004847
December 8, 2009
MEMORANDUM OF DECISION RE WHETHER EX-HUSBAND IS ENTITLED TO REIMBURSEMENT OF EXPENSES OF CHILD FATHERED BY ANOTHER MAN DURING MARRIAGE
The plaintiff filed a summons and complaint on July 7, 2008, alleging the facts hereinafter articulated. "Plaintiff Eric Fischer . . . and Pamela Tournier . . . were married from April 26, 1986 until November 19, 2007. Tournier gave birth to two children during the time that she was married to the plaintiff: Olivia L. Fischer, born December 24, 1986, and Alicia Fischer (Alicia), born December 14, 1992. During the course of the marriage, the plaintiff expended funds and incurred expenses for the support of Alicia. At some point in or around 2007, the plaintiff learned that he was not Alicia's biological father. During the course of her marriage to the plaintiff, Tournier [had] engaged in an extra-marital affair with the defendant Richard Zollino . . . Zollino is Alicia's biological father."
In this action plaintiff Eric Fischer seeks reimbursement for the expenses which he incurred in supporting Alicia. In this regard the plaintiff asserts his claim against defendant Richard Zollino under theories of unjust enrichment, misrepresentation and nondisclosure because "[d]espite knowing or having reason to know that he was Alicia's biological father, Zollino failed to disclose that to the plaintiff at the time of [Alicia's] birth, or at any time after her birth, when, under the circumstances, [Zollino] should have done so." On August 27, 2008, the defendant filed an answer and special defenses to the plaintiff's complaint. On September 5, 2008, the plaintiff filed a reply to the defendant's special defenses.
In order to establish paternity in this action, the plaintiff filed a motion for genetic testing on September 9, 2008 asking the court to issue an order for genetic testing on the defendant. This court first denied the request for genetic testing on November 3, 2008; however, after responsive pleadings from both parties, on March 27, 2009, this court granted the plaintiff's request for genetic testing and ordered: (1) that the genetic testing be done without the involvement and participation of Alicia, and (2) that the testing be administered as contemplated by General Statutes § 46b-168.
On June 5, 2009, Genex Diagnostics Inc. (Genex Diagnostics) produced results from a DNA identity test using a hair sample, which the plaintiff obtained from Alicia without her knowledge of the DNA test, and sent the hair sample to the testing center in the mail. The report on alleged father Richard Zollino states in material part that "[b]ased upon genetic testing of the sample collected from Rich[ard] Zollino . . . the probability of paternity is [greater than] 99.9999 [percent] . . ." Genex Diagnostics qualified the results by providing that "[r]esults from privately collected (not witnessed) cases are for personal knowledge only and cannot be used as legal evidence of parentage or identity. Genex Diagnostics is not responsible for any wrongful collection or contamination of the samples, whether accidental or intentional, prior to our acceptance of these samples."
This case came before this court on trial on July 7, 2009. The plaintiff and defendant filed post-trial briefs on August 18 and 19, 2009, respectively. On September 15, 2009, the plaintiff filed a reply to the defendant's post-trial brief. On September 16, 2009, the defendant filed a reply to the plaintiff's post-trial brief. The issues now presented are as follows: (1) whether a paternity test is valid evidence as to the defendant's paternity when the testing center is unable to verify the source of the child's DNA; and (2) whether the plaintiff can collect reimbursement from the defendant for previous incurred expenses in Alicia's upbringing under theories of misrepresentation, nondisclosure and unjust enrichment.
I. Admissibility of DNA Samples Without Authentication
The first issue is whether DNA samples may be used to prove a man's paternity if the source of the DNA has not been established though foundational testimony or other proof of authenticity or accuracy. General Statutes § 46b-168(a) provides: "In any proceeding in which the question of paternity is at issue the court or a family support magistrate, on motion of any party, may order genetic tests which shall mean deoxyribonucleic [DNA] acid tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by the court, to determine whether or not the putative father or husband is the father of the child. The results of such tests, whether ordered under this section or required by the IV-D agency under [General Statutes §] 46b-168a, shall be admissible in evidence to either establish definite exclusion of the putative father or husband or as evidence that he is the father of the child without the need for foundation testimony or other proof of authenticity or accuracy, unless objection is made in writing no later than twenty days prior to the hearing at which such results may be introduced in evidence." (Emphasis added.) According to Judge Bassick of this court, "[§]46b-168 provides unequivocally that such test results `shall be admissible,' and this court rules that that language means that the test results are admissible without foundation testimony and without requiring evidence in accordance with the common law . . ." Levin v. Hall, 44 Conn.Sup. 145, 148, 669 A.2d 652 (1995).
The Court finds that it must rely on the plain language of the statute and Judge Bassick's interpretation of the statute in Levin, and hereby does find that the DNA sample is admissible for determining the defendant's paternity because the defendant did not object to the sample in writing within twenty days prior to the trial.
II. Mother's Position re Paternity of Alicia
At the dissolution hearing on November 19, 2007, Pamela T. Fischer, the mother of Alicia, testified that Richard Zollino is the father of Alicia, and that Eric Fischer is not. Eric Fischer also testified that he is not Alicia's father.
III. Claim for Reimbursement to Husband for Child Support
The second issue is whether the plaintiff is entitled to reimbursement from the defendant for expenses that he incurred in supporting Alicia throughout her life. The plaintiff argues in his complaint and post-trial memorandum that he is entitled to reimbursement for monies that he expended on Alicia's upbringing. He positions his claim under theories of nondisclosure, misrepresentation and unjust enrichment. In response, the defendant raises four special defenses to the plaintiff's dispute of paternity as follows: statute of limitations, the presumption of paternity, equitable estoppel and a violation of public policy.
All of the plaintiff theories — nondisclosure, misrepresentation, and unjust enrichment — amount to the plaintiff's attempt to collect reimbursement from the defendant for expenses that the plaintiff incurred in Alicia's upbringing. However none of the cases that the plaintiff cites in support of his theories involve paternity or child support. In determining the outcome of the present dispute, this court relies on laws pertaining to issues of paternity and child support. The defendant's special defenses are addressed throughout this opinion in the discussion of relevant family law.
A. Connecticut Case Law Regarding Estoppel of Denial of Paternity
"[I]n Connecticut there is a presumption that a child born during lawful wedlock is the child of the husband, which presumption may be rebuffed only by clear, convincing, and satisfactory proof that the child is illegitimate." Schaffer v. Schaffer, 187 Conn. 223, 226, 445 A.2d 589 (1982). Connecticut statutory law does not specify a time limit by which a man must dispute his paternity. An example of a statute with a time limitation can be found in California's family law, which provides that "the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage"; Cal. Fam. Code § 7540 (1994); unless the husband files a notice of motion for blood tests to dispute his paternity of the child within two years of the date of birth of the child. Cal. Fam. Code § 7541 (1994). According to the California Appellate Court, this statute "provide[s] a statutory incentive for them [i.e., married men] to resolve promptly any doubts they may have as to the paternity o their wives' children." McBride v. Boughton, 123 Cal.App. 4th 379, 391, 20 Cal.Rptr.3d 115 (2004). Although Connecticut does not have a equivalent statute, Connecticut courts have also expressed reticence in allowing a husband or ex-husband to dispute his paternity of his wife's or ex-wife's child, if he failed to do so at an early date and has behaved as that child's father for an extended period of time.
In W. v. W., 256 Conn. 657, 779 A.2d 716 (2001), a dispute in which a husband sought to contest his paternity of his wife's child during a marriage dissolution action, the Supreme Court of Connecticut addressed the issue of whether "the trial court properly estopped the nonbiological father of a minor child from denying his parenthood when a previously missing biological parent has been found." Id., 658. The court explained that the trial court based its decision on the fact that "[t]he defendant had always acted as if he were the father of the child, supplying her with emotional and financial support throughout her lifetime . . . In addition, his actions had induced the child and her mother to believe that he would always emotionally and financially support the child as his own." (Citation omitted.) Id., 559. The court noted that: "In child support cases, the mere knowledge of the putative parent's presence or whereabouts does not necessarily release the nonbiological parent from his or her represented responsibility upon which the child relied to his or her future detriment." Id., 662. The court "affirm[ed] the trial court's judgment estopping the defendant from denying paternity and ordering him to pay the plaintiff child support." Id., 658-59. In making its decision, the court highlighted the importance of the fact that "the child has, for the twelve years of her life, relied upon the defendant for support and care. The reliance continued to be viable even after the institution of the action to dissolve her parents' marriage." Id., 663.
This court has also addressed the issue of whether a husband who has been acting as the father of his wife's child may be estopped from disputing his paternity by requesting that the court order a paternity test. Although the DNA test in the present case has already been conducted, the court's analyses in resolving that issue are instructive regarding the way in which to balance the best interests of the child against other public policy considerations.
In Judson v. Judson, Superior Court, judicial district of Litchfield, Docket No. FA 94 0065962 (August 2, 1995, Gill, J.) ( 15 Conn. L. Rptr. 191), the defendant had "supported the minor children and acknowledged them as his own without contest until six months into [the] proceeding." Id., 192. The court noted that "[c]ases from other jurisdictions have . . . applied principles of estoppel where a husband contests paternity by moving for blood tests so that he may escape support payments although he has acknowledged the children since birth . . . [T]he New Hampshire Supreme Court addressed this precise issue. The court upheld a denial of a husband's motion for blood tests to contest the paternity of children whom he had acknowledged for fifteen years . . . Similar to Connecticut, New Hampshire common law holds that a child born in wedlock is presumed to be an offspring of the marriage, and this presumption is rebuttable by clear and convincing evidence such as a blood test . . . The [New Hampshire] court . . . held, however, the rule does not apply in a situation where the defendant `has acknowledged the children as his own without challenge for over fifteen years.' . . . `To allow defendant to escape liability for support by using blood tests would be to ignore his lengthy, voluntary acceptance of paternal responsibilities.' . . . In its decision, the New Hampshire Supreme Court relied on two Pennsylvania Superior Court decisions. In [one of those decisions,] . . . [t]he [Pennsylvania] court stated that: `[t]here is something inherently repulsive about a man questioning the paternity of children who were conceived by his wife and were born to her while he was living with her and who were accepted and held out to the world by him as his children until his and his wife's personal differences led to a support action.'" (Citations omitted.) Id., 192. In Judson, this court held that it could not "permit that such harm be inflicted at the request of the man who has held himself out to be the children's father for their entire lives." Id., 193.
The Connecticut Supreme Court's reasoning in W. v. W., supra, 256 Conn. 663-66, applies directly to the present matter. In that case, the court estopped the former putative father from disputing his paternity because the court was concerned that doing so, after so many years, would be harmful to the child. Although the plaintiff in the present case did not intentionally destroy documents or prevent the mother from ascertaining the true identity of the child's biological father, as was the case in W., the plaintiff's behavior has similarly led Alicia to believe that she could rely on the plaintiff to fulfill her financial and emotional needs. As such, the court's reasoning in W., regarding the detrimental impact of a revelation of the child's true parentage, also applies in this case because Alicia has believed the plaintiff to be her father throughout her entire life.
Judson v. Judson, supra, 15 Conn. L. Rptr. 191, and J.C. v. G.C., supra, Superior Court, Docket No. FA 98 0112152, only addressed the issue of whether to allow a father to obtain a DNA test in order to determine the paternity of his child, and did not address whether the man would later be required to financially support the child or would be entitled to reimbursement for previous expenses if he was excluded as the child's biological father. Nonetheless, these cases highlight relevant public policy considerations. The present case is more similar to Judson than to J.C. because there is no indication that the plaintiff willingly assumed the responsibility of parenting a child that he knew was not his biological child. The facts of the present case indicate that the plaintiff suspected that Alicia might not be his biological child. Yet, despite these suspicions, the plaintiff waited fifteen years to bring a cause of action to dispute his paternity of Alicia.
Alicia is now nearly an adult and has developed a relationship with the plaintiff understanding him to be her father throughout her life. If she were to learn that the plaintiff is not her biological father, this information could potentially be extremely damaging to Alicia's well-being. This court places the utmost importance on the best interests of the child and, as such, it would be contrary to public policy to permit the plaintiff in this case to dispute his paternity of Alicia at such a late date.
B. Authority in Other Jurisdictions Regarding Reimbursement for Child Support
Although Connecticut courts have addressed the issue of estoppel with regard to a husband who seeks to dispute his paternity of a child that he has been raising as his own, there is little case law in Connecticut related to the discrete issue in this case. As such, other jurisdictions are persuasive authority as to whether a man is entitled to reimbursement for expenses that he incurred in supporting a child whom he believed to be his offspring, when he is later excluded as the child's biological father.
In State, Dept of Revenue v. Wetherelt, 931 P.2d 383, 387 (Alaska 1997), the Supreme Court of Alaska addressed the issue of "when the presumption of paternity that results from being married to a woman at the time she gives birth [is] legally rebutted." In that case, a married woman gave birth to a child who was the result of an extra-marital affair that occurred during the time that she was married to her husband. "[The husband] was named as father on [the child's] birth certificate, thus establishing a legal presumption of paternity." Id., 384. Upon dissolution of the marriage, the husband sought reimbursement from the State Child Support Enforcement Division, under a claim of unjust enrichment for payments that he had made on behalf of the child. The court held that the ex-husband had a valid and enforceable obligation to pay child support for [the child] until . . . a determination of non-paternity was finally issued by the court. Id., 390. The court based its reasoning on Alaskan statutory law, which provides that "[i]f 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 . . . 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." Alaska Stat. § 18.50.160(d). The court held that the former putative father was not entitled to reimbursement under the doctrine of unjust enrichment for previous child support payments because he had a legal obligation to support the child at the time that he had made the payments. Id., 391.
Similarly, the Nebraska Supreme Court, in Day v. Heller, 264 Neb. 934, 935, 653 N.W.2d 475 (2002), addressed the issue "whether [the court] will recognize a tort or assumpsit cause of action against a mother for her misrepresentation of biological fatherhood." In Day, the former husband brought an action against his former wife seeking damages for fraud, assumpsit, and intentional infliction of emotional distress because the wife had misrepresented to the husband that he was the biological father of a child that was born during their marriage. Id., 936. According to the court, the former putative father's "fraud and assumpsit claims are for [the mother's] misrepresentation that led [the former putative father] to make investigations of time, emotion, and money in [the child] that he would not have made had he known that [the child] was not his biological son. In effect, [the former putative father was] saying `He is not my son; I want my money back.' . . . We do not believe that having a close and loving relationship `imposed' on one because of a misrepresentation of biological fatherhood is the type of `harm' that the law should attempt to remedy . . . Moreover, a tort or assumpsit claim that seeks to recover for the creation of a parent-child relationship has the effect of saying `I wish you had never been born' to a child who, before the revelation of biological fatherhood, was under the impression that he or she had a father who loved him or her." (Citation omitted.) Id., 939. The court held that the former husband was not entitled to damages for these claims because his "fraud, intentional infliction of emotional distress, and assumpsit causes of action [were] contrary to public policy." Id., 944.
In McBride v. Boughton, 123 Cal.App. 4th 379, 389, 20 Cal. Rptr.3d 115 (2004), the California Court of Appeals considered the same issue with regard to a man who had never been married to the child's mother. The issue in that case was "whether an unmarried man who has expended funds to support a child, in reliance on the mother's representation that he is the child's father, may sue the mother on an unjust enrichment theory for the return of the funds after discovering that the child is not his biological offspring." Id., 382. The court noted that "[u]njust enrichment is not a cause of action . . . but rather a general principle, underlying various legal doctrines and remedies." (Internal quotation marks omitted.) Id., 387. The court construed the appellant's "purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution." Id., 388. The court noted that "[t]he fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it." (Internal quotation marks omitted.) Id., 389. The court found "that two of the most fundamental public policies of [the state of California] — the enforcement of [the] parents' obligations to support their children, and the protection of [their] children's interest in the stability of their family relationships preclude[d] [the court] from requiring [the biological father] to make restitution to [the mother] based on his claim of unjust enrichment. Under circumstances such as those presented here, if we granted the former putative father the right to restitution from the child's biological parents, who retain responsibility for its support, we would give priority to the former putative father's desire to be made financially whole, to the potential detriment of the child's ongoing needs." (Citations omitted.) Id., 389. The court reasoned that "[t]he potential emotional and psychic costs to the child of such a rupture are far more significant than any financial injury a grown man might suffer from mistakenly supporting another man's child for a temporary period." Id., 390. "The effect of [the court's] holding in this case . . . is that if a man's willingness to parent his non-marital partner's child is conditioned on its being his biological offspring, he proceeds at his own risk in failing to verify his paternity at an early stage in the child's life . . . If [a child] proves to be genetically unrelated to its putative father . . . he will not be able to enlist the aid of the courts in seeking reimbursement from the child's biological parents from the contributions he has made to its support." Id., 395.
The holdings of the Supreme Courts of Alaska and Nevada in State, Dept of Revenue v. Wetherelt, supra, 931 P.2d 383, and Day v. Heller, supra, 264 Neb. 934, demonstrate the courts' unwillingness to find in favor of a husband or former husband who seeks reimbursement for expenses that he incurred in the upbringing of his wife's or former wife's child, even when he is later excluded as the child's biological father. Even in the case in which the former putative father was never married to the child's mother, in McBride v. Boughton, supra, 123 Cal.App. 4th 379, the California Appellate Court refused to grant the former putative father with reimbursement from the child's biological parents under a theory of unjust enrichment. The rationale in all of the above cases is founded on the public policy that the best interests of the child in receiving the support that he or she needs is more important than making a grown man financially whole for expenses that he incurred under a mistaken belief that he was a child's biological father, when doing so could potentially harm the child. In essence, courts find that the best interests of the child trump the financial interests of a former putative father.
C. Statutory Remedies for Retroactive Child Support
Statutory interpretation of General Statutes §§ 46b-215 and 46b-160 also provides guidance in resolving the present dispute. Section 46b-215(a)(3) provides that an action to collect current or past due support may be commenced by a "child or any relative or the conservator, guardian or support enforcement officer, town or state, or any selectmen or the public official charged with the administration of public assistance of the town, or . . . the Commissioner of Social Services." In Perella v. DiMichele, Superior Court, judicial district of Waterbury, Docket No. FA 07 4012677 (July 23, 2009, Bozzuto, J.), the Superior Court addressed the question of whether § 46b-215 provides a custodial, non-biological father with a cause of action to retroactively collect child support from his wife's child's biological father. The facts in Perella are nearly identical to the present dispute; however, in that case the biological father brought a cause of action against the biological mother for visitation rights rather than the husband bringing an action against the biological father for financial reimbursement, as is the case here.
In Perella v. DiMichele, supra, Superior Court, Docket No. FA 07 4012677, the defendant and the intervenor were husband and wife. During their marriage, the defendant gave birth to two children who were the result of an extramarital affair that she had had with the plaintiff. The plaintiff and defendant had commissioned DNA tests, which confirmed that the plaintiff was the biological father of the children; the plaintiff and defendant kept this information from the intervenor. The defendant had allowed the plaintiff to have a relationship with the children; however, this dispute arose when the defendant unilaterally terminated the plaintiff's access to the children. As such, the plaintiff filed an action for visitation and custody. The court awarded the defendant and the intervenor joint legal and physical custody, but granted the plaintiff visitation and ordered the plaintiff to pay child support.
Similar to the present dispute, the intervenor in Perella v. DiMichele, supra, Superior Court, Docket No. FA 07 4012677, claimed "that since the plaintiff has been ordered to pay . . . child support . . . the plaintiff owes at least that amount in child support retroactive to the date of the birth of the children." In determining the application of § 46b-215, this court based its analysis on the definition of "guardian," and determined that although the intervenor had been given physical and legal custody of the children, "[o]btaining custody of a child does not mean you are a guardian of the child." This court found "that the intervenor is a joint legal custodian and has a close relationship with the children. The intervenor, however, is not a guardian, nor does he have any relationship under § 46b-215, which would provide the intervenor standing to bring this motion against the plaintiff. The intervenor is not the guardian of the children, nor does he have any other relationship listed in § 46b-215(3) which would provide him with standing."
Another pertinent Connecticut statute, General Statutes § 46b-160(a)(1)(A), provides in relevant part: "Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be commenced by the service on the putative father of a verified petition of the mother or expectant mother. Such petition may be brought at any time prior to the child's eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the date of the filing of any such petition." (Emphasis added.) This provision explicitly provides a remedy solely for a "mother or expectant mother" and, on its face, the statute does not provide a cause of action for a husband who seeks compensation from a biological father. No Connecticut cases have directly addressed the issue of whether this provision could be interpreted to be a cause of action for a husband who seeks reimbursement from a biological father; thus, it is instructive to consider the Ohio Supreme Court's interpretation of a similar Ohio statute.
The Ohio statute, as described by case law in 1983, was similar to the current Connecticut statute and provided a remedy for a mother who sought retroactive compensation from the child's biological father. Although now, the Ohio statute itself as amended has changed, the Ohio Supreme Court's interpretation of the statute as it existed previously is a helpful guide as to the way in which the Connecticut statute should apply in the present case. The Ohio Supreme Court discussed the Ohio statute as follows: "In reviewing the statutory framework and pertinent case law concerning this subject, we find that R.C. 3111.01 et seq., as it existed at the institution of the present action, permitted an unmarried woman . . . to maintain an action against the putative father for past necessaries furnished the illegitimate child and for future support . . . [W]e held that the common law permitted a married woman to maintain an action for necessaries provided to the bastard child against a man other than her present husband for past support, or future support, or both. This decision also marked the rapid erosion of the archaic distinctions between legitimate and illegitimate children. Finally . . . we dispensed with the differentiation between legitimate and illegitimate children, and held that a minor child had a common-law right to bring a civil action against his father for maintenance and support, as well as requiring a determination of paternity as an incident thereto." (Citation omitted.) Weinman v. Larsh, 5 OhioSt.3d 85, 87, 448 N.E.2d 1384 (1983).
The court noted that, "[c]onspicuously absent from this line of precedent and the controlling statutes . . . is the authorization for a husband to maintain an action against the biological father to obtain reimbursement for past necessities furnished, along with establishing paternity." (Emphasis added.) Id., 87. The court held that the Ohio statute did not provide a cause of action for the husband in that case. In so holding, the court explained that "our paramount concern in interpreting and expanding the relevant law was to [e]nsure that the welfare of the children involved was properly attended to. The present action [i.e., a husband who seeks compensation from the biological father of his wife's child] does not attempt to advance this paramount concern, and thus we find it ill-advised to carve out another potential cause of action [i.e., for a husband to collect reimbursement for expenses incurred for the benefit of a child who is not biologically related to him] . . . which does not benefit or concern the interests of the children involved." Id., 87.
Conclusion
For the foregoing reasons, the Court finds 1) that Richard Zollino is the biological father of Alicia Fischer, born on December 14, 1992, and 2) that Eric Fischer is estopped from denying his financial responsibility for Alicia.
Accordingly, the Court hereby denies the plaintiff's claim that he is entitled to reimbursement from the defendant under theories of misrepresentation, nondisclosure and unjust enrichment.
Judgment enters for defendant Richard Zollino on plaintiff Eric Fischer's complaint.