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HomeMy WebLinkAbout03-180 SupportAPRIL D. THATCH, Platintiff JON BLACKLEDGE, Defendant Hoffer, P.J., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION : PACES Case No. 814105256 : DOCKET No. 00180 S 2003 IN RE: DEFENDANT'S PETITION TO CONTEST PATERNITY/ESTOP BLOOD TESTING §1925 OPINION Procedural History On February 5, 2003, April D. Thatch, plaintiff/appellee ("Appellee"), executed a sworn statement naming the defendant/appellant, Jon Blackledge ("Appellant"), as the father of her child, who is the beneficiary of this action. The child was born in Hattiesburg, Mississippi on January 12, 1995. This action was initiated in Jasper County, Mississippi, and was transmitted to the Commonwealth of Pennsylvania pursuant to the Uniform Interstate Family Support Act (UIFSA). 23 Pa.C.S. §7101 et. seq., Miss. Code 1972, 93-25-1, et. seq. On February 28, 2003, the Court issued an Order setting a Domestic Relations hearing for April 9, 2003. Appellant notified the hearing officer that he was contesting paternity and asked that a "conference on the merits be held in abatement until after paternity tests can be arranged and completed through Domestic Relations." (Plaintiff's Motion to Vacate, et. seq., Ex. 3.) Subsequently, the Court issued an Order requiring Appellant to appear for genetic testing on May 6, 2003, pursuant to 23 Pa.C.S. 4343(c)(1).1 Appellant was properly served with the Order, requiring him to appear at 13 North Hanover Street on May 6, 2003, approximately seven blocks from Appellant's place of residence at 527 S. Pitt Street, No. 5, Carlisle. On May 5, 2003, Appellant's counsel notified the Domestic Relations Office of his intention to submit a petition seeking that the paternity test be estopped and requested that the genetic testing be delayed. Although the request was not granted, Appellant failed to appear and undergo genetic testing on May 6, 2003. After Appellant failed to file a petition immediately thereafter, the Court entered an Order on May 8, 2003, adjudicating Appellant as father of the child by default, in accordance with the procedure mandated by Pa.R.C.P. 1910.15(e).2 ~ When a plaintiff mother names a father in her sworn statement, an affidavit in this case, and the named father denies paternity, the mandated procedure is provided in the Domestic Relations statutes, at Section 4343(c): (1) upon the request of any party to an action to establish paternity, supported by a sworn statement from the party, the court or domestic relations section shall require the child and the parties to submit to genetic tests... 23 Pa.C.S. 4343(c)(1). : Rule 1910.15 provides the mandatory procedure if a defendant fails to appear after being properly served: (e) Failure to Appear. If defendant fails to appear as ordered for a conference, hearing or trial, or for genetic tests, the court shall, upon On May 12, 2003, Appellant filed a petition to vacate the order of May 8, 2003, and requested a hearing to determine whether or not Appellee is estopped from asserting paternity against appellant. At a hearing on August 28, 2003, and before any sworn testimony was taken, the Court gave Appellant a chance to make an offer of proof to be presented at the hearing. After hearing the Appellant's offer, the court did not allow Appellant to present evidence on the issue of estoppel and upheld the order for genetic testing. Appellant has appealed that decision. Discussion The child in question was born on January 12, 1995 in Mississippi. Child Support Enforcement Transmittal at 3. Mother was not married at the time of conception and birth. Affidavit at 2. Appellant alleges that had a full hearing been held, he could have proven that mother raised the child alone for a period of time, then married another man (a Mr. Belk) in August of 1998 "who became father of the child,...signed for the child at school,...and filed joint tax returns [with Apellee] declaring the child as a dependant of both." Hearing of August 28, 2003 at 3. The Appellant further submits that these facts would have shown that Mr. Belk held himself out as the father of the child and thus, the mother is barred proof of service on the defendant, enter an order establishing paternity... Pa.R.C.P. 1910.15(e). by the doctrine of estoppel from seeking support and/or a determination of paternity from the defendant. Estoppel in paternity is defined as: the legal determination that because of a person's conduct (e.g., holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child's mother be permitted to sue a third party for support, claiming that the third party is the true father. Dipaolo v. Cuqini, 811 A.2d 1053, 1056 (Pa. Super. 2002), citing Freedman v. McCandless, 539 Pa. 584, 591-592,654 A.2d 529, 532-533 (1995). The doctrine of estoppel in paternity actions is aimed at "achieving fairness between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child." Id. In all the cases involving paternity estoppel, including those to which the defendant cites, the issue was whether the person to whom the mother was either married to or living with3 held the child born during their union out as his ~ Although appellant's attorney failed to cite it in his brief, the Court finds it necessary to note that the Supreme Court of Pennsylvania does recognize the doctrine of estoppel even in cases where the mother was not married at the time of conception and birth. Freedman v. McCandless, 539 Pa. 584, 654 A.2d 529 (1995). The Court, while aware of and in absolute agreement with the Supreme Court's mandate, was correct in not allowing a full evidentiary hearing in this case, as appellant's offer made it clear that the facts of the current case do not cause the doctrine of estoppel to apply. The facts of Freedman are as follows: the mother of the child, McCandless, filed a complaint for child support against Freedman. Freedman asserted that McCandless was estopped from seeking a paternity determination against him because another man, Haxall, held himself out as the father. Freedman asserted that McCandless and Haxall lived together during the pregnancy, agreed to attribute paternity of the child to Haxall on the birth 4 certificate (the child's name was Haxall), acknowledged the child as their own at birth, lived together after the birth of the child, and that Haxall held the child out as his own by paying some of the expenses and introducing the child as his own. The trial court, after conducting a hearing on the issue of estoppel, held that McCandless was not estopped from bring an action for support against Freedman and ordered the parties and the child to submit to blood tests. Freedman appealed the decision, and the Superior Court quashed the appeal on the grounds that it was interlocutory, stating that in order for such an appeal to be heard, there must be a presumptive parent. The court observed that presumptive parentage might arise in ways other than a child being born in wedlock, including when a father holds himself out as the parent. However, the Court held that an interlocutory appeal of a blood test will be allowed only when there has been a marriage. The Pennsylvania Supreme Court did not accept the Superior Court's rationale and extended the appealability of blood tests beyond cases in which there is a claim of estoppel and the mother was married when the child was conceived and born. Using Jones v. Troiak, 535 Pa. 95, 634 A.2d 201 (1993), which held that blood test orders are appealable even though they are interlocutory, the Freedman court "extend[ed] the rule of Troiak to apply to all cases for child support where blood tests are ordered and the alleged father seeks to appeal the blood test order based on a claim of estoppel." Freedman, 539 Pa. at 532,654. In other words, "a 'married' case is merely a form of estoppel, and estoppel may be raised both in cases in which there was no marriage and also in cases in which a child was conceived and born during the marriage." Id~ at 533. Once again, although this Court fully recognizes that estoppel is a possible defense even in cases where the presumptive father and mother were not married at the time of conception and birth of the child, in this case the facts offered by appellant are insufficient to raise the doctrine of estoppel. In fact, in Freedman, even after extending the application of estoppel, the Supreme Court determined through its own independent review of the record that the Superior Court was correct in determining that estoppel did not apply. Thus, even in a case where the mother and presumptive father were living together during and after the birth of the child, the presumptive father's name was on the child's birth certificate, and the presumptive father supported the child, the mother still overcame the defense of estoppel. Thus, this Court was completely correct in denying a full evidentiary hearing when there was no possibility that Mr. Belk is the father since their marriage did not begin until three years after the birth of the child. Furthermore, the only evidence offered by the appellant is a joint tax return of Mr. Belk and the plaintiff, filed during the marriage, naming the child as a dependant. Clearly, if the Supreme Court in Freedman failed to apply estoppel, the Court in this case was correct in denying defendant's assertion of estoppel. own, even though he was not the biological father. Appellant relies, in essence, on one case in support of his decision. In Jones v. Troiak, 535 Pa. 95, 634 A.2d 201 (1993), the Pennsylvania Supreme Court held that estoppel did not apply because her husband, to whom she was married while the child was conceived and born, merely provided child care services as a favor to the mother and biological father and thus did not hold himself out as the father. Appellant asserts that because Mr. Belk supported the child through their three year marriage and claimed the child as a dependant on their joint tax return while they were married, he, unlike the husband in Jones, did hold himself out as the father, thus causing the doctrine of estoppel to apply. This argument is meritless for a number of reasons. First, Appellant fails to note that in Jones and its progeny the mother was either married or living with the presumptive father at the time of conception and/or birth of the child in question. See J.C.v.J.S., 826 A.2d 1 (Pa. Super. 2003); Moody v. Moody, 822 A.2 39 (Pa. Super. 2003); In re Adoption of M.T.J., 814 A.2d 225 (Pa. Super. 2002); Weidman v. Weidman, 808 A.2d 576 (Pa. Super. 2002). In our case, Appellee was single and living alone at the time of conception and birth. Second, Appellee's marriage to Mr. Belk did not occur until three years after the birth of the child, making it completely irrelevant in attempting to show that the doctrine of estoppel applies. Mr. Belk did not hold himself out as father for the child's first three years and in the years following his divorce from Appellee. Finally, Appellant's offer of Mr. Belk's conduct, occurring three years after the birth of the child and ending with the end of the marriage in 1998, is insufficient to show estoppel. Even if Appellant were able to prove that Mr. Belk was the presumptive father, the cases applying estoppel require much stronger evidence that the presumptive father held the child out as his own. See J.C.v. J.S., 826 A.2d (Pa. Super 2003) (estoppel applied when former husband continued to act as child's father and supported him in every way even after learning he was not the child's biogical father); Adoption of M.T.J., 814 A.2d 225 (estoppel applied because mother allowed presumptive father to be named as father on birth certificate and allowed father to raise child alone during first five years of child's life); Weidman, 808 A.2d 576 (estoppel applied where presumptive father treated child from birth until age two as he did his other children, was named as father on birth certificate, named child as dependant on jointly filed tax returns, and provided support and care to child during marriage). The only evidence offered by Appellant is a jointly filed tax return and the assertion that Mr. Belk acted as a parent to the child during the short three year marriage. This evidence, even taking Appellant's offer of proof as true, is insufficient to prove that the defense of estoppel should apply. '7