N.A.H. v. J.S. ( 2018 )

J-S08043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.A.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.S. :
:
Appellant : No. 1537 WDA 2017
Appeal from the Order Entered September 25, 2017
in the Court of Common Pleas of Fayette County Civil Division at No(s):
1398 of 2017, G.D.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 16, 2018
Appellant, J.S. (“Mother”), files this appeal from the Order dated
September 21, 2017, and entered September 25, 2017,1 in the Fayette County
Court of Common Pleas, granting the petition of Appellee, N.A.H. (“Putative
Father”), to establish paternity and for genetic testing as to E.B.K. (“Child”),
born in May of 2017.2 After review, we affirm the trial court’s order.
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1 The subject order was dated September 21, 2017. However, the clerk did
not provide notice pursuant to Pa.R.C.P. 236(b) until September 25, 2017.
Our appellate rules designate the date of entry of an order as “the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b).
Further, our Supreme Court has held that “an order is not appealable until it
is entered on the docket with the required notation that appropriate notice
has been given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735
A.2d 113, 115 (1999).
2 “‘This Court accepts immediate appeals from orders directing or denying
genetic testing to determine paternity.’” Barr v. Bartolo, 927 A.2d 635,
____________________________________
* Former Justice specially assigned to the Superior Court.
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The trial court summarized the factual history as follows:
FACTUAL BACKGROUND
N.A.H. is a 27[-]year[-]old male who resided with his female
friend J.S. “off and on a month or two trying to conceive in a new
modern way [. . .via] an at home insemination kit that [Mother]
had ordered off the Internet [. . .using] a syringe that had a new
design where it wouldn’t damage the semen for conception.”
Roughly a dozen times N.A.H. provided samples of his semen for
use in the “Mosie” kit to inseminate Mother. For the act of
insemination, N.A.H. would be present in the house and hand his
sperm to Mother or would leave his sperm beside Mother’s bed in
an attempt to make it “less awkward.” N.A.H. testified that
Mother communicated about the pregnancy by telling him in
person and by texting a picture of the positive test. N.A.H. further
testified that during the first trimester Mother would text message
him calling him “Poppy and Dad.” To his knowledge, N.A.H. did
not believe that Mother had used any other semen to conceive the
child. Once Mother became pregnant “everything started being
denied.”
In response to the question about his understanding of the
arrangement, N.A.H. testified that he and Mother “would more or
less be the new modern family. With her being gay and me being
gay, we figured that this would be the best way that we can start
a new generation as surrounding this child with love from her
family and my family.”
Following a vacation with her “assumed to be wife [P.K.],”
Mother served [N.A.H.] with “more or less a pre-restraining Order
to not come in contact with her.” N.A.H. elaborated what he
described as an “Order” was actually a letter sent regular mail,
FedEx mail, and certified mail from Mother’s attorney that included
a Notice of Defiant Trespass and directed him to contact Mother’s
attorney if he had any questions or legal issues with Mother.
N.A.H. testified that Mother and P.K. became engaged to be
married during that vacation, after Mother was already pregnant,
____________________________________________
639-40 (Pa.Super. 2007) (quoting Buccieri v. Campagna, 889 A.2d 1220,
1220 n.1 (Pa.Super. 2005).
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and that P.K. and Mother were not married at the time of
conception.
N.A.H., Mother, and P.K. decided to meet in an attorney’s
office to “sign some paperwork to have everything set in sand
regarding the birth of the child.” It was at this meeting that N.A.H.
learned the proposal excluded him from the child’s life except by
permission of Mother and that he would not be “known as dad” to
the child. On this basis, and with his own counsel representing
his interest, N.A.H. refused to execute the document.
Under cross-examination, N.A.H. explained that he and
Mother were friends for several years, that he moved out of state
and upon returning asked whether Mother was still interested in
starting a family with P.K. N.A.H. and Mother had previously
talked about starting a family ever since they had become friends.
In 2016, aware that Mother was exploring options to conceive,
N.A.H. testified that she “chose” him because she knew him.
N.A.H. testified that he, Mother, and P.K. discussed the family
dynamic and that they would be the “mothers and [he] was going
to be father.”
N.A.H. testified that based on the discussion with Mother
and P.K. that they “were going to have shared [the child] and work
with the child and do what’s right for the child” and that he “was
going to be in the child’s life [sic].” Based upon those discussions,
N.A.H. agreed to provide his sperm.
N.A.H. admitted they discussed P.K. adopting the child, but
they “never moved forward on that.” N.A.H. denied agreeing to
terminate his parental rights upon the child’s birth. N.A.H.,
Mother, and P.K. “attempted” to draft a three[-]party contract
between donor, recipient, and recipient’s partner, but it was never
“finalized or finished.” Counsel for Mother then inquired about the
parties’ plan to get the document notarized, but N.A.H. testified
that it was not notarized because the drafting was never finished.
N.A.H. further testified that the three wanted to keep the
pregnancy a secret but did not intend to keep secret N.A.H. as
being the child’s father.
N.A.H. and Mother never signed a written contract.
According to N.A.H., the understanding between him and Mother
and P.K. was that they “were going to be the mothers and the
child would more or less remain at their property, their residence,
as primary. [N.A.H.] being the father, [he] was going to be in the
child’s life and still have [his] legal rights over the child to [. . .]
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have vacations with as well as them, have holidays, have time to
actually spend with the child and actually help grow the child.”
Mother also testified at the time of hearing[,] stating that
she and N.A.H. were friends for several years when he left her a
voicemail one day asking whether she still wanted to have a baby
and offering to help her. Mother and P.K. had been exploring
options to conceive including the Cryobank in Pittsburgh, but felt
that “it was not as personable.” Mother wanted to “have that
connection” with P.K. and did not “want to do it at the doctor’s
office” nor did she “feel like shipping it through the mail was a
great idea.” Mother also considered adoption.
To proceed with using N.A.H.’s sperm, Mother found an
insemination kit online that had “a higher success rate because of
the design” and that she could use with the assistance of P.K. and
she did actually use the kit eight times to conceive. Mother did
not watch N.A.H. make the donation of sperm.
Mother testified that she and P.K. were to be the “parents
of the child” and that the discussion was that N.A.H. would
“relinquish his parental rights and be involved in the child’s life.”
Mother stated that N.A.H. agreed that P.K. could adopt the child.
Mother further testified that the three agreed that she and P.K.
would be financially responsible for the child and they would not
accept any support from N.A.H. Mother admitted that they agreed
to N.A.H. being involved in the child’s life and would know the
child.
Mother denied that N.A.H. lived with her, rather stating he
would spend a few nights when he was leaving his sperm
donations. Mother married P.K. in March 2017, two months prior
to the child’s birth. N.A.H. was not present for the birth and was
not included on any paperwork identifying him as the father.
Mother testified it was never her intention to include N.A.H. in the
pregnancy.
With regards to a written contract, Mother explained the
three were drafting the agreement, but they were “all working a
lot” and were not rushing it. Mother testified that she and N.A.H.
“finalized” the agreement and discussed using a notary but did not
want to use one who knew her family. Mother said the agreement
was never signed and taken to a notary because they “just
couldn’t agree on a time and place.”
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Regarding prenatal doctor’s appointments, Mother admitted
that N.A.H. wanted to go[,] but she was not comfortable and she
wanted only P.K. to attend. Mother stated that N.A.H. changed
his phone number and she was only able to reach him on Facebook
during a month and a half of the pregnancy, but N.A.H. explained
this was because he updated his number by changing it from an
Arkansas number to Pennsylvania.
Mother testified that she and N.A.H. discussed that he would
relinquish his rights so that P.K. could adopt the baby but that she
and P.K. wanted N.A.H. to be involved in the child’s life. Mother
did not deny that N.A.H. is the father of the child. Mother identified
the child as E.B.K. with a date of birth of ….
Based upon this testimony and evidence, this [c]ourt made
a factual finding that “there [was] no meeting of the minds” and
“that there was no oral agreement because there certainly is
evidence according to [N.A.H.] that [this [c]ourt believed] that
there was no final agreement reached.” Upon this determination,
the [c]ourt granted the Petition for Genetic Testing.
Trial Court Opinion (“T.C.O.”), 11/7/17, at 2-6 (citations to record omitted)
(some brackets in original).
Putative Father filed a Complaint to Establish Paternity and for Genetic
Testing on June 29, 2017. The trial court held a hearing on September 21,
2017. Both Putative Father and Mother were represented by counsel and
testified on their own behalf.3 Putative Father additionally presented Exhibits
1 and 2, which were admitted without objection.4 As previously stated, by
____________________________________________
3 Mother filed Preliminary Objections to Putative Father’s Complaint on July
18, 2017. At the hearing on September 21, 2017, counsel for Mother
amended the Preliminary Objections to be an Answer to the Complaint. Notes
of Testimony (“N.T.”), 9/21/17, at 2-3, 42.
4 Exhibits 1 and 2 are not included with the certified record, but are explained
in detail on the record and are not dispositive of Mother’s issues on appeal.
N.T. at 25-28.
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order dated September 21, 2017, and entered September 25, 2017, the trial
court granted Putative Father’s Petition to Establish Paternity and for Genetic
Testing. On October 19, 2017, Mother, through counsel, filed a notice of
appeal, along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). Subsequently, by order dated
and entered October 30, 2017, a stay pending appeal was granted.
On appeal, Mother raises the following issues for our review:
A. Did the honorable trial court err and abuse its discretion by
finding that there was no enforceable verbal contract between the
parties relating to sperm donation[?]
B. Did the honorable trial court err and abuse its discretion by
entering an order for genetic testing that is contrary to applicable
Pennsylvania law finding that sperm donors are not parents with
standing in custody actions[?]
C. Did the honorable trial court err by finding that the Plaintiff
has legal standing in a custody action[?]
Mother’s Brief at 5 (unpaginated) (unnecessary capitalization omitted).
We review a trial court’s order with regard to paternity for an abuse of
discretion or error of law. Vargo v. Schwartz, 940 A.2d 459, 462 (Pa.Super.
2007); see also D.M. v. V.B., 87 A.3d 323, 327 (Pa.Super. 2014) (citing
T.E.B. v. C.A.B., 74 A.3d 170, 173 n.1 (Pa.Super. 2013); Barr v. Bartolo,
927 A.2d 635, 639 (Pa.Super. 2007). With regard to this standard, we have
stated:
An abuse of discretion exists if the trial court has overridden or
misapplied the law, or if there is insufficient evidence to sustain
the order. Moreover, resolution of factual issues is for the trial
court, and a reviewing court will not disturb the trial court's
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findings if they are supported by competent evidence. It is not
enough [for reversal] that we, if sitting as a trial court, may have
made a different finding.
Vargo, 940 A.2d at 462 (citing Doran v. Doran, 820 A.2d 1279, 1282
(Pa.Super. 2003)) (brackets in original).
In her first issue, Mother asserts error on the part of the trial court for
failing to find a valid oral contract for sperm donation. Mother’s Brief at 6
(unpaginated). Generally,
[a]n agreement is an enforceable contract wherein the parties
intended to conclude a binding agreement and the essential terms
of that agreement are certain enough to provide the basis for
providing an appropriate remedy. If the essential terms of the
agreement are so uncertain that there is no basis for determining
whether the agreement has been kept or broken, there is not an
enforceable contract.
United Envtl. Grp., Inc. v. GKK McKnight, LP, 176 A.3d 946, 963
(Pa.Super. 2017). Further, we have stated:
“[i]n the case of a disputed oral contract, what was said and done
by the parties as well as what was intended by what was said and
done by them are questions of fact.” United Coal v. Hawley Fuel
Coal, Inc., [ ] 525 A.2d 741, 742 ([Pa.Super.] 1987) (quoting
Solomon v. Luria, [ ] 246 A.2d 435, 438 ([Pa.Super.] 1968)).
Yaros v. Trustees of Univ. of Pennsylvania, 742 A.2d 1118, 1122
(Pa.Super. 1999). Moreover,
[t]his court is bound by the trial court’s findings of fact, unless
those findings are not based on competent evidence. Thatcher's
Drug Store v. Consolidated Supermarkets, Inc., 535 Pa. 469,
477, 636 A.2d 156, 160 (1994). Absent an abuse of discretion,
we are bound by the trial court’s assessment of the credibility of
the parties and witnesses. Id. However, the trial court’s
conclusions of law are not binding on an appellate court whose
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duty it is to determine whether there was a proper application of
law to the facts by the trial court. Id.GMH Associates, Inc. v. Prudential Realty Group, 752 A.2d 889, 898
(Pa.Super. 2000).
In Ferguson v. McKiernan, 596 Pa. 78, 97–98, 940 A.2d 1236, 1248
(2007), the Pennsylvania Supreme Court recognized the enforceability of an
oral contract for sperm donation. Critically, in Ferguson, the parties
expressed “a mutual intention to preserve all of the trappings of a
conventional sperm donation, including formation of a binding agreement.”
Id. at 95, 940 A.2d at 1246. The donor agreed to provide his sperm and not
seek visitation, and, in exchange, the donee would not seek financial support.
Id. at 81-82, 1238. As summarized by the Court,
Former paramours Joel McKiernan (Sperm Donor) and Ivonne
Ferguson (Mother) agreed that Sperm Donor would furnish his
sperm in an arrangement that, by design, would feature all the
hallmarks of an anonymous sperm donation: it would be carried
out in a clinical setting; Sperm Donor’s role in the conception
would remain confidential; and neither would Sperm Donor seek
visitation nor would Mother demand from him any support,
financial or otherwise. At no time prior to conception, during
Mother’s pregnancy, or after the birth of the resultant twins did
either party behave inconsistently with this agreement, until
approximately five years after the twins’ birth, when Mother filed
a motion seeking child support from Sperm Donor. . . .
Id. Therefore, as the parties formed a binding agreement, the Court held
such agreement enforceable, stating, “. . . we hold that the agreement found
by the trial court to have been bindingly formed, which the trial court deemed
nevertheless unenforceable is, in fact, enforceable.” Id. at 98, 1248.
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In the case sub judice, the trial court found that Putative Father did not
intend to forgo his parental rights. T.C.O. at 7. The court reasoned:
The [c]ourt was presented with no credible testimony that
N.A.H. had agreed to relinquish his parental rights or that he was
not the intended father of the child. Mother requested N.A.H. to
terminate his legal connection to the child in a meeting in her
attorney’s office and he refused to do so. N.A.H. testified credibly
that he intended for himself, Mother, and P.K. to be the “new
modern family” with Mother and P.K. serving as the child’s
mothers and he the child’s father. N.A.H.’s intention, as believed
by this [c]ourt, was evidenced by his testimony that he planned
to serve as father in the child’s life and envisioned future holidays,
vacations, helping “grow” the child, and spending time with her.
By her responsive pleadings and testimony, Mother is
requesting this court to find N.A.H. acted only as a sperm donor
and cites Ferguson v. McKiernan, [596 Pa. 78,] 940 A.2d 1236([]2007)[,] as controlling precedent regarding the enforceability
of oral agreements for sperm donation. However, Ferguson is
not controlling in a situation such as this, when as a factual
determination, this [c]ourt has found that no oral agreement as
entered between the parties. As counsel for Mother argued in
closing, “[t]here was an attempt to validify (sic) this agreement,
these terms, to writing.” The alleged agreement never
manifested, rather remained only in negotiations. This conclusion
is evidenced by the testimony throughout referring to N.A.H. or
Mother’s “understanding” of the agreement, or the “discussions”
between the parties best highlighted by N.A.H.’s description as the
agreement being set in “sand.”
In support of this [c]ourt’s conclusion that no oral
agreement existed to find N.A.H. acted only as a sperm donor, the
attempt by Mother to render her alleged agreement to writing to
effectuate the relinquishment of rights to the child was specifically
denied by N.A.H. in person and in the presence of each of their
attorneys. Mother’s testimony that the agreement was not
executed because she and N.A.H. were “working a lot” or that they
could not agree on a notary to witness their signature is not
credible and was not believed by this [c]ourt. Accordingly, this
[c]ourt has found as a factual determination that Mother and
N.A.H. had “no meeting of the minds” to sever his paternal
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relationship with the child and as such, will not “write the contract
for the parties.”
Id. at 7-8 (citations to record omitted).
Mother argues that a sperm donor and a recipient may enter into an
enforceable oral contract. Mother’s Brief at 6 (unpaginated). In doing so,
Mother relies on Ferguson and asserts that, in the instant matter, “the record
reflects the intention and agreement of the parties prior to the act of
insemination.” Mother’s Brief at 6. She suggests that despite having entered
into an agreement prior to conception, Putative Father later changed his mind.
Id. at 10, 14. Mother concludes:
N.A.H. and J.S. entered into an enforceable oral contract
wherein N.A.H. would donate his sperm to J.S. for the purpose of
at[-]home artificial insemination. Additionally, the parties agreed
that N.A.H. would not be responsible for child support of any
child/ren conceived by J.S., that J.S. and her wife, P.K. would be
the Mothers of the child/ren and that P.K. would adopt any
child/ren that would be born to J.S. J.S. chose to use sperm from
N.A.H. as she wanted to know the donor, his background and
history and to be able to have any resulting child/ren know the
donor. The resulting agreement between the parties, despite it’s
[sic] lack of reduction to writing, remains an enforceable
agreement. It is clear that N.A.H. was intended to be a sperm
donor without any rights to child custody of any resulting
child/ren, despite his change in position at a later date. . . .
Id. at 14. We disagree, for upon review of the certified record, we discern no
abuse of discretion with regard to the trial court’s determination that there
had been no enforceable oral contract for sperm donation. The record supports
its finding that there was no meeting of the minds to enter into such an
agreement when Putative Father provided his sperm.
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To the contrary, Putative Father testified he desires to be in Child’s life
and support Child financially. N.T. at 10. According to Putative Father, the
parties’ intent was to raise Child together, with Mother and her now-wife as
the mothers and with him as the father. Id. at 6, 18. He explained his
understanding as follows:
Q. What was your understanding, as you understood it, with [Mother]
as to what would happen once the child was born?
A. That we would more or less be the new new modern family. With
her being gay and me being gay, we figured that this would be the best
way that we can start a new generation as surrounding this child with
love from her family and my family.
Q. Is was your belief that she intended to raise the child with you?
A. Yes.
Id. at 6. In support thereof, Putative Father indicated that Mother referred to
him as “Dad and Poppy.” Id. at 10.
On cross-examination, Father testified that neither party intended to
bring an action for child support “because we were going to have shared [sic]
and work with the child and do what’s right for the child.” Id. at 19. Although
he acknowledged he had agreed that Child would take Mother’s now-wife’s
last name and that the prospect of adoption had been discussed, Putative
Father expressed that the parties “never moved forward on that.” Id. at 18-
19, 21. There was never any agreement that he would relinquish his parental
rights. Id. at 19. Rather, as Putative Father described:
[Mother and her partner] were going to be the mothers and the
child would more or less remain at their property, their residence,
as primary. Me being the father, I was going to be in the child’s
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life and still have my legal rights over the child to, you know, have
vacations with [me] as well as them, have holidays, have time to
actually spend with the child and actually help grow the child.
Id. at 29.
Although Putative Father conceded that he and Mother worked on and
attempted to prepare a written agreement, he stated that such document was
“never finalized or finished.” Id. at 22-23. In addition, Putative Father
confirmed that an agreement ultimately presented to him by counsel for
Mother, which provided for his participation in Child’s life “by permission basis
only” and where he was not known as Child’s father, did not “conform to what
[his] expectations of the relationship to [his] child was going to be[.]”5 Id. at
9-10.
Conversely, Mother testified that she, her partner and Putative Father
discussed adoption and agreed that while Putative Father would “be involved
in the child’s life[,]” Mother and her partner would “be the parents of the
child.” Id. at 35-36, 40. Significantly, Mother admitted that she told Putative
Father he could still see his child “because we wanted him to be involved in
her life” and wanted her “to have a male figure in her life.” Id. at 40.
Moreover, Mother stated that the attempted written agreement, although not
signed or notarized, was in fact finalized. Id. at 38. Importantly, in response
to questioning from the trial court, Mother did not dispute that Putative Father
is Child’s father. Id. at 41.
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5 Putative Father did not sign this agreement. N.T. at 9.
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In light of the foregoing, we find the trial court was within its discretion
to accept Putative Father’s testimony and conclude that there was no
enforceable oral contract for sperm donation. As we discern no abuse of
discretion or error of law with regard to the trial court’s determinations, we do
not disturb them. Mother’s first claim, therefore, fails.
Next, we examine Mother’s second and third issues. In her second
issue, Mother appears to suggest that Putative Father was a sperm donor
pursuant an enforceable contract, and, therefore, not a parent.6 Mother’s
Brief at 14 (unpaginated). However, she has failed to preserve this challenge
in that she presents no argument or discussion supported by citation to
relevant legal authority related thereto in her appellate brief. Instead, Mother
merely restates her second claimed error without further comment. In her
third issue, Mother attempts to raise a challenge on the basis of her marriage
prior to Child’s birth.7 Id. at 15. While she sets forth a single-paragraph
argument in support of this claim in her brief, Mother again does not provide
citation to relevant legal authority therein. As such, we find that Mother has
waived her second and third issues, and we, therefore, will not address them.
See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011), appeal denied, 611
____________________________________________
6 We recognize that Mother’s second argument is closely related to her first
argument.
7 While Mother raised this issue in her Preliminary Objections to Putative
Father’s Complaint, See Defendant’s Preliminary Objections To Plaintiff’s
Complaint, 7/18/17, at ¶¶5, 6, which was amended to an Answer, N.T. at 42,
Mother failed to address or raise this issue further at the hearing.
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Pa. 643, 24 A.3d 364 (2011) (quoting In re A.C., 991 A.2d 884, 897
(Pa.Super. 2010)) (“[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is waived.”); see
also In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017).
For the foregoing reasons, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2018
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