J-A19027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KACIE DAVIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEREK LYNWOOD :
:
Appellant : No. 112 MDA 2022
Appeal from the Order Entered November 23, 2021
In the Court of Common Pleas of Lackawanna County
Domestic Relations at No(s): 13 DR00615
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 23, 2022
Appellant, Derek Lynwood, appeals from the order entered in the
Lackawanna County Court of Common Pleas, denying his request to terminate
paternity. For the following reasons, we reverse.
The relevant facts and procedural history of this case are as follows. On
June 27, 2013, Appellee, Kacie Davis, filed a complaint for child support
against Appellant, alleging Appellant was the biological father of her child
(“Child”), born in June 2013. On July 8, 2013, the court ordered the parties
to appear for a hearing scheduled on July 30, 2013. The order scheduling the
hearing expressly stated that if paternity is an issue, the court shall enter an
order establishing paternity at the hearing. The court subsequently
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* Former Justice specially assigned to the Superior Court.
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rescheduled the hearing for September 26, 2013. The order rescheduling the
hearing contained the same language regarding establishing paternity.
Appellant did not appear at the hearing, and the court entered an order that
day, naming Appellant as the biological father and ordering him to pay
$100.00/month in child support.
Between 2013 and 2021, Appellant failed to pay support as ordered.
Following various contempt petitions against Appellant for failure to pay
support, and Appellant’s failure to attend scheduled hearings for those
petitions, the court entered orders of attachment on Appellant’s wages and
unemployment compensation benefits to pay the required support.
On February 26, 2021, Appellant filed a petition for modification of the
support order, claiming he was not the biological father of child. Appellant
requested DNA testing, stating: “I don’t believe that [Child] is mine. Because
I never got a DNA test done or paperwork for it.” (Petition for Modification,
filed 2/26/21, at 2) (unnecessary capitalization omitted). Appellant
subsequently underwent DNA testing, which stated there was a 0% probability
of paternity. On May 4, 2021, the court suspended the support order based
on the DNA results and directed Appellant to file a petition to terminate
paternity.
Thereafter, Appellant filed a “petition to schedule a hearing for the
purpose of terminating paternity.” In it, Appellant claimed that Appellee had
informed the Domestic Relations section that Appellant was the biological
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father of Child, even though Appellee knew that was false. Appellant claimed
he had denied paternity since Child’s birth but was not authorized to take a
DNA test until April 2021. Appellant emphasized that the results of the DNA
test confirm he is not Child’s father. Appellant requested that the court
terminate and disestablish paternity. Appellant further asked for
reimbursement of any support payments made.
Appellee filed a response, denying that she falsely informed the
Domestic Relations section that Appellant was Child’s father. Appellee claimed
she had a sexual relationship with Appellant in October 2012, and Child was
born in June 2013. Appellee alleged that Appellant acknowledged that he was
the father until Child’s birth, at which point he began to deny paternity.
Appellee emphasized that Appellant was ordered to take a paternity test on
September 26, 2013 (the date of the original support hearing), but Appellee
failed to appear resulting in the “presumption of paternity.”1 Appellee
maintained that Appellant should be estopped from challenging paternity
almost eight years after he failed to show up for the original paternity test.
Notwithstanding the test results, Appellee alleged Appellant is Child’s father
under the doctrine of paternity by estoppel. Appellee further contended the
record is devoid of any evidence of fraud or mutual mistake. Appellee insisted
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1 An order expressly scheduling a paternity test is not in the certified record.
The July 8, 2013 and July 30, 2018 orders scheduling hearings on Appellee’s
support complaint did not specify that a paternity test would be performed at
the hearing.
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that Child has become accustomed to the financial support provided by
Appellant, and it is in her best interest for Appellant to continue to pay child
support.
The court held a hearing on July 8, 2021. Appellant testified that he
was in a relationship with Appellee for approximately three years between
2008 and 2011. Around 2013, the parties reconnected and had sex. Appellant
described the interaction as a “one night stand.” Appellant claimed that
immediately after the parties had sex, Appellee went to the bathroom, came
downstairs, held out a pregnancy test and announced that she was pregnant
with Appellant’s child. Appellant said he “didn’t pay any mind to it” because
he did not believe Appellee. Appellant claimed he told Appellee that day he
was not the father. Appellant left Appellee’s home afterwards, went on with
his life, and did not continue to see Appellee.
After Child’s birth, Appellant said he kept receiving letters from the
Domestic Relations section stating that he was Child’s father, which Appellant
knew was untrue. Appellant testified that he repeatedly called the Domestic
Relations section to inform them he was not Child’s father. Appellant further
testified that he was living in Texas for about three months in 2013, and then
in Georgia for about one month and a half, before returning to Pennsylvania.
Appellant denied ever receiving a letter from the Domestic Relations section
scheduling a paternity test shortly after Child’s birth. Appellant emphasized
he was out-of-state during this time. Even though Appellant told the Domestic
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Relations section that he was not at Child’s birth, did not fill out a birth
certificate, and had never seen Child, Appellant claimed Domestic Relations
kept “brushing it off.”
Appellant said he only paid child support over the years because the
court garnished his wages. Appellant said he repeatedly contacted his
caseworker, Nicole Leonori, but she did not assist him in disputing paternity.
Appellant maintained that he has had zero contact with Child since she was
born, has never sought custody of Child, and has never held himself out as
Child’s father. Appellant testified that Appellee did not invite Appellant to the
birth of Child or for any birthday parties or holidays.
In response to questioning about why Appellant waited so long to seek
termination of paternity or genetic testing, Appellant said he was going
through a mid-life crisis and trying to get his life together. Appellant testified
that he did not know the best way to approach the situation, and he had never
encountered a problem like this before in his life. Appellant maintained that
it was not until he personally went into the Domestic Relations section about
four months earlier that a different caseworker, Cathy McDonald, explained to
him how to dispute paternity. (See N.T. Hearing, 7/8/21, at 6-30).
Appellee testified that she had a relationship with Appellant between
2008 and 2011, and then the parties separated. Appellee said she had a “one
night stand” with Appellant around late October 2012/early November 2012.
Appellee denied telling Appellant that he was the father of Child immediately
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after they had sex. Appellee said she took a pregnancy test on November 7,
2012, which is the day before Appellee’s birthday. Appellee claimed she told
Appellant that he was the father around February 2013. At that time, Appellee
said she called Appellant to come over to her house and told him she was
pregnant with his child. Appellee showed Appellant the positive pregnancy
test. Appellant said the parties should tell Appellee’s mother, so Appellant
and Appellee informed Appellee’s mother about the pregnancy.
Appellee did not invite Appellant to attend Child’s birth because he was
“nowhere to be found” and Child was born one month early. Appellee said
she did not put Appellant’s name on the birth certificate because he was not
present when Child was born. Appellee said she invited Appellant to her home
sometime after February 2015 to spend time with Child. Appellee said she
did not recall whether she had sex with anyone else around the time she had
sex with Appellant in late 2012. Appellee claimed she does not know who
Child’s father could be if Appellant is not the father.
Appellee maintained that she appeared for the paternity test ordered in
2013, but Appellant did not appear. Appellee had no idea whether Appellant
received notice of the scheduled paternity testing. Appellee claimed Appellant
has seen Child twice. Appellee maintained that Child has relied on the support
payments provided by Appellant for food and other basic needs. (See id. at
31-40).
The parties subsequently filed post-hearing briefs. By order entered on
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November 23, 2021, the court denied Appellant’s petition to terminate
paternity on the basis of paternity by estoppel. Appellant filed a notice of
appeal on January 3, 2022.2
Appellant raises the following issues on appeal:
Did the trial court abuse its discretion and err as a matter
of law in denying [Appellant’s] petition to terminate
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2 We observe that Appellant filed his notice of appeal prematurely in this case
because the appeal period was never triggered due to the absence of Pa.R.C.P.
236 notice entered on the docket. See Pa.R.C.P. 236(b) (stating: “The
prothonotary shall note in the docket the giving of the notice…”) (emphasis
added). See also Pa.R.A.P. 108(b) (stating date of entry of order in matter
subject to Pennsylvania Rules of Civil Procedure shall be day on which clerk
makes notation in docket that notice of entry of order has been given as
required under Rule 236(b)). Under these circumstances, we conclude there
was a breakdown in the operations of the court. See Smithson v. Columbia
Gas of PA/NiSource, 264 A.3d 755, 757 (Pa.Super. 2021) (explaining 30-
day appeal period does not begin to run until prothonotary enters order on
docket with required notation that it gave appropriate notice to counsel and
unrepresented parties; “This failure to abide by the strict requirements of Rule
236 constitutes a breakdown in the operation of the trial court”).
Nevertheless, we will regard as done which ought to have been done and treat
the appeal as timely filed, i.e., as if proper notice had been entered on the
docket. See, e.g., In re Adoption of K.A.F., Nos. 760, 761, & 762 WDA
2021 (Pa.Super. filed Feb. 8, 2022) (unpublished memorandum) (proceeding
to merits review under similar circumstances in Children’s Fast Track case).
See also Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of
this Court filed after May 1, 2019 for their persuasive value).
We further note that because this case was designated a Children’s Fast Track
case, Appellant was required to file a concise statement of errors complained
of on appeal contemporaneously with his notice of appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(i). Because Appellant failed to do so, this Court issued
an order on February 9, 2022, directing Appellant to file a concise statement
of errors. See In re Adoption of K.A.F., supra (explaining that failure of
appellant in Children’s Fast Track case to file contemporaneously concise
statement with notice of appeal does not divest this Court of jurisdiction but
will result in defective notice of appeal). Appellant ultimately complied with
this Court’s directive.
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paternity despite evidence that he was not the biological
father?
Did the trial court abuse its discretion and err as a matter
of law in determining that [Appellant] was estopped from
denying paternity despite evidence that [Appellant] never
held himself out as [f]ather of the minor child?
(Appellant’s Brief at 4).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues the parties had sexual intercourse on one occasion in the year
preceding Child’s birth, immediately after which Appellee claimed that
Appellant was Child’s father. Appellant avers that Appellee’s pregnancy
announcement shortly after they had sex is “scientifically impossible.” (Id. at
9). Appellant insists that Appellee failed to reveal that she had other sexual
partners around the time she had sex with Appellant in late 2012. Appellant
submits that Appellee defrauded Appellant and the court for the last eight
years. Appellant contends that neither Appellee nor the Domestic Relations
section produced any proof that Appellant received notice of the scheduled
paternity test in 2013. Appellant claims the Domestic Relations section
ignored his assertions that he was not Child’s father for almost eight years.
Appellant maintains that Child does not know Appellant is her father, and
Appellant has no relationship with Child. Appellant emphasizes that the
genetic testing confirms he is not Child’s father. Appellant concludes the trial
court abused its discretion in denying his request to terminate paternity, and
this Court must grant relief. We agree.
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In reviewing matters of child support and cases involving a question of
paternity, we will not disturb a trial court order absent an abuse of discretion.
Vargo v. Schwartz, 940 A.2d 459, 462 (Pa.Super. 2007).
An abuse of discretion exists if the trial court has overridden
or misapplied the law, or if there is insufficient evidence to
sustain the order. Moreover, resolution of factual issues is
for the trial court, and a reviewing court will not disturb the
trial court’s findings if they are supported by competent
evidence. It is not enough for reversal that we, if sitting as
a trial court, may have made a different finding.
Id. (quoting Doran v. Doran, 820 A.2d 1279, 1282 (Pa.Super. 2003)).
Further:
“The finder of fact is entitled to weigh the evidence
presented and assess its credibility.” Smith v. Smith, 904
A.2d 15, 20 (Pa.Super. 2006). In so doing, the finder of
fact “is free to believe all, part, or none of the evidence and
we as an appellate court will not disturb the credibility
determinations of the court below.” Id. (citation omitted).
Vargo, supra.
“The presumption of paternity, i.e., the presumption that a child
conceived or born during a marriage is a child of the marriage, …is one of the
strongest presumptions known to the law.” Id. at 463 (citation omitted).
Because the policy underlying the presumption is the preservation of
marriages, “the presumption of paternity applies only where the underlying
policy to preserve marriages would be advanced by application of the
presumption.” Id. (emphasis in original). Thus, the presumption of paternity
is not applicable when there is no longer an intact family or a marriage to
preserve. Id. If the presumption of paternity is inapplicable, the court must
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then consider whether the doctrine of paternity by estoppel applies to the facts
of the case. Id. at 464.
“Generally, estoppel in paternity issues is aimed at
achieving fairness as between the parents by holding both
mother and father to their prior conduct regarding paternity
of the child.” Buccieri v. Campagna, 889 A.2d 1220, 1224
(Pa.Super. 2005) (quoting Freedman v. McCandless, 539
Pa. 584, 592, 654 A.2d 529, 533 (1995)). This Court has
held that the principle of paternity by estoppel is well suited
to cases where no presumption of paternity applies. Gulla
v. Fitzpatrick, [596 A.2d 851, 858 (Pa.Super. 1991)]. The
number of months or years a party held out another as the
father of a child is not determinative of an estoppel claim.
Id. “Rather, it is the nature of the conduct and the effect
on the father and the child and their relationship that is the
proper focus of our attention.” Id.
Estoppel has been used variously in cases involving
paternity and support. See, e.g., Fish v. Behers, 559 Pa.
523, 741 A.2d 721 (1999) (holding as between mother and
biological father, mother was estopped from asserting
paternity of biological father, where she repeatedly assured
her ex-husband that he was child’s biological father);
Moyer v. Gresh, 904 A.2d 958 (Pa.Super. 2006) (holding
as between putative father and biological father, biological
father was estopped from challenging paternity of putative
father where putative father raised child for nine years);
Buccieri, supra (holding biological father was estopped
from asserting paternity due to eight-year delay in
accepting any responsibility as parent); J.C. v. J.S., 826
A.2d 1, 5 (Pa.Super. 2003)[, appeal denied, 576 Pa. 724,
841 A.2d 531 (2003)] (holding putative father was estopped
from denying paternity because he continued to act as
child’s father after his paternity was disproved); Gulla,
supra (holding as between mother and putative father,
mother was estopped from denying paternity of putative
father where she had held him out as child’s father). Even
in the context of a marriage, the principle of estoppel can
be applied if fraud occurs. See also Doran, supra (holding
husband was not estopped from denying paternity of child
born during husband’s marriage to mother, where she
deceived him into believing he was child’s biological father);
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Kohler[ v. Bleem, 654 A.2d 569 (Pa.Super. 1995), appeal
denied, 541 Pa. 652, 664 A.2d 541 (1995)] (holding
biological father could not assert estoppel to prevent
presumptive father from denying paternity, in light of
conclusive evidence of paternity, fraud and
misrepresentation on issue of true identity of biological
father, and absence of intact family).
* * *
“Estoppel in paternity actions is based on the public policy
that children should be secure in knowing who their parents
are….” Gebler v. Gatti, 895 A.2d 1, 3 (Pa.Super. 2006)
(citing Brinkley v. King, 549 Pa. 241, 701 A.2d 176
(1997)). “The doctrine is designed to protect the best
interests of minor children by allowing them to ‘be secure in
knowing who their parents are.’” Moyer, supra (internal
citation omitted). The application of paternity by estoppel
in any form is very fact specific and must be grounded in a
close analysis of the circumstances of the case. Gebler,
supra (citing T.L.F. v. D.W.T., 796 A.2d 358, 363
(Pa.Super. 2002)); Matter of Green, [650 A.2d 1072, 1075
(Pa.Super. 1994)]. The length of time involved is only one
circumstance to be considered. Gulla, supra. This Court
has also considered society’s concerns for stability in the
child’s life, such as whether there is a stable family unit to
preserve. Buccieri, supra. An additional factor is whether
the child’s father “is willing to care [for the child]…and
capable of doing so….” Moyer, supra at 963.
Conroy v. Rosenwald, 940 A.2d 409, 416-17 (Pa.Super. 2007).
Further, a proponent of fraud must 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 v. Lopez, 959 A.2d 395, 398
(Pa.Super. 2008), appeal denied, 600 Pa. 771, 968 A.2d 233 (2009).
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Significantly: “A misrepresentation need not be an actual statement; it can be
manifest in the form of silence or failure to disclose relevant information when
good faith requires disclosure.” Glover v. Severino, 946 A.2d 710, 713
(Pa.Super. 2008). “Fraud comprises anything calculated to deceive, whether
by single act or combination, or by suppression of truth, or suggestion of what
is false, whether by direct falsehood or innuendo, by speech or silence, word
of mouth, or look or gesture.” Id. (internal citation omitted) (emphasis in
original). See also N.C. v. M.H., 923 A.2d 499 (Pa.Super. 2007) (holding
doctrine of paternity by estoppel was inapplicable where appellant operated
for over ten years under false pretense that he was child’s father due to
mother’s failure to inform appellant of extramarital affair she had around time
of child’s conception); Gebler, supra (holding trial court erred in applying
doctrine of paternity by estoppel where appellant’s behavior as responsible
father for first eighteen months of child’s life was due to mother’s concealment
of existence of other sexual partners around time of child’s conception).
Instantly, the parties were never married and there is no intact family
unit to preserve. Consequently, the presumption of paternity does not apply
here. See Vargo, supra. Nevertheless, the trial court applied the doctrine
of paternity by estoppel, reasoning:
In this case, [Appellant] has never timely filed any petition
to establish paternity or deny paternity. [Appellant] only
made efforts verbally to a domestic relations officer that he
was not the father. [Appellant] failed to appear for an initial
DNA test, although he claimed no notice. He never took the
steps to again make DNA an issue for seven (7) to eight (8)
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years. Additionally, [Appellant] continued to pay child
support for eight… years prior to the filing [of] his petition
to terminate paternity. Thus, the case law, as well as the
relevant facts support the finding of the court that paternity
has been established by estoppel and [Appellant’s] appeal
of this [c]ourt’s November 23, 2021 Order should be denied.
(Rule 1925(a) Opinion, filed 3/22/22, at 5-6). We cannot agree with the
court’s analysis.
Here, the record demonstrates that Appellant has no relationship with
Child whatsoever, Appellant has not held Child out as his own to anyone, and
Child does not know who Appellant is. The only thing Appellant has done
relative to Child is to pay support. Notably, Appellant did not pay support
voluntarily, but only as a result of wage garnishment by the court. On this
record, there is no public policy interest in continuing Appellant’s paternity to
protect Child’s best interests. See Moyer, supra; Gebler, supra. See also
K.E.M. v. P.C.S., 614 Pa. 508, 38 A.3d 798 (2012) (stating paternity by
estoppel continues to pertain in Pennsylvania, but it will apply only where it
can be shown, on developed record, that it is in best interests of involved
child).
Additionally, Appellant has presented clear and convincing evidence of
fraud in this case. Although the parties dispute the timing of when Appellee
announced that Appellant was the father of her child, it is undisputed that
Appellee told Appellant (and Appellee’s mother) at some point in time prior to
Child’s birth that Appellant was in fact the father. Appellee failed to disclose
in good faith that she had engaged in sexual relations with other partners prior
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to conceiving Child, constituting a misrepresentation to Appellant. See
Glover, supra. Appellee stated at the hearing that she could not recall if she
engaged in sexual relations with other partners around the time of conception,
but based on the DNA results proving Appellant is not the father, it is clear
she did. Likewise, Appellee did not inform the Domestic Relations section of
any other possible father of Child. Appellee made this misrepresentation with
the intent that Appellant would be subject to pay child support. Her
misrepresentation ultimately caused Appellant to do so by virtue of a court
order. Under these facts, Appellant has established fraud. See Ellison,
supra.
We acknowledge the trial court’s reasoning that Appellant essentially
failed to act for many years to deny paternity. Nevertheless, Appellant denied
receipt of notice regarding the originally scheduled paternity test, and the
record contains no evidence of notice.3 Additionally, Appellant claimed he
resided out-of-state following Child’s birth. Appellant further alleged he
repeatedly disputed his paternity with the Domestic Relations section but that
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3 In its opinion, the trial court cites Pa.R.C.P. 1910.15(e) (stating: “If
defendant fails to appear as ordered for a conference, hearing or trial, or for
genetic tests, the court shall, upon proof of service on the defendant,
enter an order establishing paternity”) (emphasis added). We emphasize that
the record contains no notice of the originally scheduled paternity test, and
Appellee did not produce such notice at the hearing. Further, the court’s
September 26, 2013 order establishing paternity does not indicate whether
there was proof of service on Appellant prior to the court’s entry of the order.
Thus, the court’s reliance on Rule 1910.15(e) is inappropriate here.
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it was not until he met with a different caseworker in person that Domestic
Relations assisted him with what steps to take.
Although the trial court and Appellee cite Com. ex rel. Gonzalez v.
Andreas, 369 A.2d 416 (Pa.Super. 1976), for the proposition that Appellant’s
lack of due diligence estops him from denying paternity, that case is
distinguishable. There, the parties married shortly after the child’s birth, and
the family lived together for approximately three years after the child’s
birth. During that time, the appellant supported the child as his own and
never expressed doubts about the child’s parentage. It was only after the
parties had separated that the appellant questioned paternity. This Court
stated: “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.” Id.
at 419 (emphasis added). Here, however, we have already concluded that
Appellant established fraud, and Child would not be “victimized” by
terminating Appellant’s paternity where Child does not even know Appellant.4
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4 The trial court’s reliance on D.M. v. V.B., 87 A.3d 323 (Pa.Super. 2014) is
similarly misplaced. The trial court cited that case for the proposition that
“[w]hen a support order is entered in a case and the obligor fails to file a
timely appeal, he is subsequently estopped from denying paternity. … If no
timely direct appeal is taken from the support order, the paternity
determination cannot be challenged later because it has been established as
a matter of law.” Id. at 327 (internal citation omitted). Nevertheless, this
Court went on to state: “[E]xceptions to the conclusiveness of a support order
on this issue of paternity [exist] where fraud or mutual mistake induces a
party to enter into such an order.” Id. (internal citation omitted).
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Based upon the foregoing, we reverse the order finding Appellant to be Child’s
father via the doctrine of paternity by estoppel and requiring Appellant to pay
child support.5
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/23/2022
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5 Although Appellant requested reimbursement in his petition to terminate
paternity, he does not expressly request reimbursement in his appellate brief
or cite any law to support his claim that reimbursement is proper. Thus, the
issue of reimbursement is waived, and we decline to address it. See In re
Estate of Whitley, 50 A.3d 203 (Pa.Super. 2012) (stating failure to cite
relevant legal authority constitutes waiver of claim on appeal).
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