holding that contract between mother and putative father was void against public policy and thus did not prevent state from establishing support obligations
How later courts described this case
- holding that contract between mother and putative father was void against public policy and thus did not prevent state from establishing support obligations
Written by the judges who cited it.
The opinion
WATT, Justice,
dissenting:
The issue in this case is not whether the parties’ 1979 agreement bars the Department of Human Services (“DHS”) from bringing a paternity and support action against T.D.G. Clearly, K.A.G. could not have contracted away the statutory rights of DHS to bring such an action in its own capacity. See 10 O.S.1991 §§ 70 and 89(A). However, DHS did not bring the present action in its own capacity, but rather sued pursuant to an assignment from K.A.G. Because I believe that K.A.G. lawfully contracted away any rights she had to seek support from T.D.G., DHS acquired nothing through the assignment. While I do not necessarily disagree with the content of the majority opinion, I believe that under the procedural posture of this case — where DHS brought suit pursuant to an assignment of rights from K.A.G. — the trial court properly dismissed this action. On this basis, I respectfully dissent.
K.A.G. gave birth to her child on August 1, 1978. Although there is some indication in the record that a paternity action was filed against T.D.G. in late 1978 and later *996 dismissed, K.A.G. denied filing any action and the record contains no such evidence. Notwithstanding, K.A.G. hired an attorney who drafted the agreement at issue. 1 Both parties signed the agreement on May 28, 1979. T.D.G. had no contact with K.A.G. or her child from that date until he received notice of this action in early 1992.
In 1989, DHS approved K.A.G. to receive Aid to Families with Dependent Children (“AFDC”) on condition that she assign to DHS any rights to child support. 2 K.A.G. acquiesced and named T.D.G. as the only possible father of her child. Pursuant to the assignment from K.A.G., DHS commenced the present action against T.D.G. to establish paternity and determine his support obligation.
Initially, it should be stressed that at the time the 1979 agreement was executed, T.D.G. was not, in the eyes of the law, considered the father of K.A.G.’s minor child. Because T.D.G. and K.A.G. were never married, there was no legal presumption that T.D.G. was the father. See 10 O.S.Supp.1973 § 3. Furthermore, T.D.G. never adopted the child, see 10 O.S.1971 § 55 et seq., nor had he ever been judicially declared the child’s father. See 10 O.S. 1971 § 71 et seq. Had any of these circumstances existed, the inquiry would be at an end. Agreements between parents regarding support of their children are not binding upon courts, Parkey v. Parkey, 371 P.2d 711, 714 (Okla.1962); Donahoe v. Alcorn 188 Okla. 305 , 108 P.2d 786 (1940), and only courts have the power to sever parental rights. 10 O.S.Supp.1977 § 1130; Bingham v. Bingham, 629 P.2d 1297, 1300 (Okla.Ct.App.1981). However, no such circumstance exists in the present case. Therefore, T.D.G. entered into the agreement possessing no recognized legal rights or duties with respect to K.A.G.’s child. 3
The foregoing authority also makes it clear that K.A.G. could not have contracted away her duty to provide support for her minor child. If the agreement had purported to do such, again the inquiry would cease. However, this issue is not presented. K.A.G. did not attempt to relieve herself of any duty to provide support to her child, see Parkey, supra., nor did she attempt to contract away the duties of the recognized father. See Donahoe, supra. Rather, she contracted away any rights she possessed to seek support from T.D.G., who had no existing legal rights or duties to provide for the child. K.A.G. is still liable for the support of her child. The agreement simply prevents her from seeking such support from T.D.G. Under the facts of this case, I can find no reason to hold that K.A.G.’s promise under the agreement violates child support laws.
As previously stated, K.A.G. applied for AFDC and, as required, assigned to DHS all rights of child support which she possessed. Indeed, DHS pleaded these facts in its Petition. Rather than bring the present action in its own capacity, DHS chose to initiate the instant proceedings pursuant to the assignment from K.A.G. As the assignee of K.A.G.’s claim for child support, DHS merely stands in K.A.G.’s shoes. An assignee “acquires no greater right by virtue of the assignment than was possessed by the assignor at the time of the assignment....” National Bank of Commerce of Tulsa v. ABC Const. Co., 442 P.2d 269, 277 (Okla.1966). Further, “[w]hen the State voluntarily enters its courts for the purpose of enforcing the collection of a debt due it, it becomes a litigant and stands in no more favorite position than its citizens.” State ex rel. Comm’rs of Land Office v. Sparks, 208 Okla. 150 , 253 P.2d 1070, 1074 (1953). A debt was created in favor of the State when DHS began making AFDC payments to K.A.G. 56 O.S.1991 § 238. DHS, in its capacity as K.A.G.’s assignee, stood in no more favorable position than K.A.G. when *997 it sought to collect that debt. Thus, every defense available to T.D.G. prior to the assignment is available against DHS as K.A.G.’s assignee. National Bank of Commerce of Tulsa, 442 P.2d at 277 ; Fourth Nat’l Bank of Tulsa v. Cochran, 298 P.2d 784, 787 (Okla.1956). Because K.A.G. lawfully contracted away any rights she had to seek support from T.D.G., DHS acquired nothing through its assignment from her.
In conclusion, I believe the 1979 agreement between K.A.G. and T.D.G. is valid and enforceable by T.D.G. against K.A.G. T.D.G.’s defense to any action initiated by K.A.G. extends to this action, which was brought by DHS in its capacity as assignee of K.A.G.’s rights. Although DHS could have elected to bring this action in its own capacity, see 10 O.S.1991 §§ 70 and 89(A), it did not do so. Therefore, under the procedural posture of this case, it is my opinion that the trial court properly dismissed this action against T.D.G.
. See Majority at 991-92 for the text of the agreement.
. Title 56 O.S. Supp.1987 § 237(C)(1) mandated that an applicant for or recipient of AFDC must assign to DHS any rights of support for a child for whom the applicant/recipient is applying or receiving assistance.
.The majority relies, at least in part, upon the foregoing authority in holding that the 1979 agreement was void as against public policy. Because those cases addressed only parental rights and duties, they are inapplicable to the instant facts.