Appeal from the Superior Court of the District of Columbia; (Hon. Geoffrey M. Alprin, Trial Judge)
Before Terry and Farrell, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: This appeal presents once again the issue of paternity by estoppel. See Dews v. Dews, 632 A.2d 1160, 1166-69 (D.C. 1993). Appellant, K.A.T., contests an order for child support in favor of appellee, C.A.B., and her minor daughter, R., asserting that the trial Judge erred in holding that appellant was equitably estopped from denying that he was the father of the child, and thus obligated to pay child support. Because our decisions are incompatible with a Conclusion of equitable estoppel on the facts of this case, we are constrained to reverse. *fn1
C.A.B. (the mother) became pregnant with R. (the child) in 1974. For purposes of this litigation, the father is conceded to be D.P., a man the mother had known since her own childhood but who quickly lost interest in a paternal relationship with the child. He saw the child only once after her birth in March of 1975, and neither mother nor child has seen him since or has knowledge of his whereabouts. On the other hand, the record does not reveal that any efforts have been made to locate D.P.
Several months before the birth, the mother resumed contact with appellant (K.A.T.), with whom she had had an earlier friendship. The couple began dating and continued doing so after the child's birth. From the beginning the child called K.A.T. "daddy," and there was testimony, credited by the trial Judge, that K.A.T. referred to her as his daughter when in the company of others. Although there was no testimony that the mother and K.A.T. lived together or shared the expenses of raising the child during the first three years of the child's life, *fn2 K.A.T. did participate regularly in outings with the child such as picnics and attending movies, and he sometimes bought the child clothing and toys. The child was never told during this period that he was not her father.
In 1978 K.A.T. moved to California where he remained until approximately April of 1981. While there he remained in touch with the child by telephone, letters, and gifts sent to her by mail. At some point the mother visited him in California and they discussed marriage. According to testimony which the trial Judge credited, K.A.T. declared his desire, upon marriage, to treat the child as his daughter and agreed to "do whatever he to help to support" her, including setting up a trust fund for her college education. It does not appear that the fund was ever established. The couple were married in September 1981. At about that time K.A.T. signed an Acknowledgement of Parentage filed with the Government of the District of Columbia Vital Records Division, declaring himself to be the child's father. The record reveals no steps, however, toward adoption of the child by K.A.T.
The couple began having marital difficulties in 1982 and separated in November 1983. During this two year period, the child lived partly with the couple and partly with the maternal grandmother. In 1983 the child overheard an argument between the mother and K.A.T., during which she learned for the first time that K.A.T. was not her biological father. Despite the separation, from 1982 through 1985 the couple filed joint federal income tax returns claiming the child as a dependent. *fn3 They divorced in early 1986, executing a property settlement agreement under which K.A.T. was to pay the mother a lump sum of $8,000 in return for the deed to the marital home acquired during the marriage; but the agreement made no provision for child support. Following both the separation and the divorce, K.A.T. continued to buy clothes and other gifts for the child, visited her perhaps twice a month, and maintained contact by telephone. She continued to regard him as the only father she had known.
The trial Judge, although not having the benefit of our opinion in Dews, supra, rendered a thoughtful written decision in which he found, among other things, that K.A.T. had misled the child into "believing that he was her natural father by a conscious course of conduct for thirteen years," and that it would be inequitable for him to "continue to enjoy the benefits of an established paternal relationship with a thirteen year old child . . . without assuming the concomitant financial obligation of such a relationship."
This case does not involve the obligations of one standing in loco parentis. Our decisions make clear that that status, itself involving "a somewhat nebulous legal relationship," Cooley v. Washington, 136 A.2d 583, 585 (D.C. 1957), terminates upon divorce and even upon separation of the husband and wife, "unless the party standing in loco parentis to the child means that it should continue." Jackson v. Jackson, 278 A.2d 114, 115 (D.C. 1971) (footnote omitted). No one contends in this case that K.A.T. intended the "strictly temporary" obligations, id. (citation omitted), he assumed toward the child during the parties' brief marriage before separating to continue after dissolution.
Rather, this case involves the kindred equitable notion of paternity by estoppel. In general, the doctrine of equitable estoppel has been applied with great reluctance in the paternity context. Revisiting the subject in Dews, supra, this court canvassed the decisions and concluded that, while "many appellate courts, including this one, have considered whether the doctrine of equitable estoppel might be applied to prevent a supposed father from denying paternity, . . . none that we have found has affirmed a trial court decision to that effect." 632 A.2d at 1167 (citing cases). Although appellee is able to point to somewhat greater receptivity toward the doctrine recently, see, e.g., Pietros v. Pietros, 638 A.2d 545 (R.I. 1994), nothing like a trend can be identified toward imposing the statutory obligations of parenthood on a non-parent by way of equitable considerations. The reasons for the prevailing "caution," Miller v. Miller, 97 N.J. 154, 478 A.2d 351, 358 (N.J. 1984), in applying equitable estoppel in this context are essentially twofold. The first is that statutory law, in the District of Columbia as elsewhere, imposes the primary duty of child support on the natural parents, see, e.g., Prager v. Smith, 195 A.2d 257, 259 (D.C. 1963); D.C. Code § 16-916 (1989); moreover, the legislature has long provided an express means -- adoption -- by which a non-biological parent may acquire the formal and permanent status of parent. E.g., Fuller v. Fuller, 247 A.2d 767, 769 (D.C. 1968), petition denied, 135 U.S. App. D.C. 353, 418 F.2d 1189 (1969); D.C. Code § 16-302 (1989). The second reason is the deep practical concern that extending the in loco parentis relationship beyond dissolution of marriage would "discourage the voluntary support that is so often provided by stepparents." Dews, 632 A.2d at 1169. As the Supreme Court of New Jersey stated in Miller, supra, in holding that "the development of 'emotional bonding' . . . is not sufficient to invoke the doctrine of equitable estoppel in stepparent cases":
To hold otherwise would create enormous policy difficulties. A stepparent who tried to create a warm family atmosphere with his or her stepchildren would be penalized by being forced to pay support for them in the event of a divorce. At the same time, a stepparent who refused to have anything to do with his or her stepchildren ...