M.E.B. v. J.D.J.

J-A09030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.E.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J.D.J.
Appellant No. 1487 MDA 2015
Appeal from the Order Entered August 6, 2015
In the Court of Common Pleas of Cumberland County
Domestic Relations at No(s): 967 S 2013
PACSES NO. 125114325
BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED MAY 10, 2016
Appellant J.D.J. (“Father”) appeals from the order entered in the
Cumberland County Court of Common Pleas, which denied Appellant’s
support exceptions and affirmed the support master’s denial of genetic
testing. We affirm.
The relevant facts and procedural history of this appeal are as follows.
J.J. (“Child”) was born on February, 2004, while Child’s mother (“Mother”)
and Father were in a relationship. The next day, Father, who was seventeen
(17) years old, signed an acknowledgement of paternity (“AOP”). On May
23, 2006, the court issued a support order for Child. Father did not make
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*
Retired Senior Judge assigned to the Superior Court.
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payments on the order, although he informally made payments to Mother.
In December, 2006, Mother gave birth to C.J. Father does not contest that
C.J. is his child.
On October 22, 2013, Father signed a custody agreement that
assigned primary custody of Child and C.J. to G.B. and M.E.B. (“Appellee”),
because Mother had been in jail and was going into rehabilitation.
On November 8, 2013, Appellee filed a complaint for support against
Father. On September 18, 2014, the court filed an interim order that
required Father to pay $481.00 per month ($437.00 in support and $44.00
in arrears). On October 3, 2014, Father requested a hearing. On December
10, 2014, the court conducted a hearing. On January 6, 2015, the court
entered an “Interim Order of Court,” which denied Father’s request for
genetic testing and affirmed the interim order entered on September 18,
2014. On January 22, 2015, Father filed exceptions. On August 6, 2015,
the court denied Father’s exceptions and affirmed its order denying his
request for genetic testing.
On September 3, 2015, Father filed a notice of appeal but did not file a
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On October 9, 2015, this Court designated the case
as a Children’s Fast Track appeal and ordered Appellant to file a Pa.R.A.P.
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1925(b) statement in the trial court.1 Appellant complied on October 19,
2015.
Appellant raises the following issues for our review:
A. DID THE TRIAL COURT ERR WHEN IT FOUND THAT THE
DOCTRINE OF PATERNITY BY ESTOPPEL APPLIED TO
[FATHER’S] RELATIONSHIP WITH THE CHILD DESPITE THE
LACK OF EVIDENCE DEMONSTRATING THE ARRANGEMENT
WAS IN THE CHILD’S BEST INTERESTS?
B. DID THE TRIAL COURT ERR WHEN IT FOUND
[FATHER’S] PARTICIPATION IN A CUSTODY ACTION
INVOLVING MULTIPLE CHILDREN WAS SUFFICIENT TO
CONCLUDE THAT [FATHER] HAD HELD HIMSELF OUT TO
BE THE FATHER OF THE CHILD?
C. DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION IN DENYING [FATHER’S] REQUEST FOR
GENETIC TESTING UNDER THE DOCTRINE OF PATERNITY
BY ESTOPPEL?
Father’s Brief at 2.
In his combined issues, Father argues the doctrine of paternity by
estoppel should not apply to him. He claims he is not Child’s father, he did
not hold himself out to be Child’s father, he signed the AOP before he had
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1
On October 19, 2015, this Court issued an order to show cause as to why
this appeal should not be quashed as untimely filed from the January 6,
2015 order denying Appellant’s request for genetic testing. On October 21,
2015, Appellant filed a response, explaining that the order was not final and
appealable until the court had ruled on his exceptions. On October 22,
2015, this Court discharged the rule to show cause but referred the issue to
the merits panel. Because the trial court did not rule on Father’s timely
exceptions until August 6, 2015, his appeal, filed September 3, 2015, was
timely and is properly before us. See Barr v. Bartolo, 927 A.2d 635, 638
(Pa.Super.2007) (“This Court accepts immediate appeals from orders
directing or denying genetic testing to determine paternity”).
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reached the age of majority after being fraudulently induced into believing
he was Child’s father, he has no relationship with Child, and applying the
doctrine of paternity by estoppel would not be in the best interest of Child.
We disagree.
We employ the following standard of review concerning paternity
questions:
In reviewing matters involving child support, we as an
appellate court will not disturb a trial court order absent an
abuse of discretion. Doran v. Doran, 820 A.2d 1279,
1282 (Pa.Super.2003) (applying this standard of review to
a case involving a question of paternity).
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 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 v. Schwartz, 940 A.2d 459, 462 (Pa.Super.2007) (some internal
citations omitted).
Generally, a purported father does not have a statutory right to come
into court to have his paternity determined, and he has no right to a trial on
the issue of paternity. See In re Estate of Greenwood, 587 A.2d 749,
754 (Pa.Super.1991) (“The statute…provides a device affording both the
father and mother the right to acknowledge paternity. The statute does not
afford the father the right to come into court to have his paternity
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determined.”); Minnich v. Rivera, 506 A.2d 879, 880 (Pa.1986), aff'd, 483
U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 (1987).
“Under the doctrine of paternity by estoppel, a putative father who is
not a child’s biological father is estopped from challenging paternity after he
has held himself out as the child’s father or provided support.” Ellison v.
Lopez, 959 A.2d 395, 397-98 (Pa.Super.2008); see also 23 Pa.C.S. §
5102(b)(2). In paternity actions, estoppel is:
merely the legal determination that because of a person’s
conduct (e.g., holding out the child as his own, or
supporting the child) that person, regardless of his true
biological status, will not be permitted to deny parentage,
nor will the child’s mother who has participated in this
conduct be permitted to sue a third party for support,
claiming that the third party is the true father. As the
Superior Court has observed, the doctrine of estoppel in
paternity actions is aimed at achieving fairness as between
the parents by holding them, both mother and father, to
their prior conduct regarding the paternity of the child.
Doran, 820 A.2d at 1282-83.
The relevant statute regarding acknowledging paternity provides, in
pertinent part:
§ 5103. Acknowledgment and claim of paternity
(a) Acknowledgment of paternity.--The father of a
child born to an unmarried woman may file with the
Department of Public Welfare, on forms prescribed by the
department, an acknowledgment of paternity of the child
which shall include the consent of the mother of the child,
supported by her witnessed statement subject to 18
Pa.C.S. § 4904 (relating to unsworn falsification to
authorities). In such case, the father shall have all the
rights and duties as to the child which he would have had
if he had been married to the mother at the time of the
birth of the child, and the child shall have all the rights and
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duties as to the father which the child would have had if
the father had been married to the mother at the time of
birth. The hospital or other person accepting an
acknowledgment of paternity shall provide written and oral
notice, which may be through the use of video or audio
equipment, to the birth mother and birth father of the
alternatives to, the legal consequences of and the rights
and responsibilities that arise from, signing the
acknowledgment.
* * *
(d) Conclusive evidence.--Notwithstanding any other
provision of law, an acknowledgment of paternity shall
constitute conclusive evidence of paternity without further
judicial ratification in any action to establish support. The
court shall give full faith and credit to an acknowledgment
of paternity signed in another state according to its
procedures.
* * *
(g) Rescission.--
(1) Notwithstanding any other provision of law, a
signed, voluntary, witnessed acknowledgment of
paternity subject to 18 Pa.C.S. § 4904 shall be
considered a legal finding of paternity, subject to the
right of any signatory to rescind the acknowledgment
within the earlier of the following:
(i) sixty days; or
(ii) the date of an administrative or judicial
proceeding relating to the child, including, but not
limited to, a domestic relations section conference or
a proceeding to establish a support order in which
the signatory is a party.
(2) After the expiration of the 60 days, an
acknowledgment of paternity may be challenged
in court only on the basis of fraud, duress or
material mistake of fact, which must be
established by the challenger through clear and
convincing evidence. An order for support shall not
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be suspended during the period of challenge except for
good cause shown….
23 Pa.C.S. § 5103 (emphasis added).
“When allegations of fraud arise in a paternity action, an estoppel
analysis must proceed in a different manner than it would without such
averments.” Doran, 820 A.2d at 1279 (quoting McConnell v. Berkheimer,
781 A.2d 206, 211 (Pa.Super.2001)). “[This Court will] not allow the
application of estoppel to punish the party who sought to do what was
righteous and reward the party who had perpetrated a fraud.” Glover v.
Severino, 946 A.2d 710, 714 (Pa.Super.2008). “Evidence of fraud ‘must be
considered by the trial court in whether to apply paternity by estoppel.’”
Doran, 820 A.2d at 1279 (quoting Sekol v. Delsantro, 763 A.2d 405, 410
(Pa.Super.2000)).
This Court has adopted the traditional elements of fraud established in
Pennsylvania:
(1) a misrepresentation, (2) a fraudulent utterance
thereof, (3) an intention by the maker that the recipient
will thereby be induced to act, (4) justifiable reliance by
the recipient upon the misrepresentation, and (5) damage
to the recipient as the proximate result.
* * *
Fraud is practiced when deception of another to his
damage is brought about by a misrepresentation of fact or
by silence when good faith required expression. Fraud
comprises anything calculated to deceive, whether by
single act or combination, or by suppression of truth, or
suggestion of what is false, whether by direct falsehood or
innuendo, by speech or silence, word of mouth, or look or
gesture.
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R.W.E. v. A.B.K., 961 A.2d 161, 167-68 (Pa.Super.2008) (emphasis
deleted).
Proof of fraud or misrepresentation precludes application of
paternity by estoppel. Where…there is no intact family unit
to protect, the presumption of paternity does not apply.
Whether the estoppel doctrine applies depends upon the
particular facts of the case. Estoppel in paternity actions is
based on the public policy that children should be secure in
knowing who their parents are; if a person has acted as
the parent and bonded with the child, the child should not
be required to suffer the potentially damaging trauma that
may come from being told that the father he has known all
his life is not in fact his father.
Gebler v. Gatti, 895 A.2d 1, 3-4 (Pa.Super.2006) (internal citations
omitted).
In Gebler, this Court found the doctrine of paternity by estoppel did
not apply when a father held himself out to be the father of the child for the
first eighteen months of the child’s life, after having acknowledged paternity
at birth, but stopped acting as a father when he realized he was not the
child’s father. In Gebler, the Father brought an action for paternity testing
as soon as he realized he was not the child’s father.
Here, Father signed the AOP when he was 17 years old. He alleges he
only signed the AOP because Mother fraudulently induced him into believing
he was the child’s father, when another individual, R.B., was actually Child’s
father. Although Father testified that he believed he was the father when he
signed the AOP, Appellee testified otherwise. She testified:
[Mother] never told me [R.B.] was the father. I know
when she was pregnant with [Child] that [Father] and
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everybody else knew there was a possibility he was not the
father but that him and [Mother] were together and that
he said that he didn’t care one way or another, that he was
going to raise the child as his and be with [Mother]…And
[Father] told [R.B.] to leave, that he was going to be the
father of this child no matter what the DNA test said and
that that was his family. And he stayed with the mother
for four years after that to have another child with her.
N.T., 12/10/2014, at 40-41. Unlike the father in Gebler, Father has always
known that he might not be Child’s father and is just now contesting
paternity.
Although the trial court considered the evidence of fraud proffered by
Father, it ultimately decided to apply paternity by estoppel. The court made
the following findings of fact:
8. [Father] signed an [AOP] on February 2, 2004.
9. At the time [Father] signed the [AOP] he was 17 years
old.
* * *
11. At the time [Child] was born [Father] was aware there
was another man, [R.B.], who could be [Child’s] father.
Support Master’s Report and Recommendation, filed January 6, 2015.
In its opinion in support of the order, the court stated: “while [Father]
did present some evidence which implies it is possible [Mother] and her
family are actively allowing a fraud to continue at the expense of [Father],
whether other parties are acting in good faith or not is ultimately a red
herring, as [Father] by his own choices has on multiple occasions acquiesced
in legal proceedings which were based on the assumption he was [Child’s]
biological father.” Id. at 7.
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In affirming the order, the trial court reasoned:
In the present case, there is no reason shown to disregard
the prior litigation that [Father] has been involved in
regarding this child. It is clear from the review of the
record that he very much is the “psychological”1 father and
has held himself consistently out to be so. [Father] signed
an [AOP] a day after the child was born and did not
rescind it, engaged in multiple custody and support cases
relating to the child against both the child’s mother and
[Father], has signed many other documents
acknowledging paternity, and has stated previously that he
was going to be the father of the child regardless of what a
DNA test would elucidate regarding his biological relation
to the child. [Father’s] assertion in his brief that he “has
no bond or relationship with the child” is entirely
disingenuous and not supported by [Father’s] actions and
statements.
1
“Psychological” parents are individuals who have
stepped into the shoes of a parent and fulfilled the
roles normally associated with being a parent of a
child without regard to a true biological relation to
the child. For instance, a single mother’s significant
other of a number of years could be considered a
psychological parent if that person were to bond
closely with the child and hold themselves out as the
child’s parent or otherwise not correct for the child
and society that they are not the child’s parent.
It matters not whether [Father] is the biological father of
the child when it is apparent that [Father] has gone
through much conflict to continually assert his place as the
child’s father. It [is] undeniably in the best interests of the
child to have the support of a man who has continuously
fought to be recognized as a father continue to provide
support. To make a determination allowing [Father] to
forsake holding the child out as his own to avoid a support
obligation would be entirely against the stated purpose of
the doctrine of paternity of estoppel to protect the child
from being told that his “dad” is not in fact his “father.”
Even if “the child would not know [Father] if he walked into
the room,” [Father’s] actions in the early years of the
child’s life foreclose him from now disingenuously denying
his parental status.
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* * *
[Father], as the record demonstrates, has historically been
an active father who cares for the child as family and
consistently went to court as a father. No amount of
opining as to the motives of [Appellee’s] resistance to
genetic testing changes the simple fact that [Father] is
unquestionably estopped from denying paternity.
Trial Court “Opinion and Order of Court,” filed August 6, 2015, at 2-3.
The court considered evidence of fraud before deciding to apply
paternity by estoppel. It chose to believe Appellee’s testimony that Father
was aware he might not be the father of Child when he signed the AOP.
Thus, Father failed to rescind the AOP within 60 days and he failed to show
fraud as a reason to rescind it past the 60 day period. Further, he held
himself out to be Child’s father after he had reached the age of majority, and
he did not attempt to rescind the AOP within a reasonable amount of time of
reaching majority.2 He did not attempt to rescind the AOP until he was
required to pay support for his child. Further, he did not allege that he was
fraudulently induced into signing the AOP until he was required to pay
support. The trial court’s findings of fact are supported by the record, and
there is no abuse of discretion.
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2
When a minor enters into a contract, he may disaffirm the contract within a
reasonable time of reaching the age of majority. Campbell v. Sears,
Roebuck & Co., 161 A. 310, 312 (Pa.1932). “Ratification of the contract
will be inferred from any action on his part manifesting an intention to
regard the contract as binding.” Id.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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