Metropolitan News-Enterprise


Monday, October 25, 2004


Page 1


Mother Cannot Be Sued for Lying About Child’s Paternity—C.A.


By KENNETH OFGANG, Staff Writer/Appellate Courts


Public policy bars a suit by a man seeking to recoup child support that he paid on the basis of the mother’s misrepresentation that he was the father, the First District Court of Appeal has ruled.

Div. Two Thursday affirmed the dismissal of Richard Paul McBride’s suit against Garianne Boughton and her husband, David Dashiell. McBride, who said he returned to the United States after moving to Chile because Boughton claimed to be pregnant with his child, argued that Boughton was unjustly enriched by the amount he paid in support.

McBride alleged in his complaint that he and Boughton were romantically involved before he moved to South America in the fall of 1996. Boughton told him in December of that year that she was going to have his child, he said.

Oral Agreement Alleged

The child was born in late May 1997. McBride claimed that he and Boughton had on oral agreement that he would support her for a year so that she could stay home with the baby, and that he quit his job when the child was a year old so that Boughton could work and he could stay home with the child.

McBride said he went back to work in May 1999, when the child was about two years old. Four months later, he said, Boughton told him she was moving to San Francisco with the infant and that he would only be able to see her two weekends a month.

McBride filed a paternity suit and asked for custody, but genetic testing done in connection with the action resulted in his being excluded as the father. Two years later, McBride sued Boughton and her husband, claiming that Dashiell is the child’s father and that the couple intentionally or negligently misrepresented the child’s paternity.

After a demurrer was sustained with leave to amend, McBride brought an amended complaint, dropping his tort claims and pleading only contract theories of  unjust enrichment and money had and received..

Humboldt Superior Court Judge Dale Reinholtsen again sustained a demurrer, and the action was dismissed after McBride declined to amend the complaint again.

‘Fundamental Public Policies’

Justice Ignacio Ruvolo, writing for the Court of Appeal, said that allowing recovery of child support expenses on an unjust enrichment theory would violate “two of the most fundamental public policies of this stateñthe enforcement of parents’ obligations to support their children, and the protection of children’s interest in the stability of their family relationships.”

Prior cases, Ruvolo noted, have held that public policy bars an action for fraud or  intentional infliction of emotional distress based upon a misrepresentation of paternity. There is no reason to treat McBride’s unjust enrichment theory any differently, the justice said.

“Under circumstances such as those presented here, if we granted the former putative father the right to restitution from the child’s biological parents, who retain responsibility for its support, we would give priority to the former putative father’s desire to be made financially whole, to the potential detriment of the child’s ongoing needs,” the justice said.

“More importantly, at least from the child’s perspective, by declining to recognize an unjust enrichment claim, we create a disincentive for an unmarried man to form a parental bond with a child if the bond is likely to be severed upon the child’s proving to be another man’s genetic offspring,” Ruvolo wrote. “The potential emotional and psychic costs to the child of such a rupture are far more significant than any financial injury a grown man might suffer from mistakenly supporting another man’s child for a temporary period.”

Unmarried putative fathers, the justice went on to say, “should verify their paternity at an early stage if there is any doubt about the matter.” A married man, he noted, is barred from questioning the paternity of his wife’s child after the child’s second birthday unless he is infertile or impotent.

The case is McBride v. Boughton, 04 S.O.S. 5604.


Copyright 2004, Metropolitan News Company