J-A23013-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
D.S., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
S.S. :
:
Appellee : No. 2037 WDA 2013
Appeal from the Order entered December 4, 2013,
Court of Common Pleas, Allegheny County,
Civil Division at No(s): FD-96-02467-008 PACSES Case No. 632003256
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 22, 2014
rder entered by
the Allegheny County Court of Common Pleas denying his motion to modify
and refusing his request for genetic testing, based upon a finding of
paternity by estoppel. After careful review, we affirm.
The trial court aptly summarized the facts of the case as follows:
[Father] and [Mother] were involved in an intimate
relationship in 1996. In that year, Mother gave birth
to [][S]on and petitioned for child support against
Father. On August 5, 1996, Father signed an
[a]cknowledgment of [p]aternity for [Son] and
consented to a child support order. Three years
later, in 1999, Mother gave birth to [] [D]aughter
and named Father as the father of that child as well.
Again, Father signed an acknowledgement of
paternity. Mother and Father never married and he
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characterizes their relationship in his testimony as
intimate relationship ended. Mother and []
[C]hildren live in North Carolina. Father lives in
Pittsburgh but works for an airline in Atlanta,
Georgia and is able to see [] [C]hildren twice a
month.
For the last 17 years, Father has maintained an on-
going parental relationship with both children, seeing
them twice a month, exercising custody, and taking
them on many vacations. Father testified he had
garding
any other father figure.[FN]
In June of 2012, Father took both children on a
beach vacation. While there, he took a picture of the
children on the beach. That picture made him
realize that [] [C]hildren did not really look like him
and he began to question whether they were his
children. Father decided to purchase DNA tests and
informed [] [C]hildren that he was testing their DNA
to determine if he was their father. The results
demonstrated unequivocally that he was not the
father of either child. He opened the tests and
shared the results with [] [C]hildren, causing them
both great distress.
After discovering that the children were not his
biological children, he continued to exercise custody,
visit with them, and take them on vacation. He also
continued to pay child support for them for a full
year. Furthermore, Father testified he intends to
lives.
On August 14, 2013, Father filed a petition for
genetic testing and to modify his child support. A
who found it was in the best interest of [] [C]hildren
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that the doctrine of Paternity by Estoppel be applied.
Father timely filed exceptions, which [the trial court]
denied on December 4, 2013. This appeal followed.
_____________________
[FN]
Mother did not attend the hearing and was not
subpoenaed by Father to do so.
Trial Court Opinion, 2/21/14, at 1-3 (record citations omitted) (footnote in
the original).
Father filed a timely notice of appeal. He raises one issue for our
review:
Whether the trial court erred as a matter of law and
abused its discretion when it misapplied or overrode
the law in failing to find that a fraud occurred based
on the facts of the case, the evidence submitted in
this case, the testimony of [Father] elicited in the
case and the established record of the case in
thereby estopping [Father] from obtaining a [c]ourt
ordered genetic test?
We review a child support order, including matters involving a question
of paternity, for an abuse of discretion. Vargo v. Schwartz, 940 A.2d 459,
has
overridden or misapplied the law, or if there is insufficient evidence to
Id. (citation omitted). The trial court is responsible for
making factual determinations, and we will not disturb its findings if the
record supports them, regardless of whether we would have made a
different decision based on the evidence presented. Id. It is also the role of
the trial court to weigh the evidence presented and to make credibility
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determinations. Id. ee to believe all,
part, or none of the evidence and we as an appellate court will not disturb
Id. (citation, formatting
and quotations omitted).
Applying the doctrine of paternity by estoppel, the trial court found
interests.1 Trial Court Opinion, 2/21/14, at 3, 6-7. The trial court based its
finding
time of their births; continued to pay child support and behave as their
father after learning he was not in fact their father; and failed to provide
sufficient evidence that he was i
fraud. Id. at 3-4, 5. It therefore required him to continue to pay child
support and denied his request for a DNA test through the courts.
Father asserts that the application of the doctrine of paternity by
estoppel in this case was error, as the evidence of record supports a finding
that Mother fraudulently induced him to accept paternity; once Father
1
We note that Mother and Father were never married, and thus there was
no cause to determine whether the presumption of paternity applied in this
case. See
paternity is the preservation of marriages. The presumption only applies in
cases where that policy would be advanced by the application; otherwise, it
Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999).
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already aware that Father is not their
-29.
We begin with some background information on the doctrine of
paternity by estoppel.
Estoppel in paternity actions is a legal determination
based on the conduct of the mother and/or the
putative father with regard to the child, e.g., holding
out the child to the community as [their child] and/or
supporting the child. If the evidence is sufficient,
estoppel may bar either a putative father from
denying paternity or a mother from succeeding in a
claim of paternity against a third party. Estoppel
rests on the principle that a person may not
challenge his role as a parent once he has accepted
it, even with contrary DNA and blood tests.
Vargo
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
Doran v. Doran, 820 A.2d
1279, 1283 (Pa. Super. 2003) (citation and quotation omitted).
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.
J.C. v. J.S., 826 A.2d 1, 4 (Pa. Super. 2003) (citation omitted).
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Evidence of fraud or misrepresentation with regard
to issues of paternity is relevant to the application of
estoppel and must be considered by the trial court.
In some situations, fraud can preclude the
application of paternity by estoppel. Particularly
where fraud or misrepresentation is involved, courts
applying the doctrine of paternity by estoppel have
taken care to consider evidence of the [putative
y before
biological father, but also after becoming aware of
his non-parentage.
Vargo, 940 A.2d at 464 (internal citations omitted) (emphasis in the
original). To rescind an acknowledgement of paternity based on fraud, the
father must establish the fraud by clear and convincing evidence.
23
(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
Doran, 820 A.2d at 1284.
Absent 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. Relying upon the representation
of the parental relationship, a child naturally and
normally extends his love and affection to the
putative parent. The representation of parentage
inevitably obscures the identity and whereabouts of
the natural father, so that the child will be denied the
love, affection and support of the natural father. As
time wears on, the fiction of parentage reduces the
likelihood that the child will ever have the
opportunity of knowing or receiving the love of his
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natural father. While the law cannot prohibit the
putative father from informing the child of their true
relationship, it can prohibit him from employing the
sanctions of the law to avoid the obligations which
their assumed relationship would otherwise impose.
* * *
[T]he determination of paternity by estoppel should
be better informed according to the actual best
interests of the child, rather than by rote
pronouncements grounded merely on the longevity
of abstractly portrayed (and perhaps largely
ostensible) parental relationships.
K.E.M. v. P.C.S., 38 A.3d 798, 807-08, 809 (Pa. 2012) (citation omitted).
Father first argues that the trial court erroneously failed to find that
fraud precluded the application of paternity by estoppel in this case.
-20. He asserts that Doran v. Doran is controlling
precedent. Id. at 16-20.
In Doran, the mother, unbeknownst to her husband, had an
extramarital affair. The affair resulted in the conception of a child, but
believing the child was his, the husband raised and supported the child.
Although their marriage ended in divorce, the now ex-husband paid child
support and exercised periods of custody with the child. Doran, 820 A.2d at
1281.
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house. This prompted the ex-husband to ask the mother whether the child
was the ex-
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Approximately five years later, however, the ex-husband became suspicious
got older. The results of a DNA test confirmed that the ex-husband was not
-
Id.
The trial court found, and this Court affirmed, that the doctrine of
Specifically, we concluded that the record supported the following finding of
the trial court:
Mr. Doran had been operating for more than a
decade under the misrepresentation that he was,
misstatements and deceptions to him. She deluded
herself by refusing to even consider that her child
might be fathered by the man with whom she had an
illicit affair. She never once mentioned her
meretricious relationship with this third party to her
husband. Instead, she fallaciously led him to believe,
at the same time she was seeking child support from
been forthright to her spouse and explained what
her husband may certainly have acted differently.
Unfortunately, her deceit, falsehoods and
misrepresentations gave Mr. Doran no reason but to
treat the child as his own with love, care and
respect, as only a decent human being would do
under the circumstances.
Id. at 1284.
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s
little resemblance to that of the Doran case. Here, Mother was not present
for the hearing; Father was the only testifying witness. He presented no
evidence that he believed he and Mother were in an exclusive relationship at
conception, that he was unaware that she was
having sex with another man or other men at that time, or that he had no
reason to doubt that he was the father of Children. Moreover, there is
-husband in Doran,
contrary, and as discussed in greater detail infra, the record reflects that
after receiving the results of the private DNA test, Father continued to
See N.T., 8/28/13, at 9,
13, 14, 16.
This case more closely resembles the case of J.C. v. J.S. In that case,
the mother had an extramarital affair that her husband discovered
approximately six months before the birth of what the husband believed was
their first child. The parties reconciled and subsequently had a second child.
The parties divorced and the now-ex-husband began paying child support for
the two children. Approximately a year later, when the oldest child was six
years old, the mother informed her ex-husband that he was not the oldest
-husband continued to treat the child as
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his own, enjoying regular periods of custody with him and supporting him
financially. J.C., 826 A.2d at 2-3.
father, the ex-husband filed a petition for a DNA test, which the court
denied. Thereafter, he filed a petition to modify his support obligation to
relieve him of paying child support for the oldest child, which the court also
denied. On appeal from the latter order, we affirmed, finding that because
the ex-
not the father, it precluded a finding of fraud, and that application of the
doctrine of paternity by estoppel was proper. Id. at 4.
The record in the case before us reflects that upon learning that he
was not the biological father of Children, Father continued to act as their
father and do for them as he had done prior to receiving the DNA test
8/28/13, at 9); he paid child support (id. at 13); he did not make any
payments for over a year following the DNA test results (see id. at 15); he
bought Children clothing and paid for their cellphones (id. at 14); and he
took them on multiple vacations and continued to have custodial time with
Children (id. at 16). Indeed, at the hearing, he testified that in spite of his
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Id. at 20.
As stated by the trial court,
see generally, N.T.,
8/28/13, at 5-21. Viewing the record of the case, including evidence of
our case law instructs,
finding that Father failed to present clear and convincing evidence to prove
that Mother induced him to accept paternity of Children through fraud. See
Vargo, 940 A.2d at 464; Doran, 820 A.2d at 1284; 23 Pa.C.S.A. §
5103(g)(2). As such, this argument fails.
We are likewise unconvinced that the mere fact that Children are
aware that Father is not their biological father precludes application of the
doctrine of paternity by estoppel. See -24. According to
paternity by estoppel was meant to prevent. The legal fiction no longer
Id. at 22-23. However, simply
because Children know that Father is not in fact their father does not
preclude the application of paternity by estoppel, especially since Father is
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the one that destroyed the fiction.2
cannot prohibit the putative father from informing the child of their true
relationship, it can prohibit him from employing the sanctions of the law to
avoid the obligations which their assumed relationship would otherwise
K.E.M., 38 A.3d at 808 (quoting Commonwealth ex rel.
Gonzalez v. Andreas, 369 A.2d 416, 419 (Pa. Super. 1976) (en banc)).
Furthermore, in Doran, a case in which the mother told the child that her
ex-
absence of a finding of fraud, the doctrine of paternity by estoppel would
have been applicable. See Doran, 820 A.2d at 1281, 1283.
Father continues by stating that instead,
[] [C]hildren to allow them the freedom to interact with [Father] outside the
scope and strictures of a child support system in an independent manner
without the punitive actions of jail time, significant interest and arrearage
Id. at 23-24. However, this is a
The record unequivocally supports a finding that applying the doctrine
of paternity by estoppel is i
supports Children by providing both court-mandated payments and
2
Were we to conclude otherwise, the doctrine of paternity by estoppel
would become obsolete, as a parent could avoid its application simply by
telling the children that the person they thought was their father is not.
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attending
meetings related to their education, taking them on vacation, and spending
time with them. Id. at 5, 9, 15-
clear that Children have a close relationship with him Daughter cried and
Id. at 20. Notably, when
that Father was not their legal father, his only resp
Id. at 19. Moreover, Father, too
wishes to continue the relationship with Children, including exercising
visitation and providing financial support. Id. at 21
A finding that Father is legal
Cf. K.E.M.
l support
review of the record and the applicable law, we find no abuse of discretion in
the conclusion that applying the doctrine of paternity by estoppel is in
ests.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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