J.J. v. M.C. & D.T. ( 2015 )


Menu:
  • J-A17044-14
    J-A17045-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    J.J.                                             IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    M.C. AND D.T.
    Appeal of M.C.                                         No. 412 EDA 2014
    Appeal from the Order January 27, 2014
    In the Court of Common Pleas of Delaware County
    Civil Division at No(s): 12-09900
    J.J.                                             IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    M.C. AND D.T.
    Appeal of D.T.                                         No. 416 EDA 2014
    Appeal from the Order January 27, 2014
    In the Court of Common Pleas of Delaware County
    Civil Division at No(s): 12-0990
    BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
    MEMORANDUM BY PANELLA, J.                          FILED JANUARY 09, 2015
    In these consolidated appeals,1 we consider whether the circumstances
    of an extramarital affair are sufficient to find that an existing marriage is not
    ____________________________________________
    1
    We consolidated these appeals sua sponte.
    J-A17044-14
    J-A17045-14
    an “intact marriage” for purposes of the longstanding common law
    presumption of paternity. The trial court, the Honorable Barry C. Dozor,
    Court of Common Pleas of Delaware County, concluded that the presumption
    is inapplicable as there was no intact marriage at the time of the challenge
    to husband’s paternity. Finding no abuse of discretion, we affirm.
    For ease of reading, M.C. is the wife; D.T. is the husband; and J.J. is
    the paramour. M.C. and D.T. are legally married and have been since June
    21, 2007. P.T. was born September, 2012, and D.T. is listed as the father on
    the birth certificate. Prior to P.T.’s birth, M.C. engaged in a prolonged
    extramarital affair with J.J.
    M.C. and J.J. began communicating online in June 2011. In July, the
    pair started a physical affair. She informed him that she was separated from
    her husband. That summer the couple vacationed together along with his
    family and she told them that the two of them were dating. The relationship
    continued and she even, on occasion, spent the night at the home of J.J.’s
    mother, leaving for work from there in the morning. M.C. introduced J.J. to
    her family and friends. As of Labor Day 2011, M.C. informed J.J. that she
    was pregnant. She never informed her husband of the pregnancy. J.J. held
    himself out to their friends and family as the father.
    That September the couple leased an apartment together where she
    spent three to four nights per week. In October, M.C. miscarried. At that
    time, she did not tell J.J. of the miscarriage. She then became pregnant
    -2-
    J-A17044-14
    J-A17045-14
    again. At the time of her conception, she was having sex with both J.J. and
    D.T. Both men knew about this pregnancy, but not of each other.
    By late winter or early spring of 2012, M.C. informed J.J.’s family that
    she was separated from her husband. In March 2012, M.C. told J.J. that her
    divorce was finalized. J.J.’s family held a baby shower for her. So did D.T.’s
    family. In April, M.C. and J.J. had sex in her marital home. The plan was for
    J.J. to move into M.C.’s home and the couple ended their lease on the
    apartment in May. M.C. spent Mother’s Day with J.J. Also in May, J.J. called
    D.T. and asked what the status of his relationship was with M.C. D.T. told
    J.J. that they were still married and expecting a child.
    In June, J.J. learned, in a motel room, about the miscarriage, but M.C.
    still claimed to be divorced and assured him the child was his. J.J. attended
    OB/GYN appointments. When P.T. was born September, 2012, J.J. and his
    family arrived at the hospital, but were denied access to the child.
    D.T. testified that he did not see his wife often because she had a
    demanding job (M.C. is a registered nurse), friends, and familial obligations,
    but that the couple usually spent time together during holidays. M.C. did not
    tell him about the miscarriage until January 2013. Both M.C. and D.T.
    maintained that the marriage is intact.
    After M.C.’s refusal to permit J.J. contact with the child, his counsel
    sent a certified letter to M.C., shortly thereafter demanding contact with the
    child. Denied contact with the child, J.J. filed a complaint to establish
    -3-
    J-A17044-14
    J-A17045-14
    paternity on December 6, 2012. In preparation for a pretrial conference,
    M.C. filed a petition to strike any references to a paternity test previously
    obtained by J.J. and M.C. D.T. filed a petition to intervene. M.C. and D.T.
    filed preliminary objections asserting that J.J. failed to state a claim for relief
    in light of the presumption of paternity. The trial court granted M.C.’s motion
    to strike the paternity test from the record and granted D.T.’s petition to
    intervene. The trial court conducted a two-day hearing. On January 27,
    2014, the trial court overruled the preliminary objections and granted J.J.’s
    request for genetic testing. M.C. and D.T. timely filed their notices of appeal
    and M.C. moved to stay the order pending the outcome of this appeal.
    On appeal, M.C. and D.T. argue that the trial court erred in refusing to
    apply the presumption of paternity. We disagree.
    That a child conceived or born during a marriage is presumed to be a
    child of the marriage “is one of the strongest presumptions of the law of
    Pennsylvania.” CW v. LV, 
    788 A.2d 1002
    , 1005 (Pa. Super. 2001) (citation
    omitted). See also Strauser v. Stahr, 
    726 A.2d 1052
    , 1053-1054 (Pa.
    1999). 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, 726 A.2d at 1054
    . “[T]he
    presumption is irrebuttable when a third party seeks to assert his own
    paternity as against the husband in an intact marriage.” CW, 788 A.2d at
    -4-
    J-A17044-14
    J-A17045-14
    1005 (citation omitted). See also K.E.M. v. P.C.S., 
    38 A.3d 798
    , 806-807
    (Pa. 2012) (“As to the presumption of paternity, we note only that recent
    Pennsylvania decisions have relegated it to a substantially more limited role,
    by narrowing its application to situations in which the underlying policies will
    be    advanced   (centrally,   where   there   is   an    intact   marriage   to   be
    protected).”); 
    Strauser, 726 A.2d at 1054
    .
    The relevant time to examine whether the marriage is intact is at the
    time of the challenge to a husband’s paternity.          See, e.g., 
    Strauser, 726 A.2d at 1054
    ; Vargo v. Schwartz, 
    940 A.2d 459
    , 463 (Pa. Super. 2007).
    This is a question for the fact-finder. See 
    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 appeal turns on whether M.C. and D.T. had an
    intact marriage at the time of the challenge to husband’s paternity. We
    stress that the trial court observed the witnesses in person at the two-day
    hearing. The trial court methodically reviewed the testimony presented
    during the two-day hearing, see Amended Opinion, 2/25/14, at 1-17, and
    determined that M.C. and D.T. testified without any credibility. See 
    id., at 25.
    The trial court found that M.C.’s testimony about having an intact
    marriage “at any time suggested by the defense [i.e., M.C. and D.T.] had no
    credibility or any plausibility of truth.” 
    Id. (emphasis added).
    The trial court
    -5-
    J-A17044-14
    J-A17045-14
    characterized D.T.’s testimony as to whether there was an intact marriage as
    “doubtful, not reasonable to believe, incomprehensible and beyond the realm
    of plausibility.” 
    Id. The trial
    court found that the marriage at the time of the
    challenge to husband’s paternity (and before that as well) was a sham. The
    trial court disbelieved the assertions of reconciliation. It was well within the
    trial court’s discretion to make these findings. See Vargo. We are bound by
    the trial court’s credibility determinations, which we cannot disturb by simply
    reading a cold record.
    Based on the findings, the presumption of paternity simply has no
    application in this case—there was no intact marriage. Accordingly, we affirm
    the orders overruling the preliminary objections and granting the request for
    genetic testing.
    Orders affirmed. Jurisdiction relinquished.
    President Judge Gantman joins in the memorandum.
    Judge Stabile files a dissenting memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/9/2015
    -6-
    J-A17044-14
    J-A17045-14
    -7-
    

Document Info

Docket Number: 412 EDA 2014

Filed Date: 1/9/2015

Precedential Status: Non-Precedential

Modified Date: 12/13/2024