*1 ULRICH, Jr., John T. IN RE the MARRIAGE OF: Petitioner-Appellant-Cross-Respondent,† CORNELL, Respondent-Cross-Appellant. Catherine A. Appeals

Court of January No. 1991. Decided 90-1220. Submitted on briefs April 1991. 890.) (Also reported in 469 N.W.2d granted. review Petition to † *2 petitioner-appellant-cross-respondent For the Warmington & submitted on the briefs of cause was Warmington E. Warmington, S.C. Thomas *3 Waukesha. the cause was respondent-cross-appellant

For the Masson, & S.C. of submitted on the briefs Glembocki Milwaukee. P.J., Fine, Moser, and Sullivan and JJ.

Before MOSER, This an appeal P.J. case involves both cross-appeal postjudgment from trial court's (John) T. Ulrich was order which held John an Jesse estopped denying obligation from (Jesse), fur- stepson. his The trial court's order Cornell from change ther that Jesse's residence John's held mother's, A. home to that of his Catherine Cornell (Catherine), adequate for reduc- justification was an support payments to John. The tion Catherine's per permitted stop paying order Catherine to John $75 him to support, month in and ordered Catherine $10 per Finally, week to Jesse. the order stated that there was an insufficient basis to award Catherine main- schooling. equitably tenance for her Because John is estopped denying support Jesse, because there change warranting was a of circumstances elimination of support payments Catherine's for the two children of the marriage, ability pay support and because John's proper limited, it was to limit the of Jesse to $10 per properly week. The trial court also denied Cathe- request rine's for maintenance. We affirm.

FACTUAL HISTORY July Catherine was unmarried on when gave paternity she birth to A Jesse. action to determine biological underway Jesse's father was when Catherine January agreement married John on 1979. In with parental John, Catherine filed for a termination of the rights paid legal of Jesse's natural father. John expense parental rights proceed- for the termination of ings. county The termination was ordered Waukesha Judge July circuit Robert T. McGraw on 1980. On day, signed petition adoption that same John for the adoption procedure Jesse, however, the was never com- pleted parties. due to the financial constraints of the adopt Catherine testified that John had said he would sought Jesse, and that she would never have the termi- parental rights nation of Jesse's natural father's if John agreed. had not

During marriage, Catherine's and John's two chil- Throughout marriage dren were born. John treated During Jesse as his son and introduced him as such. this openly publicly expressed time John also and his intent support eighteen years age. to Jesse until he was of April proceedings 15, on were held

The divorce agreed live 1986, all three children would and it was payments support were ordered at with No John. given judgment was and Catherine time of the divorce subsequently rights. trial visitation The court extensive per support pay month child $75 Catherine to ordered open, but did not for Catherine held maintenance any paid. with John from the date order to be Jesse lived July period judgment until the divorce months, John returned Jesse to Catherine fifteen when disciplinary problems. Catherine continued because pay support, monthly but for child did $75 any support from for Jesse. receive John April 7, 1989, filed cause John an order show on support and to for child from Catherine elimi- additional open in the nate maintenance which had been left judgment. Catherine then filed an order to show divorce April asking significantly, most for a cause on support payments John, for John to decrease child Jesse, for for and maintenance to her defray May help expenses. educational On her Family Commissioner Hicks held a Assistant Court Joan hearing on these issues and rendered her decision on family September 15, The 1989. court commissioner minor revised visitation for the two children of the mar- riage, request support pay- denied John's for increased request Catherine, Catherine's for ment denied marriage decreased for the two children of the finally, request Jesse, and, and her for denied open held it maintenance but for future determination. change The held commissioner that there no of cir- warranting per cumstances reduction $75 Catherine's support payments month and that the same was true on the issue of maintenance. The commissioner refused to *5 employ equitable estoppel on request Catherine's for support for Jesse. review, timely

Catherine filed for a de novo and the held a hearing trial court on December 1989. The judge opinion trial rendered his day from the bench that which was later writing reduced to and entered. The trial court held that John equitably estopped from not supporting Jesse because he was instrumental the ter- parental mination of the responsibility putative of the unequivocally father and throughout marriage stated support he that would Jesse. The court noted that Cath- erine had relied on these statements to her detriment. suspended per The trial court support month $75 payment flowing from her to John for the of the marriage, two children of the and John pay ordered to per her in support $10 week for Jesse it because held Catherine had a change circumstances since Jesse was living now with her. It further denied maintenance to Catherine.

ISSUES argues John first that the trial court erred order- him ing pay support to for Jesse because it did not have subject jurisdiction so, matter to do and there is no law permits the state which such an award. John also argues that the in relieving trial court erred Catherine of responsibility pay support. child John's brief does any authority not cite to argument his holding open reverse the trial court order maintenance. We, therefore, will not address this issue.1 Balkus,

1See In re n.5, 381 N.W.2d 1985). n.5 response, argues the trial court In Catherine jurisdiction subject John to matter to order does have equitably Jesse, that he is *6 responsibility. estopped denying such Catherine from ordering argues in John to also that trial court erred the support, pay just in it a week child and that $10 her her maintenance. should also have awarded SUBJECT MATTER JURISDICTION subject that the trial court lacks mat- John contends whereby jurisdiction to him ter order to for indication that this issue The record reflects no Jesse. trial court. This court has held that was raised before the " timely competency [fjailure object to to court's proceed objection.''2 that This to constitutes a waiver of issue is waived.

EQUITABLE ESTOPPEL argues John that there is no statute or common law provision permits in our state that a trial court to order provide to child an individual child for the of an legally person's ex-spouse who not that child. That is is pay support say, person to to that the ordered adoptive parent either the natural or of the child. We ordering hold court correct John to trial theory equitable pay support for Jesse under estoppel. estoppel thoroughly

The doctrine of has been system jurisprudence many entrenched our by years. Although estoppel "has some sometimes been quaintly stopping a man's mouth from [as] defined DOR, Wis. 458 N.W.2d Wall 2d 1990). truth; seem, measure, speaking and would some if partake severity, injustice,"3 not of this is far from fact, In estoppel: the truth. reality upon

is in principles, founded the soundest as has, party a rule of evidence. That a his own act, voluntary placed himself in a situation as to fact, precluded some deny- matter of that he is it; ing application and in dealings its to the and con- life, tracts of men in the affairs of human it is a rule, salutary practical per- that a man shall not be deny mitted he solemnly what has once acknowledged.4 review, application

On the trial court's of the doc- equitable estoppel trine of involving sup- a case port question is a Questions law.5 of law are decided *7 by independently appellate courts giving without defer- ence to the trial court.6 A.J.N.,

In A.M.N. v. this court held that for a trial employ court to the equitable estoppel doctrine of " stepparent support requires (1) child cases finding: an unequivocal representation support of intent to the child; (2) representation by reliance on that the natural child; (3) parent or parent detriment to the natural or child as a result of such reliance."7 In A.M.N. the stepparent not was ordered to child because child, only promised it, he had to love the not to Pleasant, (10 Pet.) 3 Sprigg 257, v. Bank Mount 35 U.S. (1836). 265 4Id. A.J.N., 99, 103, 68,

5 A.M.N. v. 141 414 Wis. 2d N.W.2d 70 1987). App. 4, Bd., 6 Ballv. District No. Area 345 389, (1984). N.W.2d 394

7 A.M.N., 141 414 Wis. 2d at N.W.2d at 71. to child estoppel applied not enforce equitable so support payments.8 held have likewise jurisdictions

A number other the doctrine proper of circumstances that under the set a making means for estoppel as a equitable is available analyzing public In the support.9 child stepparent pay decision, California Court of aspects of this the policy Appeals said that: immorality in of an

There innate the conduct is an proclaims accepts and adult for over a decade who then, own, to be relieved of child as his but order announces, upon support, his the and relies child's weapon, works last- bastardy. This is a which cruel bring in its ing injury the and can aftermath child profit weapon garner no social harm. The should wielder; pre- putative father earn no the the should illegitimacy mium of the child. the assertion of any hypothesis prevent an legal If can such induce- illegitimacy, adopt publication ment we should theory. We examine each of therefore and, approaches suggested by respondent, although applica- do record their we not believe this sustains here, point if tion we out that the facts would estab- express agreement lish an for maintenance of child, it, estoppel explain child or as to the as we an 105-06, 8 Id.at 9 at 71. N.W.2d (Cal. Clevenger Clevenger, Rptr. See 11 Cal. 1961) (all estoppel pre Dist. Ct. the elements for were not sent); Knill, (Md. 1986) (stepparent Knill v. 510 A.2d estopped paying the ele was not because *8 shown); Miller, 351, was v. A.2d ment detriment not Miller 478 (N.J. 1984) (the case for a factual 359 was remanded determina estoppel present); v. tion of whether the elements of were Mace Webb, 647, (Utah 1980) (in dictum, 614 P.2d the Utah 649 Supreme proper stepparent Court noted if the existed facts estopped paying support). could be from

470 be support.10 the husband would liable the child's There have also been instances where a court at the stepparent request applied estoppel prohibit of a has parent denying stepparent the natural that the parent legally parent's to the natural child.11This court given proper equitable has held that estoppel circumstances may stepparent.12 be used jurisdictions explicitly There are several that have stepparents support.13 held liable for It should be noted cautiously that such action should be taken so as not to voluntary support stepparent.14 deter from a case, In this John admitted that he had hired and paid attorney for the that handled the termination of parental rights proceedings any absolving putative father obligation supporting any from the Jesse at time in alleged Thus, father, the future. J.H. the natural who 10Clevenger, Rptr. 11 Cal. at 710. 11 Atkinson, Atkinson v. 516, (Mich. 408 N.W.2d 519-20 Ct. Adoption Young, In re 1987); App. 1307, 364 A.2d 1312-13 (Pa. 1976). D.L.H.,

12 Inre 606, 613-17, 283, 419 N.W.2d 1987). App. 286-87 Johnson, 13 See Johnson v. 121, (Cal. Rptr. 152 122 Cal. Ct. Wade, Wade v. App. 1979); 1158, (Fla. 536 So. 2d 1160 Dist. Ct. App. 1988); Nygard Nygard, 323, (Mich. 401 N.W.2d 326-27 H.T.B., M.H.B. v. App. 1986); 775, (N.J. 1985); Ct. 498 A.2d 780 Wener, Wener v. 815, (N.Y. 1970); 312 N.Y.S. 818 Div. Manze, T.,

Manze v. (Pa. 1987); T. v. 523 A.2d 824-25 L.T., K.T. v. (Va. 1976); S.E.2d 387 S.E.2d (W.Va. 1989); see also 1 H. Clark, The Law Domestic Relations in the United States sec. 7.2, (2d 1987); Frank, at 442-43 ed. 1 B. Walker, Becker, Raggio, Melli, T. K. Nagan, L. Raggio, M. W. G. Stanton, Alimony, Support Garrett, Child & W. A. Charlow & A. Award, Counsel & sec. Fees — Modification Enforcement (1988). 11.04[2][c][i] Miller, 14See 478 A.2d at 358. *9 parental rights present hear- at the termination obligation ing, from the of financial is forever excused support Jesse, to the detriment of Cathe- for the child day proceeding The same the termination con- rine. cluded, adoption papers up formal drawn John had testimony adoption uncontroverted his of Jesse. The would not have terminated the record that Catherine parental rights putative father's but for the fact that the adopt going to Jesse. It is further uncontro- John was by terminating putative parental that father's verted rights, future Catherine cannot seek parental terminating "[a]n natural father because order rights permanently legal rights all duties severs parent between the and the child."15 throughout disputed marriage It is not that parties, openly John, times, at all held out to the large sup- public at he Jesse's father and that was would port fact, In him until he reached adulthood. after the registered John, divorce, when Jesse lived with John Trinity Jesse, Ulrich," under the name "Jesse at Lutheran as his son. It was not until more than a School year disciplinary divorce, after the when Jesse became a problem wife, for John and his second that John Only subsequent returned Jesse to Catherine. to the Catherine, return of Jesse to when became an Catherine, John, issue between John and did for the first give longer time, notice he no considered his Jesse equitable child. We hold that these facts meet the test of estoppel unequivocal representations in that there were John of his intent to Jesse. There was reli- representations by ance on those Catherine to her detri- ment as a matter of law.

15See sec. 48.43(2), Stats.

ADJUSTMENT CHILD IN SUPPORT Catherine contends that the trial court abused its *10 discretion when it ordered John pay per $10 week in support for Jesse. She given believes that her's and comparative John's incomes that the trial court should larger support have ordered a payment. support Child may only be modified when "a substantial or material change" place has taken in the circumstances of those involved.16 Modification is a decision within the trial discretion,17 court's sound and its decision will stand unless an abuse of that discretion can be shown.18

In bench, its decision from the the trial court stated that: question order,

The changing support of the the recognize court does that at this time Mr. Ulrich has family you a have a wife and three children. five—

. . . The suspend court will flowing the Ulrich, from Miss give Cornell to Mr. will her an budget, increase to her she was ordered to a $75 that, month. She will have he will not have it. He will pay the sum of a $10 month over and above that to

Miss fully Cornell. The court is aware of the fact that very seems to be $10 small amount. That will be support flowing from Mr. Ulrich to the child Jesse. very testimony

There has been little on this record about the living standard of of the minor child prior divorce, granting to the time of the of the but Thibadeau, 16 Thibadeauv. 150Wis. 2d 441 N.W.2d 1989); 767.32(1), see sec. Stats. 17 Thibadeau, 150 Wis. 2d at 441 N.W.2d at 283. Poehnelt, 640, 649-50, 18 SeePoehnelt v. (1980). N.W.2d 300-01 only into consideration fact that

the court takes flow Miss to Mr. from Cornell $75 ordered towards the Ulrich for her contribution custody in the of Mr. Ulrich. The the three children possible everything from this gleaning court record, only per month $75 can find contribu- Mr. no flowing tion one sense from Ulrich—he longer pocket he must $10 receives and out his which coming pay, along help is should allow with whatever Jesse, Cornell for the child should allow Miss maintaining just of a level for Jesse equal enjoyed during that which was about marriage keeping course and the household Ulrich, the time between Mr. Ulrich at Mrs. which at this time would be Miss Cornell. The record be, as like for but is not clear as the court would it to record, on this this is the best record that this court reasoning can make its here.19 *11 We note the trial court did not abuse its discre- that support in the child it did. The trial court ordering tion reasonably pertinent this analyzed the facts and law of justified ruling its rational appropriately case and carefully parties change manner.20 He considered both family respective and financial circumstances and their pay support properly abilities and thus modified support obligation parties.21 of both Catherine's asser- tion that the trial court abused its discretion and failed her adequate to award for Jesse without suffi- grounds. cient

19 The later itself that it trial court corrected and stated say per meant to John's for Jesse be $10 should week, per $10 month. 58, Hartung, Hartung

20 See 306 N.W.2d (1981). 767.32(1), See sec. Stats. MAINTENANCE as with Just the trial court's determination of how award, much child the trial court's determina- maintenance, purposes tion of of educating Cathe- rine, is affirmed. The trial court did not abuse its discre- tion because rationally it considered the law and facts involved and reasoning stated its for the conclusions reached.22 The trial court stated that: question

On the of contribution towards educa- supplying money tional fees for the to Miss Cornell Ulrich, by Mr. in order to allow Miss Cornell to finish MATC, her testimony educational concerns at presented in that cause does not reach the level [sic] requirement testimony given of the of the as or the given in Lundberg facts as Lundberg, versus 107 Wis. 2d, page (1982)] N.W.2d 918 a 1982 case. [318 There are a number of other cases that the court pertinent including believes to be Roberto versus 2d, Brown at page 107 Wis. N.W.2d 358 [318 (1982)]. any

The court cannot find that manner Mrs. neglected Ulrich denied or opportuni- her educational during ties year the course of marriage this seven with Mr. Ulrich in order for Mr. Ulrich to obtain an education opportunities or to further his economic or advancement in his life. The court cannot find this testimony any denial of educational benefits to the present Miss Cornell who is the former Miss [sic] supporting Ulrich for the benefit of undergirding underpinning or the economic and educational *12 opportunities Therefore, any request Mr. Ulrich. for contribution the form of flowing maintenance from Mr. Ulrich purpose to Miss Cornell for the Enders, 138, 142, 22 Enders v. 432 N.W.2d 1988). 639-40

475 benefits, by are sustained the evi- educational presented to the court and therefore must be dence denied. should be affirmed.

The order of the trial court By the Court.—Order affirmed. (dissenting).

FINE, Wisconsin, In actions J. 767.02(1), by affecting family, section as defined by Chapter governed 767, Stats.; Stats., See are statute. Siemering, Siemering Wis. 2d 1980). (Ct. App. proceeding A to com- N.W.2d affecting pel payment an action of child is 767.02(l)(f), By only "par- family. statute, Section Stats. 767.25(1)(a), support. See sec. ents" are liable for ("Whenever the . . . enters an order or a Stats. court child-support] judgment s. [a action under 767.02(1)(f) (j) 767.08, [o]rder or the court shall . . . or parents or to amount or either both an reasonable necessary duty child.1') (Empha- fulfill a added.) sis 767.08(2)(a), procedure by Stats.,

Section details parent provide compelled be "to which support can . . . maintenance his or her minor child." and significance Thus, here, and with critical under our cur- statutory may rent scheme no court Wisconsin order a person person a minor unless that is the parent, adoption, conception, adjudica- minor's either tion, or—in the case of a man married to the minor's mother when the minor conceived or 767.45(5m), presumption. Section Stats. Section born— 767.45(5m) mandatory unambiguous: 767.458(3) Except provided [governing as under man filed "a situations where a has statement acknowledging paternity'1], a man unless is either presumed adjudi- the child's father under s. 891.41 or *13 cated the child's father either by under s. 767.51 or judgment competent final order or of a juris- court of state, diction another no order temporary or order may be support, entered child legal custody or for physical placement until adjudicated the man is the procedure father using the set forth ss. 767.45 to procedure 767.60. The exclusive establishment for of obligations, legal child custody physical or placement rights presumed a man who is neither the child's under s. adjudicated 891.41 nor the father an action under ss. 767.45 to 767.60. No father person may procedure. waive the use this If a of presumption exists, party under s. 891.41 denying paternity has the burden rebutting presumption.. added.)

(Emphasis upon Ulrich, Jr., John T. whom both majority placed obliga- the trial court and the have an support, tion of child does not come within section 767.45(5m)'s reach. He has not filed "a statement acknowledging paternity" 767.458(3), under section 767.45(5m). "adjudicated Stats. Section He has not been the child's father under s. 767.51.”Ibid. He has not been adjudicated "by judgment the child's father final order or competent jurisdiction of a court of in another state." adjudicated Ibid. He has not been the child's father "using procedure set forth ss. 767.45 to 767.60." presumption Ibid. Nor is he someone to whom the paternity apply. 891.41, Stats., under section would See ibid. (1989-90): 891.41,

Under section Stats. A presumed man is to be the natural father of a any if following applies: (1) He and the child's natural mother are or have been married to each other and the child is marriage conceived or born after and before the legal separation, or of decree annulment granting parties. divorce between (2) He natural and the child's mother were *14 after child but to each other the was born he married relationship had the child's natural mother a and during period the of time within one another with and no other man has the child was conceived which presumed adjudicated be the father or to be to been (1). sub. father of the child under the Cornell to Although Ulrich and Catherine were married another, one the child was not "conceived or born after marriage," prerequisite applying is the to the which [the] 891.41(1).1 of under section presumption paternity by which the Estoppel, majority the mechanism imposes on Ulrich child-support obligations direct 767.45(5m), Stats., of section is a doctrine contravention that, essence, from prevents party asserting a either 2 the or which the law deems to be the truth. truth 891.41(2), Stats., present recreated in its form 1 Section was 28, 28, April Act 212 section effective 1990. 1989 1989 Wis. 891.41(2) applicable 212 sec. is thus not to Wis. Act 32. Section 28, prior April proceeding, this which was commenced to 1990. event, any although Act 212 31. In See 1989 Wis. sec. Ulrich born," to each after the child was Cornell "were married other they appellate there is no evidence in the record that "had a period relationship during with another the of time within one conceived," prerequisite is which which the to the presumption paternity applying of under current the the version 891.41(2). of section 891.41(2), prior existed to the commencement this

Section as it of applicable pro- proceeding, is also not to Ulrich. That subsection presumed man be the natural father of a child vided that "[a] acknowledged paternity if . . has of the child under s. . his [h]e (1) 69.15(3)(b)l apply or 3 section does not and sub. [of 891.41] 891.41(2), (1987-88). any person." Stats. other Section

478 Coke, E. England; Commentary First Part The Institutes the Laws of of (15th Upon A Littleton sec. 667 1794);2Sprigg v. The ed. London Bank Mount Pleas- (10 Pet.) (1836). example, ant, Thus, 35 U.S. 265 although section 891.41 establishes circumstances for application paternity, presumption of a none of apply may presumption case, in this which this be rebut- 767.45(5m) ("If presumption ted. Section a under s. party denying paternity exists, 891.41 has the burden presumption."); rebutting 903.01, also see Rule Stats.; Strawser, 485, 491, Strawser v. 377 1985). estop- N.W.2d The doctrine of may pel appropriate pre- used, circumstances, be party against presumption applies clude whom the rebutting presumption. A.J.N., See A.M.N. v. (Ct. App. 1987); Wis. 2d N.W.2d *15 D.L.H., re 606, 613-618, see also In 1987) (if N.W.2d 286-288 circumstances equitable appropriate, estoppel applied pre- be could rebutting presumption vent wife from husband during marriage father of child born 891.41 —section discussed). specifically D.L.H., not AM.N. Neither upon majority directly, relies, which the authorize — indirectly, by obliga- implication imposing support or — "parent," by tions on someone who either con- ception, adjudication, adoption, statutory presump- or majority's estoppel tion. The use an create such prohibited obligation specifically where, here, as that is usurps legislative statute function. This is one cases" that those "hard make "bad law." See 3 V.S. (1903); Lean, Collectanea 479 see also Northern Securi- 2" 'Eftoppe' eftoupe, commeth of the French word Engli/h word/topped: e/toppel whence the and it is called an or conclu/ion, acceptance /toppeth a man's act or owne or becau/e up alleage plead his mouth truth." or clo/eth States, (1904) United U.S.

ties Co. J., respectfully I dissent. (Holmes, dissenting).