On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Handler and O'Hern. For reversal in part; affirmance in part -- Justices Clifford, Pollock and Garibaldi. Handler, J., concurring. Pollock, J., concurring in part and dissenting in part. Wilentz, C.J., and Handler and O'Hern, JJ., concurring in the result.
The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.
We have recently recognized that upon a divorce, one spouse may be obligated under principles of equitable estoppel to provide financial support for his or her stepchildren who are the children of the other spouse. Miller v. Miller, 97 N.J. 154, 167, (1984). In this appeal, we consider the circumstances that can give rise to an equitable estoppel forbidding a divorced stepparent from denying the validity of a previous voluntary commitment to provide financial support for a stepchild. The child in this case was born while the defendant was married to the child's mother. However, the defendant knew shortly after the child's birth that he probably was not her natural father. Nevertheless, throughout the marriage and for five years following the divorce, the defendant consistently conducted himself as the child's father, successfully gained the child's love and affection, and established himself as the little girl's parental provider of emotional and material support. Under such circumstances, I believe that the stepfather is obligated to provide continuing financial support for his stepchild.
The parties in this case (referred to by their initials or first names in order to protect the child who is the object of the controversy) were married in 1966. The couple settled in New Jersey where, during their first five years together, they conceived two sons, G.B. and M.B. The marriage turned sour during 1975, however, and sometime thereafter the plaintiff-wife, Marilyn, had a brief extra-marital affair. In 1977, while still married to the defendant-husband, Henry, Marilyn gave birth to a daughter, K.B.
Three months later, Henry first learned that he might not be K.B.'s biological father. He discovered a letter, or a diary entry, implicating Marilyn's former paramour as K.B.'s natural father. Henry then confronted Marilyn with this evidence of her infidelity, and moved out of the family residence. Following this separation, the marriage continued for almost three years. After living for six months in the same town as the rest of his family, however, Henry moved twice, first to California and then to Wisconsin, where he continues to live. During this period of separation, Henry maintained close bonds with all of the children, K.B. as well as the two sons, through phone calls, letters, gifts, and visits.
Marilyn also moved several times with the children. Between March and September 1978, she cohabitated with her erstwhile paramour, K.B.'s purported natural father, whom she briefly considered marrying. In December 1978, however, Marilyn brought herself and the children to Henry's home in Wisconsin, and for six months the parties attempted to reconcile their differences. Henry then professed to Marilyn that he would always love K.B., and that he did not want the child's illegitimacy to interfere with the couple's future together.
The reconciliation attempt failed, however, and, in June 1979, the couple signed a separation agreement covering financial support obligations, child custody, and visitation. Marilyn assumed custody of all three children, then ages 2, 7, and 10, and
Henry undertook to pay $600 per month as family support, based on his annual income of over $34,000 at a time when Marilyn had no income. Marilyn thereafter moved back to New Jersey with all three children.
It is undisputed that K.B.'s purported father then lived and still lives nearby to the child and her mother. Marilyn testified, however, that she last saw this man in December 1979, six months after returning to New Jersey, and has not seen him since. Further, although after the separation Marilyn dated several men, none, including the alleged natural father, ever replaced Henry as a father-figure to K.B.
In March 1980, the couple obtained a divorce in Wisconsin under terms established by an extensive written settlement agreement. The parties, Henry as well as Marilyn, stipulated that all three children were born of the marriage. They further agreed that Marilyn would have custody of the children during the school year, and that Henry would get custody during the three summer months. Although at this point Henry earned about $51,000 each year while Marilyn still had no income, Henry promised only to continue paying $200 per month per child in Marilyn's custody. These payments would have totalled about $5,400 annually if three children had lived with their mother for nine months each year; however, by the parties' agreement, M.B. lived with his father for most of the post-divorce period, and therefore Henry's annual support obligation came to about $3,600. No alimony was awarded, and the couple's remaining, limited assets were divided in half.
All three minor children remained objects of Henry's affection, attention, and solicitude throughout the post-divorce period. In particular, Henry expressed interest in and concern for K.B. As found by the trial judge,
K.B. bears Henry's surname, is registered on all of her records as bearing his surname, knows no other father, and is ignorant of the facts surrounding her paternity. Henry made innumerable representations to K.B. and to the world that he was her father. * * * The testimony related many tender moments
between father and daughter. He sent her roses on her birthdays and comforted her in his bed during thunder and lightning storms.
Thus, Henry treated K.B. exactly as he treated his own son G.B., who was also in Marilyn's custody. Both K.B. and G.B. received Christmas gifts in 1979, 1980, and 1981. Further, Henry willingly provided child support payments on behalf of both children through the end of 1981. Based on all of the evidence, the trial judge concluded that Henry had become K.B.'s "psychological, if not biological parent."
Then, in March of 1981, Henry remarried. The following summer, both K.B. and G.B. visited and remained with Henry. By September 1981, however, Marilyn and Henry's second wife did not get along. The relationship between Marilyn and Henry deteriorated and Henry began withholding child support payments.
In January 1982 Henry petitioned a Wisconsin court to grant him custody of all three children, including K.B. The Wisconsin judge transferred the case to the New Jersey courts based on the children's best interests and the absence of local jurisdictional prerequisites. Marilyn filed a separate complaint, in March 1982, in New Jersey, seeking to retain custody of G.B. and K.B., and to obtain an increase in child support. Consistent with the petition he had filed in Wisconsin, Henry filed a counterclaim requesting custody of these children, K.B. as well as G.B. Later, by a pre-trial motion, Henry amended his counterclaim, claiming, in the alternative, that he should be under no duty to provide child support for K.B., and seeking to litigate the issue of the child's paternity. This was the first time that Henry had ever attempted to repudiate his paternal relationship with K.B. Without conceding Henry's right to contest paternity, Marilyn consented to allow the completion of Human Leucocyte Analysis blood test in December 1982. The results of the test excluded Henry as K.B.'s biological father.
A plenary hearing on the custody and support applications took place over several days in April and May of 1983. In addition to the foregoing facts, including Henry's knowledge in
1977 that he might not be K.B.'s natural father, the trial judge found that
[i]t is clear Henry intended to be K.B.'s father and that she relied on that fact. * * * Even Henry's [second] wife * * * described Henry's relationship with K.B. as that of "a loving father-daughter relationship." * * * K.B. relied upon Henry's representations and has treated H. B. as her father, giving to him and receiving back from him all of the love and affection that the parent-child relationship should naturally evoke.
Henry is certainly K.B.'s psychological, if not biological parent. * * * Henry is the only father K.B. knows or has ever known. * * * To permit Henry now to repudiate his intent to support K.B. * * * would cause irreparable harm to the child.
Based on these findings, the trial judge concluded that the doctrine of equitable estoppel was applicable to preclude Henry from denying the duty to provide child support on behalf of K.B. This aspect of his decision was affirmed by a divided court in the Appellate Division, and presents the sole issue ...