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HomeMy WebLinkAbout527 S 2005 JEANNETTE D. GIPE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOMESTIC RELATIONS SECTION PACSES NO. 190107462 DONALD R. SMILEY, Defendant 05-527 SUPPORT IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., November 8,2005. In this child support case, a pro se Plaintiff has filed exceptions to a support master's report resulting in a dismissal of her complaint for child support. The dismissal was based upon her failure to present competent evidence warranting a rescission of an acknowledgement of paternity which designated a person other than Defendant as the subject child's father. Defendant's specific exceptions are expressed as follows: 1. The order of court of 9/14/05 incorporating (t)he Support Master's Recommendations is based on an incorrect application of law. 23 Pa. C.S. Section 5103(d) provides that "an acknowledgement of paternity shall constitute conclusive evidence of paternity without further judicial ratification in any action to establish support." A recision of an acknowledgement of paternity is governed by 23 Pa. C.S. Section 5103(g)(2) which states: After the expiration of the 60 days, an acknowledgement of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and convincing evidence. The plaintiff s attempt to "challenge the paternity" was dismissed thus becoming an incorrect application of law, which also arises that: 2. [T]he Support Master erred in not considering evidence presented at the hearing because the plaintiff attempted to challenge the "acknowledgement of paternity" (23 Pa. C.S. Section 5103(g)(2) by "material mistake of fact" with evidence of a DNA Paternity test that clearly states that Mr. Brian K. Harner is indeed not the biological father of said child in question, a.k.a. Brandon. K. Harner. [T]he Support Master erred in not allowing this evidence to be admitted which was clearly the basis of the plaintiff s case in establishing her burden of proof. 1 F or the reasons stated in this opinion, Plaintiff s exceptions to the support master's report will be dismissed, and the interim order of court dated September 14, 2005, entered in accordance with the support master's recommendations, will be entered as a final order. STATEMENT OF FACTS Plaintiff is Jeannette D. Gipe, an adult individual residing at 440 Third Street, Enola [East Pennsboro Township], Cumberland County, Pennsylvania? Defendant is Donald R. Smiley, an adult individual residing at 115 Columbia Road, Enola [East Pennsboro Township], Cumberland County, Pennsylvania.3 Plaintiff was married to one Brian Keith Harner on a date not appearing of record, and a daughter (not the subject of this action) was born of the marriage.4 Plaintiff and Mr. Harner were divorced on October 4, 1993.5 The subject of this action, Brandon Keith Harner, was born to Plaintiff, who had not remarried,6 on August 21, 2004.7 In the period during which the child was conceived, Plaintiff had sexual relations with both Mr. Harner (her former husband) and Defendant. 8 1 Supplement to PI.'s Exceptions, filed Oct. 11, 2005 (hereinafter PI.'s Supplement). 2 NT. 3-4, Supp. Master's Hearing, Sept. 13,2005 (hereinafter NT. ~. 3 NT. 14. 4 NT. 4. 5 NT. 4. 6 NT. 4. 7 NT. 4. 8 NT. 7-8, 14. 2 Mr. Harner executed an acknowledgment of paternity form with respect to the child for the Department of Public Welfare on August 25, 2004, and Plaintiff executed her consent thereto on the same date.9 The form was witnessed, and the acknowledgment was "subject to the penalties of 18 Pa. C.S. 94904 (relating to unsworn falsification to authorities)." The document also included the following language: I understand that the Acknowledgment of Paternity is completely voluntary and may be rescinded by submitting a signed notice of rescission to the Department within the first sixty (60) days after the Acknowledgment of Paternity is signed or the date of a proceeding relating to the child (whichever is sooner). After the 60 days expires, the Acknowledgment of Paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and ...d 10 conVIncIng eVl ence. . . . In February of 2005, according to Plaintiff, she received information which caused her to believe that Mr. Harner was not the child's father.11 However, on April 12, 2005, Plaintiff filed a complaint for support with respect to the child against Mr. Harner. 12 On June 30, 2005, ten months after the acknowledgment of paternity and consent had been executed, four months after allegedly receiving information causing her to believe that Mr. Harner was not the child's father, and two months after filing a child support complaint against Mr. Harner, Plaintiff filed the child support complaint sub judice against Defendant. 13 A hearing was conducted on the claim by the Cumberland County Support Master on September 13, 2005. At the hearing, while conceding that she did not 9 Def.'s Ex., Supp. Master's Hr'g, Sept. 13,2005, at 1 (hereinafter Def.'s Ex. 2). 10 Def.' sEx. 2. 11 NT. 7. 12 Def.'s Ex. 1, Supp. Master's Hr'g., Sept. 13,2005 (hereinafter Def.'s Ex. 1). 13 NT. 4, 7, Def.'s Ex. 1; Def.'s Ex. 2; PI.'s CompI. For Supp., June 30, 2005.. 3 know whether the "uncertified" item would be admissible, Plaintiff sought to introduce "a Genetree DNA testing paper" which purportedly indicated that "Brian Harner [was] excluded from being the biological father.,,14 Admission of the paper was requested to substantiate Plaintiff s position that the acknowledgment of paternity by Mr. Harner and Plaintiff s consent thereto were the result of a . 1 . k 15 matena mlsta e. Plaintiff presented no witness at the hearing to authenticate the document, Defendant objected to its admission, and the support master declined to admit it into evidence on both hearsay and foundation grounds.16 The record as developed was devoid of evidence from which it could reasonably be concluded that Defendant, as opposed to the acknowledged father, was the child's parent. Following the hearing, the support master filed a comprehensive master's report on September 14, 2005, concluding that the child support complaint against Defendant should be dismissed. 17 An interim order in accordance with the recommendation of the master was issued by the court on the same date. IS Plaintiffs exceptions were filed on September 26, 2005,19 and supplemented on October 11, 2005?0 DISCUSSION With respect to acknowledgments of paternity, Section 5103(g) of the Domestic Relations Code provides, in pertinent part, as follows: (1) Notwithstanding any other provision of law, a signed, voluntary, witnessed acknowledgment of paternity subject to 18 Pa.c.s. ~ 4904 shall be considered a legal finding of 14 NT. 9. 15 NT. 10. 16 NT. 9. 17 Support Master's Report, filed September 14,2005. 18 Interim Order of Court, dated September 14,2005 (Hess, J.). 19 PI.' s Exceptions, filed Sept.26, 2005. 20 PI.' s Supplement. 4 paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of the following: (i) sixty days; or (ii) the date of an administrative or judicial proceeding relating to the child, including, but not limited to, a domestic relations section conference or a proceeding to establish a support order in which the signatory is a party. (2) After the expiration of the 60 days, an acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and convincing evidence. An order for support shall not be suspended during the period of challenge except for good cause shown?l With respect to evidence at court-appointed masters' hearings, it has been said that "a master's hearing, although perhaps less formal, is no less subject to the rules of evidence than a trial before a Judge." Regan v. Regan, 227 Pa. Super. 552, 555, 322 A.2d 711, 714 (1974). Results of scientific tests, as a general rule, are not admissible over objection in the absence of testimony of the person who administered the test or interpreted the test results. See Lindsay v. Unemployment Compensation Board of Review, 789 A.2d 385, 388 (Pa. Commw. Ct. 2001) (noting that results of a drug/alcohol test performed on Claimant were hearsay and not admissible, because no testimony of person who administered the test was presented); cf Act of October 30, 1985, P.L. 264, 91, as amended, 23 Pa. C.S. 94343(c); Pa. RC.P. 1910.15. With respect to pro se litigants, it is well settled that a pro se litigant "is not entitled to any particular advantage because he lacks legal training." Kovalev v. Sowell, 839 A.2d 359, 367 (Pa. Super. Ct. 2003).22 A pro se litigant is bound by 21 Act of December 19,1990, P.L. 1240, ~2, as amended, 23 Pa. C. S. ~5l03(g). 22 In this regard, "any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing." Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa. Super. Ct. 2003). 5 the same rules of evidence that a counseled litigant is,23 and a support master is not expected to act as counsel for a party?4 In the present case, Plaintiff did not present competent evidence at the support master's hearing which would have permitted a conclusion that the prior legal finding as to paternity of the child was the result of a mistake and that paternity should be reassigned to Defendant. Accordingly, Plaintiff s exceptions to the support master's report in this regard can not be sustained. ORDER OF COURT AND NOW, this 8th day of November, 2005, upon consideration of Plaintiff s exceptions to the support master's report in the above-captioned case, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order of court dated September 15, 2005, is entered as a final order of court. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Michael R. Rundle, Esq. Support Master Jeannette D. Gipe 440 Third Street Enola, P A 17025 Plaintiff, pro se Donald R. Smiley 115 East Columbia Road Enola, P A 17025 Defendant, pro se 23 See Comm. v. Randolph, _ Pa. _, 873 A.2d 1277, 1283 (2005). 24 See Gephart v. Gephart, 764 A.2d 613, 615 (Pa. Super. Ct. 2000), quoting Strawn v. Strawn, 444 Pa. Super. 390,395,664 A.2d 129, 132-33 (1995). 6 7 JEANNETTE D. GIPE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOMESTIC RELATIONS SECTION PACSES NO. 190107462 DONALD R. SMILEY, Defendant 05-527 SUPPORT IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 8th day of November, 2005, upon consideration of Plaintiff s exceptions to the support master's report in the above-captioned case, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order of court dated September 15, 2005, is entered as a final order of court. BY THE COURT, 1. Wesley Oler, Jr., 1. Michael R. Rundle, Esq. Support Master Jeannette D. Gipe 440 Third Street Enola, P A 17025 Plaintiff, pro se Donald R. Smiley 115 East Columbia Road Enola, P A 17025 Defendant, pro se