Commonwealth Ex Rel. Hall v. Hall

Opinion by

Wright, P. J.,

This appeal arises as the result of a petition filed by Mildred Hall requesting that an order be entered against her former husband, Albert S. Hall, for the support of a child, Lisa, born July 14, 1965. Albert filed an answer denying paternity, together with a petition requesting blood grouping tests. On January 29, 1969, the court below entered an order requiring these tests, and Mildred has appealed.

The record discloses that Albert and Mildred were married on July 22, 1961. Thereafter they lived together until January, 1965, at which time Mildred left the home. Three months later there was a reconciliation, and the parties resumed marital cohabitation. As previously indicated, Lisa was born July 14, 1965. The parties finally separated in November, 1967, the child remaining with the wife. On May 23, 1968, a separation agreement was executed, paragraph No. 4 of which is set forth in the footnote.¹ On June 18, 1968, Mildred instituted divorce proceedings, and a final decree was granted in October, 1968. Since Albert had stopped making support payments, Mildred filed a petition, December 3, 1968, requesting that a support order be entered for Lisa. In his answer denying paternity, Albert alleged that he had entered into the separation agreement upon advice of counsel, and that he had reasonable grounds to doubt that Lisa was his child.

Albert’s petition requesting blood grouping tests was filed under the Uniform Act on Blood Tests to Determine Paternity. Act of July 13, 1961, P. L. 587, 28 P.S. 307.1 et seq. The allegations in this petition are set forth in the opinion below as follows: “In summary, they are that, for a year prior to the birth of the child, the wife was constantly visited by a certain named individual, a man, at the home of the parties, against defendant’s instructions and frequently without his knoAvledge. The defendant worked at the post office from 9:00 p.m. to 6:00 a.m. This led to the separation of the parties about six months prior to the birth of the child, which separation lasted for about three months, after which the parties reconciled and the wife returned home. The child was born three months later and, shortly thereafter, the named male individual again began visiting the home of the parties in defendant’s absence and staying until the early hours of the morning. The final separation occurred . . . when the defendant came home early one morning in November, 1968, and was admitted by his wife, who was entirely in the nude, and found the named male individual in the kitchen in his underwear. The defendant further avers, upon information and belief, that the named male individual has admitted paternity of the child”.

Our analysis of appellate decisions dealing with the requirement of blood grouping tests in actions for child support properly commences with the case of Commonwealth ex rel. O’Brien v. O’Brien, 182 Pa. Superior Ct. 584, 128 A. 2d 164. We therein held, in an opinion by the writer affirming an order of the Municipal Court entered by our present colleague, the Honorable Theodore O. Spaulding, that the husband did not have the right to demand blood grouping tests under the Act of May 24, 1951, P. L. 402, which related to proceedings to establish paternity, because that statute was not intended to apply to actions for support of children born during wedlock. Our decision was affirmed by the Supreme Court. See Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A. 2d 451.

The next case to come before us was Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274, 184 A. 2d 351. In the meantime, the legislature had repealed the Act of 1951, and had adopted the Uniform Act.² Mrs. Goldman had given birth to three children. No question was raised as to the oldest child, but the husband denied paternity of the two younger children. An order directing blood grouping tests was affirmed. However, in his opinion for the majority, Judge Wood-side said: “We think that his right to question the paternity is not unlimited. Where the husband has accepted his wife’s child and held it out as his own over a period of time, he is estopped from denying paternity ... It does not appear from the record before us that the defendant is guilty of laches, nor of such conduct as would estop him from denying paternity”. The present writer concurred in the result because of the apparent change in legislative intent.

One year later we were presented with the appeal in Commonwealth ex rel. Weston v. Weston, 201 Pa. Superior Ct. 554, 193 A. 2d 782. Two children were born to Mr. and Mrs. Weston while they were living together as husband and wife. There was no suggestion that the husband did not accept these children as his own. An order requiring blood tests was reversed on the ground that the husband was estopped from denying paternity. In his opinion for this court Judge Wood-side made the following statement: “There is something inherently repulsive about a man questioning the paternity of children who were conceived by his wife and born to her while he was living with her and who were accepted and held out to the world by him as his children until his and his wife’s personal differences led to a support action”. The present writer filed a dissenting opinion on the ground that insertion of the doctrine of estoppel in the statute was judicial legislation.

The rule announced in the Weston case has not been altered either by legislation or appellate decision. The opinion was handed down on September 12, 1963. Allocatur was refused by the Supreme Court on December 2, 1963, 201 Pa. Superior Ct. xxvii. Only one appellate case on the subject has since been decided. In Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa. Superior Ct. 179, 199 A. 2d 490, we affirmed an order refusing to require blood tests to resolve the paternity of a child involved in a support proceeding. The decision in that case, opinion by the present writer, was based upon the doctrine of res judicata. In his opinion in the instant case, the learned judge below also mentions Commonwealth ex rel. Miller v. Dilworth, 204 Pa. Superior Ct. 420, 205 A. 2d 111, reversed 431 Pa. 479, 246 A. 2d 859, but that case turned on the question whether it was proper for a judge to determine the paternity of an illegitimate child without a jury trial.

We are of the opinion that the present appeal is ruled by the Weston case. Lisa was conceived while Albert and Mildred were living together as husband and wife. She was born more than two years before her parents separated. During that period her paternity was never challenged, and there is no suggestion that Albert did not accept Lisa as his own child. Indeed, he executed a separation agreement by the terms of which he acknowledged that Lisa was his daughter, provided for her future support, and made extensive arrangements for visitation rights. Since the doctrine of estoppel has been written into the Uniform Act, it should be applied in the instant factual situation.

Order reversed.

1 “4. WIFE shall have the custody, care and charge of LISA, daughter of the parties, during her minority, with the right of visitation granted to HUSBAND on a mutually convenient basis. At the outset the parties agree that LISA shall, on every Saturday morning, be brought to AVIFE’S parents’ home where HUSBAND shall pick her up and return her at a reasonable hour. AVhen the child becomes a little older, HUSBAND shall be granted longer visitation periods, with the possible arrangement for week-long vacations. HUSBAND shall pay One Hundred Dollars ($100.00) per month on the first day of each month for the support, maintenance, education and medical care of LISA. HUSBAND agrees to maintain BLUE CROSS for LISA, as well as policy of insurance for her college education. WIFE agrees to have HUSBAND notified in the event LISA becomes ill or injured, and HUSBAND shall be consulted as to course of treatment to be utilized”.

2 This statute provides that, in actions in which paternity is a relevant fact, the court, upon motion of any party, “shall order the mother, child and alleged father to submit to blood tests”.