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11/04/93 HENRIETTA DEWS v. MILTON DEWS

November 4, 1993

HENRIETTA DEWS, APPELLANT
v.
MILTON DEWS, APPELLEE; MILTON DEWS, APPELLANT V. HENRIETTA DEWS, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Gladys Kessler, Trial Judge)

Before Ferren, Terry, and Steadman, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: These cross-appeals arise out of a divorce proceeding involving Henrietta and Milton Dews. We must decide, first, whether the trial court abused its discretion in its division of the marital property, and second, whether the trial court erred in applying the doctrine of equitable estoppel to prevent Mr. Dews from denying the legitimacy of a child born during the marriage, even though the evidence clearly shows that he is not the child's father. On both points we hold in Mr. Dews' favor.

Milton Dews filed a complaint against his wife, Henrietta Dews, seeking a decree of absolute divorce. Following a trial at which Mr. and Mrs. Dews were the only witnesses, the court entered a judgment of absolute divorce on the ground that the parties had lived separate and apart without cohabitation for more than one year. See D.C. Code § 16-904 (a)(2) (1989). With respect to marital property, particularly the family home, the court ruled that "the property will be distributed in a 50/50 fashion," with certain credits to both parties for expenditures they had made. As to J., the child born during their marriage, the court awarded custody to Mrs. Dews and ordered Mr. Dews to make child support payments, despite the fact that Mr. Dews is, indisputably, not J.'s father. Applying the doctrine of equitable estoppel, the court ruled that Mr. Dews cannot deny the legitimacy of the child or his obligation to provide child support.

Both husband and wife appeal from the judgment. Mrs. Dews argues that the presumption in favor of "equal ownership" was rebutted and that the trial court did not properly apportion and distribute the marital home and other marital property. She also contends that the court failed to make adequate factual findings to support its legal Conclusions. *fn1 Mr. Dews asserts that the trial court properly exercised its discretion in distributing the marital property but erred in its application of the doctrine of equitable estoppel. He argues that with respect to J. he was merely acting in loco parentis, and that once the divorce was granted, any obligation he may have had to support J. came to an end. We are satisfied that the trial court made adequate findings and Conclusions and did not abuse its discretion in the distribution of the marital property. We also conclude, however, that the court improperly relied on equitable estoppel in imposing a duty of support on Mr. Dews, and thus we reverse that portion of the judgment which requires Mr. Dews to pay child support.

I. THE EVIDENCE AT TRIAL

Milton and Henrietta Dews were married on August 21, 1971. They separated in January 1987, and from that time until the trial began in September 1990, they remained continuously separated without interruption and without any hope of reconciliation. No children were born of the marriage; however, during the marriage Mrs. Dews became pregnant through an adulterous relationship and gave birth to J. on April 23, 1980.

The court heard testimony relating to several items of property owned by the couple, including a coin collection, a photograph collection, a Lincoln automobile, and the marital home on E Street, S.E. The evidence showed that Mr. and Mrs. Dews acquired the home from Mrs. Dews' father, to whom they agreed to pay $30,000. Although her father died before they could pay him the money, Mr. and Mrs. Dews took out a loan for the full amount and divided it equally among Mrs. Dews and her two sisters. Mrs. Dews' $10,000 share was put toward renovating the home. Mr. Dews testified that his parents also gave him $10,000 during this period, which he and his wife spent on renovations.

The marriage ended, according to Mr. Dews, because of his wife's persistent use of cocaine. After trying on several occasions to help his wife stop using drugs, Mr. Dews eventually gave up and moved out of the marital home. About two months later he became aware that the mortgage company had begun proceedings to foreclose on the home and managed to obtain a loan from his employer to pay the mortgage arrearages and halt the foreclosure. Mr. Dews also testified that when he eventually moved back into the house, he had to pay an unpaid electric bill in order to have the electricity turned on, as well as $2,141.23 to the District of Columbia for four years (1987 through 1990) of back taxes on the property. In addition, Mr. Dews said that he alone paid for a variety of necessary repairs to the house. Before the trial began, Mr. Dews had an appraisal performed on the house; the appraiser determined that it had a value of $101,000. On cross-examination Mr. Dews testified that for a period of nine months he rented out a portion of the house, for which he received approximately $350 per month.

Mrs. Dews testified that her father gave her and her husband the home, and that before her father's death he asked that they give $10,000 to each of Mrs. Dews' sisters. Mrs. Dews also acknowledged that she "went outside of the marriage" and conceived a child which both Mr. and Mrs. Dews wanted, but could not conceive between themselves. At first Mrs. Dews insisted that the child was conceived with her husband's knowledge and consent. On cross-examination, however, she admitted that she had initially told her husband that she became pregnant through artificial insemination, even though her pregnancy was actually the result of an adulterous affair. In response to several questions from the court, Mrs. Dews testified that Mr. Dews had a good relationship with the child, that the child called Mr. Dews "Daddy," and that the child had developed relationships with Mr. Dews' family. She also stated that the child is unaware that Mr. Dews is not his biological father. *fn2

II. THE TRIAL COURT'S FINDING AND CONCLUSIONS

The court found that Mr. and Mrs. Dews left their home in Maryland and moved into the District of Columbia in approximately 1980. The house into which they moved had been owned by Mrs. Dews' ailing father, but before they moved in, the home was given to them. Mr. and Mrs. Dews both cared for Mrs. Dews' father until his death. The deed to the home bears the names of both Mr. and Mrs. Dews, and the court found that it was a marital asset. Since the parties separated, Mr. Dews has paid the mortgage and the taxes and made all necessary repairs to the home.

The court said that there was "an assumption . . . based on the statute, that the property will be distributed in a 50/50 fashion" and that it saw "no reason to depart from that assumption in this case." It rejected Mrs. Dews' argument that she should get "some additional credit because the home came from her father," noting that it was Mrs. Dews "who had left the marriage" and that "one substantial factor" in the breakup of the marriage was her use of illicit drugs. The court then proceeded to credit each party for expenditures made following the separation, awarded the coin collection to Mr. Dews, and directed the parties to decide between themselves how to divide the photograph collection.

As to the child, J., the court made several observations. The court found that Mrs. Dews had become pregnant with J. as the result of an extramantal relationship and that Mr. Dews was not his biological father, although Mr. Dews initially was led to believe that his wife had been impregnated by artificial insemination. *fn3 After he learned that his wife was pregnant, Mr. Dews affirmatively participated in all the preparations for the birth of the child and became an active and supportive parent after J.'s birth. Mr. Dews, the court said, "was a father to [J.] in material ways, in psychological ways, and in emotional ways. . . . By his own testimony, he has taken [J.] out hunting and fishing, and they have engaged in many activities that children engage in with their parents." Even after the separation, Mr. Dews had chosen "to play an active role in [J.'s] life," visiting with him virtually every weekend and occasionally during the week as well. The court noted that J. does not know that Mr. Dews is not his biological father. The court concluded, therefore, that the doctrine of equitable estoppel was applicable to the case and that, under the doctrine, ...


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