Hortman, L. v. Hortman, C.

J-A13010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAURA HORTMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CAMERON HORTMAN : No. 2352 EDA 2021
Appeal from the Order Entered October 18, 2021
In the Court of Common Pleas of Chester County
Domestic Relations at No(s): 00831N2019-FC,
PACSES 951117164
BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 08, 2022
Appellant, Laura Hortman (“Mother”), appeals from the October 18,
2021 order entered in the Court of Common Pleas of Chester County that
granted the petition for special relief filed by Appellee, Cameron Hortman, her
ex-husband, in the underlying child support action. Appellee’s petition
challenged the presumption of paternity of a five-year-old male child, F.H.,
and requested paternity testing.1 After careful review, we affirm.
The following facts and procedural history are not in dispute. On
November 7, 2015, the parties eloped in the State of Oklahoma, where
Appellee was stationed temporarily in the Air Force Reserve for pilot training,
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1 An order requiring blood tests to determine paternity is interlocutory but
immediately appealable. Jones v. Trojak, 634 A.2d 201, 204 (Pa. 1993).
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while Mother was visiting him. N.T., 6/11/20, at 11. Approximately one week
later, Mother returned to Pennsylvania. Appellee visited Pennsylvania for the
Thanksgiving and Christmas holidays in 2015, and he returned permanently
to Pennsylvania on January 22, 2016, after graduating from pilot training. Id.
at 16.
F.H. was born in September 2016. At the time, Appellee was solely
employed by the Air Force Reserve. Id. at 37. In January or February of
2017, Appellee also became employed as a private pilot. Id. at 38.
Mother and Appellee separated on July 11, 2018, and Mother
commenced child support and child custody actions. On September 21, 2018,
the court issued a final child and spousal support order against Appellee, which
was modified in February 2019, to include only child support, but with an
increased monthly amount. By order dated January 14, 2019, the court
awarded Mother primary physical custody and Appellee partial physical
custody two weekends per month, in addition to four evenings per month, for
four hours. Id. at 67.
The parties reconciled in March of 2019. However, they separated again
on June 27, 2019, and child support and custody litigation resumed. On
August 2, 2019, the trial court issued an interim child support order against
Appellee. On that same date, Appellee filed the subject petition for special
relief, approximately one month before F.H.’s third birthday. In his petition,
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Appellee sought to dispute paternity. Appellee and Mother divorced the
following month.
The parties’ divorce was precipitated by Mother’s extramarital sexual
encounter on December 12, 2015, with Patrick Murphy (“Murphy”), with whom
Mother entered a romantic relationship in the summer of 2015, prior to her
elopement. N.T., 3/10/21, at 181, 223. Mother testified that the relationship
ended on October 11, 2015, when Murphy physically assaulted her. Id. at
226. As a result of the alleged incident, Murphy was charged with disorderly
conduct, to which he pleaded guilty. Id. at 225-227; Plaintiff’s Exhibit 7.
The romantic relationship between Appellee and Mother began in 2012.
Their relationship was off and on until the date of their elopement. N.T.,
6/11/20, at 10-11; N.T., 3/10/21, at 223, 227. According to Appellee, in
August or September 2015, while dating Mother, he first learned of Murphy
when Murphy contacted him and told him of his relationship with Mother. Id.
at 16-17. Mother told Appellee that Murphy was “a crazy ex-boyfriend, don’t
listen to anything he has to say.” Id. at 16.
In his August 2, 2019 petition for special relief, Appellee alleged that,
since F.H.’s birth, Murphy had been in periodic contact with him and his family
to tell them that he had an affair with Mother “and that the child was believed
to be his.” Petition for Special Relief, 8/2/19, at ¶ 6. Appellee alleged that
“one of the sexual encounters” between Mother and Murphy was on December
10, 2015. Id. at ¶ 7. In addition, Appellee alleged that he conducted a private
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paternity test on July 19, 2019, which revealed a 0.0000% probability that he
is F.H.’s father. Moreover, Appellee alleged that Mother “lied to him in an
attempt to trick him into thinking he was the child’s father[.]” Id. at ¶ 15.2
Appellee alleged that he “does have a relationship with the child already, but
it is important that he find out if he really is his father.” Id. at ¶ 15. Appellee
asked the trial court to set aside the presumption of paternity and order
paternity testing.
Mother filed a response and new matter on September 17, 2019, in
which she denied ongoing sexual relations with Murphy. Rather, she alleged
that, on one occasion, Murphy raped her, and that, prior to F.H.’s birth,
Appellee was aware of the alleged rape. Nevertheless, Mother alleged that
Appellee is F.H.’s father and she denied that she lied to Appellee or tricked
him in matters concerning F.H.’s paternity. Further, Mother alleged that
Appellee held F.H. out to be his son; therefore, he is estopped from denying
paternity.
An evidentiary hearing on Appellee’s petition commenced on June 11,
2020, when F.H. was four years old. By then, Murphy had obtained a private
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2Appellee’s petition for special relief has a total of 17 paragraphs, rather than
15 as indicated on the last page of the document. Paragraphs 1 through 14
are set forth in chronological fashion. The next paragraph is numbered “13,”
which is a typographical error. We identify the last three paragraphs of the
petition as if they were properly numbered. Likewise, we identify the last
paragraphs of Mother’s response to the petition as if they were properly
numbered.
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paternity test, which revealed his paternity of F.H. Appellee, however, was
paying child support pursuant to a final child support order issued on February
13, 2020. Defendant’s Exhibit 11. In addition, Appellee introduced into
evidence, and the court admitted, a child custody order which the parties
consented to on June 10, 2020. The consent order awarded Mother sole
physical and legal custody of F.H.; however, Mother was required to inform
Appellee of any medical treatment of F.H. Defendant’s Exhibit 23.
The hearing resumed on March 10, 2021, June 24, 2021, and August
12, 2021. During the four days of hearings, Appellee testified on his own
behalf, and he presented the testimony of his mother, Sharon Cowen
(“Cowen”), with whom the parties lived after their elopement in November
2015 until October of 2016. Appellee also presented the testimony of Murphy.
Mother testified on her own behalf, and she presented the testimony of her
father, Stephen Burns (“Burns”).
In its opinion accompanying the subject order, the trial court set forth
the relevant testimonial evidence, which our review of the record confirms.
For purposes of this disposition, we adopt the court’s recitation of the
testimony. Trial Court Opinion, 10/8/21, at 2-15.
On October 18, 2021, after the parties filed closing argument briefs, the
trial court issued the subject order and accompanying opinion. Because there
was no intact marriage between Mother and Appellee, the court found the
presumption of paternity inapplicable. Trial Court Opinion, 10/18/21, at 2.
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The court then analyzed the doctrine of paternity by estoppel and found that
Appellee proved that Mother fraudulently induced him into believing that he
was F.H.’s biological father. In addition, the trial court found:
F.H. has had no contact with [Appellee] for years. [F.H.] has had
no physical contact since September 2019, and no Facetime video
contact since April of 2020. At his young age, his memories of
[Appellee] may not be strong. I find that it is in F.H.’s best interest
to vacate the presumption of paternity, as this would have no
adverse effect on the child.
Id. at 24. The court concluded that Appellee was not estopped from
challenging paternity and ordered DNA testing to determine whether he is
excluded as F.H.’s biological father. The court further ordered that, if the test
results show Appellee is excluded as the biological father, then (1) paternity
shall be vacated and (2) upon further proceedings, the court will consider
whether to return “child support paid” to Appellee. Order, 10/18/21, at
¶ 2(b).
On November 15, 2021, Mother timely filed a notice of appeal and a
concise statement of errors complained of on appeal. On the same date,
Mother filed a motion to stay the subject order, which the trial court granted.
In lieu of a Pa.R.A.P. 1925(a) opinion, the trial court referred this Court to its
opinion accompanying the subject order.
On appeal, Mother presents the following issues for review, which we
have re-ordered for ease of disposition:
1. Did the trial court err as a matter of law by holding that
Appellee properly raised, and that Mother engaged in fraud
relating to, the paternity of the child?
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2. Did the trial court err as a matter of law in its application of
the doctrine of paternity by estoppel?
3. Did the trial court err as a matter of law and abuse its
discretion by finding that it was in the child’s best interest
to vacate the presumption of paternity and allow DNA
testing without a fully developed record that explored the
best interests of the child, including a determination and
consideration of the bond between [Appellee] and child?
4. Did the trial court have the authority to order DNA testing
to determine the paternity of the child?
Mother’s Brief at 5.
We review the trial court’s order for 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. citing Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003) (internal
citations omitted). “The finder of fact is entitled to weigh the evidence
presented and assess its credibility.” Vargo, 940 A.2d at 462 quoting 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 determinations of the [trial] court.”
Vargo, 940 A.2d at 462 (citation omitted).
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The legal determination of the paternity of a child conceived or born
during a marriage derives from the common law.
[F]irst, one considers whether the presumption of paternity
applies to [the] particular case. If it does, one then considers
whether the presumption has been rebutted. Second, if the
presumption has been rebutted or is inapplicable, one then
questions whether estoppel applies. Estoppel may bar either a
plaintiff from making the claim or a defendant from denying
paternity.
N.C. v. M.H., 923 A.2d 499, 502–503 (Pa. Super. 2007) quoting Brinkley v.
King, 701 A.2d 176, 180 (Pa. 1997) (plurality opinion). Our Supreme Court
has held, “before an order for a blood test is appropriate to determine
paternity the actual relationship of the presumptive father and natural
mother must be determined.” Jones, 634 A.2d at 206 (citation omitted).
It is well-settled that the presumption of paternity is inapplicable when
there is no longer an intact marriage to preserve. Fish v. Behers, 741 A.2d
721, 723 (Pa. 1999) (presumption of paternity only applies if its application
would preserve an intact marriage or family; if no intact marriage or family
exists, the presumption of paternity is inapplicable). In this case, Mother
urges this Court to apply the presumption but does not claim error or abuse
of discretion with the court’s determination that the presumption does not
apply. Indeed, Appellee and Mother were separated when Appellee filed the
subject petition, and they were divorced by the time of the hearing. Given
these circumstances, we agree that the presumption does not apply. Hence,
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we concentrate our analysis on the trial court’s conclusion that Appellee was
not estopped from denying paternity of F.H.
In Fish, the Court explained:
Estoppel in paternity actions 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.”
Fish, 741 A.2d at 723 citing Freedman v. McCandless, 654 A.2d 529, 532–
533 (Pa. 1995). The Court stated, “where the principle is operative, blood
tests may be irrelevant, for the law will not permit a person in these situations
to challenge the status which he or she has previously accepted.” Fish, supra
(citation omitted).
The doctrine of paternity by estoppel rests on the following public policy
considerations:
Estoppel is based on the public policy that children should be
secure in knowing who their parents are. If a certain 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.
Fish, 741 A.2d at 724 citing Brinkley, 701 A.2d at 180.
This Court has stated, however, that, “when allegations of fraud arise in
a paternity action, an estoppel analysis must proceed in a different manner
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than it would without such averments.” Doran, 820 A.2d at 1283 (citation
omitted). We explained:
The presumption that a child born during a 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 that unit
no longer exists, it defies both logic and fairness to apply
equitable principles to perpetuate 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.
Id. at 1283-1284 (emphasis added). This Court has reiterated, “[e]ven where
the father-child relationship has been established, . . . evidence of fraud may
preclude application of the doctrine of paternity by estoppel.” Ellison v.
Lopez, 959 A.2d 395, 398 (Pa. Super. 2008). We have also stated, “where
fraud or misrepresentation is involved, courts applying the doctrine of
paternity by estoppel have taken care to consider evidence of the [putative
father’s] conduct toward the child not only before the husband learned that
he was not the child’s biological father, but also after becoming aware of his
non-parentage.” Vargo, 940 A.2d at 464 (emphasis in original) (internal
citations omitted).
To prove fraud in this case, Appellee was required to demonstrate by
clear and convincing evidence “(1) a misrepresentation, (2) a fraudulent
utterance, (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 a proximate
result.” Ellison, 959 A.2d at 398 (citation omitted).
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In her first and second issues, Mother argues that the trial court erred
as a matter of law by finding fraud and not applying paternity by estoppel.
Mother baldly asserts that Appellee failed to specifically allege fraud in his
petition; therefore, she asserts that Appellee waived his fraud claim. Mother’s
Brief at 32. In the alternative, Mother asserts that her conduct “does not meet
the legal standard for fraud because she did not misrepresent the child’s
paternity to” Appellee. Id. at 33. Specifically, Mother argues that Appellee
did not prove fraud or deception on her part because (1) Appellee was aware
of the possibility that he was not F.H.’s biological father, and (2) Mother did
not believe she was pregnant from her sexual encounter with Murphy on
December 12, 2015. We disagree.
With respect to Mother’s argument that Appellee failed to specifically
allege fraud, we conclude that Mother waived this contention in failing to
provide meaningful discussion with citation to relevant case authority in her
brief. See In re M.Z.T.M.W., 163 A.3d 462, 465-466 (Pa. Super. 2017)
(citation omitted) (reiterating that a claim is waived where an appellate brief
fails to provide any discussion of the claim with citation to relevant authority
or fails to develop the issue in any other meaningful fashion capable of
review); Pa.R.A.P. 2119(a)–(b).
In addition, Mother did not file preliminary objections to Appellee’s
petition for special relief alleging insufficient specificity as to his allegations of
fraud. See Pa.R.C.P. No. 1028(a)(3) (providing preliminary objections “may
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be filed by any party to any pleading and are limited,” in part, to “insufficient
specificity in the pleading”). This Court has explained:
[B]oilerplate allegations—without sufficient facts—constitute
defective pleading. Pa.R.C.P. 1019(a). However, a party must
file preliminary objections to preserve a claim that a pleading is
insufficiently specific. Pa.R.C.P. 1028(a)(3). A party who fails to
file preliminary objections waives any challenge to the specificity
of that pleading. Pa.R.C.P. 1032(a).
Vill. of Four Seasons Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103
A.3d 814, 821 (Pa. Super. 2014) (some citations omitted). Thus, because
Mother did not file preliminary objections to Appellee’s petition, she has
waived her challenge to any alleged lack of factual specificity.
Even if not waived, we would conclude that Mother is not entitled to
relief on this basis. This Court has reiterated:
Averments of fraud are meaningless epithets unless sufficient
facts are set forth which will permit an inference that the claim is
not without foundation or offered simply to harass the opposing
party and to delay the pleader’s own obligations. . . . The
pleadings must adequately explain the nature of the claim to the
opposing party so as to permit him to prepare a defense and they
must be sufficient to convince the court that the averments are
not merely subterfuge.
Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072–1073 (Pa. Super.
2003) citing Bata v. Central–Penn National Bank of Philadelphia, 224
A.2d 174, 179 (Pa. 1966); Pa.R.C.P. 1019(b).
Our review confirms that Appellee’s averments are not merely
subterfuge. Appellee sets forth facts sufficient to support a fraud claim and
which afford Mother ample grounds upon which to prepare a defense. Indeed,
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Appellee averred that he questioned Mother on a number of occasions
throughout their marriage about F.H.’s paternity, but Mother “has always
insisted that the child was” his. Petition for Special Relief, 8/2/19, at ¶¶ 5-6.
Further, Appellee averred that, at the first child-support conference in
September 2018, “he was still thinking, mostly due to [Mother’s] insistence,
that he was the father of the child.” Id. at ¶ 13. Lastly, Appellee averred
that Mother “lied to him in an attempt to trick him into thinking he was the
child’s father[.]” Id. at 15. In her response and new matter, Mother denied
that she lied to Appellee or tricked him about paternity. Response, 9/17/19,
at ¶¶ 15-16. Thus, even if not waived, we would conclude that Mother has
not demonstrated that Appellee’s claims of fraud constituted mere subterfuge.
We now turn to Mother’s argument, in the alternative, that the court
erred in finding fraud. The trial court found that Appellee became aware on
January 27, 2016, of the possibility “that he was not the biological father” of
F.H. Trial Court Opinion 10/18/21, at 17. Appellee testified that, on January
27, 2016, his mother, Cowen, provided him and Mother with an audio
recording of a telephone conversation between Mother and Murphy following
a sexual encounter that occurred between them on December 12, 2015. N.T.,
6/11/20, at 18-21; N.T., 3/10/21, at 13 (Cowen testified that the audio
recording she received from Murphy included a discussion between Murphy
and Mother in which they referred to the night they had intercourse and
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Murphy told Mother she should leave Appellee and be with him). In addition,
the trial court aptly found:
[Appellee] may not have wanted to believe it, but he was aware
of the possibility [that he was not F.H.’s father]. At the January
30, 2016 family meeting, Stephen Burns[, Mother’s father,]
suggested a paternity test could settle the issue. [Mother] did not
want to undergo an in vitro test. After F.H. was born, [Appellee]
chose not to have the child tested, regardless of whether the
hospital offered a paternity test. [Appellee] could have taken F.H.
(and himself) to be tested, or he could have ordered an at-home
test as he did in 2019, to determine if he was the father. Instead,
[Appellee] held himself out as F.H.’s father. He periodically
questioned [Mother] about F.H.’s paternity, yet he continued to
act as F.H.’s father.
Trial Court Opinion 10/18/21, at 17.
By way of background, there is no dispute that a family meeting
occurred on January 30, 2016, between Appellee, Mother, Burns, Cowen, and
Cowen’s husband, for the purpose of discussing the extramarital sexual
encounter that Appellee learned about on January 27, 2016. It was during
this meeting that Mother informed Appellee and his family that her sexual
encounter with Murphy on December 12, 2015, was due to rape.3 Mother also
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3 Mother testified on direct examination that she reported the alleged rape to
the East Pikeland Police Department on February 1, 2016. N.T., 6/24/21, at
62. Mother acknowledged that she hesitated to report it, in part, “[b]ecause
I had worked with the police officers of . . . East Pikeland Police Department
to stop [Murphy] from harassing me and seriously stalking me and they
weren’t doing an effective job, so I felt like part of it was they weren’t going
to assist me like they should. . . .” Id. at 62-63. Mother testified that she
did not move forward with the rape allegation after reporting it in February
2016, “Because I was pregnant and I didn’t want . . . Murphy knowing that I
was pregnant. I just wanted him to leave me alone and just live my life with
(Footnote Continued Next Page)
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informed Appellee and his family during the meeting that she purchased and
ingested the Plan B oral contraceptive the morning after the alleged rape.
N.T., 6/11/20, at 28. Appellee testified that Mother was “very adamant”
during the family meeting “that the child was mine.” Id. at 27. Appellee
testified that he believed Mother’s statements during the family meeting, and
he did not demand that a paternity test be performed at that time because
Mother stated she was opposed to “a needle [being stuck] in my stomach.”
Id. at 23. Further, Appellee testified that he signed the birth certificate when
F.H. was born less than eight months later because “I still believed that [F.H.],
at that point, was my son, and . . . I believed [Mother].” Id. at 36.
Likewise, there is no dispute that Appellee acted as F.H.’s father during
the marriage and throughout the marital separations, which occurred from
July 11, 2018, until March of 2019, and again from June 27, 2019, until their
divorce in September 2019. Nevertheless, Appellee testified that he
occasionally questioned Mother about his paternity. Id. He described
Mother’s response as “ruling with an iron fist. Our son is upstairs sleeping,
how can you say something like that[?] He’s your son. He’s [sic] always been
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my husband and honestly, I thought if I just let it go, . . . [Murphy] would go
away[,] and that never happened.” Id. at 63. Mother testified that the rape
allegation “[is] currently being investigated” by the district attorney. Id.
However, the record reveals that the East Pikeland Police Department closed
its investigation of Mother’s rape allegation on February 17, 2016. Exhibit P-9
at 28. Mother did not testify that the same police department re-opened its
investigation or transferred the allegations to the district attorney’s office.
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your son. [Murphy] is not his father. He raped me. I got a Plan B. How
could you even question something like that?” Id. at 36-37. On
cross-examination, Appellee testified:
Q. Well, maybe you can explain what you mean by iron fist.
A. Basically, she was incredibly adamant. She was insistent and
. . . persistent that I’ve been the father, I’ve always been the
father, [Murphy] is not the father. How could you question that?
Q. Well, perhaps she believed that you were the father, correct?
A. She could think that, yes.
Q. And you had your doubts about that?
A. That’s correct. But then [Mother] would go on one of those
rants to, basically, shame me into even questioning something
like that.
Id. at 143. Appellee reiterated on the last day of the subject proceeding that
when he asked Mother if F.H. is “even mine[,] . . . she would . . . ridicule me
into basically [implying] I was [a] bad person for considering that the baby
upstairs may not be mine.” N.T., 8/12/21, at 143.
Appellee testified that he seriously questioned his paternity because of
Mother’s conduct after their second separation, on June 27, 2019, due to
Appellee’s perception that Mother was trying to “ruin my life and take
everything that she could.” N.T., 6/11/20, at 52-53. Specifically, Mother filed
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a Protection from Abuse (“PFA”) petition against him,4 and she filed a criminal
complaint against him involving harassment. The allegations in both
pleadings arose from the same set of facts that occurred on the date of their
separation, the specifics of which are not in the certified record. Id. at 50.
Appellee testified that he was “very concerned” about the criminal charge for
the following reason:
Because with the Air Force, I have a top[-]secret security
clearance and to have something criminal on my record would not
only potentially preclude me from getting a top security clearance
— which just flying in my jet alone, you have to have a secret
security clearance.
We also carry guns in combat zones, and it’s my understanding
that something called the . . . Act precludes me from being able
to carry a weapon in the military because of this [charge], which
almost would certainly have gotten me kicked out of the Air Force
because I wouldn’t be able to do the job I was hired to do.
Id. at 51. Appellee testified that, following the PFA hearing, the court denied
Mother’s petition. Id. However, in a separate proceeding, Appellee was found
guilty of the harassment charge, which he testified was a “summary offense.”5
Id.
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4The record does not indicate whether Mother’s PFA petition against Appellee
was civil or criminal in nature. As best we can discern, neither the PFA petition
nor the order denying it were introduced and admitted as exhibits during the
hearing.
5 There is no evidence in the record with respect to whether the conviction
affected Appellee’s Air Force career.
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With this background in mind, Appellee explained his decision to perform
a private paternity test “in the middle of” July 2019, as follows.
[E]verything was getting so hectic [between Appellee and
Mother,] and I wanted to believe [Mother], but with everything
that was going on[,] in the back of my mind, I was kind of saying
to myself, like, I’ve questioned [Mother] all along these past
couple of years, and I’ve always been shut down, basically, with
an iron fist that I am his father.
And with everything that was going on, I just had to know whether
or not [F.H.] was mine. And if he was, I was willing to fight for
him. But if he wasn’t then, you know, I didn’t want to keep
[Mother] in my life for the next 15 years to use [F.H.] against me
. . . and potentially destroy everything.
Id. at 53-54.
In addition, Appellee decided to perform the private paternity test
because Murphy once again contacted him around this same time. Id. at 53.
The trial court found, and the record confirms, that Mother resumed contact
with Murphy after the first and second marital separations. Trial Court
Opinion, 10/18/21, at 19. Appellee introduced into evidence and the court
admitted communications via Facebook messenger between Mother and
Murphy in July 2018, at the time of the first separation. N.T., 6/11/20, at
193-199; Exhibit D-26. The trial court described one communication and
weighed it as follows.
If [Mother] was raped by [Murphy], why did she resume contact
with him through messages after she broke up with [Appellee]?
In one of their first messages, [Murphy] states[,] “I just want to
know my son.” [Mother] replies: “I owe you a major apology
for what had happened in the past which I regret and
wanted to clear things up.” (D-26). Why would [Mother] owe
[Murphy] an apology if he had raped her?
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Trial Court Opinion, 10/18/21, at 19 (emphasis added). The court found that
Mother met Murphy at Wegmans grocery store “after the first break up and at
a movie theater after the second breakup. Why would she go to Wegmans
and to the movies with someone who raped her?” Id.; see also N.T.,
6/11/20, at 193 and 206.
Murphy testified that he communicated with Mother for the purpose of
obtaining a private paternity test. N.T., 6/11/20, at 205, 208. Murphy
testified that Appellee ultimately made it possible for him to obtain a paternity
test. Id. at 209. Indeed, Appellee testified that he paid for Murphy’s paternity
test, and, on September 2, 2019, he met Murphy with F.H. to obtain DNA
samples. Id. at 58, 60-61. Appellee testified that Murphy’s paternity test
results were received approximately nine days later and revealed that Murphy
“was without a doubt [F.H.]’s . . . biological father.” Id. at 62.
The trial court determined that Appellee proved fraud by Mother. First,
the court found incredible Mother’s allegation that Murphy raped her. Trial
Court Opinion, 10/18/21, at 18-20. The evidence supports the trial court’s
finding that the December 2015 sexual encounter between Mother and Murphy
did not involve rape. The court based its finding on the audiotape of the
telephone conversation between Mother and Murphy, which Appellee listened
to on January 27, 2016. N.T., 8/12/21, at 138. In addition, Mother had
multiple Facebook messenger communications with Murphy during her marital
separations, and our review shows that she never accused him of rape in any
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of them. Mother also physically met with Murphy while separated from
Appellee. Finally, Murphy had not been charged with the crime of rape in the
five and one-half years since Mother reported it to the police. See n. 3, supra.
Second, the trial court found that Mother made Appellee “feel ashamed
for suggesting that F.H. could have been fathered by someone who had ‘raped’
her.” Trial Court Opinion, 10/18/21, at 20. The court found that Appellee
“continued to conduct himself as F.H.’s father because he believed [Mother]’s
statements that he was the father[,] and that there was no possibility that the
encounter with [Murphy] resulted in her pregnancy.” Id. at 22. We discern
no abuse of discretion.
Mother disputes the trial court’s finding of fraud by alleging that she
believed her sexual encounter with Murphy on December 12, 2015, did not
result in her pregnancy with F.H. Therefore, Mother argues that Appellee did
not prove the requisite intent of the fraud claim. Mother testified on direct
examination:
Q. Did you ever consider or entertain the thought that [Appellee]
was not [F.H.]’s father?
A. No, I never thought that.
Q. How did you feel after you went to the OB/GYN on . . . January
4th of 2016, and you were told you were not pregnant?
A. I was relieved.
[Appellee’s Counsel]: Objection as to characterization,
because you’ve always said that she understood she was
not pregnant.
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Q. Were you told?
A. I was not specifically told. I was prescribed birth-control
pills.
Q. Do you know why you were prescribed birth-control pills?
A. It was my understanding that I wasn’t pregnant and that’s why
I was given them, to prevent pregnancy moving forward.
Q. And then on [January] 6th, you had the home [pregnancy] test
with [Appellee] and found out you were, in fact, pregnant?
A. Yes.
N.T., 6/24/21, at 49-50 (emphasis added). Earlier that day on direct
examination, Mother testified that she attended an OB/GYN appointment on
January 4, 2016, “to get checked after I had been raped by Patrick Murphy.”
Id. at 5. Mother testified that, as a result of the appointment, she understood
that she was not pregnant. Id. at 7.
The trial court did not believe that Mother attended an OB/GYN
appointment on January 4, 2016. The court reasoned:
[Mother] stated that she was asked if she was pregnant and she
said she was unsure. N.T., 6/24/21, at 98. She stated[,] “they
just handed me birth control pills so I assumed I wasn’t pregnant.
The doctors’ office likes to give samples out of birth control pills.”
[Id.] at 98-99. She failed to provide any documentation of an
appointment with any doctor on January 4, 2016. She testified
that two days later, January 6, 2016, she told [Appellee] that she
had not had her period and together they purchased two
over-the-counter pregnancy tests. Why does she need to
purchase tests from a drugstore if she was just examined by an
OB/GYN two days earlier? The likely answer is that she never
went to a doctor on January 4[.]
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Trial Court Opinion, 10/18/21, at 19; see also N.T., 6/24/21, at 94 (Mother
testified on cross-examination that she never told the physician she was raped
during the January 4, 2016 appointment.). Mother’s testimony supports the
court’s finding that she likely never went to the OB/GYN on January 4, 2016.
It follows that Mother’s testimony that she sincerely believed she was not
pregnant on January 4, 2016, thereby eliminating the possibility in her mind
that Murphy is F.H.’s biological father, is not credible. 6 See Glover v.
Severino, 946 A.2d 710, 713 (Pa. Super. 2008) (reversing order denying
appellant’s request to challenge paternity due, in part, to conclusion that the
trial court abused its discretion in finding that the mother’s “persistent denials
of any other possible father are made in ‘good faith’ is in conflict with our law
of fraud in paternity actions, and contravenes common sense.”).
Accordingly, we discern no abuse of discretion by the trial court in
concluding that Mother perpetrated a fraud upon Appellee by
(1) misrepresenting the nature of her December 12, 2015 extramarital sexual
encounter with Murphy; (2) her adamant and persistent denial of the
possibility that Murphy could be F.H.’s biological father and her simultaneous
____________________________________________
6 The trial court found that Mother’s alleged January 4, 2016 appointment “is
a falsehood that she told [Appellee] so that he would think she was not
pregnant as of January 4, 2016.” Trial Court Opinion, 10/18/21, at 19. This
finding is not supported by the testimonial evidence. Indeed, Appellee
testified that Mother neither told him that she went to the OB/GYN on January
4, 2016, nor that she understood from that appointment that she was not
pregnant. N.T., 6/11/20, at 28-31, 165; N.T., 8/12/21, at 132, 134-135.
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ridicule of Appellee when he questioned her about his paternity; (3) her
intention to induce Appellee to assume parental responsibility for F.H.;
(4) Appellee’s justifiable reliance upon Mother’s misrepresentation; and
(5) Appellee’s financial and emotional damage as a proximate result.
We reject Mother’s reliance upon Ellison v. Lopez, supra, wherein this
Court affirmed the trial court’s order applying the doctrine of paternity by
estoppel to the putative father. In that case, the trial court concluded that
the putative father did not prove fraud.
In Ellison, the putative father was suspicious about his paternity from
the time of the child’s conception because he knew that the mother had sexual
relations with another man during the relevant time. By the time the child
was two years old, she did not physically resemble the putative father.
However, the putative father waited an additional two years to obtain a
paternity test and challenge his paternity. The putative father testified that
he waited the additional two years because “I was kind of fearful of the results
and possibly having [the child] taken away from me, not being able to be
involved with her. That’s kind of what kept me prolonging to do the test, was
the fear of actually finding out that she wasn’t mine.” Ellison, 959 A.2d at
397 (citation to record omitted). As such, this Court concluded that the
evidence confirmed that the putative father did not prove fraud insomuch as
he was not misled by the mother; rather, “he made a decision to be in the
child’s life even though he questioned his paternity[.]” Id. at 398.
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Ellison is distinguishable from the instant matter. As discussed above,
Appellee’s acceptance of F.H. as his son was based on Mother’s adamant and
persistent refusal to acknowledge that Murphy could be the child’s biological
father and her ridicule of Appellee in questioning whether F.H. was conceived
by rape. Therefore, Appellee was misled by Mother, and Ellison is not
controlling.
We next consider Appellee’s conduct toward F.H. after becoming aware
that F.H. is not his son. As discussed above, Appellee performed a private
paternity test in the middle of July 2019, which revealed that he is not F.H.’s
biological father. N.T., 6/11/20, at 54. On August 2, 2019, Appellee filed the
subject petition for special relief. In addition, on August 2, 2019, Appellee
attended a child support conference, which resulted in an interim order, and
the parties agreed to a child support order in February 2020. Id. at 126-127.
Appellee testified that he agreed to the child support obligation rendered
against him and did not challenge paternity during the support conference
“[b]ecause it . . . wouldn’t have made a difference at that point.” Id. at 56.
On direct examination, he explained:
Q. Why do you say that?
A. Because that is not the proper route to go to challenge paternity
in court.
Id. Rather, Appellee testified that his petition for special relief was the proper
way to challenge paternity, which he filed the same day. Id.
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Appellee’s last custodial visit with F.H. occurred on September 2, 2019,
the day he met Murphy to collect the DNA samples for Murphy’s private
paternity test. N.T., 6/11/20, at 66. There is no dispute that Appellee has
not physically seen F.H. since that date, which was nearly two years by the
conclusion of the subject proceeding. Appellee testified that he videotaped
the collection of the DNA samples on September 2, 2019, and his counsel
provided the videotape to Mother’s counsel on September 10, 2019. Id. On
September 17, 2019, Mother filed an emergency petition for special relief on
the custody docket in which she alleged that Appellee placed F.H. in danger
by exposing him to Murphy at the time the DNA samples were collected.
Mother requested that Appellee’s custodial time “be suspended” or, in the
alternative, “limited to supervised visitation.” Emergency Petition, 9/17/19,
at ¶ 25. In addition, Mother requested sole legal custody. Appellee testified
that the court denied Mother’s emergency petition, but she did not abide by
the existing custody order. Id. at 75. Appellee did not file a petition for
contempt of the existing custody order against Mother. Id. Finally, by
agreed-upon order dated June 10, 2020, Mother was awarded sole legal and
physical custody of F.H.
It is undisputed that Appellee participated in FaceTime telephone calls
with F.H. until April 2020. However, Appellee testified that Mother
infrequently answered his telephone calls to F.H. N.T., 6/11/20, at 76-80.
Appellee introduced into evidence, and the court admitted, his FaceTime
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telephone history. Exhibits D–16-20. Appellee testified that, since F.H.’s
birthday in September 2019, until Appellee stopped calling in April 2020,
Mother failed to answer Appellee’s telephone calls 189 times. N.T., 6/11/20,
at 80.
Based on the evidence of Appellee having no in-person contact with F.H.
soon after becoming aware that he was not his biological father, and having
FaceTime phone calls for approximately seven months after his last in-person
contact with F.H., we conclude that the trial court did not abuse its discretion
in determining that Appellee is not estopped from challenging paternity. See
Vargo, 940 A.2d at 464 (“[W]here fraud or misrepresentation is involved,
courts applying the doctrine of paternity by estoppel have taken care to
consider evidence of the [putative father’s] conduct toward the child not
only before the husband learned that he was not the child’s biological father,
but also after becoming aware of his non-parentage.”) (emphasis in original)
(internal citations omitted). Mother’s first and second issues on appeal fail.
In her third issue, Mother argues that the court abused its discretion in
granting Appellee’s petition for special relief “without a fully developed record
that explored the best interests of the child, including a determination and
consideration of the bond between” Appellee and F.H. Mother’s Brief at 40.
Mother relies upon K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012). We are
unpersuaded by Mother’s argument.
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We disagree that the record was insufficient for the trial court to
conclude that the subject order would not adversely affect F.H. As set forth
above, the record evidence demonstrates that (1) Appellee challenged his
paternity in court on August 2, 2019, approximately two weeks after learning
the results of his private paternity test; (2) Appellee has not been in F.H.’s
physical presence since September 2, 2019, the day that Murphy performed
his private paternity test, when F.H. was nearly three years old; and (3)
Appellee has not spoken to F.H. since April 2020, when F.H. was three and
one-half years old. By the time the hearing concluded, F.H. was nearly five
years old. Thus, we discern no abuse of discretion by the court in concluding
that F.H. would not be adversely affected by the order.
Even if the record were not fully developed regarding F.H.’s best
interests, we would conclude that K.E.M. is not controlling because that case
did not involve fraud. The mother in that case initiated a child support action
against her boyfriend, whom she believed was the child’s biological father.
The child was born during the mother’s marriage to her husband. After the
mother confessed her extramarital affair, her husband performed a private
paternity test which excluded him as the child’s father. The mother’s
boyfriend refused to perform a private paternity test, and he filed a motion to
dismiss the child support action.
By the time of the hearing on the motion to dismiss, the mother was
separated from her husband, but neither had commenced divorce
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proceedings. The trial court granted the motion to dismiss after concluding
that the presumption of paternity controlled “and, alternatively, that [the
mother’s husband] should be regarded as [the child]’s father via paternity by
estoppel.” K.E.M., 38 A.3d at 800 (citation omitted).
On appeal, this Court disagreed that the presumption of paternity
controlled since it would not protect the mother’s marriage “‘from the effects
of disputed paternity.’” Id. at 802 (citation omitted). The panel, however,
affirmed the trial court’s order after concluding the doctrine of paternity by
estoppel applied because the mother’s husband held the child out as his own
for the first four years of the child’s life.
Our Supreme Court reversed. The Court concluded that the record was
“very sparse” with respect to the child’s relationship with the mother’s
husband and what harm, if any, “would befall” the child if her husband’s
“parental status were to be disestablished.” Id. at 809. Therefore, the Court
remanded the case to the trial court for an additional hearing regarding the
child’s best interests.
In reversing and remanding the matter, our Supreme Court considered
the continuing application of paternity by estoppel due to the availability of
private genetic testing which may make biological paternity known outside the
scope of judicial proceedings. The Court recognized that case law has
relegated the presumption of paternity “to a substantially more limited role,
by narrowing its application to situations in which the underlying policies will
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be advanced (centrally, where there is an intact marriage to be protected).”
Id. at 807 (citation omitted). The Court continued, “this does increase the
relative importance of paternity by estoppel in the support arena.” Id. The
Court then reasoned:
The positions of Justices and judges favoring an enhanced role for
genetic testing may have more limited relevance in the paternity
by estoppel setting (as contrasted with the presumption of
paternity). In the estoppel cases, a legal determination is being
made that it is in the best interests of the child to continue to
recognize the husband as the father.
Id. (citation omitted). As such, our Supreme Court concluded that “there
remains a role for paternity by estoppel in the Pennsylvania common law, in
the absence of definitive legislative involvement.” Id. (footnote omitted).
That role, articulated by the Court, is the doctrine’s application “only where it
can be shown, on a developed record, that it is in the best interests of the
involved child.” Id. at 810.
The Court explained, “[a]bsent any overriding equities in favor of
the putative father, such as fraud, the law cannot permit a party to
renounce even an assumed duty of parentage when by doing so, the innocent
child would be victimized. . . .” Id. at 807 quoting Commonwealth ex rel.
Gonzalez v. Andreas, 369 A.2d 416, 419 (Pa. Super. 1976) (emphasis
added).
In contrast to K.E.M., Appellee in this case raised and proved a claim of
fraud. Thus, K.E.M. is distinguishable. As stated above, it is well-settled that,
“[e]ven where the father-child relationship has been established, . . . evidence
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of fraud may preclude application of the doctrine of paternity by estoppel.”
Ellison, 959 A.2d at 398.
In this case, we have determined that the record supports the trial
court’s finding that Mother perpetrated a fraud on Appellee, and that
Appellee’s conduct toward F.H. changed after learning that he was not the
child’s father. Based on this evidence, we discern no abuse of discretion by
the court in concluding that Mother is precluded from applying the doctrine of
paternity by estoppel. Indeed, if the court estopped Appellee from challenging
paternity, it would have punished him who had “sought to do what was
righteous” by assuming parental duty of F.H., and it would have rewarded
Mother who “perpetrated a fraud.” Doran, 820 A.2d at 1283-1284. Mother’s
third issue fails.
In her fourth and final issue, Mother argues that the trial court did not
have authority under 23 Pa.C.S. § 5104 (blood tests to determine paternity)
to order DNA testing because paternity had already been established “as a
matter of law by the entry of each support order” agreed to by Appellee.7
____________________________________________
7 Section 5104 provides, in pertinent part,
(c) Authority for test. — In any matter subject to this section
in which paternity, parentage or identity of a child is a relevant
fact, the court, upon its own initiative or upon suggestion made
by or on behalf of any person whose blood is involved, may or,
upon motion of any party to the action made at a time so as not
to delay the proceedings unduly, shall order the mother, child and
alleged father to submit to blood tests. If any party refuses to
(Footnote Continued Next Page)
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Mother’s Brief at 43. Mother relies upon Barr v. Bartolo, 927 A.2d 635 (Pa.
Super. 2007), which reversed the order granting the petition of the mother
for DNA testing of the child’s putative father. We reiterated, “the failure to
appeal a support order conclusively establishes paternity.” Id. at 639(citations omitted).
Barr is distinguishable. Indeed, in that case we expressly stated,
“absent appeal or showing of fraud in support order, issue of paternity is
established as a matter of law.” Barr, 927 A.2d at 642 citing Sanders v.
Sanders, 558 A.2d 556 (Pa. Super. 1989) (emphasis added).
In Barr, the putative father claimed on appeal that the paternity of the
mother’s husband had been established as a matter of law by the child support
orders entered against him, from which he did not appeal, and this barred
relitigation of the paternity issue. This Court agreed and held, “[r]elitigation
of the paternity issue is barred under the doctrine of collateral estoppel.”
Barr, 927 A.2d at 641. We stated, however, that the record did not support
the existence of fraud. Id. at 643. On this basis, we held the mother was
collaterally estopped from denying her husband’s paternity, and the trial court
____________________________________________
submit to the tests, the court may resolve the question of
paternity, parentage or identity of a child against the party or
enforce its order if the rights of others and the interests of justice
so require.
23 Pa.C.S. § 5104(c).
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erred in ordering the putative father to undergo genetic testing. Because we
have determined that the record in this case supports the existence of fraud
by Mother, Barr is not controlling. Therefore, the trial court had authority
under 23 Pa.C.S. § 5104(c) to issue the subject order. Mother’s final issue
fails. Accordingly, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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