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HomeMy WebLinkAbout99-387 supportMICHELE L. DONOVAN go HANK P. DONOVAN · IN THE COURT OF COMMON OF · CUMBERLAND COUNTY, PENNSYLVANIA : : · NO. 387 SUPPORT 1999 : · PACSES CASE # 212101067 · DR# 28607 : IN RE' DEFENDANT'S PETITION FOR BLOOD TEST TO DETERMINE PATERNITY BEFORE GUIDO, J. AND NOW, this ORDER OF COURT day of DECEMBER, 2000, for the reasons set forth in the attached opinion, Defendant's Petition for Blood Test to Determine Paternity is DENIED. By the Edward E. Guido, J. Bradley L. Griffie, Esquire Marcus A. McKnight, Esquire Domestic Relations Office 'sld MICHELE L. DONOVAN V, HANK P. DONOVAN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 387 SUPPORT 1999 : : PACSES CASE # 212101067 : DR# 28607 IN RE: DEFENDANT'S PETITION FOR BLOOD TEST TO DETERMINE PATERNITY BEFORE GUIDO, J. OPINI,©N AND ORDER OF COURT The parties were married on December 11, 1993. A son was bom to their marriage on May 25, 1994. The parties began having marital problems in 1998. They were separated during the month of May and part of June in 1999. During that period plaintiff filed a complaint for child and spousal support to this term and number. The parties attempted a reconciliation in June and lived together as husband and wife until their final separation on July 17, 1999. A support order for plaintiff and their son was entered by this Court on August 18, 1999.~ The child in question, T.D., was bom on October 3, 1999. On November 4, 1999, plaintiff filed another complaint for support, seeking to have T.D. added to this order. On December 9, 1999, after a conference at the Domestic Relations Office, Judge Bayley entered a modified order adding T.D. to the original order and increasing the The order was entered by the Honorable Edgar B. Bayley. 387 SUPPORT 1999 - DR#. 28607 amount of support payable. On December 16, 1999, defendant filed a timely request for a hearing de novo. As part of that request, defendant denied paternity of the child and requested that a blood test be conducted. The hearing de novo was held before the Honorable George E. Hoffer on April 6, 2000. On that same date, after hearing, Judge Hoffer issued a modified order for the support of both children as well as plaintiff. No appeal was taken from that order. On June 16, 2000, defendant filed a Petition for Blood Test under the Uniform Act on Blood Tests to Determine Paternity.2 Plaintiff filed an Answer with New Matter objecting to defendant's request. We directed that the matter be decided pursuant to Pa. Rule of Civil Procedure 206.7. The parties have taken depositions, filed briefs and argued their respective positions. This matter is now ready for disposition. DISCUSSION Plaintiff argues that defendant's failure to file an appeal from Judge Hoffer's order of support dated April 6, 2000, precludes him from contesting paternity. Therefore, she contends that the Petition for Blood Test should be denied. We agree. The law of this Commonwealth is clear that "an order for child support... necessarily determines the issue of paternity." Everett v. Anglemeyer, 425 Pa. Super. 587, 625 A.2d 1252, 1254 (1993). "Absent an appeal taken directly from that order, or the showing of fraud, the aggrieved party is foreclosed from challenging this determination." B.O.v.C.O., 404 Pa. Super. 127, 590 A.2d 313,314 (1991). Defendant does not allege fraud. Further, defendant concedes that the entry of an unappealed support order would be final if he had "the opportunity to appear in a full 2 23 Pa. C.S.A. § 5104. 387 SUPPORT 1999 - DR# 28607 support hearing and assert his ... rights and defenses.''3 However, he contends that the hearing before Judge Hoffer on April 6, 2000 was limited to the issue of the parties' gross incomes. He further argues that he preserved the issue of paternity by raising it in his request for a hearing de novo and filing the subsequent Petition for Blood Test on June 16, 2000. We disagree. The issue of paternity was raised in the request for a hearing de novo along with the issue of the parties' gross incomes. A review of the transcript of the proceedings before Judge Hoffer on April 6, 2000, shows that defendant unilaterally limited the hearing to the issue of the parties' gross incomes.4 Nowhere in the transcript does defendant's counsel indicate that he wished to preserve the challenge to paternity raised in his request for a hearing de novo. Therefore, the issue was waived. Since the entry of the final support order necessarily determined the issue of paternity, and since there was no direct appeal of that order, the defendant is foreclosed from challenging that determination. Therefore, we must deny his petition. 3 Defendant's supplemental brief, p. 4. 4 The following exchange took place between the Court and defense counsel: THE COURT: What is the story, who is the moving party? MR. MCKNIGHT' This is the appeal of the defendant. We are seeking an adjustment in the gross income numbers because his hours have been reduced, and Domestic Relations used a prior- - no, her current job when she had voluntarily left a prior job that earned more money. We are not seeking anything more than adjustment in the gross incomes, so that the D.R.O. can then readjust the support amount. So all we are asking is that you take a look at their gross incomes, and if we can reach the appropriate numbers, D.R.O. can do the calculations. THE COURT: Is this an appeal of a recommended order? MR. MCKNIGHT: Yes, sir. Proceedings before Honorable George E. Hoffer, P.J., April 6, 2000, pp. 3-4. 387 SUPPORT 1999 - DR# 28607 ORDER OF. COURT AND NOW, this 29TM day of DECEMBER, 2000, for the reasons set forth in the attached opinion, Defendant's Petition for Blood Test to Determine Paternity is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Bradley L. Griffie, Esquire Marcus A. McKnight, Esquire Domestic Relations Office :sld