MacE v. Webb , 1980 Utah LEXIS 989 ( 1980 )

STEWART, Justice:

This appeal is from an order of the district court requiring the defendant to pay child support for plaintiff’s minor child and declaring that the defendant, who was shown by blood tests not to be the child’s natural father, had adopted the child by acknowledgment. We reverse.

In June 1973 plaintiff, an unmarried woman, gave birth to a son. The defendant, who had been living with her for several months, assumed responsibility for the medical expenses of the birth. Defendant signed the birth certificate as the child’s father, and the child was given defendant’s surname. The couple continued living together until the latter part of 1975. The child has since remained in his mother’s custody. Defendant has married and currently resides with his wife.

In November 1974 the plaintiff filed an action seeking child support from defendant. The parties stipulated to a temporary support order in 1976, and defendant made support payments pursuant to that order. In March 1978 defendant answered plaintiff’s complaint, denied paternity, and counterclaimed for all sums paid for the support of plaintiff’s child. Blood tests performed pursuant to court order conclusively established that defendant is not the natural father of the child. The court below nevertheless found that defendant had adopted the child by acknowledgment pursuant to § 78-30-12 U.C.A. (1953), as amended, and that defendant was and is responsible for the support and maintenance of plaintiff’s son. Judgment was entered on plaintiff’s complaint in favor of plaintiff, and defendant’s counterclaim was dismissed.

Section 78-30-12 provides as follows:

Adoption by acknowledgment. — The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.

In its conclusions of law the trial court, after holding that the child had been adopted by acknowledgment, stated:

The term “father” as used in Section 78-30-12 of the Utah Code Annotated (1953) includes and means the “putative” father or the individual who is believed to be, who believes himself to be and who had the opportunity to be, the child’s natural father regardless of whether he in fact is the actual natural father of said child.

This legal conclusion was the basis of the court’s order, since the court’s findings state that defendant was not the biological father of plaintiff’s child. We hold the court’s definition of “father” as used in § 78-30-12 to be erroneous.

This Court has not previously decided a case under the acknowledgment statute where evidence proved the alleged father not to be the natural father. The statute has been applied to situations involving illegitimate births where parentage was not in dispute. Although the title of the statute is given as “adoption by acknowledgment,” it properly is characterized as a legitimation statute. Slade v. Dennis, Utah, 594 P.2d 898 (1979). The legislative purpose giving rise to this statute is to confer on an illegitimate child the civil and social status of a lawful child of the natural father. Brown v. Brown, Okl., 355 P.2d 1034 (1960). A child born out of wedlock may thus receive the same inheritance rights as the legitimate child. In re Navarro, 77 Cal.App.2d 500, 175 P.2d 896, 898 (1946), in considering § 230 of California’s civil code, which is identical to our § 78-30-12, stated:

Section 230, supra, is not, strictly speaking, an “adoption” statute, but a “legitimation” one. In Blythe v. Ayres, 96 Cal. 532, 559, 560, 31 P. 915, 916, 19 L.R.A. 40, the court said that “The verb ‘adopts,’ as used in section 230, is used in the sense of ‘legitimates,’ and that the acts of the father of an illegitimate child, if filling the measure required by that statute, would result, strictly speaking, in the legitimation of such child, rather than in its adoption. Adoption, properly considered, refers to persons who are strangers in blood; legitimation, to persons where the blood relation exists. . . . ” [Emphasis added.]

Thus, a father who “adopts” his child by acknowledgment makes that child legiti-. mate.

The issue before the Court is whether the statue is applicable as to one who is not the father of the child born out of wedlock. Courts of other states have uniformly regarded legitimation statutes as applying only to acknowledgment of illegitimate children by their biological fathers. For example, in In re Cook’s Estate, 63 Ariz. 78, 159 P.2d 797, 800 (1945), the court noted four requirements for legitimation under a statute similar to Utah’s:

. it has been held that four things are essential under this section for the adoption of an illegitimate child by its father: (1) He shall be its natural father; (2) He shall have publicly acknowledged himself to be the father; (3) He shall have received the child into his family; (4) He shall have otherwise treated it as his legitimate child. [Citation omitted.]

In order to complete legitimation under this section all of its provisions must be complied with.

In Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707 (1961), the court faced the problem of defining the duty of support which a husband owes to his wife’s illegitimate child whom the husband had acknowledged and treated as his own child. The wife stipulated that the husband was not the child’s natural father. As in the instant case it was argued that the child had been legitimated by the husband’s conduct. The court held that the argument was unsupportable under the relevant statutory provisions. It stated:

Section 230 of the Civil Code providing that “The father of an illegitimate child” legitimates the child by acknowledging it as his own, receiving it into his family and otherwise treating it as a legitimate child, applies to such conduct only by the child’s father. Indeed, the cases [citations omitted] hold that as a condition to such legitimation the charged party must be the natural father. In view of the stipulation to the contrary in the instant case, section 230 of the Civil Code does not apply. [Emphasis added.] [11 Cal.Rptr. at 710-11.]

Other cases holding that the alleged father’s paternity must be established before an illegitimate child may be legitimated, or “adopted” by acknowledgment, include In re Glick’s Estate, 136 Mont. 176, 346 P.2d 987 (1959); In re Berg’s Estate, 72 N.D. 52, 4 N.W.2d 575 (1942); and Kirkland v. Henry, Okla., 296 P.2d 165 (1956). As pointed out in In re Smith’s Estate, 49 Wash.2d 229, 299 P.2d 550 (1956), adoption of an heir is strictly a statutory procedure and can be accomplished only by strict compliance with adoption statutes.

We agree with the cases cited above. The Legislature, in using the term “father” in § 78-30-12, clearly intended that term to be construed in its obvious and natural meaning, i. e., as the biological father. For one not the biological father, recourse would have to be had to the strict requirements of the adoption statutes. Accordingly, we hold that only a natural father can “adopt” an illegitimate child by acknowledgment pursuant to the Utah legitimation statute, § 78-30-12, and thereby become obligated to support the child.

Because the trial court found that defendant was not the natural father of plaintiff’s child, the finding of an adoption by acknowledgment was erroneous and the order of support based on such an adoption must be set aside.

Defendant was not married to plaintiff, is not the biological father,¹ and has not legally adopted the child. Carbone v. Superior Court of Napa County, 18 Cal.2d 768, 117 P.2d 872 (1941), states the general rule that proof of parentage is a jurisdictional prerequisite for an order to support an illegitimate child. Nevertheless, in appropriate cases, a support obligation may be imposed on the basis of estoppel or implied contract. In re Marriage of Johnson, 88 Cal.App.3d 848, 152 Cal.Rptr. 121 (1979); In re Marriage of Valle, 53 Cal.App.3d 837, 126 Cal.Rptr. 38 (1975). See also Clevenger v. Clevenger, supra; V.L.P. v. J.S.S., Del., 407 A.2d 244 (1978); Fuller v. Fuller, D.C., 247 A.2d 767 (1968). However, the use of an estoppel theory to impose a support obligation on a man who is not the biological father of the child involved must be applied with caution. Voluntary support of illegitimate children or stepchildren should not be discouraged. A support obligation based on estoppel could result in serious problems if too broadly applied. If the law imposes a permanent duty on one who undertakes to support children he did not father, men may choose to avoid doing so because they may find themselves permanently obligated.

Defendant’s counterclaim alleging fraud and claiming repayment of past support payments made, and for attorney’s fees, was dismissed by the trial court because the court’s ruling on legitimacy in effect disposed of defendant’s claim. Defendant sought relief based on misrepresentations by the plaintiff that he was the child’s natural father. On remand of this case it will be necessary for the trial court to dispose of the counterclaim. We express no view as to the merits of that claim.

Reversed and remanded for further proceedings in conformity with this opinion.

MAUGHAN, WILKINS and HALL, JJ., concur.

1 . Presumably the child’s mother knows who the biological father is. She may look to him for support of the child. In this State there is no time limitation on instituting a suit to determine paternity. Nielsen, State Dept. of Social Services v. Hansen, Utah, 564 P.2d 1113 (1977).