Appeal from the District Court of Laramie County. The Honorable Thomas T.C. Campbell, Judge.
Representing Appellant: Dona Playton, Interim Faculty Director; Danielle R. Cover, Faculty Supervisor; Brianne Phillips, Student Director; Michael J. Fitzgerald, Student Intern; University of Wyoming Legal Services Program, Laramie, Wyoming. Argument by Ms. Phillips.
Representing Appellee: No appearance.
Representing Amicus Curiae National Association of Social Workers and the National Association of Social Workers, Wyoming Chapter: Jessica Rutzick of Jessica Rutzick & Associates, P.C., Jackson, Wyoming.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] Appellee LF sought a judgment determining that Appellant LP was not the biological father of KEP. Appellant claimed to be KEP's actual and presumptive parent, and that Mother's lawsuit was untimely. He also claims to be entitled to parental rights by virtue of de facto parentage or parentage by estoppel. The district court granted Appellee's petition to establish that Appellant was not KEP's father, and Appellant challenged that determination in this appeal. We affirm.
[¶2] Appellant presents a total of six issues, which we have distilled and rearranged.
1. Did the district court err in granting Appellee's petition to prove that Appellant was not KEP's biological father under the Wyoming Parentage Act?
2. Did the district court err in not finding that Appellant was a de facto parent, even if he was not KEP's biological parent?
3. Did the district court err in not finding that Appellant was a parent by estoppels, even if he was not KEP's biological parent?
[¶3] The facts of this case are disputed, and its procedural history is confusing. LF (referred to as Mother because of the similarity
of the parties' initials in this confidential case) is the mother of KEP, who is now ten years of age. LP, the Appellant, met Mother in the Denver, Colorado area.
[¶4] At a hearing dealing generally with this issue, Appellant testified that he had a sexual relationship with Mother during a time period when KEP could have been conceived. Mother, on the other hand, testified that she was " five months pregnant and showing" with KEP when she met Appellant. Genetic testing ultimately conducted and stipulated into evidence found that there was a 0.00% probability that Appellant is KEP's biological father. The district court found as follows concerning the claim that Appellant had a relationship with Mother at a time when he could be the father:
The Court finds, for instance, that [Appellant's] assertion in his answer that the parties had sexual contact at or about the time of conception, was wholly unsupported by the evidence, and quite the contrary it is clear their relationship, dating and ultimately cohabitating, did not cover the period when he would have had to have had sexual access to the mother. If he knew, as it turns out he did, that he could not have been the father, he should not have plead [sic] it in his answer.
[¶5] It is undisputed, however, that Appellant was present when KEP was born, and that he is listed as the father on the child's birth certificate. The couple lived together when KEP was born. Neither party knew who filled out a worksheet that led to the issuance of the birth certificate. The parties agree that KEP was named after Appellant's twin brother and that he bears Appellant's last name, and Mother did not deny giving Appellant a ring inscribed with the word " Dad."
[¶6] The parties disagree on the length of time that they lived together in the Denver area, however. Appellant estimates it at twenty-one or twenty-two months, while Mother estimates it at about eighteen months. They agree that they moved to Spokane with KEP after living in Denver. Appellant estimates that they all lived together in Spokane for one to two months, while Mother estimates the time period at a month. Appellant claims to have paid most if not all of their living expenses during this time because he was the only one working, while Mother denies that he was the sole financial provider.
[¶7] After they had lived in Washington for a month or two, the couple decided to take a break from each other, which Appellant assumed would last for a couple of months. Mother left with the child for parts unknown, and did not communicate with him after she left. They never lived together after that separation.
[¶8] Appellant attempted without success to locate Mother and KEP through law enforcement agencies for a time. Mother later explained that she and KEP had been in a safe house in Longmont, Colorado for a week, and that they were then transferred to a safe house in Cheyenne, where they remained until she rented an apartment there. The record offers no explanation as to why they were staying in a safe house, which was presumably a facility for women and children who were threatened with violence.
[¶9] At some point, by means not identified in the record, Appellant and Mother made contact, and they and KEP met at the Cheyenne Walmart. Appellant bought things that KEP needed at that store. He then moved to Cheyenne and rented an apartment, and after four months moved to another apartment across the street from Mother. The child spent time with his mother and Appellant as he chose, although the record does not quantify how much time he spent with each.
[¶10] This situation continued for about five years. The parties once again disagree as to Appellant's contribution to KEP's support. He testified that he " supported" KEP, but did not explain what or how much support was provided. He testified that Mother contributed " very little" to the child's care. Mother testified, on the other hand, that Appellant " helped some, but not a lot" in paying KEP's expenses during this time frame.
[¶11] Mother filed a " Petition to Disprove Father-Child Relationship, or In the Alternative, Order Child Custody and Child
Support" in Laramie County District Court on August 12, 2011. The impetus for this filing is unclear, although it may have had something to do with receipt of public assistance. In the petition Mother alleged that Appellant and Mother did not have a relationship when KEP was conceived, and that she was five months pregnant when she and Appellant began to live together. Appellant timely responded and counterclaimed, contending that he and Mother did have a sexual relationship at the time KEP was conceived. He asked the district court to determine that he was the child's biological father, and that it award him primary custody with appropriate visitation for Mother.
[¶12] Although the record does not contain a transcript of it, the district court held a hearing on March 6, 2012. On July 2, 2012, it entered an order finding that Appellant had not acknowledged paternity as provided for by Wyo. Stat. Ann. § 14-2-602, and that there was no presumption that he was KEP's father under Wyo. Stat. Ann. § § 14-2-504(a)(v). This finding is important because the statute of limitations for a proceeding to determine paternity when there is a presumptive father must be brought within a reasonable time but no later than five years after the child is born. Over five years had passed between the child's birth at the end 2003 and the filing of the petition to disprove paternity in 2011.
[¶13] However, a proceeding seeking to disprove paternity can be brought at any time if the putative father did not cohabitate or engage in sexual intercourse with the mother at the probable time of conception, or if the putative father did not openly hold the child out as his own. Wyo. Stat. Ann. § 14-2-807(a) and (b) (LexisNexis 2013). Mother's petition would therefore be timely only if Appellant was not KEP's presumed father. The Court also ordered a paternity test under Wyo. Stat. Ann. § 14-2-702.
[¶14] On August 4, 2012, Mother physically attacked Appellant in his apartment, and KEP unfortunately became involved in the affray. Appellant obtained a domestic violence protection order under Wyo. Stat. Ann. § 35-21-101 et seq., but left Cheyenne
for Tekoa, Washington with KEP without consulting Mother or seeking court approval nonetheless. The paternity test results referred to above were filed on August 7, 2012. On October 10, 2012, Mother filed a motion seeking an order awarding her temporary custody of KEP and requiring Appellant to return the child to Wyoming immediately.
[¶15] In an Amended Pretrial Memorandum filed on January 23, 2013 in anticipation of a hearing on the merits, Appellant identified the issues to be determined as whether Mother and he had entered into a common law marriage in Colorado, whether he was the presumptive father under § 14-2-504 because he and Mother had lived together for two years after KEP's birth, and whether he should have custody if he was the presumptive father under the statute. Appellant did not at that point claim that he was a parent by estoppel or a de facto parent under American Law Institute (ALI) Principles of the Law of Family Dissolution (Principles).
[¶16] The district court held an evidentiary hearing to resolve any factual issues that same day. At the hearing, Appellant's counsel stipulated to the accuracy and admissibility of the genetic test the district court had ordered, and it was received in evidence. The parties testified as generally described above. There were numerous conflicts in the testimony, as we have noted. At no time during the hearing did Appellant claim that he was a parent by estoppel or a de facto parent under ALI Principles. He argued instead that he had entered into a common law marriage with Mother in Colorado, or that alternatively the district court had the equitable power to shorten the two-year period required to become a presumptive parent under Wyo. Stat. Ann. § 14-2-504(a)(v). The district court took the matter under advisement and gave the parties an opportunity to file additional briefs concerning equitable grounds for relief.
[¶17] On February 6, 2013, Appellant filed a pleading entitled " Motion Pursuant to Rule 60(b)(5) [sic] Modify or Rescind Order Based on Principles of Equitable Estoppel," which it supported with a brief. This pleading asked the district court not to enforce the order for genetic testing which had been entered almost seven months earlier, after the results had been received and entered into evidence at the January hearing. For the first time we can find in this record, he referred to the ALI Principles of the Law of Family Dissolution in the brief supporting this motion, stating that:
The doctrine of equitable estoppel and W.[R.C.P.] Rule 60(b)(5) provide the Court with the equitable power and authority to relieve the Respondent from the Order. This proposed action allows the Court to reexamine issues that are silenced due to an order that is no longer equitable. If the Court assumes its equitable authority it can consider alternative theories regarding the parental rights of the Respondent. The Court may choose to recognize [LP] as a presumptive or acknowledged father or parent by estoppel and a de facto parent, or both in accordance with those definitions found in the American Law Institute (ALI): Principles of the Law of Family Dissolution.
[¶18] However, Appellant argued that the district court (not Mother) should be estopped from enforcing the order because he earlier testified that he had held himself out to be the child's father since birth and had maintained a relationship with KEP. Neither the brief nor the motion contain any analysis of how the evidence supported a claim of parentage by estoppel or de facto parentage.
[¶19] On June 4, 2013, Mother filed a renewed motion for an order awarding her custody and ordering Appellant to return KEP to Wyoming without delay. In an amended response to that motion filed on June 27, 2013, five months after the hearing, Appellant for the first time quoted the ALI Principles on de facto parentage and parentage by estoppel.
[¶20] On August 8, 2013, the court entered an order requiring Appellant to return KEP to Mother in Wyoming, but the order also indicated that the court planned to hold a hearing five days before school began in Washington State to determine whether the child would return to Appellant in Washington or remain with Mother in Wyoming after that date. If that hearing was held, there is no transcript or order resulting from it in the record. On November 27, 2013, the district court entered a decision letter holding as follows:
o As the court had previously decided, Appellant was not the presumed parent of KEP under the Wyoming Parentage Act. It noted that the paternity test in fact proved that he was not in fact KEP's biological parent. It found his claim that he and Mother had a sexual relationship at a time when KEP could have been conceived to be wholly unsupported by the evidence.
o Appellant had hardly acted equitably himself in taking the child to Washington, but in any event there was no equitable basis to deviate from the statutory elements required to ...