J.D.S. v. A.R.W. ( 2014 )

J-S72044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.D.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.R.W.,
Appellant No. 1247 WDA 2014
Appeal from the Order dated July 1, 2014,
in the Court of Common Pleas of Blair County,
Domestic Relations, at No(s): DR 00085-2014,
Pacses #011114503
BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 25, 2014
A.R.W. (Mother) appeals from the order dated July 1, 2014, which
directed that Mother’s former paramour, J.D.S. (Paramour), was entitled to
paternity testing. After careful review, we reverse.
The instant matter relates to Mother’s child, A.L.S. (Child), born in
December of 2013. At the time Child was conceived, Mother was engaging
in a sexual relationship with both Paramour and another man, D.S.
(Husband). After Child was conceived, but before Child was born, Mother
and Paramour ended their relationship, and Mother and Husband married.
Mother and Husband had two other children prior to Child, and all five of
them now reside together as an intact family.
*
Retired Senior Judge specially assigned to the Superior Court.
J-S72044-14
On February 26, 2014, Paramour filed pro se a Complaint to Establish
Paternity and for Genetic Testing, in which he requested that a paternity test
be performed to determine whether he was the biological father of Child.
Argument on Petitioner’s complaint was heard on April 14, 2014. Following
argument, the trial court issued an order, dated July 1, 2014, in which it
concluded that Paramour was entitled to a paternity test pursuant to 23
Pa.C.S. § 4343. Order, 7/1/2014, at 1-2. In reaching this decision, the
court relied on Mother’s statement during a prior protection from abuse
(PFA) hearing against Paramour. Id. at 2. During the PFA hearing, which
took place on August 29, 2013, Mother stated that Paramour was Child’s
father. N.T., 8/29/2013, at 5.
Mother filed a notice of appeal on July 29, 2014.1 However, Mother
failed to file a concise statement of errors complained of on appeal at the
same time as her notice of appeal, as required by Pa.R.A.P. 1925(a)(2)(i).
Mother filed an “Amendment to Notice of Appeal” on August 7, 2014, which
included a concise statement.
Mother now raises the following issue for our review.
The question on appeal is whether the trial judge erred in
applying 23 PA C.S.A. § 4343 in this case by ordering blood tests
to establish paternity when the child in question was born during
wedlock; when the family (mother, child and
1
“‘This Court accepts immediate appeals from orders directing or denying
genetic testing to determine paternity.’” Barr v. Bartolo, 927 A.2d 635,
639-40 (Pa. Super. 2007) (quoting Buccieri v. Campagna, 889 A.2d 1220,
1220 n.1 (Pa. Super. 2005)).
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husband/presumptive father) are in an intact family; and, when
no evidence was presented to overcome the presumption that
the child in question is the child of the husband.
Mother’s Brief at 4.
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,
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 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. This Court has explained the presumption
in the following manner.
The presumption of paternity, i.e., the presumption that a
child conceived or born during a marriage is a child of the
marriage, has been described by our Supreme Court as one of
the strongest presumptions known to the law. The policy
underlying the presumption is the preservation of marriages.
Accordingly, our Supreme Court has held that the presumption
of paternity applies only where the underlying policy to preserve
marriages would be advanced by application of the presumption.
When there is no longer an intact family or a marriage to
preserve, then the presumption of paternity is not applicable.
The presumption of paternity is unrebuttable when, at the
time the husband's paternity is challenged, mother, her
husband, and the child comprise an intact family wherein the
husband has assumed parental responsibilities for the
child. Under other circumstances, 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, i.e., the husband, was physically incapable
of procreation because of impotency or sterility, or the
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presumptive father had no access to his wife, i.e., the spouses
were physically separated and thus were unable to have had
sexual relations. In Pennsylvania, impotency/sterility and non-
access constitute the only ways to rebut the presumption of
paternity. Notably, blood tests cannot be offered to rebut the
presumption of paternity. A number of dissenting voices
notwithstanding, it remains the law of this Commonwealth that
[a] court may order blood tests to determine paternity only
when the presumption of paternity has been overcome by proof
of either impotency/sterility or non-access.
Id. at 463-64 (citations, quotation marks, and footnote omitted).
Instantly, Mother contends that Paramour’s request for a paternity test
is barred by the presumption of paternity. Mother’s Brief at at 7-10. We
agree.
It is undisputed that Child was born during the marriage of Mother and
Husband. As a result, it was Paramour’s duty to allege facts that, if proven
at an evidentiary hearing, would overcome the presumption. He has failed
to do so here. Paramour does not claim, nor has he ever claimed, that
Mother, Husband, and Child, do not live together as an intact family, or that
Husband has not assumed parental responsibility for Child. As a result, the
presumption of paternity is unrebuttable. Vargo, 940 A.2d at 463. Even if
the presumption were rebuttable, Paramour has failed to aver that Husband
was impotent or lacked access to Mother during the time Child was
conceived. The law is clear that, absent such circumstances, the
presumption of paternity continues to apply. Id.
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Accordingly, because we conclude that the trial court misapplied the
law by concluding that Paramour was entitled to a paternity test, we reverse
the order of the trial court.2
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
2
Because we reverse on the grounds that Paramour was unable to
overcome the presumption of paternity, we need not address Mother’s
argument that the trial court erred by applying 23 Pa.C.S. § 4343 to the
present case because that statute applies only when a child is born outside
of wedlock.
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