PATERNITY EQUITABLE ESTOPPEL: CALFEE V. COMMONWEALTH (COA 8/3/2007)

CALFEE V. COMMONWEALTH
FAMILY LAW:  PATERNITY (EQUITABLE ESTOPPEL, CHILD SUPPORT, VOIDABILITY)

2006-CA-001446
PUBLISHED: REVERSING AND REMANDING
PANEL: COMBS, PRESIDING;  ACREE AND TAYLOR CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 8/3/2007

This matter started out with an effort by the Commonwealth to enforce and collect child support arrearages against Calfee.  COA examined the applicability of "equitable estoppel" to a father who had been determined to owe child support but was later determined by genetic testing not to be the father.  On remand, the family court must examine the evidence to determine whether the mother Aquilina’s actions amounted to fraud or misrepresentation. If so, Calfee is entitled to the relief he seeks, and the arrearage should be set aside.

David Calfee appeals family court’s denial of his request for modification of a portion of a court-ordered child support obligation that had already accrued.

A default judgment of paternity and an order of support had previously been entered against Calfee who then had failed to make many of the scheduled child support payments. Several years later, genetic testing determined conclusively that Calfee was not the child’s father.

Nevertheless, the Commonwealth argued that Calfee owed a duty of support the child. pursuant to the default judgment and computed Calfee’s arrearages at more than $37,000.00. The lower court in reliance of the COA decision in Crowder v. Commonwealth, 745 S.W.2d 149 (Ky.App. 1988) later set aside the default judgment of paternity and terminated Calfee’s support obligation with respect to this child. The lower court determined that Calfee was financially responsible for the child until the time that the judgment of paternity had been set aside. The court concluded that if Calfee had timely undergone genetic testing, then the state and the mother could have been seeking another possible father of the child and obtaining child support from him for that child.

COA stated that it had recently applied the principles of equitable estoppel to prevent a former husband from denying paternity and the resulting duty of support. See S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky.App. 2005). However, this COA was not persuaded that those principles should govern in this case.

A legal presumption that Calfee was the child’s biological father was never at issue; the child was neither conceived nor born during lawful wedlock; Calfee never took any action to represent that he was the natural father. Although Calfee’s name appeared on the birth certificate (per Aquilina’s request), there is nothing in the record to indicate that anyone ever regarded him as the biological father. Therefore, Calfee’s conduct did not establish a basis to estop him from asserting: (1) that he is not L.K.C.’s legal father and (2) that he should never have been obligated (either on legal or equitable grounds) to provide for the child’s support.

The COA concluded that past child support obligations are voidable in some instances and that the circumstances of this case constitute proper grounds for voiding Calfee’s support obligation.

The opinion in Denzik v. Denzik, 197 S.W.3d 108 (Ky. 2006) sets out the factors that must be shown to establish fraud or misrepresentation: 1) a material isrepresentation; 2) which is false; 3) that is known to be false or made recklessly; 4) that is made with inducement to be acted upon; and 5) that is acted upon, causing injury.

It is clear from the evidence that the child’s mother (Aqualine) had no legitimate reason to assume that Calfee was L.K.C.’s father. On the contrary, she had ample cause to believe that Calfee may not have fathered the child. The evidence suggests that Aquilina did not in fact believe that Calfee was the child’s father and admitted that L.K.C. did not resemble Calfee; and told others that he was not L.K.C.’s father. Nonetheless, she initiated legal action against Calfee for support.

Digested by Michael Stevens

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