J.J. v. M.C. & D.T.

J-E02010-15
J-E02011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.J. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
M.C. AND D.T.
APPEAL OF M.C.
No. 412 EDA 2014
Appeal from the Order Entered January 28, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No: 12-09900
J.J. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
M.C. AND D.T.
APPEAL OF D.T.
No. 416 EDA 2014
Appeal from the Order Entered January 28, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No: 12-09900
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.*
____________________________________________
*
Judge Allen did not participate in this decision.
J-E02010-15
J-E02011-15
DISSENTING MEMORANDUM BY STABILE, J.: FILED OCTOBER 14, 2015
I must respectfully dissent from the Majority’s decision because (a)
J.J., the party with the burden of proof, produced no evidence to challenge
whether the marriage between M.C. and D.T. was not intact as of the time of
his paternity challenge, and (b) the record contains uncontradicted evidence
that M.C. and D.T. remained married, were living together, and were raising
the child as a child of the marriage at the time of J.J.’s paternity challenge.
Binding precedent from our Supreme Court dictates that the relevant inquiry
is as of the time of the paternity challenge, and therefore, the
presumption applies in this case and is irrebuttable. Strauser v. Stahr,
726 A.2d 1052, 1053 (Pa. 1999). The En Banc Majority, in an unpublished
memorandum, has afforded the trial court in this case unreviewable
discretion to disregard uncontradicted facts and, along with them, an
irrebuttable presumption. I disagree and would reverse the trial court’s
order.
The pertinent facts are as follows. M.C. and D.T. are legally married
and have been since June 21, 2007. Minor Child P.T. was born on
September 8, 2012, and D.T. is listed as P.T.’s father on P.T.’s birth
certificate. As explained in the Majority’s Memorandum, M.C. engaged in an
extensive extramarital affair with J.J. that continued through the time of
P.T.’s conception. While the trial court chronicled in detail the
extramarital events between J.J. and M.C. leading up to the time of
-2-
J-E02010-15
J-E02011-15
P.T.’s birth, the trial court found no facts to support similar conduct
as of the time of P.T.’s birth and J.J.’s paternity challenge. To the
contrary, the uncontradicted record established that, since P.T.’s
birth, M.C. and D.T. have remained married, are living together, and
together are raising P.T. as their child. Under binding precedent that
the Majority and the trial court have ignored, these facts trigger an
irrebuttable presumption that M.C. and D.T. are P.T.’s parents.
The trial court’s disregard of controlling precedent and uncontradicted
facts culminated in the January 27, 2014 order directing M.C., D.T., J.J. and
Minor Child P.T. to undergo genetic testing.1 M.C.’s deplorable and
duplicitous conduct prior to P.T.’s birth and J.J.’s paternity challenge does
not justify the Majority’s decision to ignore the irrebuttable presumption of
paternity under the guise of deference to trial court fact finding.
Our Supreme Court addressed the irrebuttable presumption of
paternity doctrine in Strauser. There, the appellant putative father sought
to establish paternity of a girl born to appellee mother during her marriage.
Strauser, 726 A.2d at 1052-53. Appellee mother remained married to
appellee husband throughout the litigation. Id. at 1053. Blood tests
indicated a 99.99% probability of appellant’s fatherhood. Id. The appellant
____________________________________________
1
An order directing or denying genetic testing to determine paternity is
immediately appealable. Barr v. Bartolo, 927 A.2d 635, 638-39 (Pa.
Super. 2007).
-3-
J-E02010-15
J-E02011-15
alleged that appellee mother allowed him frequent visits with the child and
occasionally left her in the appellant’s care. Id. The appellees argued the
presumption of paternity barred the appellant’s paternity challenge. The
Supreme Court wrote: “The presumption at issue–that a child born to a
married woman is the child of the woman’s husband–has been one of the
strongest presumptions known to the law.” Id. at 1054. “Traditionally, the
presumption can be rebutted only by proof either that the husband was
physically incapable of fathering a child or that he did not have access to his
wife during the period of conception.” Id.
Thus, it has been held that, where the presumption
applies, blood test results (existing or potential) are irrelevant
unless and until the presumption has been overcome. It has
also been held that, in one particular situation, no amount
of evidence can overcome the presumption: where the
family (mother, child, and husband/presumptive father)
remains intact at the time that the husband’s paternity is
challenged, the presumption is irrebuttable. This is such a
case.
Id. (emphasis added). “This presumption arose (a) to protect marital
integrity and (b) to prevent a child from being labeled a ‘bastard’ child, a
classification that carried both a social and a legal2 stigma.” Brinkley v.
____________________________________________
2
At common law, children born out of wedlock could not inherit from their
fathers and had no right of support from their fathers. Brinkley, 701 A.2d
at 184 n.3. The legal disadvantages to children born out of wedlock have
been eliminated by statute. 23 Pa.C.S.A. § 5102 (“All children shall be
legitimate irrespective of the marital status of their parents, and, in every
case where children are born out of wedlock, they shall enjoy all the rights
and privileges as if they had been born during the wedlock of their parents
(Footnote Continued Next Page)
-4-
J-E02010-15
J-E02011-15
King, 701 A.2d 176, 184 (Pa. 1997) (plurality) (Newman, J. concurring and
dissenting). “The public policy in support of the presumption of paternity is
the concern that marriages which function as family units should not be
destroyed by disputes over the parentage of children conceived or born
during the marriage.” Id. at 180 (Flaherty, C.J., announcing the judgment
of the Court). “Third parties should not be allowed to attack the integrity of
a functioning marital unit, and members of that unit should not be allowed
to deny their identities as parents.” Id.
In Strauser, the appellant argued the presumption should not apply
because appellees’ ongoing marriage was not loving and intimate and
existed in “name only.” Strauser, 726 A.2d at 1056. In other words,
appellees’ conduct evinced the absence of a functioning marital unit. The
Supreme Court rejected that argument:
While [a]ppellant’s assertions may be factual, they are not
unique. To the contrary, they indicate that the marriage of
Mother and Husband, like many, has encountered serious
difficulties. It is in precisely this situation, as was suggested in
[John M. v. Paula T., 571 A.2d 1380 (Pa. 1990), cert. denied,
498 U.S. 850 (1990)] that the presumption of paternity
serves its purpose by allowing husband and wife, despite
past mistakes, to strengthen and protect their family.
Id. (emphasis added).
_______________________
(Footnote Continued)
except as otherwise provided in Title 20 (relating to decedents, estates and
fiduciaries).”).
-5-
J-E02010-15
J-E02011-15
Strauser plainly controls the outcome of this case. In Strauser, as
here, the husband and wife remained married at the time of the paternity
challenge. Even though the mother permitted the putative father to visit
and occasionally babysit the child, and even though the putative father
argued that the mother’s marriage continued in “name only,” the Strauser
Court applied the irrebuttable presumption. Paternity disputes involving
children born to married couples always evince a marriage with a troubled
past. The irrebuttable presumption of paternity exists precisely to protect
married couples from legal intrusion by a third party while the marital
reconciliation is ongoing. That is, the presumption exists to protect married
couples such as M.C. and D.T. from third-party paternity challenges while
they work to rebuild their marriage. The Strauser Court’s analysis leaves
no room for a trial court to disregard the presumption based on the court’s
assessment of the egregiousness of the couple’s infidelities prior to the time
of the paternity challenge. That is precisely what the trial court did in this
case.
To facilitate the trial court’s action, the Majority would clothe the trial
court with effectively unreviewable discretion to find that no intact marriage
exists. Despite uncontradicted evidence that M.C. and D.T. remain married
and living together, the Majority allows the trial court to simply find the
married couple not credible and their reconciliation a sham. Under the
Majority’s view, an appellate court must then rubber stamp the trial court’s
-6-
J-E02010-15
J-E02011-15
credibility determinations in light of the couple’s infidelities that pre-date
their reconciliation and the paternity challenge to find that the irrebuttable
presumption of paternity no longer applies. Under this regime the centuries-
old policy of protecting married couples from the intrusion of third-party
paternity challenges exists only at the whim of the trial court judge. Far
from standing as one of the strongest presumptions known to the law, the
irrebuttable presumption of paternity applies if and only if the trial court
deems it appropriate.
The law does not support this result. The presumption of paternity is a
substantive presumption, and as such J.J. bore the burden of proving its
inapplicability. C.W. v. L.V. and G.V., 788 A.2d 1002, 1006 (Pa. Super.
2001); Scott v. Mershon, 576 A.2d 67, 69-70 (Pa. Super. 1990). J.J. came
forward with no positive evidence to refute the facts that M.C. and D.T.
remained married at the time of P.T.’s birth and were living together and
raising P.T. as a child of the marriage as of the time of J.J.’s challenge.
Those facts are uncontradicted and they are fatal to J.J.’s paternity
challenge. Strauser. In the absence of any evidence by the moving party,
the trial court had no basis upon which to question the marriage between
M.C. and D.T. Stated otherwise, the trial court’s doubts about M.C. and
D.T.’s credibility and sincerity were irrelevant to the applicability of the
irrebuttable presumption in this case because the party with the burden of
-7-
J-E02010-15
J-E02011-15
proof offered no evidence to challenge the marriage as of the time of his
paternity challenge.
Many cases in addition to Strauser support my conclusion. In E.W. v.
T.S. and C.S., 916 A.2d 1197 (Pa. Super. 2007), the putative father sought
custody of a child born during the marriage of husband and mother. Mother
had an affair with putative father during her marriage to husband, and she
was sexually active with both men throughout the time of conception. Id. at
1199-1200. Mother told both putative father and husband the child was his.
Id. at 1200. Husband was present at the birth and baptism and assumed all
parental duties. Id. Mother and husband never filed for divorce and
intended to continue their marriage. Id. This Court affirmed the order
dismissing putative father’s custody complaint because he could not
overcome the presumption. Id. at 1206. Citing Strauser, this Court
reasoned: “[T]he Strauser Court recognized that in a situation where a
marriage into which a child is born continues and, despite marital problems,
the mother and her husband never separated and ‘have chosen to preserve
their marriage and to raise as a family the . . . children born to them. . .’ the
presumption continues to apply.” Id. at 1201 (internal citation omitted).
Similarly, the same result was reached in C.W. where the mother and
husband never separated, were sexually active during the time of
conception, the child was born during their marriage, husband was present
-8-
J-E02010-15
J-E02011-15
at the child’s birth, husband was named father on the birth certificate, and
husband assumed parental responsibilities. C.W., 788 A.2d at 1006.
In John M., the putative father had an affair with mother while she
was engaged to be married and the affair continued sporadically during the
marriage. 571 A.2d at 1381. Putative father challenged paternity of the
couple’s second child. Id. The child was born into the marriage and the
couple remained married at the time of the challenge. Id. Blood tests
indicated a 97.47 percent probability that putative father fathered the
second child. Id. at 1382. Putative father sought custody and visitation,
and he sought to compel the husband to submit to blood testing. Id. The
trial court denied relief, but the Superior Court panel reversed. This Court
reasoned that the Uniform Act on Blood Tests To Determine Paternity,
currently codified at 23 Pa.C.S.A. § 5104, relaxed the presumption of
paternity and tipped the scales in favor of permitting putative father to
compel blood testing of the husband. Id. at 1384. This Court also
concluded the putative father had procedural and substantive due process
rights to establish his paternity. Id.
The Supreme Court reversed, concluding that the Uniform Act on
Blood Tests did not permit a third party standing outside the marriage to
compel a married man to submit to blood tests. Id. at 1385.
The Superior Court over-emphasized the rights and
interests of the alleged father and minimized the rights and
interests of others involved in and affected by its decision,
namely the mother, her husband, the family unit and the
-9-
J-E02010-15
J-E02011-15
Commonwealth. When we factor in those rights and interests,
we find that the scales weigh heavily in this case in favor of
appellants and against court-ordered blood tests.
[…]
There is, in short, a family involved here. A woman and a man
who have married and lived together as husband and wife,
giving birth to and raising four children, have obvious interests in
protecting their family from the unwanted intrusions of outsiders
(even ones who have had serious relationships with the mother,
father or children). The Commonwealth recognizes and seeks to
protect this basic and foundational unit of society [. . .] by the
presumption that a child born to a woman while she is married is
a child of the marriage.
Id. at 1385-86.
Chief Justice Nix added the following in a concurring statement joined
by a majority of the Justices: “[A] third party who stands outside the
marital relationship should not be allowed, for any purpose, to challenge the
husband’s claim of parentage. I believe the presumption in this
situation is irrebuttable and conclusive.” Id. at 1389 (Nix, C.J.,
concurring) (emphasis added).
In Coco v. Vandergrift, 611 A.2d 299 (Pa. Super. 1992), as in John
M., a third party challenged paternity of a child born to a married couple.
The third party alleged he had a meaningful relationship with the child and
that the married couple “facilitated partial custody and visitation.” Id. at
300. Citing the lead opinion and Chief Justice Nix’s concurring opinion in
John M., this Court wrote: [The Supreme Court] expressed a belief that the
presumption should be irrebuttable in all cases in which the mother, child
- 10 -
J-E02010-15
J-E02011-15
and husband lived together as a family with the husband assuming parental
responsibility, including those in which an outside party claims non-access or
impotency of the husband.” Id. at 301. Thus, the Coco Court concluded
the third party could not prevail because the presumption of paternity
applied and was irrebuttable. Id. See also Donnelly v. Lindenmuth, 597
A.2d 1234, 1236 (Pa. Super. 1991) (presumption of paternity is irrebuttable
where the married couple remains married at the time of the paternity
challenge).
The Majority relies heavily on Vargo v. Schwartz, 940 A.2d 459, 461
(Pa. Super. 2007), in which four children were born to a married couple, and
the mother filed suit against the putative father for support of the two girls
born to the marriage. The Vargo Court acknowledged that the married
couple remained married at the time of the paternity challenge. Id.Consensual genetic testing confirmed that putative father, not the husband,
fathered the two girls. Id. Putative father argued that, in the eyes of the
law, the husband was the father of the two girls based on the presumption
of paternity. Id. Putative father also argued that the mother was estopped3
____________________________________________
3
Paternity by estoppel may apply if the presumption of paternity is
inapplicable or has been rebutted. Id. at 464. Given the circumstances of
the case on appeal, this Court has no occasion to analyze paternity by
estoppel.
- 11 -
J-E02010-15
J-E02011-15
from seeking support from him because she and her husband held the girls
out as their own. Id.
Citing Brinkley, the Vargo court noted that “the presumption of
paternity applies only where the underlying policy to preserve marriages
would be advanced by application of the presumption.” Id. at 463
(emphasis in original; citing Brinkley, 701 A.2d at 181). The Vargo Court
recognized that the “presumption of paternity is unrebuttable when, at the
time the husband’s paternity is challenged, mother, her husband, and the
child comprise an intact family wherein the husband has assumed parental
responsibilities for the child.” Id. at 463. The Vargo Court also recognized
that, where the marriage is no longer intact at the time of the challenge, the
presumption can be overcome only by clear and convincing evidence of the
husband’s lack of access to the wife or sterility at the time of conception.
Id.
The Vargo Court wrote:
In considering whether the presumption of paternity was
applicable in the instant case, the trial court determined that
Mother and Mr. Vargo did not have an intact marital relationship
and there was no marriage to preserve. The trial court therefore
concluded that applying the presumption of paternity was not
warranted, since to do so would not advance the policy
underlying the presumption, i.e., preservation of a marriage.
There is evidence of record, summarized by the trial court in the
following paragraph, to support the trial court’s determination
that ‘the record established a broken marriage and family that
were not magically restored by [Mr.] Vargo’s periodic visits or
episodic sex between the parties.’
- 12 -
J-E02010-15
J-E02011-15
Mother testified that she and Mr. Vargo had separated
numerous times during their marriage. The most recent
separation, which began in October 2003, was prompted by
Mother's revelations to Mr. Vargo that he was not the father of
the two young girls at the center of the instant dispute. (Notes of
Testimony (“N.T.”), 9/24/04, at 9, 11). Although Mother
testified that Mr. Vargo had lived with her and her children ‘on
and off’ since the October 2003 separation, Mr. Vargo testified
that he resided with Mother only when he had nowhere else to
stay. Mother further testified that efforts to reconcile with Mr.
Vargo had failed. Mother had filed for divorce (although no
action had been taken on that filing as of the time of the support
hearing), and Mr. Vargo in his testimony spoke of a time ‘when
we get divorced.’
Whether the family is intact and there is a marriage to
preserve are questions of fact, which, like all questions of fact,
fall squarely within the realm of the fact-finder. The evidence
summarized above supports the trial court’s findings of fact as to
the status of the family and the marriage at issue. Furthermore,
the trial court correctly summarized the law regarding the
presumption of paternity and applied it to these facts.
Accordingly, we will not disturb the trial court’s decision, and we
conclude that Appellant’s first contention—that the trial court
abused its discretion in failing to apply the presumption of
paternity—has no merit.
Id. at 466-67 (citations omitted). The Vargo Court thus concluded the
presumption of paternity did not apply, and ignored the difference between
the irrebuttable and rebuttable presumption.4
____________________________________________
4
The Supreme Court opinions in Strauser provides for an irrebuttable
presumption where the child is born to an intact marriage that remains
intact at the time of the paternity challenge and a rebuttable presumption
where the child is born to an intact marriage that is no longer intact at the
time of the paternity challenge. Strauser, 762 A.2d at 1054. See also
Brinkley, 701 A.2d at 181. The Vargo Court did not analyze the
applicability of the rebuttable presumption. Likewise, in Fish v. Behers,
741 A.2d 721 (Pa. 1999), the Supreme Court found the presumption
(Footnote Continued Next Page)
- 13 -
J-E02010-15
J-E02011-15
The facts of Vargo are plainly distinguishable from those presently at
issue. The husband and mother, while still legally married, no longer lived
together at the time of the paternity challenge and the mother had filed for
divorce. Indeed, the mother testified that efforts at reconciliation failed and
both mother and husband testified about the couple’s pending divorce. The
record in Vargo therefore contained facts from which the mother could
prove the absence of an intact marriage. Such facts are absent here.
I next consider B.S. v. T.M., 782 A.2d 1031 (Pa. Super. 2001), where
the trial court refused to apply the presumption to a couple who remained
married at the time of the paternity challenge. There, the mother separated
from her husband briefly after she became pregnant with putative father’s
child and remained separated from him, living with her parents, until after
the child’s birth in May 1999. Id. at 1032-33. Putative father was present
at the birth, named as the father on the child’s birth certificate, participated
in the child’s baptism as his father, and purchased a life insurance policy to
provide for the child in the event of the putative father’s death. Id. at 1033.
Putative father and mother voluntarily underwent paternity testing and were
aware of the results. Id. at 1032. Mother filed a complaint in divorce in
February of 1999, but withdrew it on September 13, 1999. Id. at 1033.
_______________________
(Footnote Continued)
inapplicable where the child was born to an intact marriage that was no
longer intact at the time of the paternity challenge. Instantly, I believe the
irrebuttable presumption applies and therefore I have no occasion to address
the proper application of the rebuttable presumption.
- 14 -
J-E02010-15
J-E02011-15
In June of 1999, mother abruptly ended her romantic relationship with
putative father. Her posts on an Internet board indicated she was
considering reconciling with her estranged husband and moving in with him
in order to improve her legal position with respect to the child born of her
relationship with putative father. Id. at 1034. Putative father sought to
preserve his rights by filing a petition for special relief on September 9, 1999
and a complaint for partial custody on September 21, 1999.
In ruling the presumption inapplicable, this Court reasoned: “Here,
[mother] and [husband] separated from the time of [child’s] conception until
well after birth, a period of approximately one year.” Id. at 1036. “During
that time, [mother] acted as if the separation would be permanent and she
would be with [putative father] indefinitely.” Id. “Additionally, [putative
father] undertook the role of father.” Id. The B.S. Court considered the
facts before it to fall somewhere in between Strauser, where the marriage
remained intact at all times, and Brinkley, where the marriage had ended
before any party asserted the presumption of paternity. Id. “Here, after
living apart for one year, [mother and husband] reconciled and then sought
to apply the presumption in order to defeat [putative father’s] paternity
claim.” Id. Essentially, mother and husband “voluntarily gave up the
benefit of the presumption for approximately one year after which they
claimed the benefits of its existence for the first time.” Id. at 1037.
- 15 -
J-E02010-15
J-E02011-15
Cognizant of the Brinkley Court’s reasoning that the presumption
does not apply where its purpose–to protect a marriage–cannot be fulfilled,
the B.S. court determined that the presumption did not apply. No dispute
existed as to the child’s parentage, and the court did not believe putative
father’s custody petition would do further harm, “as this hellish marital
situation has already occurred.” Id. at 1036-37. Thus, the Court reasoned
the “marriage will succeed or perhaps will fail with or without the application
of the presumption.” Id. at 1037. Finally, the B.S. Court reasoned
“application of the presumption could have a deleterious effect on [mother
and husband’s] family, especially on [child], in the future.” Id. at 1037.
B.S., like Vargo, is plainly distinguishable from the instant case.
Putative father and mother lived together as a family unit for one month
after the child’s birth. After that, mother, by her own admission, moved in
with her husband only to improve her prospects in the pending legal battle
with the putative father. Thus, the record in B.S. contained facts from which
the putative father could carry his burden of proving the absence of an intact
marriage at the time of the paternity challenge.5
The Majority cites Vargo for the proposition that the existence of an
intact marriage is a question of fact for the trial court. If a dispute exists as
____________________________________________
5
To the extent some of the legal analysis in B.S. is in tension with the
Supreme Court’s analysis in Strauser, I believe this en banc panel should
disapprove it.
- 16 -
J-E02010-15
J-E02011-15
to whether the married couple remains living together and raising the child
together, I agree. Here, in contrast, where the uncontested facts indicate
that M.C. and D.T. remain married, living together, and raising the child as a
child of the marriage, I believe the trial court committed an egregious error
of law in refusing to apply the irrebuttable presumption of paternity.6 The
trial court’s credibility determinations are not evidence upon which J.J., as
challenger, can bear his burden of proving the absence of an intact
marriage. Where, at the time of the paternity challenge, a couple remains
married, living together despite past difficulties, and raising the child in
question as a child of the marriage, the presumption of paternity applies and
is irrebuttable. John M.; Strauser; Coco; Donnelly.
I recognize that the continued vitality of the presumption of paternity
has been controversial for some time. Further analysis of Strauser and
Brinkley illustrates the point. In Brinkley, the mother was married while
the child was conceived, but her husband moved out before the child was
born. Brinkley, 701 A.2d at 177. Mother was having sexual relations with
putative father but not with her husband during the time of conception. Id.
The husband filed for divorce when he learned mother was pregnant. Id. at
177-78. Putative father was present at the child’s birth and saw her weekly
for the first two years of her life. Id. at 178. Putative father placed the
____________________________________________
6
It is worth noting that M.C. and D.T. continue to pursue this joint appeal.
- 17 -
J-E02010-15
J-E02011-15
child on his health insurance and paid some support, but mother eventually
filed a complaint alleging the support was insufficient. Id.
Putative father argued mother could not pursue a child support action
against him because she failed to rebut the presumption that her former
husband fathered the child. Id. The Supreme Court plurality disagreed:
In the case at bar, at the time of the complaint for
support, there was no marriage. Lisa and George Brinkley had
separated before the birth of the child and were divorced at the
time of the complaint. The presumption of paternity,
therefore, has no application to this case, for the purpose of the
presumption, to protect the institution of marriage, cannot be
fulfilled.
Id. at 181 (emphasis added). The Brinkley court agreed unanimously that
the presumption did not apply. No rationale garnered a majority.
Justice Newman authored a concurring and dissenting opinion in
Brinkley and a dissent in Strauser. She wrote: “The Majority posits that
in this case, where the marriage is intact, ‘public policy’ requires that the
presumption be irrebuttable. I disagree.” Strauser, 726 A.2d at 1057
(Newman, J. dissenting). She argued the presumption “should be open to
rebuttal by reliable blood test evidence.” Id.7
____________________________________________
7
In my view, blood test evidence is irrelevant under the traditional rationale
for the presumption. As explained in the main text, the presumption was
created to protect marriages and to protect children from the ramifications
of illegitimacy. While the legal consequences of illegitimacy have been
removed by statute, the goal of protecting an intact marriage remains the
policy of this State, as per the Majority opinion in Strauser. Admission of
blood test evidence does not advance that goal. This debate has been
(Footnote Continued Next Page)
- 18 -
J-E02010-15
J-E02011-15
Justice Newman argued the majority’s irrebuttable presumption
contradicted the Uniform Act on Blood Tests to Determine Paternity, 23
Pa.C.S.A. § 5104(c). That statute provides, in relevant part, as follows:
(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 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.A. § 5104(c). Justice Newman believed, therefore, that the
Strauser majority’s public policy pronouncement contradicted that of the
legislature, as set forth in § 5104(c). She argued the Supreme Court was
not the appropriate body to make such public policy pronouncements,
especially in light of advances in scientific evidence. “We would be both
naïve and remiss to perpetuate the strength of this presumption and ignore
the results of reliable scientific tests.” Strauser, 726 A.2d at 1058
(Newman, J. dissenting).
Concerning the goal of protecting an intact marriage, Justice Newman,
however, advanced the following argument in Brinkley:
_______________________
(Footnote Continued)
ongoing at least since the 1950’s. See Commonwealth ex rel. O’Brien v.
O’Brien, 136 A.2d 451, 453-54 (Pa. 1957) (noting the admissibility into
evidence of blood grouping tests in certain cases, though not those where
the presumption applies).
- 19 -
J-E02010-15
J-E02011-15
The goal of protecting marital integrity is also futile in a
society where legal marital status does not always translate into
a loving, intimate, monogamous relationship. The presumption
that a child born to a married woman is a child of the marriage is
dubious at best and in many cases, such as here, is absurd. We
are living a fable, both morally and legally, if we think that a
family is typified by ‘Father Knows Best,’ where parents and
children love and respect each other and where husband and
wife are faithful to each other and adultery is merely a figment
of one’s imagination. Thus, the presumption that a child born
during coverture is a child of the marriage has lost its place in
modern society, especially considering the scientific testing
available both to prove and to disprove paternity.
Brinkley, 701 A.2d at 185 (footnote omitted). Justice Newman’s argument
has yet to garner the support of a majority of the Supreme Court. As an
intermediate court of appeals, we must faithfully apply binding Supreme
Court precedent.
In summary, the record evinces M.C. and D.T.’s reconciliation and that
they remain living together and raising P.T. as a child of their marriage. In
this regard, the facts align themselves with Strauser and E.W. Despite
M.C.’s lack of fidelity to the marriage, M.C. and D.T. were still married and
living together at the time of P.T.’s birth and J.J.’s paternity challenge. As
noted above, Strauser indicates that the inquiry into an intact marriage
must take place as of the time of the paternity challenge. Strauser, 726
A.2d at 1054. Vargo reiterated that proposition. Vargo, 940 A.2d at 463.
Following Strauser, this Court in E.W. applied the presumption of paternity
where the married couple chose to reconcile despite the marriage’s troubled
past.
- 20 -
J-E02010-15
J-E02011-15
In summary, Strauser and its progeny bar J.J.’s paternity challenge.
The Strauser Court recognized that parties to a seemingly ruined marriage
sometimes resolve their differences and remain together. The Strauser
Court expressly rejected putative father’s argument that the marriage
existed in name only, despite the married couple’s troubled past. Strauser,
726 A.2d at 1056.
The presumption of paternity is never an issue absent marital
infidelities or allegations thereof. In any such case, the trial court might find
the mother not credible based on past conduct. In no case will there be any
guarantee of a lasting marriage. Perhaps M.C.’s conduct impresses this
Court as especially egregious. If so, this is a case in which difficult facts
have created bad law. The irrebuttable presumption of paternity is
meaningless if trial judges have discretion to apply it—or not—based solely
on perceived authenticity of a marital reconciliation. The Majority’s analysis
creates an open invitation to third party attacks on intact but troubled
marriages. That is precisely what the presumption prohibits.
Perhaps the time has come to dispense with the presumption entirely,
or to reassess the circumstances under which it is applicable and/or
rebuttable. If so, such action must come from our Supreme Court or the
General Assembly. I would note however in passing, that a strong argument
may be made to preserve the presumption of paternity for those who choose
to marry or remain married, and that the values embodied in the
- 21 -
J-E02010-15
J-E02011-15
presumption are not necessarily outdated. In Obergefell v. Hodges, 135
S.Ct. 1039 (2015), the United States Supreme Court recently reaffirmed this
in the context of confirming that same-sex couples have the right to marry.
The Supreme Court stated: “[T]his Court’s cases and the Nation’s traditions
make clear that marriage is a keystone of our social order.” Id. at 2590.
Further:
In Maynard v. Hill, 125 U.S. 190, 121 (1888), the Court
echoed de Tocqueville, explaining that marriage is ‘the
foundation of the family and of society, without which there
would be neither civilization nor progress.’ Marriage, the
Maynard Court said, has long been ‘a great public institution,
giving character to our whole civil polity.’ Id., at 213. This idea
has been reiterated even as the institution has evolved in
substantial ways over time, superseding rules related to parental
consent, gender, and race once thought by many to be essential.
Id. at 2601.
No union is more profound than marriage, for it embodies
the highest ideals of love, fidelity, devotion, sacrifice, and family.
Id. at 2608.
Accordingly, I respectfully dissent and would vacate the order on
appeal.
- 22 -