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Home My WebLink About93-0279 CivilSHERI M. HERD, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : KENT R. ELLENBERGER, : Defendant : NO. 279 SUPPORT 1993 IN RE: DEFENDANT'S POST-TRIAL MOTION BEFORE HOFFER, BAYLEY, and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of April, 1994, after careful consideration of Defendant's post-trial motion, as well as oral argument and briefs presented in the matter, and for the reasons stated in the accompanying Opinion, a new trial is GRANTED. BY THE COURT, Wesley Ole--r~r., 5. -* ' Michael Rundle, Esq. Attorney for Plaintiff Andrew C. Sheely, Esq. Attorney for Defendant :re SHERI M. HERD, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW KENT R. ELLENBERGER, : Defendant : : NO. 279 SUPPORT 1993 IN RE: DEFENDANT,S POST-TRIAL MOTION BEFORE HOFFER BAYLEY and OLER jj. QPINION AND ORDER OF COURT Oler, j. At issue in the present paternity action is a post-trial motion filed by Kent R. Ellenberger (Defendant) following a hearing on Defendant,s motion in limine and subsequent non-jury trial~ in which he was found by the undersigned judge to be the father of Clara C. Herd (Clara). More specifically, Defendant has filed a motion for judgment notwithstanding the verdict, contending: (1) the Court erred in admitting into evidence on behalf of Sheri M. Herd (Plaintiff) the blood tests of Plaintiff, Plaintiff,s husband John Herd (Herd), Clara, and Defendant, in order to prove paternity, where the evidence presented at the motion in limine hearing and at trial was insufficient to overcome the presumption that a child born to a married woman was the child of that z The testimony presented at Defendant,s motion in limine hearing was incorporated into the trial. The balance of trial evidence consisted of an exhibit of Plaintiff admitted over objection. See N.T. 42-45, Defendant,s Motion in Limine Hearing and Nonjury Trial, Herd v. Ellenberger, No. 279 Support 1993 (October 29, 1993) (hereinafter N.T. _ ). No. 279 Support 1993 marriage,2 and (2) the Court erred in admitting such tests, in order to prove paternity, because the evidence on Defendant,s motion in limine and at trial clearly demonstrated that Plaintiff was estopped from denying Herd's paternity.3 For the reasons set forth in this Opinion, a new trial will be granted. The set of circumstances giving rise to the instant action began in April of 1991. At that time Plaintiff, who was not married, was residing at 20 East Green Street, Mechanicsburg, Cumberland County, Pennsylvania, with her mother, father, sister, grandmother, and Dakota Herd, Plaintiff,s five-year-old son.4 In addition, Herd, who is the father of Dakota Herd, had been staying at this residence from time to time.5 Plaintiff and Herd had been involved with each other on and off for a period of six years, becoming engaged at one point, but later breaking it off.6 2 Defendant,s post-trial motion, paragraphs 1-3. The presumption that "a child born to a married woman was the child of that marriage,, was previousl legitimacv..~ ho, .......... y_referred to as t ,. - ~ _ · . . ~ · -~v=~ . . he lllealt m~ -~ , ~ne Legal dlstln ~- L ~ ~resumpt~on of _~ _~. 1 .... ~ un~loren has ~ ....... c~u~ me=ween le~iti~=~ .... ~a~u~e; th~ ~- - ~==n eliminated i~ ~_ ~ ~ -..=~= · -, un~ phrase "~res,,-~=-- "~ commonwealth bv inappropriate expression. John M. v. Paula T., 524 Pa. 306, 312-13 = ~..m~un oI legitimacy., is a~ n.2, 571 A.2d 1380, 1383-84 n.2, cert. denied, 496 U.S. 850 111S. Ct. 140, 112 L. Ed. 2d 107 (1990). , Defendant,s post-trial motions, paragraphs 4-5. N.T. 11. N.T. 26. N.T. 15-16. 2 No. 279 Support 1993 Plaintiff testified that she was "seeing.. Herd in April, 1991.7 Sometime during that month, Plaintiff met Defendant at a bar called Your Place on the Carlisle Pike." Plaintiff was acquainted with Defendant previously, by virtue of Defendant,s friendship with Herd-9 During the course of the evening, Plaintiff became very intoxicated and does not recall leaving the bar.~0 Her next recollection after being in the bar with Defendant is of waking up the following morning in bed with Defendant at his house.~ According to Defendant, he and Plaintiff had sexual intercourse in his truck after they left the bar.~2 Subsequently, Defendant took Plaintiff to her mother,s house, but was unable to arouse Plaintiff, and consequently took her home with him.~3 Plaintiff has no recollection of engaging in sexual relations with Defendant, nor did she have any conversation with Defendant the following morning pertaining to what happened the previous night.~4 N.T. 9. N.T. 10. N.T. 10. N.T. 11. N.T. 11. N.T. 13. N.T. 22. N.T. 11-12. No. 279 Support 1993 Upon returning Plaintiff to her mother,s home the following morning, Defendant was confronted by Herd, who happened to be there-~5 Herd asked Defendant whether anything had happened between him and Plaintiff. Defendant responded negatively, advising that Plaintiff had passed out.~6 Plaintiff testified that during this time period - i.e., April, 1991 -- she also engaged in sexual relations with Herd.~? Additionally, Plaintiff stipulated to the fact that Herd was neither impotent nor sterile.~. Plaintiff and Herd were married in September, 1991.~9 At the time of the marriage, Plaintiff was visibly pregnant, although her pregnancy had not yet been confirmed by a physician.20 In addition, Plaintiff had missed more than one menstrual period prior to the marriage.2~ According to Plaintiff, she never told Herd that the child she was carrying was his, and they had discussed the possibility that something could have happened between her and N.T. 22, 27. N.T. 23, 27. N.T. 12. N.T. 6. N.T. 9. N.T. 9. N.T. 9. No. 279 Support 1993 Defendant, with Herd being "kind of unsure., about the parentage.22 Herd, however, testified that nothing occurred prior to the marriage that would have led him to believe that the child Plaintiff was carrying was not his.23 Herd entered the marriage willing to accept the idea that the child was his.~4 Clara was born in January of 1992.~s According to Plaintiff, Ciara did not resemble Herd or their older son, Dakota,~ but looked exactly like Defendant from the time she was born.~7 Neverthe- less, Herd's name is on Ciara's birth certificate as the father.2, Plaintiff, Herd, and Ciara lived together following Ciara's birth, and Herd provided support, love, and affection for Ciara from the time she was born.29 Additionally, Plaintiff and Herd took the child to the homes of their parents for social functions and on ~2 N.T. 17. Plaintiff,s testimony on this point seemed credible to the Court. N.T. 27, 29. N.T. 29. N.T. 13. N.T. 13. N.T. 18. N.T. 17, 18. N.T. 17, 19, 29. 5 No. 279 Support 1993 h°lidays-3° Plaintiff and Herd treated the child as their own,3~ and Clara was treated as such by their relatives. Ciara refers to Herd as -Daddy..32 In February of 1993, Plaintiff called Defendant.33 This was the first contact between the two since the incident in April, 1991'34 Plaintiff asked Defendant if they had had sex in April, 1991, and Defendant responded affirmatively.35 Herd also spoke with Defendant during this phone conversation and was told that Defendant did indeed have sex with Plaintiff.3~ According to Herd, this was the first occurrence that made him question whether he was Clara's father.37 Plaintiff and Herd separated in March, 1993.38 On March 22, 1993, Plaintiff filed a complaint seeking child support from Defendant.39 Defendant denied paternity at the support N.T. 18, 28, 34. N.T. 34. N.T. 20. N.T. 13. N.T. 24. N.T. 14, 24. N.T. 28. N.T. 27. 38 N.T. 14. 39 See Plaintiff,s complaint for support. 6 No. 279 Support 1993 c°nference'4° Thereafter, Plaintiff filed a petition to compel the parties and Ciara to submit to blood tests, and these were performed after entry of an Order by the Honorable Harold E. Sheely, President Judge, granting the petition.4~ The results of these tests show that the relative probability that Defendant is the father of Ciara is 99.99%.42 Herd also submitted to a blood test which excluded him as the father of Clara.43 Plaintiff listed the case for trial on September 20, 1993.44 On October 15, 1993, Defendant filed a motion in limine, seeking to exclude the results of the blood tests from trial on the basis of the presumption that a child born to a married Woman is the child of that marriage and on the basis of estoppel.45 A hearing on Defendant,s motion in limine, followed by a non-jury trial, was held before the undersigned judge on October 29, 1993. Defendant,s motion in limine, with respect to the admissibility of the blood 40 See Defendant,s pretrial conference statement, page 1. 4~ See Order of Court Herd v. Ellenberger, 279 Support 1993, June 21, 1993. ' 42 Plaintiff,s Exhibit 2 Defendant,s Motion in Limine Hearing and Nonjury Trial, ' Herd v. Ellenberger~ No. 279 Support 1993 (October 29, 1993) (hereinafter Plaintiff s Exhibit ____). Plaintiff,s Exhibit 1. 1993.44 See praecipe for listing case for trial, September 20, See Defendant,s motion in limine. 7 No. 279 Support 1993 tests of Plaintiff, Herd, and Ciara, was denied.46 The testimony taken at the motion in limine hearing, including the blood tests of Herd, Plaintiff, and Ciara, which excluded Herd as the father of Ciara, was incorporated into the trial which followed. The trial Consisted additionally only of the admission, over objection, of the blood tests of Plaintiff, Defendant, and Clara.47 Following the trial, Defendant was found to be the father of Clara.4, From this determination, the present post-trial motion was timely filed. DISCUSSION Judgment n.o.v. It is well settled in Pennsylvania that, in ruling on a motion for judgment notwithstanding the verdict, a court may consider only the evidence supporting the verdict and must give the benefit of the doubt as to every fact to the verdict winner. See Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 596 A.2d 203 (1991), allocatur denied, 530 Pa. 644, 607 A.2d 254 (1992). Moreover, "judgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds would disagree that the verdict was improper... Golibart v. Reamer, 415 Pa. Super. 623, 626, 610 A.2d 56, 58, allocatur denied, N.T. 41. N.T. 43-45. N.T. 45. 8 No. 279 Support 1993 532 Pa. 664, 616 A.2d 985 (1992). The Court mus evidence actually receiv - t consider all i~e6 iii!! i~!! ii!!~ ! o~~~~ii~~iii!~i!i i~!oC.~!~ erroneously 397 Pa. 615, c f clusion does not ... of evidence. Such errors are properly the subject of a motion for new trial.,, Hoffmaster v. County of Allegheny, 121 Pa. Commw. 266 273, 550 A.2d 1023, 1026 (1988). ' However, where sufficient cause exists, a COurt may grant a new trial sua sponte. Getz v. Balliet, 431 Pa. 441, 446, 246 A.2d 108, 110 (1968). "This power may be exercised even in the absence of a motion for a new trial by any party involved... Id. Moreover, "the Court may grant a new trial when a motion for a judgment notwithstanding the Verdict is made, but when such judgment cannot properly be entered... 10 Standard Pennsylvania Practice 2d, S62:2, at 210 (1982). Thus, where the issue is whether evidence was properly admitted at trial, a new trial as opposed to a judgment n.o.v, would be the proper remedy upon a finding of reversible error. Presumption that child born to married Woman is child of marriage. "The presumption of legitimacy is alwa s . point in a contest involvi .... Y the starting ~g a child born during COverture... McCue v. McCue, 413 Pa. SUper. 71, 75, 604 A.2d 738, 740, allocatur 9 No. 279 Support 1993 denied, 531 Pa. 655, 613 A.2d 560 (1992). "The presumption that a child born to a married woman is a child of the marriage, and therefore of the WOman,s husband, is one of the strongest presumptions known to common law.., Id., 604 A.2d at 739-40; John M. v. Paula T., 524 Pa. 306, 571A.2d 1380, cert. denied, 498 U.S. 850, 111 S. Ct. 140, 112 L. Ed. 2d 107 (1990); Scott v. Mershon, 394 Pa. Super. 411, 576 A.2d 67 (1990). Traditionally, this presumption could be rebutted only by proof of facts showing non- access by the husband during the relevant period or the husband,s impotency. Jones v. Trojak, ----_ Pa. -----, ---_, 634 A.2d 201, 206 (1993); see also Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S. Ct. 2333, 2342, 105 L. Ed. 2d 91, 107, rehearing denied, 492 U.S. 937, 110 S. Ct. 22, 106 L. Ed. 2d 634 (1989). Moreover, the presumption can be overcome only by clear and convincing evidence to the contrary. John M. v. Paula T., 524 Pa. 306, 571A.2d 1380, cert. denied, 498 U.S. 850, 111 S. Ct. 140, 112 L. . (1990). Ed 2d 107 A blood test may not be Used to rebut paternity in the first instance. MCCue v. McCue, 413 Pa. Super. 71, 78, 604 A.2d 738, 741, allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992). Only following rebuttal of the presumption that a child is the child of the marriage by clear and convincing evidence does a blood test become relevant to determine parentage. Id. 10 No. 279 Support 1993 In John M. v. Paula T., 524 Pa. 306 denied, 498 U.S. 850_ l~ , _. · 571 A.2d 1380, cert _~ . . ct. 140, 11~ ~ _. Plaintiff filed a petition seek' ~ ~' ~- 2d 107 (1990), the lng custody and SOught to establish through blood tests that he was the biological father of a child born to Paula T. while she was married to Michael T. The Supreme Court held that a third party is precluded from compelling the husband in an intact marriage, where the husband and wife were married at the time of Conception and birth of the child, and had lived together as a family since the child was born, to submit to blood tests to rebut the presumption. Id. at 315, 571 A.2d at 1388. In so holding, the Court recognized the strong state interest in preserving the family: There are other intere this case. besides t sts at stake · and a el hose of a in PP lee-putative ath~ PP~l~nt husband needs and interests F ..... usVlously, the paramount Concern .... o~f~ the Child are o~ ~nere ' ' - family involved here. A Woma~S~_~n short, a have married and lived ~u a man who together as husband and wife, giving birth to and raising four children, have obvious interests in protecting their family from the unwanted intrusion of outsiders (even ones who have had serious relationships with the mother, father or children)· The Commonwealth recognizes and seeks to protect this basic and foundational unit of society, the family, by the presump- tion that a child born to a WOman while she is married is a child of the marriage. Id. at 317-18, 571A.2d at 1386. In a later case, the Superior Court held that the presumption 11 No. 279 Support 1993 precludes an attempt by one of the partners in an intact marriage to assert paternity against a third party to the marriage with the aid of blood tests. Scott v. Mershon, 394 Pa. Super. 411, 576 A.2d 67 (1990). In Scott, Cynthia Scott was married to Ira Lee Scott on April 11, 1987. The child in question was born on August 21, 1987; hence, Cynthia Scott was pregnant when she and Ira Lee Scott were married-49 On January 19, 1989, Cynthia Scott filed a support action against George Mershon, alleging he was the natural father of her child. At the time, Cynthia Scott was still married to and living with Ira Lee Scott. Once again, the Court emphasized the rationale behind the presumption: It has always been well settled in Penns lv nia, as it is now reaffirmed b-- tL _ .Y a- decision, that the ~ ne Jonn M. that the husband is the father of a child born purpose of the presumption in wedlock is to reinforce the strong state interest in the preservation of the family ... which in turn protects the child,s welfare. Id. at 416, 576 A.2d at 70. In the present case, we conclude that Plaintiff has failed for purposes of the rule to OVercome the presumption that Ciara is not the child of Herd by clear and convincing evidence. Initially, we 49 See also Seger v. Seger, 377 Pa. Super. 391, 547 A.2d 424 (1988) (presumption applies to preclude appellee from Using blood tests to disprove apPellant,s paternity in case where appellant and appellee were living together, and were married only after appellee informed appellant she was pregnant where appellant raised and supported the child.). , 12 No. 279 Support 1993 COnclude, based on the facts in Scott v. Mershon, 394 Pa. Super. 411, 576 A.2d 67 (1990), that the presumption that a child born to a married Woman is the child of the marria child of her husban ..... ge, and thus also the d, Qwp~les to the facts as existing in this case, even though Plaintiff and Herd were no the child was COnceived. So Plaintiff -~. ~ t married at the time ~ulPUlated to the fact that ~r~hw~s~ot impOtent, and Plaintiff was not inaccessi . . ~ uxme o2 Conception; in f __ ble to ham, acT, ther . Plaintiff that sh~ ~ .. . e was testimony by !!~~ °~u~°~ePttili~~u Aa~drown fii~ii!ngw~ilil~yd, ~!~~ii!!i!eii~l~darh°e~d S~S PP rt, love, and affection fo d Herd provided r the child. Clara knows Herd as her father, and to disrupt this relationship will in all likelihood bring harm and confusion to her. For these reasons, Plaintiff has failed to overcome the presumption that Ciara is not the child of Herd, and, as such, blood tests are not relevant in determining paternity. Therefore, the Court erred in this regard in admitting them into evidence. Estoppel. Even were we to hold that Plaintiff had OVercome the presumption that Clara was the child of Herd, Plaintiff still may be estopped from challenging Clara's paternity. The doctrine so See also Seger v. Seger, 377 Pa. Super. 391, 547 A.2d 424 (1988). 13 No. 279 Support 1993 of estoppel applied in the context of a paternity suit has a long history in Pennsylvania. Gulla v. Fitzpatrick, 408 Pa. Super. 269, 277, 596 A.2d 851, 855 (1991). This doctrine was recently discussed by our Supreme Court in John M. v. Paula T., 524 Pa. 306, 318, 571A.2d 1350, cert. denied, 498 U.S. 850, 111S. Ct. 140, 112 L. Ed. 2d 107 (1990): We see the Commonwealth/family interests highlighted by the "estoppel.. cases. In these C~ses, it is recognized that, under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of her chil cases indicate t~ _~d .... These est . operative_ h~A~ ~QL where the ~--~ ~°PP~1 for the law will not permit a person in these ~ -=~ De irrelevant, situations to challenge the status which he or she previously accepted. In general, a mother cannot hold out her husband as the father of her child and, upon separation, charge a different man with paternity. Christianson v. Ely, 390 Pa. Super. 398, 402, 568 A.2d 961, 963 (1990). Only when the doctrine of estoppel does not apply may the mother proceed with a paternity claim against a putative father with the aid of a blood test. Jones v. Trojak, ~ Pa. -----, 634 A.2d 201, 206 (1993). In Seger v. Seger, 377 Pa. Super. 391, case with facts remarkably similar to those 547 A.2d 424 (1988), a of the instant action, the Court applied the principle of estoppel to preclude the mother from Using blood tests to disprove the husband,s paternity of a 14 No. 279 Support 1993 child born to them when married, even though the tests had been taken and showed that the husband was not the child,s biological father. In Seger, the parties lived together out of wedlock when the mother informed the man that she was pregnant and that he was the father. The parties subsequently married before the child was born. They lived together as a family for four years and then separated. Thereafter, the mother sought to disprove the husband,s paternity while attempting to deny him cUstody/visitation rights. In holding that the mother was estopped from Using blood tests to disprove her husband,s paternity, the Court wrote: [I]t has been stated in numerous cases that a father is estopped fro . . ~ng delay in raisi~%d~Ylng paternit b ~ssumina h~ ..... ~- ~. ~ ~ "~ aware ~ - -~ ~u all ~ his acceptance =_~ ~ non-paternity) an · . t'~u SUpport of the-~hild uur~ng that t~me c~ father,s Conduc~ ! ~atlons omitted~. ~ d assertion of ~ works an estopnel' __ ~.a matter t~__ .non-paternity i- = un n~s would ~r,~Tff~s no principle %~ t support .... u ..... .u une Same ..... = .~ law Which T=un as here, whe-- ~PP±~catlon to a Iather h~ =_ "~ ~ responsible = - xn~orms the marries him, assigns zor the pregnancy, paternity to him on the birth certificate, permits him to support the child and assume the parental duties for years, and only upon paternity, separation repudiates his Id. at 397, 547 A.2d at'427. In Gulla v. Fitzpatrick, 408 Pa. Super. 269, 596 A.2d. 851 (1991), the Court held that a mother was estopped from challenging the paternity of a man whom she did not marry but who she said was 15 No. 279 Support 1993 the father of her child. She held this man out to the world as the father of her child and accepted financial support from him for the child. Furthermore, the purported father developed a close relationship with the child. The Court observed that the number of months or years that the party holds out the other as t not determinative. Id. ~ ..... he father is =~ zo~, 596 A.2d at 858. "Rather, it is the nature of the conduct and the effect o child and their relational, n the father and the attention. Eve-- nip that is the proper focus of ~ such case must L . our ne Oecided af of all of th^ = - ter a close an ~,o~ = ~acts a~ -:- . al=~s · . "~ =zrcumstances, with the len th of time involved being only one Circumstance to be Consider ~ In the present case, when Plaintiff ma .... ed. Id. une premise that the c 'e ~rleo Herd, he accepted ~i~C ~ was carrying was his. Plaintiff allowed Herd's name t placed on the ' . . Clara,s father, lived with Herd after Ciara,~r~h..certlflcate as support for Ciar ~ ...... ~ Dlrth, and accepted a ~u~,, nero. In addition relationship with C' r~ ..... ' etd has developed a la__, provlolng her with love and affection, and she refers to him as "Daddy... Plaintiff held out Herd as Clara's father to the World, not calling into question the child,s paternity until February of 1993, OVer a year after the child was born, even though she testified that the child looked exactly like Defendant from the time of her birth. It was only after Plaintiff and Herd separated that Plaintiff began this action for support. 16 No. 279 Support 1993 challenging the status which she -revi ~ estopped For these reasons, we find that Plaintiff is from ous±y acce te tests are deemA= . ~ P d, and the blood =u lrre±evant. Thus, the Court also erred in this regard in admitting into evidence the blood tests in order to determine paternity. For the reasons stated in the foregoing Opinion, the following Order will be entered: ORDER OF COURT AND NOW, this i~ ~ day of April, 1994, after careful consideration of Defendant,s post-trial motion, as well as oral argument and briefs presented in the matter, and for the reasons stated in the accompanying Opinion, a new trial is GRANTED. BY THE COURT, ~s/ J. Wesle Oler Jr. J- Wesley Oler, Jr., j. Michael Rundle, Esq. Attorney for Plaintiff Andrew C. Sheely, Esq. Attorney for Defendant :rc 17