concurring and dissenting.
I concur in that portion of the majority opinion remanding for a redetermination of costs and attorney’s fees. I dissent from the affirmance of the remainder of the judgment and amended judgment. I would reverse and remand for additional findings by the trial court on the applicability of the defenses of estoppel, waiver and laches.
A third child was born to Renee in November 1982. Clifford was the father. In September 1982 Renee told John that the third child was not his. The trial court found that after Renee became pregnant with her third child in February 1982, John Mougey “felt ninety percent certain that he was not the father of Jodi Mougey.” In my view, the only conclusion to be drawn from such a finding is that John had reasonable knowledge in February 1982 that he was not the father of Jodi so as to place him on inquiry. His failure to act on that knowledge for three years thereafter raises the issues of estoppel, waiver and laches as to his right to recover damages for those three years. Under the cases cited in footnote 1 of the majority opinion, the trial court should determine whether the elements of such defenses, other than knowledge, have been established.
It is, of course, evident that our concern is directed toward Jodi, not Clifford or John. The statutes under which John claims relief are intended to promote Jodi's welfare by enlarging the availability of resources to provide child support. They were not intended to indemnify a presumptive father who acquires reasonable knowledge of his non-paternity but for his own personal advantage (to gain custody of a child he fathered) undertakes no reasonable inquiry and does nothing to establish his non-paternity for three years.
I do not agree that expecting a man in John’s position to act promptly undermines the policy of the law to foster marriage. Indeed, the trial court found that problems in this marriage preexisted Jodi’s birth in 1980 and that the parties ceased living together in September of 1982. The only thing to be fostered by condoning John’s vacillation and delay is the detriment to Jodi caused by the prolonged uncertainty of her status with John, the only man she considered to be her father. John’s refusal to exercise visitation with Jodi following the parties’ divorce in June of 1983 fortifies the finding that his knowledge of non-paternity far exceeded mere suspicion or speculation. Furthermore, the parties were divorced in June of 1983 so that *517John’s delay of one and a half years following the divorce is surely not justified by any policy favoring the encouragement of marriage.
I agree with the majority’s analysis that the trial court’s ruling that the defenses of estoppel, waiver and laches were not applicable was based on its finding that John lacked knowledge. Because I believe that finding by the trial court to be clearly erroneous, I would reverse the judgments and remand for additional findings on the applicability of the defenses. I therefore respectfully dissent.