Wright v. Newman

Carley, Justice.

Seeking to recover child support for her daughter and her son, Kim Newman filed suit against Bruce Wright. Wright’s answer admitted his paternity only as to Newman’s daughter and DNA testing subsequently showed that he is not the father of her son. The trial court nevertheless ordered Wright to pay child support for both children. As to Newman’s son, the trial court based its order upon Wright’s “actions in having himself listed on the child’s birth certificate, giving the child his surname and establishing a parent-child relationship. . . .” According to the trial court, Wright had thereby

allow[ed] the child to consider him his father and in so doing deterr[ed Newman] from seeking to establish the paternity of the child’s natural father [,] thus denying the child an opportunity to establish a parent-child relationship with the natural father.

We granted Wright’s application for a discretionary appeal so as to review the trial court’s order requiring that he pay child support for Newman’s son.

Wright does not contest the trial court’s factual findings. He asserts only that the trial court erred in its legal conclusion that the facts authorized the imposition of an obligation to provide support for Newman’s son. If Wright were the natural father of Newman’s son, he would be legally obligated to provide support. OCGA § 19-7-2. Likewise, if Wright had formally adopted Newman’s son, he would be legally obligated to provide support. OCGA § 19-8-19 (a) (2). However, Wright is neither the natural nor the formally adoptive father of the child and “the theory of ‘virtual adoption’ is not applicable to a dispute as to who is legally responsible for the support of minor children.” Ellison v. Thompson, 240 Ga. 594, 596 (242 SE2d 95) (1978).

Although Wright is neither the natural nor the formally adoptive father of Newman’s son and the theory of “virtual adoption” is inapplicable, it does not necessarily follow that, as a matter of law, he has no legal obligation for child support. A number of jurisdictions have recognized that a legally enforceable obligation to provide child support can be “based upon parentage or contract. . . .” (Emphasis supplied.) Albert v. Albert, 415 S2d 818, 819 (Fla. App. 1982). See also Anno., 90 ALR2d 583 (1963). Georgia is included among those jurisdictions. Foltz v. Foltz, 238 Ga. 193, 194 (232 SE2d 66) (1977). Accordingly, the issue for resolution is whether Wright can be held liable for child support for Newman’s son under this state’s contract law.

There was no formal written contract whereby Wright agreed to support Newman’s son. Compare Foltz v. Foltz, supra. Nevertheless, under this state’s contract law,

[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

OCGA § 13-3-44 (a). This statute codifies the principle of promissory estoppel. Insilco Corp. v. First Nat. Bank of Dalton, 248 Ga. 322 (1) (283 SE2d 262) (1981). In accordance with that principle,

“[a] party may enter into a contract invalid and unenforceable, and by reason of the covenants therein contained and promises made in connection with the same, wrongfully cause the opposite party to forego a valuable legal right to his detriment, and in this manner by his conduct waive the right to repudiate the contract and become estopped to deny the opposite party any benefits that may accrue to him under the terms of the agreement.” [Cits.]

Pepsi Cola Bottling Co. v. First Nat. Bank of Columbus, 248 Ga. 114, 116-117 (2) (281 SE2d 579) (1981).

The evidence authorizes the finding that Wright promised both Newman and her son that he would assume all of the obligations and responsibilities of fatherhood, including that of providing support. As the trial court found, this promise was evidenced by Wright’s listing of himself as the father on the child’s birth certificate and giving the child his last name. Wright is presumed to know “the legal consequences of his actions. Since parents are legally obligated to support their minor children, [he] accepted this support obligation by acknowledging paternity.” Marshall v. Marshall, 386 S2d 11, 12 (Fla. App. 1980). There is no dispute that, at the time he made his commitment, Wright knew that he was not the natural father of the child. Compare NPA v. WBA, 380 SE2d 178 (Va. App. 1989). Thus, he undertook his commitment knowingly and voluntarily. Moreover, he continued to do so for some ten years, holding himself out to others as the father of the child and allowing the child to consider him to be the natural father.

The evidence further authorizes the finding that Newman and her son relied upon Wright’s promise to their detriment. As the trial court found, Newman refrained from identifying and seeking support from the child’s natural father. Had Newman not refrained from doing so, she might now have a source of financial support for the child and the child might now have a natural father who provided emotional, as well as financial, support. If, after ten years of honoring his voluntary commitment, Wright were now allowed to evade the consequences of his promise, an injustice to Newman and her son would result. Under the evidence, the duty to support which Wright voluntarily assumed ten years ago remains enforceable under the contractual doctrine of promissory estoppel and the trial court’s order which compels Wright to discharge that obligation must be affirmed. See Nygard v. Nygard, 401 NW2d 323 (Mich. App. 1986); Marshall v. Marshall, supra; In re Marriage of Johnson, 152 Cal. Rptr. 121 (Cal. App. 1979); Hartford v. Hartford, 371 NE2d 591 (Ohio App. 1977).

Judgment affirmed.

All the Justices concur, except Benham, C. J., who dissents.