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HomeMy WebLinkAbout99-311 SUPPORTA. M. S., J. L. S., Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 311 SUPPORT 1999 DR# 28,530 IN RE: PATERNITY ACTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT In this support action we are being asked to determine the father of a child born to plaintiff on September 1, 1998. A non-jury trial was held before this court on May 25, 2001. The parties were given the opportunity to file briefs in support of their respective positions. This matter is now ready for disposition. F1NDINGS OF FACT Plaintiff and her husband were married on December 10, 1994. Two children, ages 6 and 4, were born of this marriage. In February of 1997, after the birth of their second child, plaintiff' s husband had a vasectomy and became incapable of conceiving any other children. Plaintiff separated from her husband in October of 1997. During the separation, she became pregnant with the child at issue. D. S. was born on September 1, 1998. The plaintiff had sexual intercourse with two men during the period of conception. Her husband was not one of them. The defendant was. Plaintiff and her husband began dating again in February, 1998. They reconciled and have been living together as husband and wife since April, 1998. At the time of their 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 reconciliation, plaintiff' s husband was aware of her pregnancy. He was also aware that the child was not his. He was supportive of her during the pregnancy and was present for the birth ofD. S. He allowed his name to be placed on D. S.'s birth certificate as the father. Furthermore, he has at all times played the role of father to D. S., loving him, supporting him, and treating him no differently than his own biological children. However, even though he refers to D. S. as his son, neither he nor plaintiff has never tried to hide the fact that he is not the biological father. Their entire family, and all of their close friends, are aware that D. S. was fathered by another man. When D. S. was five months old, his resemblance to the defendant became apparent.~ In February of 1999, the defendant was made aware that he was a possible father of the child. He visited with D. S. and was excited to note the resemblance. At his request, plaintiff took D. S. to his parents' home so they could also meet him. The defendant had only one other visit with D. S. in 1999. He came to plaintiff's home to spend time with him in March of that year. Defendant stopped visiting D. S. because his girlfriend did not want him to establish a relationship with the child. Defendant did, however, indicate that he intended to establish a relationship with D. S. in the future. The instant action was commenced in the summer of 1999. Blood tests were conducted in September of that year. The results establish defendant's probability of paternity to be 99.88%. ~ Plaintiff thought that she had been impregnated by the other possible father, with whom she had been romantically involved. While defendant is a lifelong friend of plaintiff's family, she only had sexual relations with him on one occasion. 2 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 Neither plaintiff nor her husband have prevented the defendant from developing a relationship with D. S. 2 In point of fact, they have both encouraged it. While plaintiff s husband recognizes that he could use the presumption of paternity to preclude the defendant from asserting any rights to the child, he has elected not to do so. On the contrary, since the parties live in a small community, and since it is well known among their family and friends that defendant is the biological father, plaintiff and her husband believe it is better for D. S. to have defendant establish a relationship with him now, rather than later. CONCLUSIONS OF LAW 1. PlaintifFs husband is presumed to be the father ofD. S. 2. The presumption that plaintiffs husband is the father of the child has been rebutted by clear and convincing evidence. 3. Neither plaintiff nor her husband are estopped from claiming that defendant is the father of D. S. 4. Defendant is the biological father of the child and is, therefore, obligated to provide for his support. DISCUSSION In Brinkley v. King, 549 Pa. 241,701 A.2d 176 (1997) the Pennsylvania Supreme Court set forth the analysis required to determine paternity of a child born during a marriage. As the Brinkley Court stated: [T]he essential legal analysis in these cases is twofold: first, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then : Even though litigation was pending, they allowed him to see the child in May of 2000. Defendant spent two or three hours with D. S. and referred to himself as "Daddy". 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 questions whether estoppel applies. Estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity. 701 A.2d at 180. Defendant contends that the presumption of paternity applies and that it is irrebuttable, or has not been rebutted. In the alternative, he argues that plaintiff is estopped from claiming that anyone other than her husband is the father of the child. Presumption of Paternity. It has long been the law of this Commonwealth that a child born to a married woman is presumed to be the child of her husband. Cairgle v. American Radiator and Standard Sanitary Corp. 366 Pa. 249, 77 A.2d 439 (1951). It is one of the strongest presumptions known to the law. Strauser v. Stahr, 556 Pa. 83,726 A.2d 1052 (1999). However, because of changing social mores which have dramatically affected male/ female relationships, the presumption is no longer automatically applied in all situations, Brinkley v. King, supra. Speaking for a plurality of the Court, Chief Justice Flaherty stated: There was a time when divorce was relatively uncommon and marriages tended to remain intact. Applying the presumption whenever the child was conceived or born during the marriage, therefore, tended to promote the policy behind the presumption: the preservation of marriages. Today, however, separation, divorce, and children born during the 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 born during the marriage is fair. Accordingly, consistent with the ever-present guiding principle of our law, cessante ratione legis cessat et ipsa lex, 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. 701 A.2d at 181. 4 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 In Fish v. Behers, 559 Pa. 523,741 A.2d 721 (1999) a majority of the Court embraced Chief Justice Flaherty's rationale in Brinkley. Speaking for a clear majority, Mr. Justice Castille stated: The policy underlying the presumption of paternity is the preservation of marriages. The presumption only applies in cases where that policy would be advanced by the application; otherwise, it does not apply. 741 A.2d at 723. Fish v. Beher~, and several subsequent appellate cases, have made it clear that the presumption does not apply unless the marriage is intact, i.e. husband, mother, and child are living together at the time the presumption is invoked.3 In the case at bar, the presumption clearly applies. While plaintiff and her husband were separated at the time of conception, they were living with D. S. as a family unit at the time of trial. Having determined that the presumption applies, we must now address whether it is rebuttable and, if so, whether it has been rebutted. We turn once again to Brinkley for guidance. After reviewing the case law, Chief Justice Flaherty summarized it as follows: These cases set forth the fundamentals of the law of presumptive paternity: generally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access to the mother or the presumptive father was physically incapable of procreation at the time of conception. However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. 701 A.2d at 179, (emphasis added). The instant case does not involve a third party seeking "to assert his own paternity ~ See Strauser v. Stahr. 556 Pa. 83,726 A.2d 1052 (1999), (presumption applies to an intact family); Sekol v. Delsantro, 763 A.2d 405 (Pa. Super. 2000), (presumption does not apply when husband and mother are separated at time it is invoked); accord Barnard v. Anderson. 2001 WL50959 (Pa. Super. 2001). 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 as against the husband of an intact marriage." Therefore, the presumption is rebuttable. Furthermore, we are convinced that the evidence is sufficient to rebut it. Plaintiff and her husband were separated and did not have sexual relations during the time of conception. Furthermore, plaintiff' s husband had previously undergone a vasectomy and was "physically incapable of procreation" at the time D. S. was conceived.4 Our inquiry does not end with the determination that the presumption applies and that it has been overcome. We must now determine whether plaintiff is estopped from claiming that defendant is the child's father. Estoppel. "A party may be estopped from denying the husband's paternity of a child born during a marriage if either the husband or the wife holds the child out to be a child of the marriage." Fish v. Behers, supra, 741 A.2d at 723, (emphasis added). "Estoppel in paternity actions is merely 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 who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father." Freedman v. McCandless, 539 Pa. 584, 591-592, 654 A.2d 529, 532-533 (1995). 4 We note that "where the presumption applies, blood test results (existing or potential) are irrelevant unless and until the presumption has been overcome." Strauser v. Stahr. supra, 726 A.2d at 1054. Accordingly, while we considered the blood test results as they related to the ultimate issue of paternity, we did not consider those results in determining whether plaintiff had overcome the presumption. 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 her husband's paternity of the child. position: · Defendant argues that both plaintiff and her husband are estopped from denying He points to the following facts in support of his Plaintiff' s husband is named as the father on the birth certificate and allows the child to use his name. · He has provided love, as well as emotional and financial support, to the child. · He has accepted the child into his home, treating him no differently than his other children. · He and plaintiff list him as their son on income tax returns, insurance forms, etc. Admittedly, those facts are supportive of defendant's claim of estoppel. However, they are not determinative. Estoppel is an equitable principle and as such should not be applied in a rigid manner. The application of the principle to paternity actions "grew out of a concern for the protection of the family unit". Kohler v. Bleem, 439 Pa. Super. 385, 654 A.2d 569, 575 (1995). As the Supreme Court stated in Brinkley v. King, supra: Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father. 701 A.2d at 180. The facts in the case ofFish v. Behers, supra, are similar to the case at bar. Mother sought support from the biological father who claimed that she was estopped from denying her husband's paternity. The Supreme Court recited the relevant facts as follows: 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 ·.. (Mother) named (her husband) as the father on the child's birth certificate, the child bears the husband's last name, the child was listed as a dependent on the couple's income tax returns, and the child was otherwise treated as a child of the marriage which remained intact until three years after the birth of the child ·.. Following (mother' s) separation from her husband and continuing at least until hearing on the issue of estoppel (at which time the child was five years old), he continued to treat all three of her children equally, and (mother) and her husband continued to hold the child out to the community as the child of their marriage. 741 A.2d at 723-724. Based upon those facts, the Fish Court held that the doctrine of estoppel prevented both the mother and her husband from denying that he was the father of her child. However, there are critical differences between the case at bar and Fish. In Fish, not only had the mother assured her husband that he was the father, but more importantly, at the time of the hearing the child continued "to believe that the husband is his father." 741 A.2d at 724. Citing the public policy basis for estoppel as articulated by the Brinkley Court, supra, the Fish court held: The father-son relationship with appellant's husband is the only such relationship this child has known. The alternative - forcing the child into a relationship with appellee, a man whom he does not know - is not in the best interest of this child. The public policy articulated in Brinkley and Fish does not apply to the facts of this case. Petitioner and her husband knew all along that another man fathered the child. While her husband did the honorable thing and gave D. S. his name, accepted him into 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 his family, and held him out in the general community as his son, there was never any pretense in the community that matters to the child.5 All of his aunts, uncles, cousins, siblings and family know that D. S. is not the biological son of plaintiff's husband. No one has ever tried to hide this fact. The reason is obvious, it cannot be hidden. Members of the small community in which they live know, and the child will eventually discover that plaintiff' s husband is not D. S.'s father. Therefore, rather than have the child hear it from someone else, they have openly acknowledged their situation.6 The actions of plaintiff and her husband have always been motivated by the best interest ofD. S. As soon as it became apparent that defendant was his father, they encouraged him to become involved in the child's life. While defendant was initially excited about his new found fatherhood, he decided to delay his parental involvement 5 Aside from allowing his name to be placed on the child's birth certificate, the actions of plaintiff's husband have been no different than that of any other loving stepfather. 6 The following exchange took place between the Court and plaintiff's husband at the hearing in this matter: If you were to intervene in this action and to say, listen, Judge, I'm the father, I want to be the father under the law, and I don't want anybody else to be the father, then I would be bound under the law of Pennsylvania to find that you are the father, and (the defendant) would never, ever, be able to come in and say I want to assert rights to this child. Do you understand that? A. Yes, I understand that. On the other hand, if at the conclusion of these proceedings I find that he is the father, then you are bound by that legally; and if, in the future, something happens between you and Amy, you will not have any rights as a father to (D.) Do you understand that? A. Yes. Knowing all of that, do you want to assert your rights as the presumptive father and stop these proceedings, or do you want to proceed and have me decide whether or not he is, in fact, the biological father? I want to proceed, because of when (D) does get older and he is able to make up his own mind, you know, and Jeremy is around, you know, and he tells (D) that he is his father, you know, it's going to screw up (I)'s) mind. (emphasis added). Transcript of proceedings, pp. 35-36. 311 SUPPORT 1999 - DR# 28530 - PACSES 420100973 until some undetermined future date because of opposition from his current romantic interest. Under all the circumstances present in the case at bar, we are satisfied that the equitable doctrine of estoppel does not bar plaintiff from asserting that defendant is the father of her child. We are further satisfied that the evidence conclusively establishes that defendant is the biological father. Therefore, we will enter the order that follows. ORDER OF COURT AND NOW, this 27TM day of JULY, 2001, based upon the evidence presented at trial, we find that defendant is the biological father of plaintiff' s son D. This matter is referred to the Domestic Relations Office for the purpose of holding a conference and recommending an appropriate amount of child support. By the Court, Domestic Relations Office Thomas S. Diehl, Esquire Peter J. Russo, Esquire :sld /s/Edward Guido Edward E. Guido, J. 10