Loading...
HomeMy WebLinkAbout96-4177 CivilPAUL E. W., Plaintiff VS. DEANNA M. W., Defendant AND NOW, this intervention is DENIED. Michael G. Oleyar, Esquire For Plaintiff Thomas D. Gould, Esquire For Intervenor Aaron D. Pames, Esquire For the Defendant :rim' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96-4177 CIVIL TERM CIVIL ACTION IN RE: PETITION TO INTERVENE ORDER day of February, 1998, the petition of Michael LaR. for BY THE COURT, PAUL E. W., Plaintiff VS. DEANNA M. W., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 96-4177 CIVIL TERM : CIVIL ACTION IN RE: PETITION TO INTERVENE OPINION AND ORDER This matter is before the court on a petition to intervene by Michael LaR. in the custody action between Paul W. and Deanna W. For the reasons set forth below, Mr. LaR.'s petition will be denied. The facts adduced at our recent hearing in this matter are as follows. Mr. and Mrs. W. were marred on August 22, 1992. In 1995, Mr. W. was diagnosed with Sertoli Cell Only Syndrome, a condition that left Mr. W. unable to produce sperm. This diagnosis was later reversed and Mr. W. was informed that he did have sperm cells and was capable of fathering a child. Mr. W.'s sperm count was still low so the couple decided to proceed with artificial insemination. Mrs. W. was artificially inseminated three or four times between February and April of 1995. Mr. W. testified that the first two attempts proved to be unsuccessful, but thought that there had not been any tests run on the last attempt(s). Mrs. W. testified that pregnancy tests were mn on each attempt and all were negative. In addition to artificial insemination, Mr. and Mrs. W. also continued to engage in sexual intercourse in the hopes of producing a child. A child, Paul Jr., was conceived in March or April of 1995 while the couple were living together. Mr. LaR. and Mrs. W. allege they engaged in sexual intercourse on one occasion in April of 1995. Mrs. W. testified that she believed it was during this encounter with Mr. LaR. that she became pregnant. She further testified that she lied 96-4177 CIVIL TERM to Mr. W. about the artificial insemination being successful and lied to Mr. LaR. about not being pregnant at all. Paul Jr. was bom on January 11, 1996, while Mr. and Mrs. W. were still married and living together. Mrs. W. testified that she told Mr. W. that the child was his and that she had done this in an attempt to salvage their relationship. In March of 1996, Mr. and Mrs. W. separated and a divorce decree was entered on November 8, 1996. Mr. W. took primary physical custody of Paul Jr., while Mrs. W. wanted only visitation. Mrs. W. testified that she attempted to contact Mr. LaR. to tell him he was the father of Paul Jr. in March of 1996, but was informed by his roommate that he was in Ireland getting married. Mr. LaR. testified that his roommate never gave him the message. From March of 1996 until August 14, 1997, Mr. LaR. never took action to assert any alleged fights of paternity, custody or visitation of Paul Jr. On July 29, 1996, we ordered that primary physical custody of Paul Jr. be with Mr W. Mr. W. has been the primary care giver of Paul Jr. since the time of separation. Mrs. W. has had visitation of Paul Jr. two days bi-weekly. On August 14, 1997, Mr. and Mrs. W. attended a Pre-Hearing Custody Conciliation Con~,erence before Attorney Michael Bangs. Mr. LaR. was allowed to attend but not participate in the conference. Attorney Bangs recommended that both legal and physical custody of Paul Jr. be shared between Mr. and Mrs. W. On August 27, 1997, we ordered that Mr. and Mrs. W. have shared legal and physical custody. On that same day, Mr. LaR. filed a petition to intervene. 2 96-4177 CIVIL TERM According to Brinkley v. King, __ Pa. , __, 701 A.2d 176, 177 (1997), one of the strongest presumptions in Pennsylvania law is that a child conceived or born during marriage is a child of the marriage.~ This presumption can only be overcome by clear and convincing evidence that at the time of conception, the presumed father "either was not physically capable of procreation or had no access to the wife." Id.~. This presumption is irrebuttable when a third party seeks to establish his own paternity over that of the husband in an intact marriage. John M. v. Paula T., 524 Pa. 306, 323,571 A.2d 1380, 1388-89 (1990). We are satisfied that this is not a case where the presumption of paternity is irrebuttable as there is no intact marriage. We are well aware of the recent Superior Court holding in Ruth F. v. Robert B., 456 Pa. Super. 398, 690 A.2d 1171 (1997) wherein the Superior Court criticized the trial court's analysis of what constituted an intact family in a situation where there had been a divorce. There, however, the Superior Court was dealing with the question of what was an "intact" family as it related to estoppel, not as it related to the question of whether or not the presumption of patemity was rebuttable. A literal reading of existing case law leads us to believe that because Mr. and Mrs. W. were married at the time of the conception and birth of Paul Jr., Mr. W. is presumed to be the fath.er of Paul Jr. This is a presumption that can be rebutted, though we feel Mr. LaR. has not ~Brinkley v. King is a plurality' opinion in which two justices espoused this view. A third would suggest that the presumption is rather easily rebutted. The remaining three justices discount the viability of the presumption, one going so far as to refer to it as "dubious at best and in many cases ... absurd." __ Pa. __, 701 A.2d at 185. 96-4177 CIVIL TERM successfully done so. First, although Mr. W. was originally diagnosed with Sertoli Cell Only Syndrome, the diagnosis was later reversed and Mr. W. was told that he was capable of fathering a child. Second, because Mr. and Mrs. W. continued to have sexual intercourse throughout March and April, we feel Mr. W. had sufficient access to his wife to defeat Mr. LaR.'s allegation of no access during the time of conception. Traditionally, this conclusion that the presumption does apply and has not been rebutted would end our analysis. However, the Pennsylvania Supreme Court has recently reconsidered the question of "how one knows whether the presumption applies in any given case." In that regard, Chief Justice Flaherty said: There was a time when divorce was relatively uncommon and marriages tended to remain intact. Applying the presumption whenever the child was conceived or bom during the marriage, therefore, tended to promote the policy behind the presumption: the preservation of marriages. Today, however, separation, divorce, and children bom during marriage to third party fathers is relatively common, and it is considerably less apparent that application of the presumption to all cases in which the child was conceived or bom during the marriage is fair. Accordingly, consistent with the ever- present guiding principle of our law, cessante ratione legis cessat et ipsa lex, [2] we hold that the presumption of paternity applies in any case where the policies which underlie the presumption, stated above, would be advanced by its application, and in other cases, it does not apply. 2If the reason for the law ceases, the law itself also ceases. 4 96-4177 CIVIL TERM Brinkley v. King, __ Pa. at ,701 A.2d at 181. The court went on to apply this rule to the facts before it. They found that Lisa and George Brinkley had separated before the birth of the child and were divorced at the time of the complaint. The court indicated, therefore, that the presumption of paternity had no application to the case as far as the purpose of the presumption was concerned; namely, to protect the institution of marriage. The Supreme Court went on to conclude that the lower court erred, therefore, in applying the presumption of paternity and therefore should have gone on to consider the question of estoppel. In Brinkley v. King, the court appears to shift its focus to the existence of a marriage at the time of the filing of a complaint and not purely to the time of birth. Since there is no marital unit to preserve in this case, and lest we make the same mistake as the trial court in Brinkley v. King, we mm to the question of whether estoppel applies to bar Mr. LaR. from intervention. Estoppel may operate either to bar a plaintiff from making a claim of paternity or to bar a defendant from denying paternity. See Id. Although this doctrine has traditionally been used to prevent an individual from seeking blood testing after holding himself out to the public as the child's father, it has also been used to prevent a mother from seeking blood testing to disprove the paternity of the man she previously recognized to be the child's father. See C.T.D.v.N.E.E., 439 Pa. Super. 58, 62, 653 A.2d 28, 31 (1995). Basically, this doctrine operates, as does equitable estoppel, to prevent a party from taking a position that is inconsistent with prior positions and is disadvantageous to another party. Id. (citing In re Estate of Simmons-Carton, 434 Pa. Super. 641,654, 644 A.2d 791,798 (1994). 96-4177 CIVIL TERM Estoppel is based on a very different public policy than is the presumption of paternity. Whereas the presumption of paternity is directed toward the family as a whole and the marriage in particular, paternity by estoppel focuses on the interests of the child. If a. child has known but one father his entire life, he should not be subjected to the potentially damaging trauma of learning that this central figure in his life is not who the child has believed him to be. See Id. A court should not act to delegitimatize a child who was born into an intact marriage. The Pennsylvania Superior Court has stated that "the trial court should determine if the putative father has failed to timely exert his parental claim." Id_~. at 63,653 A.2d at 31. In order to make that determination, the court has used language from the Adoption Act which states that a parent's rights to a child may be terminated if the court finds that "[t]he parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition [for involuntary termination of parental rights] either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties." Id. (quoting 23 Pa.C.S.A. Section 2511 (a)(1). The court should examine whether the party seeking custody or visitation has been prevented from doing so by the opposing party. See Id. In this case, Paul W. has cared for his child, Paul Jr., not only since birth but since the separation of the parties. He has accepted the child as his natural offspring since birth. There can be no doubt that, as far as the child is concerned, Mr. W. is his father. The child is "entitled to maintain faith in and gather strength from that important relationship." In re: Adoption of Young, 469 Pa. 141,152, 364 A.2d 1307. 1313 (1976). Mr. LaR., on the other hand, has played 96-4177 CIVIL TERM no meaningful role in the life of this child for more than two years. We empathize with his observation that this occurred because of his ignorance of the troth. We are not prepared to say, however, that the duplicity of the mother should be visited upon the child. To the contrary, we are entirely satisfied that the mother is estopped from challenging the paternity of her former husband and, by extention, Mr. LaR. has no standing to make a claim for custody, partial or otherwise. AND NOW, this ORDER day of February, 1998, the petition of Michael LaR. for intervention is DENIED. BY THE COURT, Kevip~. Hess, J. 7