V.L.-P. v. S.R.D.

J-A19020-22
2023 PA Super 2V.L.-P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
S.R.D. :
:
Appellant : No. 477 MDA 2022
Appeal from the Order Entered February 18, 2022
In the Court of Common Pleas of Lebanon County
Domestic Relations at No(s): 2020-5-0545
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
OPINION BY KING, J.: FILED: JANUARY 6, 2023
Appellant, S.R.D., appeals from the order entered in the Lebanon
County Court of Common Pleas, denying his petition for genetic testing. We
affirm in part and vacate and remand in part for further proceedings consistent
with this decision.
The trial court set forth the relevant facts and procedural history of this
case as follows:
[V.L.-P. (“Mother”)] is the biological mother of A.D.
[(“Child”)]. In early 2008, [the parties] were engaged in an
“on-again, off-again” relationship. Both parties
acknowledge that they engaged in sexual intercourse on
February 3, 2008, which was Super Bowl Sunday. [Mother]
denied that she had sex with anyone else during the two
months before and the two months after Super Bowl
Sunday. [Appellant] presented a witness[, G.H.,] who
proclaimed that her brother and [Mother] spent a great deal
of time together and spoke about being engaged during
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* Former Justice specially assigned to the Superior Court.
J-A19020-22
February of 2008.
When [Mother] discovered that she was pregnant, she
notified [Appellant] “because he is the father.” [Appellant]
attended pre-natal ultrasounds and expressed some
excitement about becoming a father. At no time during
pregnancy did [Mother] relate that anyone else could
possibly be the father of her unborn child.
[I]n October…2008, [Mother] gave birth to an infant
daughter[, Child]. [Appellant] was notified and he was
permitted to be present in the hospital at the time of birth.
Both [Appellant] and [Mother] acknowledge that a
conversation occurred regarding paternity. Although the
details of the conversation are disputed, both [Appellant]
and [Mother] agree that [Mother] assured [Appellant] that
only he could be the father. Based upon this representation,
[Appellant] signed an acknowledgment of paternity and
[Child] was given his last name.
Starting six (6) months following birth, [Appellant] began
enjoying alternating weekend periods of time with his
daughter. As [Child] grew, [Appellant] attended doctor’s
appointments, parent-teacher conferences, and athletic
events involving [Child]. Almost every night, [Appellant]
telephoned or FaceTimed [Child]. These communications
inevitably ended with “I love you” being expressed by both
[Appellant] and [Child].
[Appellant] is a part of a close extended family.
[Appellant’s] family embraced [Child] as one of their own.
During twelve years leading up to 2020, [Child] developed
a close relationship with [Appellant’s] parents, who were
called “Mimi and PopPop,” [Appellant’s] sister “Auntie M”
and [Appellant’s] grandfather, “Pappy Beers.”
In early 2020, [Appellant] and his wife [K.D.] became
involved with Ancestry.com. They presented DNA to
Ancestry. Both [Appellant] and [K.D.] professed surprise
when the Ancestry.com analysis was received and [Child]
was not mentioned as being part of their family tree.
According to [Appellant], “[Child’s] Ancestry profile did not
match either me or anyone else in my family…I was
shocked.”
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Prior to April of 2020, [Appellant] paid roughly $400 per
month in voluntary child support. He stopped paying in May
of 2020. [Appellant] testified that his cessation of support
was due to COVID-driven unemployment and not the
Ancestry.com information. In fact, [Appellant] testified that
he had a difficult time believing the Ancestry.com test
results. [Appellant’s] custody rights with respect to [Child]
were expanded to equal 50-50 periods of time between May
and September of 2020. During this period of time,
[Appellant] did not mention or question paternity.
With the advent of in-person school in September of 2020,
[Mother] again undertook primary physical custody of
[Child] and [Appellant] returned to an alternating weekend
schedule. However, [Appellant] did not pay any child
support. Eventually, on November 16, 2020, [Mother] filed
a Complaint Seeking Child Support against [Appellant].
[Following Thanksgiving weekend in] November of 2020,
[Appellant] confronted [Mother] about the Ancestry.com
paternity information. [Mother’s father] and [K.D.’s
mother] were present…when the disclosure about the
Ancestry.com information was accomplished. [Mother]
testified that [Appellant] said: “Had you not sued me for
support, I would have taken the information [about
paternity] with me to my grave.” [Appellant] denied making
such a statement. [Mother’s father] corroborated
[Mother’s] version of the conversation. Everyone agrees
that [Mother] continued to assert that [Appellant] was the
only man who could be the father of [Child.]
Following the conversation between [Mother] and
[Appellant] about paternity, the parties’ relationship
understandably deteriorated. [Appellant] testified that
[Mother] withheld contact with [Child]. [Mother] denies that
she withheld contact. [Appellant] did acknowledge that
after November 30, 2020, he declined to have telephone
contact with [Child]. As summarized by the subsequently-
appointed [guardian ad litem (“GAL”)], “There were a few
instances where brief communication occurred between
[Child] and [Appellant] after November 30, 2020. By and
large, however, their telephone communications ceased.
Indeed, the nightly telephone or FaceTime contacts stopped
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altogether.” In fact, the GAL documented that [Appellant]
would hand over his telephone to other relatives whenever
[Child] called him following November 30, 2020.
According to [Child], her relationship with [Appellant]
underwent a “radical transformation” following November of
2020. At some unknown time, [Appellant] told [Child] that
he may not be her biological father. According to [the GAL],
[Child] “understands that [Appellant] is denying paternity
for her based upon the Ancestry.com/Ancestry DNA
results.”
[Appellant] did enjoy physical custody of [Child] on
Christmas of 2020. [Appellant] described the visit as
“rough.” In addition, [Appellant] acknowledged that he
requested custody rights with [Child] on New Year’s
Eve/Day. According to [Appellant], [Mother] refused to give
him custody of [Child] at any time during the New Year’s
holiday. Since Christmas of 2020, [Appellant] has not
exercised any physical custody rights with [Child].
However, [Appellant] acknowledged that he sent an email
on December 31, 2020 within which he asked for a
resumption of alternating weekend periods of physical
custody. Those weekend visits were never re-initiated.
In February of 2021, [Appellant’s] grandfather, Pappy
Beers, passed away. Because [Child] was especially close
to Pappy Beers, she was invited to his funeral. [Child]
attended the funeral and sat with “Auntie M.” According to
witnesses, very little interaction occurred between
[Appellant and Child] during the funeral or the subsequent
reception. Following the funeral, no further contact
occurred between [Child] and [Appellant].
[Appellant] testified that he no longer considers himself to
be [Child’s] father. According to [Appellant], he did not
really reach the conclusion that he was not [Child’s] father
until January of 2021. In addition to the Ancestry.com test
results, [Appellant] indicated that he received information
in October that [Mother] suffered from chlamydia when
[Child] was born. [Appellant] indicated that he never
contracted chlamydia and he attributed this [sexually
transmitted disease] to [Mother’s] sexual contact with the
true biological father of [Child]. In addition, [Appellant]
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received information through Ancestry.com from a woman
by the name of [G.H.] [G.H.] testified that [Mother] and
her brother were “close” to one another in February of 2008.
In fact, [G.H.] believed that her brother and [Mother] may
have been engaged at that period of time. According to
[G.H.], her family has a history of suffering from a
connective tissue disorder. [Child] was described as having
a problem with connective tissue in her knee.
[Appellant] testified that he asked [Mother] to take a DNA
test. He testified: “If [Mother] believed I was the father,
then do the DNA test and let’s be done with this.” According
to [Appellant], it was the confluence of all of the above
information (the Ancestry test, the chlamydia, the
connective tissue disease and [Mother’s] refusal to consent
to genetic testing) that caused him to reach the conclusion
in January of 2021 that he was not [Child’s] biological
father. At that point, he cut off all contact with [Child].
[Mother] acknowledged that she would not consent to
genetic testing. She explained that genetic testing would
be “traumatic” for [Child], but she could not explain
precisely how or why such trauma would flow from testing.
[Appellant] raised a question about paternity with the
[c]ourt for the first time on December 18, 2020. The [c]ourt
refused [Appellant’s] invitation to order genetic testing
based exclusively upon a written petition.1 Instead, on
December 21, 2020, the [c]ourt scheduled a hearing for the
purpose of determining whether genetic testing should be
[c]ourt-ordered.
1 When [Appellant’s] Motion was provided to the
[c]ourt, we quickly perceived that the child in question
was 12-years of age and that a Child Support dispute
had recently been filed. Given these facts that were
apparent from the record, we were unwilling to issue
an immediate order to direct that genetic testing be
undertaken.
On March 1, 2021, [Appellant] filed an Amended Request
for Genetic Testing in which he raised an allegation of fraud
against [Mother]. Following the March 1[, 2021] Amended
Request for Genetic Testing, a Lebanon County Domestic
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Relations Master (DRM) issued a recommendation and
report regarding child support. Based upon the parties’
respective incomes, the DRM recommended that [Appellant]
pay $766.18 per month in child support. This was roughly
$350 more than what [Appellant] had been paying prior to
2020. On March 16, 2021, this jurist met with both parties
and both counsel. After a lengthy discussion, it became
obvious that the parties were not in agreement as it related
to the concept of genetic testing or the process by which it
could be ordered. Because of this, the [c]ourt ordered both
parties to file briefs.
Because this jurist refused to simply order genetic testing
based on [Appellant’s] request, [Appellant] filed a Motion to
Recuse this jurist on April 5, 2021. This motion was denied
on April 7, 2021.
Both [Mother] and [Appellant] filed briefs regarding the
genetic testing issue. On April 27, 2021, this [c]ourt issued
a 16-page Opinion. In that Opinion, we set forth our
analysis of what we described as a “morass of Pennsylvania
Paternity by Estoppel law.” Because we concluded that
Paternity by Estoppel requires a court to analyze the best
interests of the child involved, we decided to appoint a
[GAL] to represent the interests of [Child].
On April 27, 2021, we formally appointed [a] GAL for
[Child]. [The GAL] is a licensed attorney who left the legal
profession in order to launch a career as a family counselor.
[The GAL] has served as GAL in numerous Lebanon County
custody proceedings. He was asked by this [c]ourt to
undertake an analysis with respect to whether
disestablishment of paternity would be in the [best] interest
of [Child].
[The GAL] began his assignment by reaching out to both
counsel and both parties. As was his assigned role, [the
GAL] attempted to focus upon [Child] and her interests.
This was difficult to accomplish with [Appellant], because he
was myopically focused upon the issue of fraud and his own
self-victimization.
[The GAL] issued a formal report on June 28, 2021. As
instructed, his report focused upon how disestablishment of
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paternity would affect [Child]. (To his credit, the GAL did
not accept [Appellant’s] invitation to detour into the issue of
fraud.) In focusing upon his assignment, [the GAL] met with
the parties and [Child]. He described [Child] as an
intelligent and focused young lady. He stated that [Child]
was “confused” about how and why her relationship with
“Dad” had changed so dramatically. [The GAL] described
the emotion and tears shed by [Child] and he concluded that
she has genuine love for [Appellant] and is suffering
emotional pain as a result of what occurred in 2021.
Ultimately, [the GAL] concluded that disestablishment of
paternity would not be in the interest of [Child].
Following [the GAL’s] report, [Appellant] filed objections
and asked this [c]ourt to strike the report from the record.
This [c]ourt refused to grant [Appellant’s] motion.
The Factual Hearing was commenced on July 20, 2021. In
accordance with our Opinion of April 27, 2021, we permitted
[Appellant] to articulate and present evidence regarding his
theory of fraud. Of necessity, the fraud-related testimony
delved into [Mother’s] sexual and romantic history. In
addition, we instructed the parties to focus upon the best
interests of [Child]. As it related to that topic, we directed
that [the GAL] provide sworn testimony in [c]ourt subject
to cross-examination by both parties.
A Factual Hearing could not be completed on July 20, 2021.
After several COVID-related postponements, the factual
testimony relevant to our decision was completed on
January 31, 2022. …
(Trial Court Opinion, filed 2/18/22, at 2-10) (internal citations omitted)
(emphasis in original).
At the July 20, 2021 hearing, Appellant testified that he was in a casual
relationship with Mother prior to Child’s birth. Appellant was not aware if
Mother was having any intimate relationships with other men while she was
intimate with Appellant. On February 3, 2008, Appellant and Mother had sex.
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Appellant remembered the date because it was Super Bowl Sunday. In mid-
to-late June 2008, Mother told Appellant she was pregnant with his child.
Mother said Appellant was the only possible father. Mother reassured
Appellant multiple times leading up to Child’s birth that he was Child’s father.
Based on Mother’s representations, Appellant testified that he never had a
reason to question paternity. Appellant attended some pre-natal
appointments with Mother. After Child’s birth while at the hospital, Appellant
had to sign various forms including an acknowledgment of paternity form.
Prior to signing, Appellant again asked Mother if he was the only possible
father. Mother assured Appellant that he was the only possible father. Mother
stated that if Appellant did not sign the form, then she would not let Child
have his last name. Appellant signed the form based on Mother’s assurances.
Appellant placed Child on his health insurance plan, but Mother made
most healthcare decisions regarding Child. Mother and Appellant lived
approximately 45 minutes away, and although Appellant visited with Child
after her birth, the visits were not regular. Appellant attended some of Child’s
well visits. Eventually, after consulting with a lawyer, Appellant obtained
partial physical custody. In 2015, Mother got married to J.P. (“Ex-Husband”),
whom she divorced in 2016. Prior to their marriage, Appellant observed that
Ex-Husband was regularly involved in Child’s life. After Mother’s divorce from
Ex-Husband, Ex-Husband no longer played a role in Child’s life.
In the beginning of 2020 when Appellant was working from home during
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the pandemic, he exercised more custodial time with Child. Since the time
Child could talk, Appellant tried to speak to her on the phone as many days
as possible. Once Child had her own phone, Appellant and Child frequently
had FaceTime calls. Over the years, Appellant felt a lot of push-back from
Mother if Appellant tried to express an opinion regarding Child that was not
aligned with Mother’s view.
In the spring of 2020, Appellant learned that he might not be Child’s
biological father. Appellant’s stepson’s father was adopted, and Appellant was
helping his stepson conduct a family tree project through Ancestry.com to
learn more about his heritage. The Ancestry.com results1 did not reveal Child
as part of Appellant’s familial matches. Instead, the test showed a close family
relation between Child and G.H. G.H. is someone who Appellant knew of in
the area. Initially, Appellant believed the test must be mistaken. Appellant
spent the next couple of months trying to verify the accuracy of the results.
In April or May of 2020, Appellant stopped paying child support, which
Appellant had paid voluntarily since Child’s birth. Appellant had job changes
due to the pandemic and was under financial stress. In late summer or fall of
2020, Mother filed for child support. During the week after Thanksgiving in
2020, Appellant brought up the Ancestry.com results to Mother. Appellant
____________________________________________
1 The court did not admit the results of the Ancestry.com test for the truth of
the matter asserted regarding paternity but merely to demonstrate Appellant’s
state of mind after reading the results.
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was anxious to approach Mother on the topic because he anticipated an
argument. When he presented Mother with the Ancestry.com results, Mother
maintained that Appellant was Child’s father. Mother denied knowing anyone
with the last name shared by G.H.
Following the conversation, on December 3, 2020, Appellant e-mailed
Mother and proposed obtaining private genetic testing to confirm or deny the
accuracy of the Ancestry.com results. Mother said she would only proceed
through the court system. Mother also said that she was not comfortable
letting Appellant visit with Child following the discussion regarding the
Ancestry.com results. Mother permitted Child to see Appellant for a couple
hours on Christmas, but Mother distanced Child from Appellant regarding their
otherwise regularly scheduled visits.
Around December 2020 or January 2021, Appellant obtained medical
records showing that Mother had chlamydia during her pregnancy, and Mother
was admitted to the hospital in September 2008 for treatment. Appellant was
unaware that Mother had this infection during her pregnancy. Appellant
testified that he has never had chlamydia to his knowledge, and he would
have insisted on a DNA test to confirm paternity had Mother disclosed this
infection.
Appellant maintained this his relationship with Child is now non-existent.
Appellant no longer holds Child out as his own in the community. After the
visit on Christmas, Child removed personal belongings from Appellant’s home.
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After Christmas, Child attended the funeral of Appellant’s grandfather, with
whom Child was very close. Other than that event and the luncheon following
the funeral, Appellant has not seen Child.
On cross-examination, Appellant admitted that he sought shared
custody in the summer of 2020 even after receipt of the Ancestry.com results.
At that point, Appellant still doubted the accuracy of the test results and
believed he was Child’s father. (See N.T. Hearing, 7/20/21, at 5-114). The
court concluded the hearing following Appellant’s testimony, to resume at a
later date. The court further ordered that pending a final decision in the case,
all future support payments paid by Appellant were to be held in escrow by
the Domestic Relations office.
The hearing continued on January 31, 2022. Mother testified at the
hearing that at the time Child was conceived, she was in an “on-again, off-
again” relationship with Appellant. Mother agreed she had sex with Appellant
on February 3, 2008, which was Super Bowl Sunday. Mother said she also
had sex with Appellant about a week before that date. Mother said she notified
Appellant about the pregnancy a few months after discovering she was
pregnant. Mother denied that Appellant ever questioned paternity prior to
Child’s birth. Mother denied pressuring Appellant into signing the
acknowledgment of paternity after Child was born. Mother said that Appellant
told her in the hospital at the time of Child’s birth that his employer required
a paternity test for health insurance documents. Mother responded that if
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Appellant wanted to take a paternity test, then she would have given Child
her last name (and not the last name of Appellant) on the hospital paperwork
until the results came back. Appellant did not hesitate to sign the
acknowledgment of paternity after this brief discussion. Mother maintained
there was (and is) no reason to question paternity because Appellant is the
only person with whom she was sexually active at the time Child was
conceived. Appellant did not mention anything regarding paternity (aside
from the health insurance requirement discussion) to Mother until November
30, 2020.
Beginning when Child was approximately six months old, Appellant and
Mother had an informal custody arrangement whereby Appellant had custody
every other weekend. Appellant also saw Child during the holidays and Child
spent vacations with Appellant and his family. Appellant attended Child’s
medical and dental appointments. Appellant attended parent/teacher
conferences every year. Appellant also attended some of Child’s
extracurricular activities. Mother said Appellant and Child spoke regularly on
FaceTime.
On November 30, 2020, Appellant texted Mother indicating that he
wanted to have a conversation with her. During the ensuing conversation,
Appellant informed Mother that he had conducted an Ancestry.com project
several months before, and no one in his family matched with Child as being
a blood relative. Appellant told Mother that had she not filed for child support
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two weeks prior, Appellant would have “taken it [the Ancestry.com results] to
his grave.” Mother did not believe the accuracy of the results because she
insisted that Appellant is Child’s father.
Mother testified that this situation has been tough on Child because she
has not seen most of Appellant’s family since January 2021. Child expresses
to Mother that she misses Appellant and his family.
Mother explained that in May 2020, while Child’s school was virtual
during the pandemic, Appellant sought week-on/week-off custody. Mother
agreed and this shared custody arrangement continued until the fall of 2020
when in-person education resumed. During this time, Appellant exercised the
greatest amount of custodial time he had with Child since her birth. When in-
person learning resumed, the custody arrangement went back to Appellant
having every other weekend with Child, until Thanksgiving weekend.
Mother emphasized that she is certain Appellant is Child’s father because
she was not sexually active with anyone else during the relevant timeframe.
Regarding the sexually transmitted infection, Mother claimed she contracted
that from somebody else who she had been dating during her pregnancy, and
Mother was treated for it at the end of July 2008. Mother explained she had
been dating someone from June to August in 2008 while she was pregnant.
On cross-examination, Mother claimed that requiring Child to undergo a
paternity test would not serve her best interest. Specifically, Mother testified
that giving Child doubt about the status of paternity, when Mother is certain
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Appellant is her father, would not be in Child’s emotional best interest. Mother
also stated that she does not know anyone with the last name shared by G.H.,
who was identified as a relative of Child in the Ancestry.com results. Mother
admitted that she has a 2008 conviction for theft by unlawful taking, for which
she served probation. Mother also admitted that she lost her driver’s license
around 2017; she did not notify Appellant of her license suspension. Mother
maintained she had migraine issues around the time of her license suspicion
so she would not have driven even if she had her license during that period.
Mother maintained she never drove with Child when her license was
suspended. Mother explained that Child would have to give up some activities
if she would no longer receive child support payments from Appellant. (See
N.T. Hearing, 1/31/22, at 5-78).
Appellant’s wife, K.D., testified that Appellant was initially shocked by
the Ancestry.com results. K.D. said that she and Appellant tried to verify the
accuracy of the results, and they learned the results are 99.9% accurate. K.D.
claimed Appellant was scared to discuss the results with Mother. When
Appellant confronted her, Mother insisted Appellant is Child’s father. K.D.
denied that Appellant made the comment about taking the Ancestry.com
results to the grave if Mother had not filed for child support. K.D. stated that
the last time Appellant spent any meaningful time with Child was on Christmas
Eve of 2020. K.D. said that Child’s phone calls with Appellant and his family
stopped in January of 2021.
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K.D. testified that around 2017, Mother told K.D. and Appellant that she
could not drive because of bad migraines. Appellant transported Child more
often around that time. K.D. said that Mother still drove during the period
when she complained of migraines but usually shorter distances. K.D. later
learned Mother had been driving without a license.
K.D. testified that she no longer considers Child as part of their family.
When K.D. and Appellant tell people how many children they have, they no
longer count Child as one of their own. K.D. and Appellant specifically
excluded Child from their wills and removed her pictures from their home.
K.D. testified that Appellant believed he was Child’s father until early 2021,
when Appellant and K.D. received the medical records showing Mother’s
sexually transmitted infection, coupled with information from G.H. that Mother
had a close relationship with G.H.’s brother around the time of conception, as
well as Appellant and K.D.’s communications with Ancestry.com regarding the
accuracy of results. At that point, Appellant and K.D. no longer believed
Appellant was Child’s father. (See id. at 79-123).
G.H. testified that she has an Ancestry.com profile and that her
Ancestry.com results connect her with Child as “close family.” G.H. stated
that she knows Mother, as Mother was good friends with her brother, R.H.
G.H. confirmed that Mother “hung out” at her brother’s house approximately
eight to ten years earlier. G.H. testified that Mother and R.H. were in a serious
relationship around February 2008, and G.H. believed they were engaged to
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be married. G.H. explained that she has a genetic disorder called Ehlers-
Danlos syndrome, which is a connective tissue disorder that causes frequent
dislocations of joints. (Id. at 124-136).
K.D.’s mother, M.Q., testified that Appellant and Child had a good
relationship. M.Q. treated Child like an adopted granddaughter. M.Q.
explained that Appellant had little authority concerning decisions over Child’s
activities and medical appointments, as Mother made the decisions and
Appellant just had to accept them. (Id.at 137-145).
Mother’s father, K.L., Sr. (“Maternal Grandfather”), testified that he lives
with his wife, Mother, and Child. Maternal Grandfather was present when
Appellant confronted Mother about the Ancestry.com results. Maternal
Grandfather overheard Appellant make the comment about taking the
Ancestry.com results to his grave, but Maternal Grandfather could not recall
the precise context of that statement. Maternal Grandfather stated that Child
had a very close relationship with Appellant and his family. Maternal
Grandfather indicated that Child misses Appellant and his family. Maternal
Grandfather has no recollection of Mother having a relationship with anyone
named R.H. (Id. at 145-161).
On rebuttal, Appellant testified that if he made the comment about
taking the Ancestry.com results to his grave, that might have been his initial
response to the situation. Appellant clarified that after processing the
information more deeply, he could not keep the truth bottled up if he is not
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Child’s biological father. Appellant explained that G.H.’s genetic connective
tissue disorder sounds very similar to joint issues that Child has experienced,
which had been attributed to sports injuries. Appellant claimed he saw Mother
driving in 2017 when her license was suspended, around the time Mother had
been complaining of migraines. Appellant stated that his mother-in-law, M.Q.,
discovered that R.H. is a mutual Facebook friend of hers through Mother. In
other words, Facebook showed that Mother and R.H. are connected as friends
on social media.
Appellant testified that he began to reduce communication with Child in
January of 2021 because he did not want to confuse her or cause her more
emotional harm until the truth is determined. Appellant claimed that when he
met G.H., he believed her nose looked extremely similar to Child’s nose. (Id.
at 161-174).
On rebuttal, Mother confirmed that she does not know G.H. or R.H.
Mother denied that she was engaged to R.H. in February of 2008. Mother
stated that Child has never been diagnosed with a genetic connective tissue
disorder. Mother maintained that Child plays soccer, basketball, and lacrosse,
and periodically suffers knee injuries from those activities. Mother denied ever
driving while her license was suspended. (Id. at 174-179).
At the conclusion of Mother’s rebuttal testimony, the court indicated that
it had previously sentenced a man by the name of R.H. for creation of child
pornography, solicitation to create child pornography, corruption of minors,
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and intimidation of a witness. Based on court documents, the court confirmed
that the R.H. convicted of those offenses has a sister, G.H. Thus, the court
indicated that the R.H. mentioned in the proceedings as allegedly having a
past relationship with Mother is likely the same individual who has been
sentenced for sex offenses. As a result of his convictions, R.H. is prohibited
from having any contact with minors. The court stated it could take judicial
notice of R.H.’s conviction history because it is a matter of public record.
The GAL testified that he interviewed Child for approximately one hour
and conducted a few follow-up phone calls with her. In that time, Child
expressed her sadness based on her disconnection with Appellant, whom Child
regarded as her father for her whole life. The GAL believed Child displayed an
authentic emotional response from someone who feels a void in her life based
on Appellant’s disconnection. The GAL also interviewed Appellant and K.D.
Appellant maintained that he does not intend to have a relationship with Child
going forward. The GAL opined that it would not be in Child’s best interest to
disestablish paternity. The court admitted into evidence the GAL’s report,
over Appellant’s objection. (Id. at 185-239). Following the GAL’s testimony,
the court directed the parties to file post-hearing briefs and took the matter
under advisement.
On February 18, 2022, the court denied Appellant’s request for genetic
testing. In doing so, the court found “that the best interest of the child
paradigm can, should and must play a predominant role in our decision” and
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specifically rejected Appellant’s “argument that fraud precludes a
consideration of what is best for [Child].” (Trial Court Opinion at 13).
Although the court acknowledged that Appellant’s “questions about paternity
are not irrational[,]” the court stated that its decision would not hinge upon
an analysis of fraud. (Id. at 18). Rather, the court focused upon Child’s best
interests, which the court found were served if Appellant remained as Child’s
legal father. (Id. at 19-29). Additionally, the court directed that Appellant’s
previously escrowed child support payments be released to Mother within ten
days.
On February 28, 2022, Appellant filed a motion for reconsideration and
to stay/maintain the escrow of support payments pending an appeal. The
court denied Appellant’s motion for reconsideration on March 8, 2022. With
respect to the motion to stay, the court granted relief in part and denied relief
in part. Specifically, the court directed the Domestic Relations office to release
50% of all amounts currently held in escrow to Mother for Child’s support, and
to forward 50% of all future support payments to Mother. The court instructed
that the remaining 50% of the escrow fund and support payments should be
maintained in escrow.
On March 18, 2022, Appellant timely filed a notice of appeal and a
contemporaneous concise statement of errors per Pa.R.A.P. 1925(a)(2)(i).
Appellant presents five issues for our review:
Whether the trial court erred in finding that Appellant failed
to establish fraud by a preponderance of the evidence, and
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improperly applied the standard of paternity by estoppel?
Whether the trial court erred in denying Appellant’s request
for a paternity test and finding that Appellant “is considered
the official parent of” the subject child prior to engaging in
any factual finding on Appellant’s challenge to paternity?
Whether the trial court improperly appointed and admitted
the report of a [GAL], where there is no legal authority for
such appointment in an action for paternity by fraud?
Whether the trial court erred in denying Appellant’s stay of
escrowed funds pending this appeal of the paternity action?
Whether the trial court abused its discretion in denying
Appellant’s request for recusal, when prior to engaging in
any finding of fact, the trial judge authored an email
showing his bias against Appellant?
(Appellant’s Brief at 6).
In reviewing matters of child support and cases involving a question of
paternity, we will not disturb a trial court order absent an abuse of discretion.
Vargo v. Schwartz, 940 A.2d 459, 462 (Pa.Super. 2007).
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.
Id. (quoting Doran v. Doran, 820 A.2d 1279, 1282 (Pa.Super. 2003)).
Further:
“The finder of fact is entitled to weigh the evidence
presented and assess its credibility.” Smith v. Smith, 904
A.2d 15, 20 (Pa.Super. 2006). In so doing, the finder of
fact “is free to believe all, part, or none of the evidence and
we as an appellate court will not disturb the credibility
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determinations of the court below.” Id. (citation omitted).
Vargo, supra.
For purposes of disposition, we combine Appellant’s first and second
issues. In those issues, Appellant argues that the trial court failed to reconcile
its conclusion that Mother is at best uncertain about Child’s paternity, with
Pennsylvania’s principle of paternity by fraud. Appellant claims he relied on
Mother’s statements that he was Child’s biological father and did what any
“decent man would have done under the circumstances.” (Appellant’s Brief
at 17). Appellant insists that Mother informed him that he was Child’s
biological father both upon learning she was pregnant and at the time of
Child’s birth. In fact, Appellant contends that Mother threatened Appellant at
the time of Child’s birth that if he requested a paternity test and did not sign
the acknowledgment of paternity form, that Child would not bear his last
name. Appellant submits that he justifiably relied on Mother’s assertions that
he was Child’s biological father and paid child support and acted as Child’s
father throughout the years based on those representations.
Appellant emphasizes the Ancestry.com testing demonstrates that he
and Child have no genetic relationship, whereas the testing showed that G.H.
is Child’s “close relative.” Father concedes he is unsure who Child’s biological
father is, but he maintains that the Ancestry.com results suggest Child’s
biological father is an immediate family member of G.H. Appellant highlights
G.H.’s testimony that she knew Mother, and Mother was dating R.H. near the
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time of Child’s conception. Appellant submits that Mother’s refusal to admit
to sexual relations with another man near the time of Child’s conception
“should not be given more weight than the substantive and credible evidence
[Appellant] produced.” (Id. at 21). Appellant points out that Child resembles
G.H. Appellant further maintains that G.H. suffers from a rare genetic disorder
that causes issues with connective tissue and ligaments in joints. Similarly,
Child has seen doctors on several occasions for orthopedic issues.
Appellant also contends the trial court ignored other evidence
demonstrating Mother’s fraud. For example, in 2021, Appellant obtained
Child’s birth records and learned for the first time that Mother had chlamydia
during her pregnancy; Appellant denies ever having chlamydia. Appellant
maintains that Mother testified that she contracted chlamydia while dating
another man during her pregnancy. Appellant insists that if he knew Mother
was sexually active with other men during her pregnancy, he would have
insisted on a paternity test immediately after Child’s birth.
Appellant insists that he has distanced himself from Child’s life since
learning of Mother’s fraud, no longer holds Child out as his own, and they no
longer maintain a parent-child relationship. Appellant further complains the
court improperly weighed the credibility of the witnesses. Appellant claims
the court failed to consider Mother’s untruthfulness, especially in light of
Mother’s prior conviction involving dishonesty. Appellant also claims the court
focused solely on the best interests of Child as it relates to the doctrine of
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paternity by estoppel, without any regard for Appellant’s claim of fraud.
Appellant submits that “[i]njecting the best interest of a child into a paternity
by fraud action is like forcing a round peg into a square hole.” (Id. at 37).
Appellant emphasizes that the court erred by stating he was not entitled
to genetic testing simply because he signed an acknowledgment of paternity
when Child was born. Appellant asserts that other courts have ordered and
utilized the authenticity of genetic tests “to properly flesh out the merits of
fraud arguments and to get to the bottom of the truth of the matter asserted,
which is what a court is bound to do.” (Id. at 38). By denying genetic testing,
Appellant complains the trial court has invited more litigation. Appellant
points out that as Child’s legal father, Appellant could take Child at any future
time to obtain a private paternity test which will allow Appellant to resurrect
his fraud claim with definitive evidence of Mother’s untruthfulness, if the
results confirm Appellant’s suspicions of fraud. Appellant concludes the court
erred by rejecting his claim of fraud and denying genetic testing, and this
Court must grant relief. We agree that Appellant is entitled to genetic testing
under the unique facts of this case.
“The presumption of paternity, i.e., the presumption that a child
conceived or born during a marriage is a child of the marriage, …is one of the
strongest presumptions known to the law.” Vargo, supra at 463 (citation
omitted). Because the policy underlying the presumption is the preservation
of marriages, “the presumption of paternity applies only where the underlying
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policy to preserve marriages would be advanced by application of the
presumption.” Id. (emphasis in original). Thus, the presumption of paternity
is not applicable when there is no longer an intact family or a marriage to
preserve. Id. If the presumption of paternity is inapplicable, the court must
then consider whether the doctrine of paternity by estoppel applies to the facts
of the case. Id. at 464.
“Generally, estoppel in paternity issues is aimed at
achieving fairness as between the parents by holding both
mother and father to their prior conduct regarding paternity
of the child.” Buccieri v. Campagna, 889 A.2d 1220, 1224
(Pa.Super. 2005) (quoting Freedman v. McCandless, 539
Pa. 584, 592, 654 A.2d 529, 533 (1995)). This Court has
held that the principle of paternity by estoppel is well suited
to cases where no presumption of paternity applies. Gulla
v. Fitzpatrick, [596 A.2d 851, 858 (Pa.Super. 1991)]. The
number of months or years a party held out another as the
father of a child is not determinative of an estoppel claim.
Id. “Rather, it is the nature of the conduct and the effect
on the father and the child and their relationship that is the
proper focus of our attention.” Id.Estoppel has been used variously in cases involving
paternity and support. See, e.g., Fish v. Behers, 559 Pa.
523, 741 A.2d 721 (1999) (holding as between mother and
biological father, mother was estopped from asserting
paternity of biological father, where she repeatedly assured
her ex-husband that he was child’s biological father);
Moyer v. Gresh, 904 A.2d 958 (Pa.Super. 2006) (holding
as between putative father and biological father, biological
father was estopped from challenging paternity of putative
father where putative father raised child for nine years);
Buccieri, supra (holding biological father was estopped
from asserting paternity due to eight-year delay in
accepting any responsibility as parent); J.C. v. J.S., 826
A.2d 1, 5 (Pa.Super. 2003)[, appeal denied, 576 Pa. 724,
841 A.2d 531 (2003)] (holding putative father was estopped
from denying paternity because he continued to act as
child’s father after his paternity was disproved); Gulla,
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supra (holding as between mother and putative father,
mother was estopped from denying paternity of putative
father where she had held him out as child’s father). Even
in the context of a marriage, the principle of estoppel can
be applied if fraud occurs. See also Doran, supra (holding
husband was not estopped from denying paternity of child
born during husband’s marriage to mother, where she
deceived him into believing he was child’s biological father);
Kohler[ v. Bleem, 654 A.2d 569 (Pa.Super. 1995), appeal
denied, 541 Pa. 652, 664 A.2d 541 (1995)] (holding
biological father could not assert estoppel to prevent
presumptive father from denying paternity, in light of
conclusive evidence of paternity, fraud and
misrepresentation on issue of true identity of biological
father, and absence of intact family).
* * *
“Estoppel in paternity actions is based on the public policy
that children should be secure in knowing who their parents
are….” Gebler v. Gatti, 895 A.2d 1, 3 (Pa.Super. 2006)
(citing Brinkley v. King, 549 Pa. 241, 701 A.2d 176(1997)). “The doctrine is designed to protect the best
interests of minor children by allowing them to ‘be secure in
knowing who their parents are.’” Moyer, supra (internal
citation omitted). The application of paternity by estoppel
in any form is very fact specific and must be grounded in a
close analysis of the circumstances of the case. Gebler,
supra (citing T.L.F. v. D.W.T., 796 A.2d 358, 363
(Pa.Super. 2002)); Matter of Green, [650 A.2d 1072, 1075
(Pa.Super. 1994)]. The length of time involved is only one
circumstance to be considered. Gulla, supra. This Court
has also considered society’s concerns for stability in the
child’s life, such as whether there is a stable family unit to
preserve. Buccieri, supra. An additional factor is whether
the child’s father “is willing to care [for the child]…and
capable of doing so….” Moyer, supra at 963.
Conroy v. Rosenwald, 940 A.2d 409, 416-17 (Pa.Super. 2007).
Additionally, the relevant portion of the statute governing
acknowledgments of paternity provides as follows:
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(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 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…
* * *
(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 be suspended during the period of challenge except for
good cause shown.
23 Pa.C.S.A. § 5103(a), (g) (internal footnote omitted).
Thus, a signed acknowledgment of paternity may be challenged based
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upon fraud, duress or material mistake of fact. 23 Pa.C.S.A. § 5103(g). This
Court has explained the law regarding fraud in this context as follows:
In B.O. v. C.O., [590 A.2d 313 (Pa.Super. 1991)], this Court
stated that “when an allegation of fraud is injected in an
acknowledgment of paternity case, the whole tone and tenor
of the matter changes. It opens the door to overturning
settled issues and policies of the law.” B.O., [supra] at
315. This Court went on to create a narrow fraud exception
for challenging paternity, which is otherwise a settled issue
based on the signed acknowledgment. We adopted the
traditional elements of fraud established in Pennsylvania
jurisprudence:
(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.
Id. Recent cases have moved away from this rigid five-
prong test which this Court acknowledged in B.O. as
problematic and somewhat circular. [Id.] Our…decision of
Glover v. Severino, 946 A.2d 710 (Pa.Super. 2008),
provides additional guidance as to the elements of fraud in
the context of challenges to acknowledgments of paternity:
A misrepresentation need not be an actual statement;
it can be manifest in the form of silence or failure to
disclose relevant information when good faith requires
disclosure. 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.
Id. (quotations and citations omitted) (emphasis in
original).
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In Glover, a mother had a brief sexual relationship with a
putative father and became pregnant. Despite knowing that
she had other sexual partners at the time of conception, the
putative father signed an acknowledgment of paternity and
paid child support, though his involvement in the child’s life
was minimal and sporadic. Mother insisted that putative
father was the father of the child, despite the results of later
testing that revealed he was not. This Court held that
despite the mother’s strong belief as to the identity of the
biological father, her silence on the issue of other possible
fathers and her failure to be forthcoming about the true
probabilities of paternity constituted fraud by omission.
R.W.E. v. A.B.K., 961 A.2d 161, 168 (Pa.Super. 2008) (en banc). See also
N.C. v. M.H., 923 A.2d 499 (Pa.Super. 2007) (holding doctrine of paternity
by estoppel was inapplicable where appellant operated for over ten years
under false pretense that he was child’s father due to mother’s failure to
inform appellant of extramarital affair she had around time of child’s
conception); Gebler, supra (holding trial court erred in applying doctrine of
paternity by estoppel where appellant’s behavior as responsible father for first
eighteen months of child’s life was due to mother’s concealment of existence
of other sexual partners around time of child’s conception).
Indeed, this Court has explained:
The presumption that a child born during the marriage is a
child of the marriage and the doctrine of paternity by
estoppel grew out of a concern for the protection of the
family unit; where the unit no longer exists, it defies both
logic and fairness to apply equitable principles to
perpetrate a pretense. In this case, application of
estoppel would punish the party that sought to do
what was righteous and reward the party that has
perpetrated a fraud.
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Doran, supra at 1283-84 (emphasis added).
In K.E.M. v. P.C.S., 614 Pa. 508, 38 A.3d 798 (2012), our Supreme
Court upheld the continued viability of the paternity by estoppel doctrine
where the developed record demonstrates that doing so would serve the
child’s best interests. In analyzing whether the doctrine should apply, the
Court indicated that the best interests of the child “remains the proper,
overarching litmus, at least in the wider range of cases.” Id. at 525-26,
38 A.3d at 808 (emphasis added). In qualifying its holding, the Court was
clear to state that the strongest case of “overriding equities” to overcome
application of paternity by estoppel is the “typical fraud scenario (in which a
[putative father] is deluded into believing that a child is his own issue)[.]”
Id.at 525 n.7, 38 A.3d at 808 n.7. While the Court acknowledged that “even
in such circumstances, there are arguments to be made that the best interests
of a child should remain the predominate consideration,” the Court expressly
reserved any decision on how the best interests of the child should factor into
the analysis of a fraud scenario. Id.
Instantly, the parties were never married and there is no intact family
unit to preserve. Consequently, the presumption of paternity does not apply
here. See Vargo, supra. Nevertheless, the trial court applied the doctrine
of paternity by estoppel, reasoning that it is “beyond any doubt that [Child’s]
future life would be better if [Appellant] were to remain as her legal father.”
(Trial Court Opinion at 19). The court acknowledged that there is a legitimate
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question about whether Appellant is Child’s biological father; but the court
concluded Child’s best interests must be the overarching concern.
We are constrained to disagree with the trial court’s analysis. Since our
High Court’s decision in K.E.M., this Court has had occasion to apply its
principles to scenarios involving claims of fraud. Recently, in Hortman v.
Hortman, No. 2352 EDA 2021 (Pa.Super. Sept. 8, 2022) (unpublished
memorandum),2 this Court upheld the trial court’s finding of fraud and order
granting genetic testing. Although the appellee had held himself out as the
child’s father, the appellee did so based on the mother’s insistence that he
was the child’s father. In his petition for genetic testing, the appellee
presented evidence that another man was the child’s biological father. The
appellee also underwent private genetic testing, confirming that he was not
the child’s father.
In rejecting the mother’s claim of paternity by estoppel, this Court
discerned no abuse of discretion by the trial court in concluding that the
mother had perpetrated a fraud upon the appellee by (1) misrepresenting the
nature of her 2015 extramarital sexual encounter with another man; (2) her
adamant and persistent denial of the possibility that the other man could be
child’s biological father and her simultaneous ridicule of the appellee when he
questioned her about paternity; (3) the mother’s intention to induce the
____________________________________________
2See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019 for persuasive value).
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appellee to assume parental responsibility for the child; (4) the appellee’s
justifiable reliance upon the mother’s misrepresentation; and (5) the
appellee’s financial and emotional damage as a result. See id. at 22-23. This
Court also noted that the appellee did not continue to hold the child out as his
own after discovering that he was not the child’s biological father, and that
the appellee’s contact with the child had ceased.
This Court further held that the mother’s reliance on K.E.M. was
misplaced. In doing so, this Court explained: “In contrast to K.E.M., Appellee
in this case raised and proved a claim of fraud. Thus, K.E.M. is
distinguishable.” Hortman, supra at 29-30 (citing Ellison v. Lopez, 959
A.2d 395, 398 (Pa.Super. 2008) for proposition that even where father/child
relationship has been established, evidence of fraud may preclude application
of doctrine of paternity by estoppel). This Court went on to state that “if the
court estopped Appellee from challenging paternity, it would have punished
[the party] who had ‘sought to do what was righteous’ by assuming parental
duty of [the child], and it would have rewarded Mother who ‘perpetrated a
fraud.’” Hortman, supra at 30 (citing Doran, supra at 1283-84).
Here, Appellant has presented a colorable claim of fraud. Appellant’s
evidence of fraud includes, inter alia (1) Appellant’s actions taken after receipt
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of the Ancestry.com results;3 (2) testimony from Appellant and K.D. that G.H.
was a person connected as family to Child via the Ancestry.com results; (3)
G.H.’s testimony that Mother and G.H.’s brother, R.H., were engaged in 2008
around the time of Child’s conception; (4) the court’s judicial notice of the fact
that R.H. is a convicted sex offender, which might have provided a motive for
Mother to deny a sexual relationship with R.H.; (5) Mother’s steadfast refusal
to permit Child to undergo genetic testing to protect Child’s best interests,
which the trial court found incredible based on the minimally invasive testing
measures;4 and (6) Mother’s repeated assertions to Appellant that he is Child’s
biological father, upon which Appellant has relied since Child’s birth.
Certainly, if genetic testing confirms that Appellant is not Child’s
biological father, then he will have successfully proved fraud. In the absence
of genetic testing or an admission by Mother to engaging in sexual relations
with someone else around the time of Child’s conception, however, Appellant
will be unable to prove his claim of fraud. While our High Court recognized
that “there are arguments to be made that the best interests of a child should
remain the predominate consideration” in fraud cases, the Court expressly
____________________________________________
3 We reiterate that the trial court did not admit the Ancestry.com results as
substantive evidence but only to demonstrate Appellant’s state of mind after
receiving those results.
4(See Trial Court Opinion at 16) (stating Mother’s “vague proclamation that
a blood test ‘would be traumatic for my daughter’ is simply not credible.
Modern genetic tests are simple, easy and almost entirely pain-free”).
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declined to embrace such a holding. See K.E.M., supra at 525 n.7, 38 A.3d
at 808 n.7. We decline to extrapolate our holding today from the Court’s
comment in a footnote, which was mere dicta. Rather, we hold that to apply
the doctrine of paternity by estoppel under the circumstances of this case
would punish Appellant, who “sought to do what was righteous” by assuming
parental duty of Child, and reward Mother, who might be guilty of perpetrating
a fraud. See Doran, supra. See also N.C., supra; Gebler, supra;Hortman, supra.
In so holding, however, we decline to accept Appellant’s position that
Child’s best interests are completely irrelevant in paternity disputes involving
claims of fraud. To the contrary, we simply do not hold, as the trial court did,
that a child’s best interests are elevated over the interests of a party who has
been defrauded. The analysis in cases such as these should turn on their
unique facts and consideration of all the relevant circumstances, which
necessarily includes evidence of fraud and the child’s best interests. Only in
cases where fraud is proven, will the “overriding equities” favor disestablishing
paternity, even if doing so would otherwise be against the child’s best
interests. Based upon the foregoing, we hold that Appellant has put forth
sufficient evidence of fraud such that he is entitled to genetic testing to prove
his claim.
In his third issue, Appellant argues there is no legal authority in
Pennsylvania for the appointment of a GAL in a paternity by fraud action.
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Appellant claims the court erred by relying on Pa.R.C.P. 1915.11-2 to make
this appointment, as that Rule governs actions for custody, not paternity.
Appellant insists the cases on which the court relied as authority to appoint
the GAL did not involve claims of fraud, so they are distinguishable. Appellant
concludes the court’s appointment of a GAL and subsequent admission of his
report was improper, and this Court must grant relief. We disagree.
Instantly, on April 27, 2021, the court scheduled a factual hearing for
July 20, 2021 and appointed a GAL to assist the court in determining the best
interests of Child. The order directed “that [the GAL] conduct an
investigation…with respect to whether and/or how [Child] would be affected
by a disestablishment of paternity…[and] to issue a written report on this issue
on or before July 1, 2021.” (Order, 4/27/21, at 1; R.R. at 72). The court
further directed that the GAL “shall be prepared to testify regarding his
investigation and the conclusions that flow from that investigation. He shall
be subject to cross-examination by both parties.” (See id.) In appointing the
GAL, the court stated the GAL “shall represent the best interests of the child
in accordance with Pa.R.C.P. 1915.11-2.[5] The GAL shall not act as the child’s
attorney or represent the child’s legal interests as an advocate in [c]ourt.”
(Id. at 2; R.R. at 73). On June 28, 2021, the GAL issued a report indicating
that it would not be in Child’s best interest to disestablish paternity. Appellant
____________________________________________
5See Pa.R.C.P. 1915.11-2(a) (providing for appointment of GAL to represent
best interests of child in custody action).
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objected to the GAL’s testimony and the report.
While we agree with Appellant that Rule 1915.11-2 regarding the
appointment of a GAL in custody proceedings is not directly applicable here,
we disagree with Appellant’s position that the court was prohibited from
appointing a GAL under the unique facts of this case. As previously stated,
while a child’s best interests do not take precedence over a colorable claim of
fraud in a paternity by estoppel case, they are not irrelevant, as Appellant
suggests. Rather, these types of cases must each be decided on their own
unique facts. See Gebler, supra. Significantly, Appellant cites no authority
that precludes a court from appointing a GAL in this context to aid the court’s
determination in a paternity dispute case. See, e.g., K.E.M., supra at 528,
38 A.3d at 809 (explaining that trial court has authority to appoint GAL to
advocate child’s best interests in paternity dispute); R.K.J. v. S.P.K., 77 A.3d
33 (Pa.Super. 2013), appeal denied, 624 Pa. 665, 84 A.3d 1064 (2014) (in
which trial court appointed GAL to discern child’s best interests in paternity by
estoppel case). Therefore, Appellant’s third issue merits no relief.
In his fourth issue, Appellant argues the court improperly ordered that
the support funds held in escrow should be released to Mother. Appellant
claims the court denied his request to stay release of the escrowed funds in
part, by ordering that 50% of the funds be released and 50% of future
payments to be held in escrow pending appeal. Appellant contends the court’s
ruling could be irreparable; recovery of those funds will likely involve even
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more litigation if this Court reverses the trial court’s decision. Appellant
concludes the court erred by denying his request to stay a release of the
escrowed funds. We disagree.
As a preliminary matter, appellate arguments which are not
appropriately developed are waived. Lackner v. Glosser, 892 A.2d 21, 29
(Pa.Super. 2006). Here, Mother points out that Appellant cites no legal
authority supporting his claim that the court was prohibited from denying
Appellant’s request for a stay, in part, and keeping some of the child support
payments in escrow. (See Mother’s Brief at 9). We agree with Mother’s
contention. In his brief, Appellant cites only to Pa.R.A.P. 1701(b)(1), which
discusses the effect of an appeal generally, and the trial court’s authority to
act while an appeal is pending. See Pa.R.A.P. 1701(b)(1). Appellant’s single
citation to this Rule of Appellate Procedure is insufficient to support his claim
on appeal, and we deem this issue waived for inadequate development. See
Lackner, supra. See also Irwin Union Nat. Bank and Trust Co. v.
Famous, 4 A.3d 1099 (Pa.Super. 2010), appeal denied, 610 Pa. 610, 20 A.3d
1212 (2011) (stating this Court will not act as counsel and will not develop
arguments on behalf of appellant).
In his fifth issue, Appellant argues the court erred by denying his request
for recusal. Appellant asserts the court evidenced its bias against Appellant
early in the proceedings, when it authored an e-mail to the parties on March
31, 2021 stating the court was concerned that men might “harass or gain
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leverage over women who are the objects of their ire” by alleging fraud.
(Appellant’s Brief at 44) (citing E-mail dated 3/31/21; R.R. at 41). Appellant
insists the court was predisposed to a finding of paternity by estoppel without
an analysis of Appellant’s fraud claim. Appellant emphasizes that the court
offered no comment or judgment on Mother’s deceitful conduct. Appellant
complains the court summarily denied his recusal motion and did not provide
any rationale for its denial until a supplemental opinion authored after
Appellant appealed. Appellant contends the court failed to appreciate the
gravity of its words in the March 2021 e-mail until after Appellant appealed.
Appellant claims that based on the court’s “assumptive and inflammatory
tone” in the March 2021 e-mail, “the die was cast, and [Appellant] had no
objective hope that his proof of Mother’s fraud would be heard by an
openminded jurist.” (Appellant’s Brief at 47). Appellant concludes the court
erred by denying his recusal motion, and this Court must grant relief. We
disagree.
Our scope and standard of review are as follows:
The denial of a motion to recuse is preserved as an
assignment of error that can be raised on appeal following
the conclusion of the case. We review a trial court’s decision
to deny a motion to recuse for an abuse of discretion.
Indeed, our review of a trial court’s denial of a motion to
recuse is exceptionally deferential. We extend extreme
deference to a trial court’s decision not to recuse. We
recognize that our trial judges are honorable, fair and
competent, and although we employ an abuse of discretion
standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially. Hence,
a trial judge should grant the motion to recuse only if a
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doubt exists as to his or her ability to preside impartially or
if impartiality can be reasonably questioned.
Interest of D.R., 216 A.3d 286, 292 (Pa.Super. 2019), aff’d, 659 Pa. 319,
232 A.3d 547 (2020).
“A party seeking recusal must assert specific grounds in support of the
recusal motion before the trial judge has issued a ruling on the substantive
matter before him or her.” Bowman v. Rand Spear & Associates, P.C.,
234 A.3d 848, 862 (Pa.Super. 2020) (internal citation omitted). “Recusal is
required whenever there is a substantial doubt as to the jurist’s ability to
preside impartially.” Id. “However, opinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current proceedings
do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id. at 862-63.
Instantly, the court explained its rationale for denying Appellant’s
recusal motion as follows:
In this case, this jurist had no prior knowledge or contact
with either [Mother] or [Appellant]. Before presiding over
the above-referenced case, this jurist had limited
experience dealing with the issue of paternity by estoppel
and fraud in the context of paternity. Because of this, we
solicited legal briefs from the parties. The email sent by this
jurist on March 31, 2021 merely advised about a concern of
the [c]ourt so that said concern could be addressed in the
parties’ briefs. At no time in our email did we accuse
[Appellant] of any misconduct or improper motive. The
third paragraph of the email made clear that this jurist had
concerns because he had “encountered men in my years on
the bench who would use such a process simply to harass
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or gain leverage over women who are the objects of their
ire.” It became clear to this [c]ourt as the matter
progressed that the motivation of [Appellant] transcended
the concern articulated in the March 31, 2021 email.
At no time did this jurist have or display any “bias” against
[Appellant]. We confronted a difficult legal question and a
unique fact pattern as best we could, and we confronted that
question impartially and fairly without bias or prejudice. We
understand that [Appellant] disagrees and he can argue his
disagreement to Pennsylvania’s Superior Court. However,
this case should not be decided based upon a spurious
recusal motion based upon “bias” that simply did not exist.
(Supplemental Trial Court Opinion, filed 3/31/22, at 6-7). The record supports
the court’s analysis.
Here, the court held a hearing on March 16, 2021, at which time it
expressed its concern that granting Appellant’s petition for genetic testing
could “open the floodgates” for any father to allege fraud and seek genetic
testing upon a separation from the mother. (See N.T. 3/16/21, at 4-5; R.R.
at 19-20). Notwithstanding the court’s concerns, it listened to Appellant’s
arguments and proceeded in a fair and impartial manner by ordering the
parties to brief the relevant legal issues. (See id. at 7; R.R. at 21).
Specifically, the court indicated that it did not want to hold a hearing to
develop Appellant’s fraud claim until reading legal briefs on what authority the
court had to disestablish paternity after Appellant had already signed an
acknowledgment of paternity and held Child out as his own for many years.
The court explained to Appellant’s counsel: “And it may well be that you’re
right and I need to do a factual hearing; and if that’s so, I’ll read your cases;
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and I’ll set the parameters for that factual hearing.” (Id. at 13; R.R. at 26).
The court entered an order following the March 16, 2021 hearing, directing
the parties to file briefs within 30 days.
Following the hearing, the parties informed the court’s judicial assistant
via e-mail that they agreed a factual hearing was necessary to resolve the
issues at hand. Based on their agreement, the parties sought to dispense with
filing pre-hearing briefs and to proceed directly to a hearing instead. In
response, the court drafted the March 31, 2021 e-mail, upon which Appellant’s
recusal motion is based. The e-mail reads:
Dear counsel—
I have received your emails indicating concurrence that a
Factual Hearing is necessary. I will work with the Domestic
Relations Office to schedule a date and time for such a
hearing.
The above being said, I would still like a Memorandum of
Law from both of you. I have looked briefly at the law
pertaining to paternity by estoppel. With all due respect, I
do not believe it is as clear as you make it out to be. While
some factual issues may need to be resolved, I am not
willing to entertain a proceeding without being able to
establish parameters in advance.
I am concerned about the precedent of enabling a man to
obtain a Factual Hearing that could involve questions to a
woman about her sexual history. If all a father needs to do
in order to open the door to such sensitive topics is allege
fraud in a petition, there exists a significant danger of
mischief occurring. I have encountered men in my years on
the bench who would use such a process simply to harass
or gain leverage over women who are the objects of their
ire.
Because I would like to know how to set parameters in the
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above-referenced case, I still need you to file legal briefs as
previously directed. Please focus on the scope of the Factual
Hearing I will be conducting. Thank you for understanding
my position.
Very truly yours,
[The court].
(E-mail, dated 3/31/21, attached as Exhibit B to Appellant’s Recusal Motion,
4/5/21).
Contrary to Appellant’s assertions, we see nothing in this e-mail that
rises to the level of a “deep-seated favoritism [for Mother] or antagonism
[against Appellant] that would make fair judgment impossible.” See
Bowman, supra. Rather, the court reiterated the concerns it expressed at
the March 16, 2021 hearing and made clear that it still wanted to review briefs
on the legal issues before it, so the court could set parameters for the scope
of the hearing. Additionally, when setting parameters for the hearing, the
court expressly permitted Appellant “to articulate his theory of fraud. This will
necessarily require [Appellant] to provide information regarding his belief that
someone else is [Child’s] father.” (Trial Court Opinion, 4/27/21, at 15).
Simply because the court ultimately disagreed with Appellant’s position
following the hearing, does not mean the court showed bias. On this record,
we see no reason to disrupt the court’s denial of Appellant’s recusal motion.
See Interest of D.R., supra.
Accordingly, we vacate the portion of the court’s order denying
Appellant’s request for genetic testing and remand for genetic testing such
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that Appellant will have an opportunity to prove his claim of fraud. Following
the results of the genetic testing, the trial court should proceed as it sees fit
under the circumstances. We affirm the court’s order in all other respects.
Order affirmed in part, vacated and remanded in part. Jurisdiction is
relinquished.
President Judge Emeritus Stevens joins this opinion.
Judge Bowes files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2023
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