Hot Docs: Court rules against secretly impregnating another man’s wife

February 9, 2012

silhouettesEric Fischer and Pamela Tournier got married on April 26, 1986.

Richard Zollino worked together with Fischer and Tournier in the late 1980s, and in 1993, Zollino and Tournier started their own business, which they still operate together.

Tournier gave birth to two daughters during her marriage to Fischer: one in 1986 and another in 1992.

When the younger daughter was born, Zollino accompanied Tournier and Fischer when they brought the younger daughter home from the hospital in a limousine.

Zollino also attended many of the younger daughter’s musical recitals and her eighth grade graduation, but did not attend activities of the elder daughter.

The younger daughter, but not the elder daughter, also spent increasing amounts of time at Tournier’s and Zollino’s workplace.

These occurrences along with others made Fischer somewhat suspicious.

Suspicious of what?

Considering that the younger daughter did not resemble the elder daughter or Fischer’s daughter from a previous marriage, Fischer started to believe that he wasn’t, in fact, her father.

In spring of 2006, Fischer decided to investigate.

He secretly obtained a hair sample from the younger daughter and mailed it to a laboratory, along with his own sample, for DNA analysis and comparison.

 In October 2006, he received a report from the laboratory on the results of the testing, which, unfortunately, showed that he wasn’t the father of the younger daughter.

Fischer then confronted Tournier and, in February 2007, moved out and filed for divorce.

It came to light that Tournier and Zollino had an affair in 1992, and, as paternity testing during the divorce proceedings showed, the younger daughter’s father was actually Zillino.

The divorce was finalized on November 19, 2007, and in the separation agreement incorporated into the final judgment, only the elder daughter is listed as issue of the marriage, and an order of child support concerns only that daughter.

On June 18, 2008, Fischer sued Zollino seeking reimbursement for the costs he had expended in raising the younger daughter from her birth until the divorce, when the younger daughter was almost fifteen years old.

Hot Doc: Fischer v. Zollino

Source: Thomson Reuters News & Insight – National Litigation

Fischer’s lawsuit was based on the legal theories of nondisclosure, misrepresentation, and unjust enrichment.

The trial court, however, found for Zollino.

Using a theory of estoppel, the court reasoned that Fischer long had held himself out to be the younger daughter’s father, that he had caused her to rely on him to meet her financial and emotional needs, and that revealing her true parentage, after she had been led to believe for her whole life that Fischer was her father, would be detrimental to her emotional well-being.

In the court’s own words, it believed that it was putting the child’s best interests above Fischer’s financial interests.

If this opinion doesn’t make any sense to you, you’re not alone.

The Connecticut Supreme Court, after yanking the appeal from the Appellate Court, unanimously reversed the trial court decision.

First of all, the court said, potential emotional harm isn’t enough to invoke estoppel; there must also be financial harm to the child (which there wasn’t).

Secondly, it held that no court could stop any one of the parties from telling the younger daughter that Fischer wasn’t her father.

In fact, that detail was made quite public during the divorce proceedings, and the parties made no attempt to seal the records.

Seeing as the damage had already been done, the court decision would have little additional emotional impact.

Lastly, the Connecticut Supreme Court held that estoppel is inappropriate here because Fischer, unlike the putative father in the precedent used by the trial court, never insisted on being held out as the child’s father after being confronted with the possibility that he wasn’t.

In other words, Fischer wasn’t previously made aware of any possibility of his not being the younger daughter’s father, and when confronted with the revelation, he didn’t choose to hold himself out as her father thereafter.

While the court definitely considered the daughter’s emotional harm as a result of the situation, Fischer no doubt has his own share of it, having discovered that the girl he’d raised for 14 years wasn’t actually his daughter.

Although there’s no way for a court ruling to make anyone emotionally whole again, at least it can do so for Fischer financially.