J-S51031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.A.G., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
R.L.B., JR.,
Appellant No. 655 MDA 2014
Appeal from the Order entered on December 6, 2013,
in the Court of Common Pleas of Lancaster County,
Domestic Relations, at No(s): 2013-00282
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 18, 2014
R.L.B., Jr. (“Appellant”), appeals, pro se, from the Order requiring him
to provide support to M.C. (“Child”), born in June 2004, who resides in the
Commonwealth of Virginia with S.A.G. (“Mother”). We reverse and remand
for further proceedings.
On January 23, 2013, Mother filed a Support Petition, seeking support
for Child from Appellant and requesting a determination of paternity of Child.
In response to Mother’s Support Petition, the trial court ordered Appellant to
undergo genetic testing. Appellant filed Preliminary Objections to the
Support Petition, asserting the doctrine of paternity by estoppel with regard
to another male individual, R.C. The trial court then stayed the genetic
testing Order, pending a paternity hearing.
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Following a paternity hearing conducted on April 16, 2013, the trial
court again ordered Appellant to undergo genetic testing. The trial court
also ordered certified copies of all court orders from Virginia regarding Child
(whether in custody or support actions, including any paternity action
involving R.C.). The trial court scheduled another paternity hearing for
August 7, 2013.
Genetic test results dated May 21, 2013 indicated a 99.99% or more
probability that Appellant is the biological parent of Child. Accordingly, on
May 23, 2013, the trial court issued a Rule against Appellant, pursuant to
Pa.R.C.P. 1910.15(d)(3), directing him to show cause why an order should
not be entered finding him to be Child’s father, and referring the action to
conference and hearing, as in other actions for support.1
On August 7, 2013, the trial court conducted a second paternity
hearing, at which both Mother and Appellant testified. 2 The trial court also
questioned Child, in camera, in the presence of Mother’s counsel, with
Appellant’s agreement. Appellant also agreed to the admission of certified
1
The trial court initially directed that the Rule was returnable within 20
days. However, the trial court entered an amended Order directing the Rule
to be returnable at the paternity hearing scheduled for August 7, 2013, at
which Appellant’s written response to the Rule would be addressed.
2
Appellant was represented by counsel, David Wedge, Esquire (“Attorney
Wedge”), at the first paternity hearing, but appeared pro se at the second
hearing. No entry of appearance for Attorney Wedge appears on the docket
or in the certified record, nor is there any order granting the withdrawal of
Attorney Wedge as counsel.
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copies of two court Orders from Virginia (“the Virginia court Orders”)
regarding Child.3 N.T., 8/7/13, at 5-6. Additionally, Appellant
acknowledged that genetic testing established that he was the biological
father of Child. Id. at 4.
On September 4, 2013, the trial court entered an Order (“Paternity
Order”)4 finding that, based on the testimony presented and the results of
genetic testing, Appellant was both the biological and legal father of Child,
noting that genetic testing established, to a high degree of scientific
probability, that Appellant is the biological parent of Child. Trial Court Order,
9/4/13, at 1. On September 5, 2013, the trial court ordered Appellant to
appear before a conference officer for support proceedings on October 7,
2013.
Appellant, pro se, filed a Motion for Reconsideration of the trial court’s
3
The Virginia court Orders included an October 19, 2011 Consent Order
(“the Virginia Consent Order”) declaring R.C. the “psychological” father of
Child and awarding joint physical custody of Child to Mother and R.C.; and
an October 19, 2011 Order finding that R.C. is not Child’s biological father.
See N.T., 8/7/13, at 20-25; Plaintiff’s Exhibits 1 and 2.
4
The Paternity Order is dated September 3, 2013, but was not entered until
September 4, 2013.
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Paternity Order.5 The trial court determined that it “was not bound to act
upon Appellant’s [M]otion [for Reconsideration of the trial court’s Paternity
Order], and did not do so.” Trial Court Opinion, 6/6/14, at 1 ¶¶ 2-3.
On October 7, 2013, support proceedings were conducted before a
conference officer, who issued a Recommended Order for support of Child to
the trial court. On October 8, 2013, the trial court adopted the conference
officer’s Recommended Order, and entered an interim support Order
directing Appellant to provide support for Child.6
On October 15, 2013, Appellant, pro se, filed a Demand for Hearing
regarding the Recommended Order, asserting that the amount of support
was excessive. On December 5, 2013, the trial court held a hearing
regarding the Recommended Order, at which Appellant raised R.C.’s custody
5
The Motion for Reconsideration is not indicated on the trial court’s docket,
nor is it included in the certified record. However, the trial court discussed
the Motion for Reconsideration in its Opinion, and indicated that it was filed
on October 2, 2013. See Trial Court Opinion, 6/6/14, at 1 ¶¶ 2-3. An
attachment to Appellant’s Brief, entitled “Motion for Reconsideration,” is
date-stamped September 24, 2013. The trial court has provided no
explanation as to its failure to include the Motion for Reconsideration either
on its docket or in the certified record. Accordingly, we have no means of
determining when it was actually filed. We remind the trial court that the
prothonotary must inspect documents presented for filing to ensure that
they are in proper form, but the prothonotary has no power to reject
documents, and must enter all documents for filing on the trial court’s
docket. See Amicone v. Rok, 839 A.2d 1109, 1115 (Pa. Super. 2003).
6
The trial court found Appellant’s net monthly income to be $1,639.57, and
Mother’s net monthly income to be $0. The trial court set the amount of
Appellant’s monthly support payment at $434.00 ($395.00 of which was
current support and $39.00 of which was arrears), and directed that
arrearages, in the amount of $3,806.38, were due, in full, immediately.
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rights, and argued that the doctrine of paternity by estoppel precluded
Mother from seeking support from Appellant. N.T., 12/5/13, at 5-6. On
December 9, 2013, the trial court entered an Order (“Support Order”)7
adopting as final the conference officer’s Recommended Order.
On January 31, 2014, Appellant, through counsel,8 filed a Demand for
Hearing on his pro se Motion for Reconsideration of the Paternity Order. 9 In
his Demand for Hearing, Appellant asserted that (1) the trial court erred in
finding him to be Child’s father, in light of the Virginia Consent Order
declaring R.C. the psychological father of Child and awarding joint physical
custody of Child to Mother and R.C.; and (2) R.C. held himself out to be
Child’s father since her birth. See Demand for Hearing, 1/31/14, at 1.
On February 10, 2014, the trial court dismissed, with prejudice,
Appellant’s Demand for Hearing on his Motion for Reconsideration of the
Paternity Order. The trial court reasoned that Appellant was foreclosed from
7
The Support Order is dated December 6, 2013, but was not filed until
December 9, 2013.
8
Appellant’s Demand for Hearing on his pro se Motion for Reconsideration of
the Paternity Order was filed by Thomas Cusack, Esquire (“Attorney
Cusack”). No entry of appearance for Attorney Cusack appears on the
docket or in the certified record.
9
This Demand for Hearing was not entered on the trial court’s docket, but is
referenced in and attached to the trial court’s February 10, 2014 Order. See
Trial Court Order, 2/10/14, at 1, and Exhibit thereto. The trial court’s Order
also references Mother’s Reply to Appellant’s Demand for Hearing. See id.
at 1. However, Mother’s Reply was not entered on the trial court’s docket,
and is not attached to the February 10, 2014 Order or otherwise in the
certified record. See id.; see also Amicone, supra.
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challenging the Paternity Order due to his failure to file a timely appeal from
the Support Order. See Trial Court Order, 2/10/14, at 3.
On April 2, 2014, Appellant, pro se, filed an appeal.10 On appeal,
Appellant raises the following issues for our review:
Is Appellant entitled to a new trial when, applying []
Pennsylvania [] [l]aw, the trial court abused its discretion and/or
misapplied the law by:
a. Omitting or failing to include evidence in the
determining order, namely the [Virginia Consent
O]rder [] naming [R.C.] the father of [Child][?]
b. Refusing to acknowledge that this voluntary
Acknowledgement of Paternity may only be cancelled
by either party within 60 days after the form is signed
or the date of a court proceeding related to the child,
whichever is sooner. After the 60 days, the
acknowledgement of paternity may be challenged in
court ONLY on the basis of fraud, duress or material
mistake of fact[?]
Appellant’s Brief at 7.
Initially, we must determine whether this Court lacks jurisdiction over
this appeal due to timeliness considerations. Both the trial court and Mother
contend that Appellant’s appeal is untimely and, hence, this Court lacks
10
Appellant improperly filed his appeal with our Supreme Court, which
transferred the appeal, and Appellant’s accompanying Concise Statement of
Errors Complained of on Appeal, to this Court in an Order entered April 15,
2014. The Supreme Court noted that Appellant appeared to be appealing
the Support Order. See Order, 4/15/14, at 1.
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jurisdiction over this appeal.11 See Trial Court Opinion, 6/6/14, at 2-3 ¶¶ 7,
8, 11, 12; see also Mother’s Brief at 1, 3, and 8.
Mother claims that Appellant improperly challenged the trial court’s
failure to rule on his Motion for Reconsideration of the Paternity Order, as it
had already been denied by operation of law. See Mother’s Brief at 8-9
n.11. Mother asserts that Appellant should have appealed the Support
Order. Id. Finally, Mother contends that Appellant’s appeal, forwarded to
this Court from the Supreme Court, was improperly filed pro se, although
Appellant’s counsel had not filed a praecipe for withdrawal. Id. at 9.
Initially, pursuant to Rule 1910.15(f) of the Pennsylvania Rules of Civil
Procedure, an order establishing paternity is not an appealable order, and
the issue of paternity may be included in an appeal from the final order of
child support. See Pa.R.C.P. 1910.15(f). Therefore, Appellant’s failure to
timely challenge the Paternity Order is not fatal to his appeal if he timely
appealed from the Support Order.
Pursuant to Pa.R.C.P. 236(a)(2), the prothonotary must immediately
give written notice to the parties of any order entered by the trial court.
See Pa.R.C.P. 236(a)(2). Additionally, the prothonotary must note in the
docket the giving of such notice. See Pa.R.C.P. 236(b). Finally, the date of
entry of an order is “the day on which the clerk makes the notation in the
11
Mother filed a Motion to Dismiss the appeal. On June 3, 2014, this Court
denied Mother’s Motion to Dismiss, without prejudice to Mother’s right to re-
raise the timeliness issue in her appellate brief.
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docket that notice of entry of the order has been given as required by
Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b) (emphasis added).
Our Supreme Court has held that “an order is not appealable
until it is entered on the docket with the required notation that
appropriate notice has been given.” Frazier v. City of
Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999)
(emphasis added). Where there is no indication on the docket
that Rule 236(b) notice has been given, then the appeal period
has not started to run. Id. at 621-22, 735 A.2d at 115. Our
Supreme Court has expressly held that this is a bright-line rule,
to be interpreted strictly. That the appealing party did indeed
receive notice does not alter the rule that the 30-day appeal
period is not triggered until the clerk makes a notation on the
docket that notice of entry of the order has been given. Id.
In re L.M., 923 A.2d 505, 508 (Pa. Super. 2007).
Our review of the record reveals that the prothonotary failed to
indicate on the trial court docket that it provided notice of the Support Order
to the parties, in compliance with Pa.R.C.P. 236(b).12 Thus, the appeal
period was not triggered. See Frazier, 735 A.2d at 115. Accordingly,
Appellant’s appeal from the Support Order is not untimely, and we will
proceed to review the merits of the appeal.
Our standard of review of support determinations involving a question
of paternity is that of an abuse of discretion. See Vargo v. Schwartz, 940
A.2d 459, 462 (Pa. Super. 2007).
An abuse of discretion exists if the trial court 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
12
We note, with disapproval, that the trial court’s docket fails to reflect that
Rule 236(b) notice was issued for any of the Orders entered in this case.
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reviewing court will not disturb the trial court’s findings if they
are supported by competent evidence. It is not enough that we,
if sitting as a trial court, may have made a different finding.
Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003) (quotations
omitted). When evaluating a support order, this Court may only reverse the
trial court’s determination where the order cannot be sustained on any valid
ground. R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013) (involving a
claim of paternity by estoppel).
Appellant contends that the trial court failed to consider all of the
evidence in the case, and misapplied the law through the omission of
evidence. Appellant’s Brief at 13-14. Specifically, Appellant contends that
the trial court failed to consider the Consent Order naming R.C. as Child’s
father. Id. at 13. Appellant points out that R.C. signed Child’s birth
certificate and that Child bears R.C.’s surname. Id. at 15. Thus, Appellant
argues, R.C. is Child’s father by means of the doctrine of paternity by
estoppel. Id. at 11-12.
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.... [T]he 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.”
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Brinkley v. King, 701 A.2d 176, 180 n.5 (Pa. 1997) (emphasis and citation
omitted). The doctrine of paternity by estoppel seeks to protect the
interests of the child. T.E.B. v. C.A.B., 74 A.3d 170, 173 (Pa. Super. 2013).
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 had known all
his life is not in fact his father.
Id. at 173 (citation omitted).
The doctrine has most usually been applied either to (1) preclude a
man who had held a child out as his own from avoiding further support of
the child after his relationship with the mother had ended; or (2) preclude a
woman who had held one man out as her child’s father from seeking support
from another man later on. Id. at 174 (citation omitted).
Paternity by estoppel will apply only where it can be shown, on a
developed record, that it is in the best interests of the involved child.
K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa. 2012). In R.K.J., the court, relying
on K.E.M., specifically recognized the following factors as relevant to the
child’s best interests in a support case involving an allegation of paternity by
estoppel:
(1) a party cannot renounce an assumed duty of parentage
when the innocent child would be victimized; (2) the law can
prohibit a putative father from employing sanctions of the law to
avoid the obligations that his assumed relationship with the child
would impose; (3) the closeness of the child’s relationship to the
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putative father; (4) the harm that would befall the child if the
putative father’s parental status were to be disestablished; and
(5) the need for continuity, financial support, and potential
psychological security arising out of an established parent-child
relationship.
R.K.J., 77 A.3d at 38.
Here, in the Paternity Order, the trial court indicated, without
discussion, that it considered the testimony presented and the results of
genetic testing before determining that Appellant is both the biological and
legal father of Child. See Trial Court Order, 9/4/13, at ¶ 1. The trial court
failed to include any discussion reflecting either its consideration of
Appellant’s claim of paternity by estoppel, or the five factors identified in
R.K.J. as relevant to a determination of paternity when there is a question
of paternity by estoppel.13 Notably, no testimony was received by R.C.,
whom Appellant seeks to establish, through estoppel, is Child’s father.14
13
In its February 10, 2014 Order, the trial court observed that its prior
determination that Appellant is the biological and legal father of Child was
based on “extensive testimony and other evidence presented in the course
of the hearing” and “the results of genetic testing that established to a high
degree of scientific probability that Appellant is the biological parent of
Child.” See Trial Court Order, 2/10/14, at 2. The trial court also noted that
it had reviewed the Virginia court Orders. Id. Finally, the trial court
indicated, without discussion, that “the record contains evidence which bears
upon the biological, social and emotional relationships between Child and the
various father figures in [C]hild’s life, and it includes evidence sufficient to
support the making of findings in respect to [C]hild’s best interest.” Id.
While this Order references a broader basis for the trial court’s determination
than was indicated in the Paternity Order, the trial court nevertheless failed
to discuss either the claim of paternity by estoppel or the five factors
identified in R.K.J.
14
As noted by the Court in K.E.M., “absent undue hardship or impossibility,
we do not believe a court should dismiss a support claim against a purported
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Thus, we remand the matter to the trial court to consider the five factors
identified in R.K.J.15
Order reversed. Case remanded for further proceedings consistent
with this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
biological father based on an estoppel theory vesting legal parenthood in
another man without the latter being brought before the court at least as a
witness.” K.E.M., 38 A.3d at 809.
15
We recognize that the trial court may need to take additional evidence
and/or conduct further hearings in order to properly consider the five factors
identified in R.K.J. Moreover, the trial court has the authority to appoint a
guardian ad litem to advocate Child’s best interests in concrete terms. See
K.E.M., 38 A.3d at 809.
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