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K.E. v.J. W. (7/14/95), 899 P 2d 133
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-6381
) Superior Court No.
v. ) 3KN-93-545 DR
J.W., ) O P I N I O N
Appellee. ) [No. 4228 - July 14, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Jonathan H. Link,
Appearances: Mary-Ellen Zalewski,
Anchorage, for Appellant. Allan Beiswenger,
Robinson, Beiswenger & Ehrhardt, Soldotna,
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Appellant K.E. argues that appellee J.W. should be
equitably estopped from denying paternity of K.E.'s daughter L.E.
J.W. was unable to father children at the time of L.E.'s birth.
L.E. was conceived through natural insemination with the aid of a
J.W. and K.E. began a romantic relationship in 1987 or
1988. J.W. had undergone a vasectomy before the relationship
began and was incapable of naturally fathering children. J.W.
expressed a continuing desire to marry K.E. starting soon after
the relationship began. Before meeting J.W., K.E. had a child,
B.E., by a man to whom she was never married, B.S. K.E. wished
to have another child and consequently was reluctant to marry
In March 1990, K.E. and J.W. discussed K.E.'s desire to
have another child. They specifically discussed adoption,
artificial insemination, vasectomy reversal, and the conception
of the child through natural means by a surrogate father. K.E.
decided that the least expensive and fastest option would be to
have the child naturally fathered by B.S., B.E.'s father. While
J.W. was hurt and distressed by K.E.'s plan, he did not feel that
he had a right to stop her, as "it was her body"and they were
K.E. had sexual intercourse with B.S. in Hawaii and
became pregnant in June or July of 1990. After K.E. told J.W.
that she was pregnant, they made plans to get married. K.E. and
J.W. were married on August 25, 1990. The child, L.E., was born
on March 19, 1991.
J.W. spent between 90 and 180 days with L.E. in the
first two years of her life, as his occupation often took him
away from the family. When they were together, J.W. acted as a
father toward L.E., and they treated each other with love and
affection. L.E. called J.W. "Papa."
J.W. and K.E. never represented to anyone that J.W. was
L.E.'s natural father. J.W.'s and K.E.'s close associates know
that J.W. is not L.E.'s natural father. K.E. planned to
eventually tell L.E. who her natural father was.
J.W. and K.E. became separated in the first half of
1993. J.W. filed for divorce on June 4, 1993. K.E. filed a
motion to establish a child support obligation in favor of L.E.
on the part of J.W. In support of the motion, K.E. argued that
(1) J.W. is equitably estopped from denying paternity because he
represented to L.E. that he was her father, (2) J.W. expressly
agreed to support L.E., and (3) J.W.'s consent to K.E.'s
insemination by a surrogate gives rise to a duty of support.
After a trial, the superior court made extensive findings of fact
and ruled that J.W. has no child support duty toward L.E. K.E.
Equitable estoppel is the only theory which K.E. argues
on appeal.1 The elements of equitable estoppel are (1)
representation of a position by conduct or word, (2) reasonable
reliance thereon by another party, and (3) resulting prejudice.
Jamison v. Consolidated Utilities, Inc., 576 P.2d 97, 102 (Alaska
Where it is argued that a putative father should be
estopped from denying paternity based on representations made to
the child, the representation and reliance elements of equitable
estoppel are met if (1) the husband represented directly or
implicitly to the child that he is the father, (2) the husband
intended his representation to be accepted and acted on by the
child, (3) the child relied on the representation and treated the
husband as a father and gave his love and affection to the
husband, and (4) the child was ignorant of the true facts.
Wright v. Black, 856 P.2d 477, 481 (Alaska 1993); H.P.A. v.
S.C.A., 704 P.2d 205, 208 (Alaska 1985); Clevenger v. Clevenger,
11 Cal. Rptr. 707, 714 (Cal. App. 1961).2
The child can suffer prejudice as a result of relying
on the husband's representations in any of the following three
ways: (1) the child may be deprived of the mother's potential
action to hold the natural father responsible for the support of
the child; (2) the child may suffer serious and lasting emotional
injury from the denial of paternity; or (3) the child may suffer
a social injury from the removal of the status of legitimacy.
See Wright, 856 P.2d at 481; Clevenger, 11 Cal. Rptr. at 714-15.
In this case, none of these three forms of prejudice have been
First, the husband's representation may deprive the
child of a potential action to hold the natural father
responsible for support by keeping the child's mother from
attempting to find the natural father, see Clevenger, 11 Cal.
Rptr. at 714, or by causing the mother to forego commencing an
action against the natural father until after the applicable
statute of limitations has expired. K.E. already knows that B.S.
is L.E.'s natural father. The statute of limitations applicable
to a potential paternity action by K.E. or L.E. against B.S. will
not expire until three years after L.E. reaches the age of
majority. See Hawaii Rev. Stat. 584-6 (1992).
Second, in order for the child to suffer serious and
lasting emotional injury from the denial of paternity, the
husband's representations must continue long enough to truly
establish the paternal relationship of the husband and the child.
See Clevenger, 11 Cal. Rptr. at 717; In re Marriage of Johnson,
152 Cal. Rptr. 121, 123 n.1 (Cal. App. 1979). In this case, J.W.
spent only 90 to 180 days with L.E. after L.E. was born. J.W.
filed for divorce from K.E. and stopped visiting L.E. when L.E.
was only two years old. Under these circumstances the paternal
relationship between J.W. and L.E. could not have been truly
Third, L.E. will not suffer a social injury from
removal of the status of legitimacy. J.W. has not held L.E. out
as his legitimate child. K.E.'s close associates are aware of
the true circumstances surrounding L.E.'s conception. The status
of legitimacy has not been removed because it never existed.
Since K.E. did not establish the prejudice element of
her equitable estoppel claim, the judgment of the superior court
1 K.E. also argues that several of the superior court's
findings of fact are clearly erroneous. We do not need to
address this contention because our disposition of this appeal
would be the same regardless of whether we accept the challenged
findings at face value or whether we accept K.E.'s
characterization of the events and circumstances described in the
2 In her brief on appeal K.E. does not argue estoppel
based on representations made by J.W. to her prior to the
conception of the child. Cf. L.M.S. v. S.L.S., 312 N.W.2d 853
(Wis. App. 1981)
(husband prohibited from denying paternity where he had consented
to wife's impregnation by a third party and agreed to treat the
child as his). In her reply brief K.E. raises a policy argument
based on the assertion that J.W. "did nothing to try and stop
[K.E.] from proceeding with a plan on which she believed they
both agreed." This argument is waived as it was not raised in
K.E.'s opening brief. See Dewey v. Dewey, 886 P.2d 623, 628 n.11
(Alaska 1994); Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n.4
(Alaska 1982). Moreover, the trial court's findings are
inconsistent with the imposition of a duty to object to K.E.'s
impregnation by a third party on J.W. or an express or implied
promise by J.W. that he would treat the resulting child as his.
The court found:
14. This situation [K.E.'s plan to
conceive a child with B.S.] hurt and
distressed [J.W.] but he did not feel he had
a right to stop her since "it was her body"
and they were not married.
. . . .
19. At no time prior to or after
L.E.'s birth did the parties ever formalize
an agreement, written, oral or otherwise
regarding [J.W.'s] responsibilities to L.E.
The parties never came to a "meeting of the
. . . .
31. [J.W.] never agreed, either
expressly or by implication, that he would
provide support for L.E. in the event of his
divorce from [K.E.].
As these findings are not challenged on appeal and have
evidentiary support, this estoppel argument would not succeed
even if it were properly raised.