D.J.C. v. K.E. ( 2015 )

J. A01015/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
D.J.C., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1370 WDA 2014
:
K.E. :
Appeal from the Order, July 18, 2014,
in the Court of Common Pleas of Potter County
Civil Division at No. 2014-140
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 6, 2015
Appellant, D.J.C., appeals the order of the Court of Common Pleas of
Potter County that denied his petition for genetic testing to establish
paternity of D.L.V. (“Child”) born in December of 2013. We affirm.
The trial court set forth the pertinent facts as follows:
[D.J.C.] is 53 years of age and is a resident of
419 State Route 19 South, Wellsville, New York. The
Defendant [K.E-V., hereafter “Mother”] is 21 years of
age and presently resides at 1501 State Route 54
South, Shinglehouse, Pennsylvania.
On or before January 25, of 2013, [Mother]
was residing with her then fiancé [E.V.] in
Shinglehouse, Potter County, Pennsylvania.
Apparently a disagreement arose between [E.V.] and
[Mother] to the point that she desired to leave
[E.V.]. [D.J.C.] had performed some excavating
work for [E.V.] and had met [Mother] at that time.
[Mother] was also a friend of [D.J.C.]’s daughter.
Accordingly after discussion with [E.V.], [D.J.C.] and
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[Mother], it was agreed that on January 25, 2013,
[Mother] would come to reside with [D.J.C.] and his
children. Approximately four days after [Mother]
moved to [D.J.C.’s] residence, [D.J.C.] and [Mother]
engaged in sexual relations including intercourse.
They continued to have regular sexual relations up to
two times a day (excluding 5 days) through April 15,
2013. [D.J.C.] testified that they never used
condoms or any other birth control device during the
period of time he was having sexual relations with
[Mother]. From the evidence presented, from the
date that [Mother] moved into [D.J.C.’s] residence
on January 25, 2013, through April 1, 2013,
[Mother] had sexual relations only with [D.J.C.].
However, [Mother] had vacated their residence for
approximately five days near the end of the month of
March of 2013. After five days[,] she returned to the
residence and back into the bed of [D.J.C.].
On or about April 1 through April 15, 2013,
[E.V.] began to regularly visit [Mother] at [D.J.C.’s]
residence. During this period of time[,] [E.V.] would
often take [Mother] for drives in his vehicle where
they would ingest substances and engage in sexual
relations. This apparently continued through about
April 15, 2013 when [Mother] finally removed herself
from [D.J.C.]’s residence with the aid of [E.V.] and
his friends.
[D.J.C.] noticed in April, 2013 that [Mother]
was pregnant. She had previously indicated her
desire to become pregnant but advised [D.J.C.] that
she had been taking her birth control pills. [D.J.C.]
had discovered that in fact she had not been taking
the pills.
[Mother] denies that she was residing
exclusively with [D.J.C.] and suggests that she
regular[ly] had sexual relations with [E.V.], including
at the time the child was conceived. As proof that
[Mother] was residing with [D.J.C.][,] he testified
that on March 30 of 2013, while [Mother] was at
[D.J.C.’s] residence the local dog warden appeared
and served her with a summons due to the fact that
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her dog was running loose. As to [Mother’s] claims
she was not residing at the residence on March 30,
2013, the Court finds her to not be credible in this
regard.
[Mother] conceived the minor child on or about
March 17, 2013. The Court finds that on or about
March 17, 2013 that [Mother]’s sexual relations were
with [D.J.C.] alone and that she did not resume
sexual relations with [E.V.] until the end of March
when she moved out for 4-5 days and then after
April 1, 2013.
According to [D.J.C.]’s daughter, [K.C.] who is
18 years of age[,] she recalls [Mother] moving into
the residence on or about January 25, 2013, and
remembers that [Mother] did leave for
approximately five days near the end of March,
2013, to reside with [E.V.]. After the aforesaid five
days[,] [Mother] returned to [D.J.C.’s] residence and
continued [to] reside there until approximately
April 15, 2013, when she vacated the premises
returning to [E.V.].
[E.V.] and [Mother] are now married, having
been married on December 4, 2013 and presently
have an intact family. [Mother] gave birth to the
[Child] on or about December [of] 2013. [Mother]
listed her present husband [E.V.] as the father of the
minor child on the birth certificate. [E.V.] has also
executed an acknowledgment of paternity. [E.V.]
has been together (excluding the time [Mother]
resided with [D.J.C.]) with [Mother] for
approximately three and one half years. [E.V.]
testified that he loves his daughter, holds the child
out as his own, and financially supports her.
According to [Mother] she moved to [D.J.C.]’s
residence on February 15, 2013, and not on
January 25, 2013. She claims that during the period
of time that the child was conceived that [E.V.]
would come to the residence and they took at least
three rides together where they would have sexual
relations. She does acknowledge that on or about
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March 7, 2013, she had left her residence for
approximately four days and was residing with
[E.V.’s] sister. The Court finds [Mother] is not
credible in her account as to when she had sexual
relations with [E.V.].
[Mother] claims that she was at [D.J.C.’s]
residence for only four weeks and that she had left
on March 7, 2013 and never returned to the
residence. This testimony is inconsistent with that of
[D.J.C.] and his daughter [K.C.]. [Mother] is visually
impaired and has no driver[’s] license. When
residing with [D.J.C.] all transportation for [Mother]
was provided by [D.J.C.]’s children and other th[a]n
the limited times when [Mother] had access to [E.V.]
she was always with [D.J.C.] and h[is] children.
[D.J.C.] recalls that when [Mother] finally left the
residence he had discovered that she had been
smoking marijuana with [E.V.] during the times
when she would take vehicle rides with him and
therefore [D.J.C.] had given her [an] ultimatum. On
the day she finally left the residence, [Mother] was
found with cuts on her legs and [E.V.] told [D.J.C.]
that [Mother] had attempted to harm herself.
Trial court opinion, 7/21/14 at 1-4.
D.J.C. filed a complaint to establish paternity and for genetic testing of
Child. A trial was held on July 3, 2014, and on July 18, 2014, the trial court
issued an order along with findings of fact denying D.J.C.’s petition. The
aforesaid order was docketed on July 21, 2014, and this timely appeal
followed.
D.J.C. argues the trial court erred when it applied the presumption of
paternity. We disagree.
Our standard of review of a trial court’s order related to paternity is
whether the trial court abused its discretion. D.M. v. V.B., 87 A.3d 323,
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327 (Pa.Super. 2014), citing T.E.B. v. C.A.B., 74 A.3d 170, 173 n.1
(Pa.Super. 2013).
In cases where a child is conceived or born during the marriage, that
child is presumed to be the offspring of his or her mother’s husband. Vargo
v. Schwartz, 940 A.2d 459, 463 (Pa.Super. 2007). This is referred to as
the “presumption of paternity.” Id. In Brinkley v. King, 701 A.2d 176,
179 (Pa. 1997) (plurality opinion), our supreme court explained the
presumption of paternity as follows:
[G]enerally, 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 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
irrebutable when a third party seeks to assert
his own paternity as against the husband in an
intact marriage. [Emphasis added.]
The preservation of marriages is the purpose of the presumption of
paternity. See Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999). The
presumption renders blood test results irrelevant unless and until the
presumption is overcome. See Strauser v. Stahr, 726 A.2d 1052, 1054
(Pa. 1999). “[T]he presumption is irrebuttable when a third party seeks to
assert his own paternity as against the husband in an intact marriage.”
CW v. LV, 788 A.2d 1002, 1005 (Pa.Super. 2001).
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The relevant time to examine whether the marriage is intact is at the
time of the challenge to a husband’s paternity. Vargo, 940 A.2d at 463
(Pa.Super. 2007). This is a question for the fact-finder. Id. at 467
(“Whether the family is intact and there is a marriage to preserve are
questions of fact, which, like all questions of fact, fall squarely within the
realm of the fact-finder.”).
The disposition of this matter turns on whether Mother and E.V. had
an intact marriage at the time of the challenge to E.V.’s paternity. The trial
court found that Mother and E.V. were married before the birth of Child and
have remained married. Following the birth of Child, E.V. held himself out
as Child’s father and continues in his role as Child’s father. (Trial court
opinion, 7/21/14 at 10-11.) D.J.C. does not claim, nor has he ever claimed,
that Mother, E.V., and Child do not live together as an intact family, or that
E.V. has not assumed parental responsibility for Child. As a result, the
presumption of paternity is irrebuttable. Vargo, 940 A.2d at 463.
Even if the presumption were rebuttable, D.J.C. failed to rebut the
presumption. The presumption may be overcome by clear and convincing
evidence that either of the following circumstances was true at the time of
conception: the presumptive father was physically incapable of procreation
because of impotency or sterility or the presumptive father had no access to
wife. The trial court pointed out that when Child was conceived, Mother was
living with D.J.C. and having sexual relations with him, however, Mother also
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had “limited contact” with E.V. (Trial court opinion, 7/21/14 at 5.) The
record supports the fact that E.V. was capable of having children at all times
and was in no way sterile. (Notes of testimony, 7/3/14 at 93-95.) The law
is clear that, absent such circumstances, the presumption of paternity
continues to apply. Vargo, supra.
D.J.C. also argues that the trial court erred by failing to apply the
doctrine of paternity by estoppel. In R.W.E. v. A.B.K., 961 A.2d 161, 169
(Pa.Super. 2008) (en banc), this court stated, “[t]he doctrine of paternity
by estoppel has been applied by courts to prevent putative fathers who hold
themselves out as the fathers of their children from subsequently denying
their parentage.” Given the circumstances of the instant case, this court has
no occasion to analyze paternity by estoppel.
Accordingly, for the foregoing reasons, we conclude the trial court
properly applied the presumption of paternity to this matter when it denied
D.J.C.’s petition for genetic testing. See E.W. v. T.S., 916 A.2d 1197, 1204
(Pa.Super. 2007) (affirming the trial court’s application of the presumption
of paternity in a case where the mother and her husband had not lived apart
at any time after their marriage and had never filed a divorce complaint, and
the husband had fulfilled the duties of a father in the family).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2015
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