White v. White

ALOK AHUJA, Judge, Opinion

concurring in part and dissenting in part.

I concur in the majority’s disposition of Appellant Leslea Diane White’s Points I through IV, VI, and VII. I respectfully dissent from the majority’s disposition of Point V, however, because I believe that Leslea pled a viable equitable estoppel claim as a basis for seeking financial support for her son Z.A.W. I would accordingly reverse the dismissal of Leslea’s equitable estoppel claim and remand for further proceedings. Given that disposition, and the prospect that Leslea could achieve some measure of relief on remand, I believe it is unnecessary to address Leslea’s constitutional claims (Points VIII through X), and would dismiss them as moot.

Leslea cites Stein v. Stein, 831 S.W.2d 684 (Mo.App. E.D.1992), and S.E.M. v. *26Mill., 664 S.W.2d 665 (Mo.App. E.D. 1984), in support of her estoppel argument. Both cases hold that “our courts have recognized two situations where a non-biological or non-adoptive parent is obligated to support a spouse’s child after dissolution”; besides express contractual assumption, support obligations may also be imposed “based on an estoppel theory.” Stein, 831 S.W.2d at 688; see also S.E.M., 664 S.W.2d at 667-68. Other cases similarly recognize the availability of an estoppel theory to impose a financial support obligation on a third party who is neither biologically related to a child, nor has assumed obligations to the child by formal adoption. See Jefferson v. Jefferson, 137 S.W.3d 510, 515 (Mo.App. E.D.2004); L. v. L., 497 S.W.2d 840, 841-42 (Mo.App.1973).

At oral argument, counsel for Respondent Elizabeth Michelle White acknowledged that recognizing an estoppel claim for financial support was consistent with Jefferson and with Cotton v. Wise, 977 S.W.2d 263 (Mo. banc 1998). She argued, instead, that the doctrine should not be applied here because each party was capable of supporting her own child. Counsel admitted, however, that this issue could not be decided based on the allegations of Leslea’s petition, even if it were otherwise relevant. Michelle also argued below, and in this Court, that Leslea cannot assert an estoppel claim “when she otherwise has no statutorily authorized standing.” Michelle cites no legal authority for this argument, and I am unaware of any legal doctrine which requires a litigant to have “statutorily authorized standing” before asserting a common-law claim like the estoppel claim Leslea seeks to assert here.1

The majority rejects Leslea’s estoppel claim based in large part on the observation that “[ejquitable estoppel is defensive in nature,” Op. at 16; the majority suggests that the result may have been different if Leslea had invoked promissory es-toppel instead. Id. at 16 n. 9.1 respectfully disagree with the majority’s reliance on such fine distinctions to deny Leslea relief. In the trial court and here, Leslea cited and relied upon Stein and S.E.M., both of which recognize that an “estoppel exception” exists to the general rule of third party non-liability for support. S.E.M., 664 S.W.2d at 667; see also Stein, 831 S.W.2d at 688 (referring to exception based on “an estoppel theory”). While S.E.M. refers to this theory as involving the “promissory estoppel doctrine,” 664 S.W.2d at 668, Stein refers to the doctrine simply as “estoppel.” The later decision in Jefferson itself refers to the doctrine as “equitable estoppel”; although it recognizes that S.E.M. relied on promissory es-toppel principles, Jefferson observes that “the [promissory estoppel] rule [of S.E.M.] and its exceptions have been applied when dealing with equitable estoppel.” 137 S.W.3d at 516 n. 3 (citing Stein). Moreover, decisions outside this specific context recognize that “[promissory estoppel”— the doctrine the majority suggests Leslea should have invoked — “is simply one type of equitable estoppel,” and that “equitable estoppel” is a broad category “which encompasses all estoppels arising out of some *27form of misrepresentation.” Resnik v. Blue Cross & Blue Shield of Mo., 912 S.W.2d 567, 572-73 (Mo.App. E.D.1995); see also Savannah Place, Ltd. v. Heidelberg, 122 S.W.3d 74, 81 (Mo.App. S.D. 2003); Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1061 (8th Cir.2005) (Missouri law).

In these circumstances, where Leslea cited relevant caselaw, and our decisions are less-than-precise in their use of estop-pel nomenclature, I consider it inappropriate to reject Leslea’s claim because she stated that she was invoking “equitable estoppel” principles.

Leslea’s petition adequately pled an es-toppel claim. The essential elements of promissory estoppel (which Jefferson equates to the “equitable estoppel” doctrine applicable here) are:

“(1) a promise; (2) on which a party relies to his or her detriment; (3) in a way the promisor expected or should have expected; and (4) resulting in an injustice that only enforcement of the promise could cure.”

Bauer Dev. LLC v. BOK Fin. Corp., 290 S.W.3d 96, 100 (Mo.App. W.D.2009) (quoting Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590 (Mo. banc 2007)). As the majority recognizes, Op. at 15-16, the essence of an equitable estoppel claim is similar.

Here, Leslea alleged: that she and Michelle had an agreement, which continued throughout their relationship, “that they would jointly raise any children that they had as a result of their relationship”; that Leslea was impregnated in 2003 “in order for the couple to have a second child together”; that the parties shared the pregnancy-related costs; that — consistent with their earlier agreement — “Michelle shared in the parenting, and emotional and financial support of [Z.A.W.] ” until approximately six months after the parties’ separation; that in numerous respects the parties held Michelle out as Z.A.W.’s mother, both to him and to third parties; and that Z.A.W. is in need of Michelle’s support. “ [Allowing [Leslea’s allegations] their broadest intendment,”2 “liberally grant[ing][her] all reasonable inferences therefrom,”3 and given Michelle’s failure to argue any defect in Leslea’s allegations of estoppel either here or below, I conclude that her petition is sufficient to state a claim for child support based on the estoppel doctrine recognized in the cases discussed above.4 While I believe Leslea’s petition is minimally sufficient to invoke the estoppel doctrine recognized in prior cases, whether she could actually prove the necessary elements of an estoppel claim would of course depend on the evidence presented in any remand, and the factfinder’s assessment of that evidence.

Jefferson expressed reluctance to employ an estoppel theory “to impose a child support obligation on a husband ‘merely because [he] developed a close relationship with the child and nurtured them into a family unit while “acting” as the natural parent,’ ” based on its view that “ ‘[v]oluntary support of nonmarital children or stepchildren should not be discouraged.’ ” *28137 S.W.3d at 517 (quoting Marriage of A.J.N., 414 N.W.2d at 71). However in this case Leslea does not seek to impose support obligations on Michelle “merely” based on Michelle’s close relationship with, and prior support of, Z.A.W. Instead, the critical aspect of Leslea’s estoppel claim here is the contention, fairly comprehended by her pleading, that she voluntarily and intentionally became pregnant, carried Z.A.W. to term, and retained custody over him, in reliance on Michelle’s undertakings. Recognizing Leslea’s estoppel claim here seems to me fully consistent with Missouri cases which have recognized the availability of such a theory in similar circumstances, and with the general equitable estoppel principle that a person should not be permitted to make representations or promises on which they know or should know others will rely to their detriment, only to later attempt to escape those commitments scot-free.

While I concur in the lion’s share of the majority’s disposition, and the careful and well-reasoned opinion explaining the result, for the foregoing reasons I respectfully dissent from the majority’s disposition of Appellant Leslea Diane White’s estoppel claim seeking child support.

. S.E.M. observes that "one estoppel exception concerns assertions made by the husband to the child.” 664 S.W.2d at 667. The estop-pel doctrine is not solely available to the child, however: Stein "also consider[s] estoppel as to wife” (the biological mother), 831 S.W.2d at 689, and In re Maniage of A.J.N. & J.M.N., 141 Wis.2d 99, 414 N.W.2d 68 (1987), cited favorably in Jefferson, 137 S.W.3d at 517, likewise recognizes that a mother may claim estoppel. 414 N.W.2d at 71. I fail to see any reason why a biological parent cannot assert an estoppel claim in her own right, where that parent alleges that she chose to conceive, give birth to, and retain custody of a child, with the attendant substantial and long-term financial obligations, in reliance on a third party's representations and conduct.

. Norber v. Marcotte, 134 S.W.3d 651, 657 (Mo.App. E.D.2004).

. Richardson v. Richardson, 218 S.W.3d 426, 428 (Mo. banc 2007) (internal quotation marks omitted).

. For similar reasons I also conclude, contrary to the majority, that Leslea adequately pled a claim for child support for Z.A.W. based on the express contractual assumption doctrine. However, given her failure to argue that theory in the circuit court in response to Michelle's motion to dismiss, Leslea failed to preserve the express contractual assumption issue for our review, and I therefore concur in the majority’s disposition of that claim.