Opinion
No. 2-024 / 01-0786.
Filed May 15, 2002,
Appeal from the Iowa District Court for Wapello County, JAMES P. RIELLY, Judge.
Chris Harr appeals from a district court ruling granting Robin Kempf visitation with Harr's and Susan Painter's biological child. AFFIRMED.
Greg Life and Michael Fisher of Life Law Office, Oskaloosa, for appellant.
Karen Taylor of the Law Offices of Taylor Ristau, Des Moines, for appellee.
Susan Lynch of Lynch Law Firm, guardian ad litem, Ottumwa, for appellee.
Christina Hansen, Assistant Attorney General, Des Moines, for Child Support Recovery Unit.
R.E. Breckenridge of Johnson, Hester, Walter Breckenridge, Ottumwa, for petitioner.
Heard by SACKETT, C.J., and HECHT and VAITHESWARAN, JJ.
The issue in this appeal is whether appellee Robin Joseph Kempf should have visitation with the minor child Kyle Joseph Kempf. Kyle was born to Susan Elaine Painter, who at the time of Kyle's conception and birth was not married. Kempf was named as Kyle's father on his birth certificate and determined to be his father in a subsequent paternity action. In the action that led to this appeal, the district court set aside that paternity order and appellant Chris Harr was determined to be Kyle's biological father. Painter was granted Kyle's primary physical care and both Harr and Kempf were awarded visitation. On appeal Harr contends the district court should not have granted Kempf visitation with Kyle. Kempf argues the court properly granted him visitation. Painter has not appealed and she supports visitation between Kempf and Kyle. We affirm.
At the time of Kyle's birth Kempf and Painter were in a relationship. Unknown to Kempf, Painter also had a relationship with Harr. Upon realizing she was pregnant, Painter recognized Harr could be the father of her unborn child. She never communicated this fact to Kempf, but called Harr and raised the possibility that he could be the father. Harr made no further inquiry despite the fact that Painter made no effort to hide either herself or baby and Harr and Painter both lived in the same general part of the state.
After Kyle's birth on October 18, 1994, Kempf, believing Kyle was his son, authorized his name to be put on the child's birth certificate. About a year later Painter and Kempf dissolved their relationship. On January 27, 1997 a paternity order was entered approving a stipulation entered into by Painter and Kempf. The order determined Kempf to be Kyle's father, ordered him to pay child support, and granted him visitation. Kempf paid child support and exercised substantial visitation with Kyle. The district court found that Kyle was with him about fifty percent of the time. We find no reason to disagree with this finding.
Harr contends he had no knowledge of the child's birth until several years later when someone suggested to Harr that Painter had a child who resembled Harr. Blood tests were done which showed Harr to be Kyle's biological father and further showed that Kempf was not.
Just before Kyle's fourth birthday Painter filed a petition to terminate Kempf's parental rights, relieve him of any future support obligations to Kyle, and terminate the prior visitation order. Painter alleged that blood tests done on March 8, 1999 showed Harr was Kyle's biological father. Painter asked the court to find Harr to be Kyle's father, grant joint legal custody, and give her primary physical care. Painter also asked that Harr be required to pay child support.
On October 13, 1999 the district court entered an order finding Chris Harr to be Kyle's father and further finding Kempf not to be Kyle's father. The court ordered Harr to pay child support to Painter commencing January 1, 2001. The court terminated Kempf's child support obligation as of the date of the order. These parts of the order are not challenged on appeal.
In addition to the above findings, visitation was also established in the order according to a proposal submitted by Painter that came after the court, in response to Painter's request, appointed Tom Lazio of American Home Finding Association to make a report to the court regarding Kyle's interests with respect to issues of visitation and integration of his biological father into his life. Lazio made an investigation and determined that there was a strong bond between Kempf and Kyle and set forth a detailed visitation schedule, which would maintain Painter as the custodial parent and provide for visitation by both Kempf and Harr. It was this proposal that the court adopted.
In reaching its decision to award Kempf visitation the district court applied equitable estoppel. Specifically, the court concluded Painter concealed a material fact because she suspected when pregnant that Harr was the father of her then unborn child, and that Harr failed to act when he was advised the child could be his. The district court specifically found:
The evidence shows that [Painter] did not at any time tell [Kempf] of this suspicion. The Court finds that [Kempf] had a lack of knowledge of the true facts and that [Painter] in filing the petition [that resulted in a finding of Kempf's paternity] on September 4, 1996 intended that the representations made in the petition be acted upon. The Court further finds that [Kempf] relied upon the representations, which had been made to his prejudice and injury.
The court also found that Harr could not be heard to complain of the equitable remedy because he himself was without "clean hands" with respect to his assertions that Kempf should be denied contact with Kyle. In making this determination, the court found that Harr was alerted to the fact that he might be the father of Kyle and that he did nothing from early 1994 until October 1999 to exercise those rights and obligations that come with paternity.
Harr contends we should reverse the visitation order as to Kempf. He advances that (1) the equitable parent doctrine is not applicable as Kempf was never married to Painter; (2) equitable estoppel cannot be applied to grant visitation to Kempf because the court lacks statutory or common law authority to order visitation to third parties; and (3) even if equitable estoppel could be utilized in these circumstances, Kempf was unable to carry his burden to show "an honest lack of knowledge of the true facts of his paternity of Kyle." Harr further argues that equitable principles should not be utilized to grant third party visitation outside the confines of the marriage relationship for the following reasons: (1) visitation to a third party is inconsistent with Iowa's recognized public policy in favor of the marriage relationship; (2) extending visitation beyond that already legislatively authorized is a decision properly left to the legislature; and (3) such visitation would infringe upon the biological father's constitutional rights to father his children. Finally, Harr contends that granting Kempf visitation is not in Kyle's best interests.
Because this matter was tried in equity, our review is de novo. In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997). We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). Respectful consideration is given to the trial court's factual findings and credibility determinations, but not to the extent where those holdings are binding upon us. Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001).
The general rule is that, absent statute, a custodial parent holds veto power over visitation rights of anyone except the other parent. In re Marriage of Freel, 448 N.W.2d 26, 27-28 (Iowa 1989). This rule recognizes that not only is the government ill-equipped to dictate the details of social interaction among family members, but also that the right to parent one's children is a fundamental liberty interest that must be protected against unwarranted state intrusion. Lihs v. Lihs, 504 N.W.2d 890, 892 (Iowa 1993). In conformity with these principles, our supreme court has held that we do not have the power, absent statutory authority, to mandate visitation. In re Marriage of Halvorsen, 521 N.W.2d 725, 729 (Iowa 1994); Lihs, 504 N.W.2d at 892; Olds v. Olds, 356 N.W.2d 571, 573 (Iowa 1984).
The only statutory non-parent exception to the custodial parent's veto power is Iowa Code section 598.35, Iowa's grandparent visitation statute. Grandparent rights, however, are not at issue here.
Contrary to Kempf's assertions, this case is not controlled by In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995). In Gallagher, the court applied the equitable parent doctrine to elevate the non-biological parent husband to the legal status of parent, thus entitling him to custody and visitation, while requiring he continue to provide support. Gallagher, 539 N.W.2d at 482. The issue of whether Kempf should have been elevated to the status of an equitable parent was an issue that should have been raised before the district court in response to Painter's petition to set aside the paternity order naming Kempf as Kyle's father. Kempf has not appealed the order finding he is not Kyle's father and setting aside the earlier paternity finding to the contrary.
The district court granted visitation absent a finding that Kempf continue as Kyle's legal parent. Thus, Kempf is legally a stranger to Kyle. The court has found under such circumstances that we are without power to mandate visitation. See In re Ash, 507 N.W.2d 400, 404 (Iowa 1993). The district court, however, found that equitable principles estopped both Painter and Harr from prohibiting visitation. In In re Marriage of Halvorsen, 521 N.W.2d 725, 728 (Iowa 1994) the court noted that although it had applied the doctrine of equitable estoppel in various circumstances, it had not done so where paternity was the issue. Without determining whether equitable estoppel could justify visitation or paternity, the court found the facts did not support the elements necessary for equitable estoppel. Halvorson, 521 N.W.2d at 728.
Equitable estoppel is a doctrine based on fair dealing, good faith, and justice. Id. It seeks to prevent a person from speaking against his or her act, representation, or commitments to the injury of the person to whom the act or representation was directed and who reasonably relied thereon. Id.; Johnson v. Johnson, 301 N.W.2d 750, 754 (Iowa 1981).
The burden of proving equitable estoppel is on the party asserting it. Halvorsen, 521 N.W.2d at 728. Each element must be proved clearly, convincingly, and satisfactorily. Davidson v. Van Lengen, 266 N.W.2d 436, 441 (Iowa 1978). The well-established elements of equitable estoppel are:
(1) A false representation or concealment of a material fact;
(2) A lack of knowledge of the true facts on the part of the actor;
(3) The intention that it be acted upon; and
(4) Reliance thereon by the party to whom made, to his or her prejudice and injury.Halvorsen, 521 N.W.2d at 728; Bricker v. Maytag Co., 450 N.W.2d 839, 841 (Iowa 1990); Merrifield v. Troutner, 269 N.W.2d 136, 137 (Iowa 1978).
On our de novo review we agree with the district court that Kempf has shown the elements of equitable estoppel. He was in a relationship with Painter when Kyle was conceived. He had no knowledge of her relationship with Harr. Neither Painter nor Harr gave Kempf any indication until four years after Kyle's birth that he was not the biological father of the child. The fact Kempf believed he was the father led him to allow his name to be put on the birth certificate, develop a relationship with Kyle, provide financial support for Kyle, and agree to a paternity order naming him as the father, agreeing to pay child support and assuming a very substantial portion of Kyle's care. Kempf's reliance on the representation of Painter that he was the father of the children was clearly to his prejudice and detrimental to him both financially and emotionally.
And while Harr seeks to advance that Painter's representations should not be binding on him, we disagree. Harr knew he had a relationship with Painter. She told him she was pregnant and he might be the father. He took no further action despite living in close proximity to her, apparently content to let her handle the problem alone. We agree with the district court that the unique facts of this case support a finding that Harr should be estopped from challenging the visitation provided to Kempf.
Even if we were to conclude otherwise, there is another ground for affirmance of the district court that was not argued. See Stoner v. Kilen, 528 N.W.2d 648, 650 (Iowa Ct. App. 1995) (we may affirm on any ground for which support is found in the record). Painter is the parent having primary care and she is not objecting to the visitation by Kempf. She testified she believed that Kyle was closely bonded with Kempf and she believed Kempf should continue visitation with Kyle. The parent who is granted primary physical care has the right and responsibility to maintain the principal home of the minor child and provide for the routine care of the child. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992); In re Marriage of Rykhoek, 525 N.W.2d 1, 3 (Iowa Ct. App. 1994).
In addressing an issue where the primary care parent sought to put restrictions on the care of the child during visitation we have said we will not restrict a parent's visitation "unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact." In re Marriage of Gillilland, 487 N.W.2d 363, 366 (Iowa Ct. App. 1992). Generally, we have not imposed conditions on a parent's visitation. Rykhoek, 525 N.W.2d at 4.
The custodial parent cannot generally exercise his or her common-law veto to dictate which persons the noncustodial parent can come in contact with during visitation. Id. A court should place conditions on a parent's visitation rights only when visitation without the placement of conditions is likely to result in direct physical harm or significant emotional harm to the child, other children, or a parent. Id. Any conditions which are so imposed must be in the best interests of the child. Id.
Unlike the cases above, Painter is the parent having physical care and she does not contest Kempf having visitation with Kyle. The district court found such visitation to be in Kyle's best interest and on our review of the record we come to the same conclusion. Harr, as a noncustodial parent, should not have any greater right to restrict how Painter cares for Kyle during the time he is in her care than Painter should be able to restrict Harr during his visitation. Painter supports the visitation. For this additional reason, we affirm.
AFFIRMED.