"The Winchester Case"

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CHARLES EMERSON WINCHESTER,

Petitioner and Respondent,

v.

MARGARET H. HOULIHAN,

Respondent and Appellant.

FACTUAL BACKGROUND:

Charles Emerson Winchester and Margaret Houlihan met in 1995 at a Superbowl party held at Rosie's Bar in Beartrap, Montana. At the time their relationship began, Charles was single and worked as the produce manager at Hawkeye's Grocery. Margaret was unemployed and the mother of one child, Erin Houlihan, age one (1) year. Approximately three months into the relationship, Margaret announced that she was pregnant, and so parties were legally married on April 22, 1995.

On November 12th, 1995, Maxwell "Max" Klinger Winchester was born at Hunnicut Memorial Hospital in Beartrap. Both Charles and Margaret were listed on the birth certificate as the Max's natural parents.

Shortly after Max's birth, Margaret became dissatisfied with life and began going out to Rosie's while Charles was working. Charles began to notice a change in Margaret's attitude and suspected that she was abusing various substances. When Charles returned from work on April 15th, 1996, Margaret and all of her personal belongings were absent from the family home. Taped to the television screen was a note saying that Margaret was tired, bored, and was moving to Nevada for a job. The note also said she would come back for the children when she was "settled."

Charles immediately went to the children's daycare, found both children were present, and took them home. Margaret called Charles from Nevada on May 18, 1996 to arrange for her parents to pick up the children and drive them to Nevada, but Charles advised Margaret he was keeping both of the children "until you get your head on straight," and hung up on her. Margaret called back a month later, on June 16, 1996, Charles did not answer his telephone, and when the answering machine picked up, Margaret left an obscenity-laden message threatening Charles with physical harm if he did not surrender the children immediately. However, she did not file any kind of legal action.

At that time Charles spoke to an attorney about obtaining a divorce (the legal term in Montana is a "dissolution"), but did not follow through and file. However, upon the advice of his attorney, Charles turned the answering machine tape over to the Trapper County Sheriff's Department for prosecution under MCA § 45-8-213(a) and (b) for a violation of the Privacy in Communication statute. An arrest warrant for a misdemeanor violation of the statute was issued for Margaret, but because the charge was only a misdemeanor, the warrant was limited to the State of Montana. Charles also contacted the local Justice of the Peace and, under the partner and family member assault statutes at MCA § 40-15-201 et. seq., requested an order of protection (sometimes called a restraining order) against Margaret. The order was granted, valid from June 20, 1996 until June 20, 1997. Margaret never appeared in Montana during that time.

Charles and both children continued to live in Beartrap and by all accounts (from doctors, school, church, neighbors) the children flourished in the care of Charles. Margaret had no contact with the children until July 4th, 1999, when Margaret came back to Beartrap to visit her family and dropped by Charles's residence to visit with the children. At that time, she started cussing Charles out for not letting her see the children, so Charles called the Sheriff to arrest Margaret on the outstanding warrant. After a day in jail, Margaret paid a fine and agreed to go into a chemical dependency treatment program as a condition of her release. The next day, she returned to Nevada.

A week later, Margaret called Charles and again demanded custody of the children. On this occasion, Charles finally followed up with his attorney and filed a petition for dissolution to establish residential custody for both minor children. Margaret was legally served with the petition on August 8th, 1999, but did not hire counsel or file an appearance. Margaret's default was entered on November 30th, 1999, and on December 1st, 1999, the Court entered a Decree of Dissolution, adopted a final Parenting Plan granting Charles residential custody of Max and Erin, and named him Erin's legal guardian. The plan required no child support payments from Margaret.

The children continued to flourish in the care of Charles through December of 2002. During this entire period of time, from April 15, 1996 until the present, Charles supplied all of their support, daily necessities, medical expenses, nurturing and care. The children took part in numerous activities, including dance, t-ball, soccer, Cub Scouts and Girl Scouts, with Charles and his extended family taking an active part in the children's activities. Max has no clear memory of Margaret, and Erin only has vague memories, but both children possess photographs of Margaret and know she is their mother. Both call Charles "Daddy," and he refers to both Erin and Max as "my kids."

On December 2nd, 2002, Margaret filed a motion to set aside the Parenting Plan of December 1, 1999, requesting full custody of both children. Margaret asserted that Charles had no legal claim to her child, Erin Houlihan, because he was known not to be the biological father. Margaret also moved the District Court to order DNA tests, challenging that Charles was not the natural father of Max Winchester.

A hearing was held on Margaret's various motions on December 18, 2002, the Honorable Sherman T. Potter of the 4077th Judicial District Court presiding. At the hearing, the Court heard testimony regarding all of the evidence stated above and also received evidence that Margaret had successfully completed both inpatient and outpatient chemical dependency treatment while residing in Nevada. By the testimony and affidavits of Margaret, her new husband, Frank Burns, their pastor, Father Mulcahy, and her chemical dependency counselor, Benjamin Franklin Pierce, she had been "clean and sober" for two years and was enrolled at a local community college.

At the close of the hearing, the District Court denied both of Margaret's motions. He refused to order DNA tests, and held that Margaret was also equitably estopped from contesting the child-parent relationship within the meaning of MCA § 40-4-211(6) as it pertained to Erin Houlihan. Judge Potter then ordered that Charles continue to act as the residential parent for both minor children according to the parenting plan of December 1, 1999.

Margaret appealed the ruling and raises the following issues on appeal:

ISSUE NO. 1: Since Charles Emerson Winchester is not the natural father of the minor child Erin Houlihan, does the District Court have the authority to grant Charles the residential care of Erin?

ISSUE NO. 2: Is Margaret H. Houlihan equitably estopped from challenging Charles's paternity of the child Max Winchester because the parties were married at the time of Max's birth?

STATUTES AND CASE LAW:

Constitutional Provisions:

Article II, Section 5, Montana Constitution

Statutes: 

MCA § 26-1-601

MCA § 40-4-211 (4), (6)

MCA § 40-4-212, -219, -227, -228, -237 (excerpts)               

MCA § 40-6-105 (excerpts) 

Cases:

In re Paternity of "Adam", 273 Mont. 351, 903 P2d 207 (1995).

In re Paternity of Vainio, 284 Mont. 229, 943 P.2d 1282 (1997).

In re Marriage of K.E.V. & M.L.V., 267 Mont. 323, 883 P.2d 1246 (1994) 

Lynn v. Powell, 809 A.2d 927 (Pa. Super. 2002)

Doe v. Doe, 52 P.3d 255 (Hawaii, 2002)

NOTES ON AUTHORITIES:

Be aware that there are two very narrow issues presented to the Court. It is NOT the job of the court to decide here whether Margaret or Charles ultimately get custody or visitation, have to pay child support, etc. The issues concern if Margaret can even get "through the door of the courtroom" to challenge the parent-child relationships that exist between Charles and each of the two children. Be aware that the law treats Erin and Max somewhat differently. There is no question that Erin is not Charles' biological child, and note that he has not formally adopted her. On the other hand, Max was born during the time that Charles and Margaret were legally married.

To argue this case, it is important to find the relevant parts of the statutes and case law, then read them carefully. Marriage of K.E.V. is the most longstanding Montana case on the issues presented, but note that the statutory law (the MCA) has changed since that case was handed down, and so the statutes may be applied differently (for example, notice that the statute of limitations no longer applies). K.E.V. also contains a very good definition of what "equitable estoppel" means in Montana. Vanio deals with the question of custody of a non-biological child, such as Erin, but also contains material useful in deciding the legal issues related to Max. Note that "Adam," which contains a good explanation of how to apply the "best interest of the child" standard, was appealed to the U.S. Supreme Court, which denied cert., and therefore is very strong precedent in Montana.

Lynn v. Powell is a 2002 case from Pennsylvania's Superior Court (their intermediate appeals court). This means the case is not binding authority in Montana, but contains useful arguments for each side on the issue of paternity of a child, like Erin, that everyone knows it is not the biological child of the purported father. The facts in Lynn are somewhat different from the ones used in this Model Supreme Court case, but there are good arguments presented for both sides in the opinion and the dissent.

Doe is a 2002 case out of Hawaii, so it is also persuasive, but not binding, authority. It will be useful for arguing the issue of challenging the paternity of Max. Doe was decided on Hawaii state law, not Montana law, so it is important to note any ways the Hawaii statutes discussed in the case are different from those in Montana. If there is a conflict of statutes, Montana law is going to "trump" that of another state. However, Doe, like Lynn, is useful because it is a recent case and has an extensive dissent which provides attorneys with useful arguments on both sides of the issue.