Opinion
No. LLI FA 08 4007181S
January 26, 2009
MEMORANDUM OF DECISION
This is an action for paternity brought by the plaintiff Turi Rostad, who gave birth to a child, Daniel Rostad, on January 29, 1993. The plaintiff alleges that the defendant, Leon Hirsch, is Daniel's biological father. In his second amended answer dated September 19, 2008 the defendant has included four special defenses: laches, equitable estoppel, waiver, and unclean hands. The plaintiff has moved to strike (#121) each defense on the ground that they each fail to assert a legally sufficient special defense.
The defendant makes certain allegations which are common to all of the special defenses. The defendant asserts that he is eighty-one years of age and has accumulated substantial wealth. He also alleges that the plaintiff has received approximately $532,500 from a trust established for the support of the minor child. He alleges that the trust agreement was negotiated "between the plaintiff and an unnamed principal" and that the trust agreement was intended by both sides to "permanently preclude the initiation or maintenance of any legal action or proceeding in any forum whatsoever intended, directly or indirectly, to assert, determine, litigate or adjudicate the paternity of . . ." the child. Finally he alleges that the plaintiff "strategically and purposefully waited fifteen years, until the majority of the trust was paid to her" before filing this case.
Laches
In his defense of laches, the defendant alleges that the delay between the birth of the child and the filing of this case constitutes inexcusable delay that has prejudiced the defendant in that he has lost his ability to assert an alibi defense. He also asserts that, in reliance on the trust agreement, the plaintiff was paid a substantial amount of money over the course of fifteen years in consideration for the plaintiff's agreement not to pursue a paternity action against him.
"Laches consists of an inexcusable delay which prejudices the defendant . . . First there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Citations omitted; internal quotation marks omitted.) Farmers Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350 (1990).
The plaintiff asserts that the allegations made by the defendant cannot support a defense of laches. First, the plaintiff never explicitly alleges that he funded the trust from which the plaintiff received payments. Next, the plaintiff argues that there has been no "inexcusable delay" in filing this action because the statutes permit a mother to bring an action to establish paternity at any time prior to the child's eighteenth birthday. Next, the plaintiff argues that there has been no prejudice to the defendant because modern genetic testing has made the concept of an alibi defense obsolete. I agree with the plaintiff on both points. The defendant has not pleaded any facts which would cause the court, based upon inexcusable delay, to shorten the statute of limitations contained within § 46b-160. Also, the use of new testing techniques "has raised to such a high level the ability of the scientific community to identify the father of a child whose paternity is disputed that the resolution of such an important issue should no longer be had without such scientific testimony." Palomba v. Gray, 208 Conn. 21, 36 (1988) (Shea, J. concurring). For these reasons, the motion to strike the defense of laches is granted.
C.G.S. Sec. 46b-160(a) provides, in relevant part: "Such petition may be brought at any time prior to the child's eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the date of filing of such petition."
Estoppel
"There are two elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist." W v. W, 248 Conn 487, 496-97, 728 A.2d 1076 (1999).
The plaintiff moves to strike this special defense on the ground that the defendant has not alleged any misrepresentation, any reliance or any prejudice. This argument must prevail, at least as to the lack of prejudice. As discussed previously, the defendant now has the possibility of a genetic test to establish that he is not the father of the child. Rather than prejudicing him, the delay in filing this action may assist him in proving his case because of the advancements in the field of genetic testing. Again, the argument that an alibi defense has become more difficult is rejected. The motion to strike the defense of estoppel is granted.
Waiver
"Waiver is the intentional relinquishment or abandonment of a known right or privilege . . . [V]arious statutory and contract rights may be waived. For example, statutory time limits may be waived . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn 617, 623, 866 A.2d 582 (2005).
The plaintiff moves to strike the defense of waiver on the ground that the factual allegations do not support a claim that the plaintiff intentionally relinquished her right to bring a paternity action. In addition, the plaintiff asserts that the plaintiff is incapable of contracting away the child's right to support from the other parent. I agree with the plaintiff.
The defendant's allegation is that by accepting the agreement to receive payments from the trust referred to by the defendant, the plaintiff waived her right to pursue a paternity action. But, there are problems with this defense. First, there is a statutory scheme for judicial approval of support received from a putative father. C.G.S. § 46b-172(b)(1) requires that any agreement to support a non-marital child between its putative father and mother be "filed with and approved by a judge of the Superior Court," before such agreement shall be enforceable. C.G.S. § 46b-172(b)(1) further provides that any such agreement, once approved by the Superior Court, shall be subject to modification "in the same manner as is provided by law for orders of the court in such cases." Finally, C.G.S. § 46b-170 provides, "Any agreement of settlement, before or after a petition has been brought, other than an agreement made under the provisions of section 46b-172, between the mother and putative father shall take effect only upon approval of the terms thereof by a judge of the Superior Court, or family support magistrate . . ."
If the plaintiff were permitted to waive her right to seek a paternity determination and support simply by agreeing to accept support payments from a trust, it would defeat the entire statutory scheme established by the legislature. Further, it is well-established that parents in dissolution cases cannot contract away their children's right to support. See, Guille v. Guille, 196 Conn. 260 (1985); Rempt v. Rempt, 5 Conn.App. 85 (1985). I agree with Judge Shortall that no reason appears why parents in paternity cases should be able to contract away the rights of their children when married parents are unable to do so. McDougal v. Lanzetta, Superior Court, judicial district of Waterbury, Docket No. 880085797 (July 26, 1996) [17 Conn. L. Rptr. 286]. In further support of the motion to strike the plaintiff has cited the court to several cases from other jurisdictions which stand for the proposition that it would be a violation of public policy if a paternity action seeking child support, or modification of support, from a putative father could be defeated based upon the defense that the child's unwed mother had previously waived her child's right to support, or the modification of support, from the putative father by entering an out of court agreement. These decisions appear well-founded.
For these reasons, the motion to strike the special defense of waiver is granted.
Unclean Hands
"Our jurisprudence has recognized that those seeking equitable redress in our courts must come with clean hands. The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice . . . One who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked . . ." (Citations omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 721-22, 774 A.2d 220 (2001).
The plaintiff seeks to strike the defense of unclean hands on the grounds that the defendant has failed to allege that the plaintiff has taken any action towards him which might be considered unfair. The defendant has responded by citing the court to a Superior Court case in which Judge Thompson stated that, "[w]hether the doctrine of unclean hands should or should not be applied must be determined by the trier and cannot be determined on a motion to strike." First Fairfield Funding, LLC v. Goldman, Superior Court, judicial district of New Haven, Docket No. 020465799 (November 3, 2003) [35 Conn. L. Rptr. 726]. However, there must be facts alleged to establish unclean hands. Here, there are none. In the absence of any facts alleged which could amount to unclean hands, the motion to strike must be granted.