Gebler v. Gatti

DISSENTING OPINION BY

TAMILIA, J.:

¶ 1 In the matter before us Gregory Gatti appeals the decision of the trial court which finds him to be the legal father of B.G. pursuant to the doctrine of equitable estoppel. The majority reverses the trial court and finds the doctrine does not apply as the mother, Kelly N. Gebler, fraudulently induced appellant to undertake the responsibility for parenting the child, thus establishing paternity by estoppel. Upon my careful review of the transcript of the reproduced record, appellant’s 1925(a) statement, the briefs of the parties and the trial court Opinion and supplemental Opinion, I believe the trial court was correct in its findings and that the majority Opinion is in error. I, therefore, respectfully dissent.

¶ 2 The statement of facts in the majority Opinion is not in conformity with the findings of facts in the trial court Opinion *6and those in the reproduced record. The majority goes astray in stating a finding that “father” “held the child out as his own under the mother’s misrepresentation that he was the only one having sexual relations with mother at time of conception” (majority Opinion p. 2). As the trial court detailed in its Opinion,

Kelly N. Gebler (hereinafter “Mother”) and Mr. Gatti engaged in a seven-year relationship with each other, however, they never married and never lived together. Near the end of their relationship, mother learned that she was pregnant with the child and she believed that Mr. Gatti was the child’s father. Within one month of discovering that she was pregnant, mother informed Mr. Gatti of the pregnancy and that he was the child’s father. As Mr. Gatti testified, he believed that he was the child’s biological father and, thereafter, assumed the role of a responsible father.

Trial Court Opinion, Kelly, J., 1/12/05, at 1.

¶ 8 In the supplemental Opinion, the trial court continued to address the fraud allegation (which was untimely), stating “Mr. Gatti avers that this Court erred in its application of the paternity by estoppel doctrine because, pursuant to her allegations, mother induced him into believing that he was the child’s biological father and, therefore, he is not estopped from denying paternity of the child because he ceased to have contact with the child once the fraud was revealed.” Supplemental Trial Court Opinion, Kelly J., 3/15/05, at 1. The trial court, citing J.C. v. J.S., 826 A.2d 1 (Pa.Super.2003) and Doran v. Doran, 820 A.2d 1279 (Pa.Super.2003), acknowledges that evidence of fraud is relevant to the court’s equitable estoppel analysis. Supplemental Opinion at 1. Further, the court specifically ruled out fraud in the following statement:

However, there were neither allegations of mother’s fraudulent activity nor evidence of fraud or misrepresentation in this case. Specifically, Mr. Gatti failed to present any evidence to indicate that mother made any misrepresentation or a fraudulent utterance inducing Mr. Gatti to act as the child’s father. To the contrary, the credible testimony of mother reveals that she, like Mr. Gatti, believed that Mr. Gatti was the child’s father. Moreover, mother’s testimony at the Support De Novo Hearing that she ‘would also like to have a DNA test done so I do know,’ further indicates that she was unaware that Mr. Gatti was not the child’s biological father.

See Supplemental Opinion at 2, citing, Transcript of Proceedings De Novo, 8/12/04, at 3.

¶4 The trial court further points out, “[njevertheless, for the first time, Mr. Gat-ti in his Statement of Matters Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b), raised an issue of fraud or misrepresentation by mother.” Supplemental Opinion at 1. Matters first alleged in the 1925(b) statement on appeal are not part of the record and may not be considered by the appellate court.4 The majority has developed its theory of the case in reverse fashion by pursuing the blood test and DNA as proof of non-paternity before establishing by clear and convincing evidence that paternity by estoppel was procured fraudulently. The trial judge is the arbiter of credibility of the witnesses and weight of the evidence and on all counts she has concluded that paternity of the *7child was established pursuant to the doctrine of equitable estoppel.5

5 The facts of this case are accurately described in the trial court Opinion.

Kelly N. Gebler (hereinafter “Mother”) and Mr. Gatti engaged in a seven-year relationship with each other, however, they never married and never lived together. Near the end of their relationship, mother learned that she was pregnant with the child and she believed that Mr. Gatti was the child’s father. Within one month of discovering that she was pregnant, mother informed Mr. Gatti of the pregnancy and that he was the child’s father. As Mr. Gatti testified, he believed that he was the child’s biological father and, thereafter, assumed the role of a responsible father.
Specifically, in anticipation of the child’s arrival, Mr. Gatti and mother made plans together and Mr. Gatti attended pre-natal physician’s visits with mother. With regard to the child’s birth, Mr. [Gatti] was present for the birth and he stayed with mother at the hospital. Moreover, at the hospital, Mr. Gatti signed an acknowledgement of paternity and the child was given his last name on her birth certificate.
Upon mother and child’s release from the hospital, Mr. Gatti stayed with mother and the child for approximately one month to assist with the child’s care. Thereafter, Mr. Gatti visited with the child and purchased items for the child’s care, including formula, clothes and toys. In addition, Mr. Gatti’s relatives provided clothes and baby items for the child, including items received from a baby shower held by Mr. Gatti’s mother. Mr. Gatti even claimed the child as a dependent for income tax purposes.
By the time that the child was nine (9) months old, the parties had ended their relationship. Accordingly, mother filed for support of the child. Thereafter, the parties agreed to an amount of child support, a support Order was issued and Mr. Gatti paid support. In addition, the parties attended a Custody Conciliation Conference that resulted in an Order establishing periods of custody for both mother and Mr. Gatti. Pursuant to the court orders, Mr. Gatti continued to pay support and to exercise his custody rights with the child until February of 2003.
The last time that Mr. Gatti saw the child was in February of 2003, when he received the results of a private DNA test, indicating that he was not the child’s father. Father initiated the DNA testing based upon his own suspicions that he was not the child’s father. Specifically, father testified that the child did not resemble him.
In September of 2004, Mr. Gatti presented to this Court a Motion Requesting the Court Allow a Second Paternity/DNA Test. By Order, dated September 13, 2004, this Court ordered: (1) the addition of the alleged biological father, Ray Sisson, as a party to the action; (2) DNA testing of all parties and the child; and (3) that the DNA results would not be disposi-tive of the issues pertaining to child support.
The Genetic Test Results, dated November 3, 2004, excluded Mr. Gatti as the child’s biological father. Thereafter, on November 30, 2004, Mr. Gatti ob*8tained a Rule to Show Cause on the Motion for Hearing presently before this Court. This Court heard testimony and arguments on this matter on January 11, 2005.

Trial Court Opinion at 1-3.

¶ 6 The standard of review is set forth in the case of J.C., supra.

Initially, we note that “[o]ur general standard of appellate review in child support matters is an abuse of discretion standard.” Bowser v. Blom, 569 Pa. 609, 807 A.2d 830, 834 (2002). Moreover, an abuse of discretion is “[n]ot merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record,” then discretion has been abused. Id.

Id. at 3.

¶ 7 As this case turns on the principle of equitable estoppel, as to challenging paternity, the trial court relied on the principle announced in our Supreme Court’s decision in Fish v. Behers, 559 Pa. 523, 741 A.2d 721 (1999). There, Justice Castille wrote:

¶ 8 In Freedman v. MeCandless, 539 Pa. 584, 591-92, 654 A.2d 529 (1995), we stated:

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 its conduct be permitted to sue a third party for support, claiming that the third party is the true father. As the Superior Court has observed, the doctrine of es-toppel 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.”

Id., at 532-33.

In Jones v. Trojak, 535 Pa. 95, 105-06, 634 A.2d 201, 206 (1993), this Court discussed the issue of estoppel where the mother of a child sought support from a third party, not her husband, whom she claimed was the father of the child:

[Ujnder certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. John M. [v. Paula T.], 524 Pa. at 318, 571 A.2d at 1386. These estoppel cases indicate that where the principle is operative, blood tests may be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. Id. However, the doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his oim by holding it out and/or supporting the child.

Fish, supra at 723 (emphasis added).

¶ 9 The underlying support for this doctrine is expounded in Ruth F. v. Robert B., 456 Pa.Super. 398, 690 A.2d 1171 (1997):

Children; legitimacy; determination of paternity
(a) Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That all children shall be legitimate irrespective of the marital status of their parents and in any and every case where the children are born out of wedlock they shall enjoy all the rights *9and privileges as if they had been born during the wedlock of such parents, except as otherwise provided in Title 20 Pa.C.S.
(b) For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of a child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child which may include a pri- or court determination of paternity.
John M., supra at 318-319, 571 A.2d at 1386-1387 (emphasis in original). The highlighted portions of the above statute clearly apply to the facts of this case.

Id. at 1173.

¶ 10 As clearly spelled out in Judge Kelly’s Opinions, the evidence, testimony and law established by clear and convincing evidence that sections (2) and (3) were complied with to establish Gatti’s paternity by estoppel of B.G. As pointed out earlier, Gatti did not establish by clear and convincing evidence during the various legal proceedings that mother fraudulently induced him to acknowledge the child’s paternity in writing, nor to enter an agreed support and partial custody Order, nor did he proceed as required to take an appeal from the various suppori/partial custody Orders within sixty days of their entry. The majority would adopt various minority views which have been rejected over several years and in several minority Opinions to rebut the presumption of paternity arising out of marriage and/or equitable estop-pel outside of marriage by reliance on blood tests or DNA testing before the presumption of legitimacy by marriage or by estoppel has been overcome by clear and convincing evidence.

¶ 11 From the transcript, particularly as testimony was developed on cross-examination, it appears Gatti had no serious doubts about his paternity of the child for almost two years until he was required to pay an increased amount of support and he heard people talking about the child’s lack of resemblance to him. The transcript at that point develops this creation of doubt and its various sources as follows:

Q. Was that — at that particular time was the amount agreed to between the two of you?
A. To the courts, no, it was not agreed. Prior to we had — I had went— we had went, as being “we” I should say — to set an agreement so we wouldn’t have to go through the court system, then again acknowledging that I thought I was the child’s father.
Q. Did she later file for like a modification of the amount or something?
A. Yes.
Q. And what was the outcome of that particular action?
A. She had got more money.
Q. Now when did you start to think you were not the father?
A. About a year to about a year and a half I started seeing and hearing other people talk and the resemblance, and just the qualities of the child just was not there of what our family is. [sic]
Q. Did the child look like you?
*10A. I believe at first, but they run strong in her bloodline that the father of the children look like Geblers.
Q. What did your doubts lead you to do?
A. I had — me and my fiancée had talked about it that if we would just get it done privately, no one needs to know just for our well being because of the way the court system was, and the way — the support that I was paying, the large amounts, that it would be worth my while just to get this done and, you know, just for peace of mind.
Q. Get what done?
A. The DNA test, the first one.
Q. When was the last time you saw the child?
A. The last date, I believe, I saw this child was the day I got back my DNA paper, which was February — I had it taken on February 9th, so three weeks from there towards the end of February I had got the results back. And that was the last day I’ve seen her.

T.T., 1/11/05, at 15-16 (emphasis added).

¶ 12 It appears from this testimony that appellant was influenced by the support burden and the comments of people around him, including his fiancée, to get a DNA test because of the support he was paying and “to get this done (DNA test), you know, just for peace of mind.” No where in the transcript is there any allegation of fraud or belief held by either the mother or appellant that this was not a child born out of their relationship, as was clearly explicated in the findings of the trial judge.

¶ 13 In her Supplemental Opinion, filed after she received appellant’s statement of matters complained of pursuant to Pa. R.A.P. 1925(b), the court writes:

Nevertheless, for the first time, Mr. Gatti, in his Statement of Matters Complained of on Appeal, raises an issue of fraud or misrepresentation by Kelly N. Gebler (hereinafter “Mother”).6 Specifically, Mr. Gatti- avers that this Court erred in its application of the paternity by estoppel doctrine because, pursuant to his allegations, mother induced him into believing that he was the child’s biological father and, therefore, he is not estopped from denying paternity of the child because he ceased to have contact with the child once the fraud was revealed.
This Court recognizes that evidence of fraud is relevant to the Court’s equitable estoppel analysis. Specifically, a putative father will not be estopped from denying paternity of a child when fraudulent conduct induces that putative father into treating the child as his own. J.C. v. J.S., 826 A.2d 1 (Pa.Super.2003); Doran v. Doran, 820 A.2d 1279 (Pa.Super.2003). However, there were neither allegations of mother’s fraudulent activity nor evidence of fraud or misrepresentation in this case. Specifically, Mr. Gatti failed to present any evidence to indicate that mother made a misrepresentation or a fraudulent utterance inducing Mr. Gatti to act as the child’s father. To the contrary, the credible testimony of mother reveals that she, like Mr. Gatti, believed that Mr. Gatti was the child’s father. See Transcript of Proceedings Motion for Hearing, January 11, 1005[sic], at 5. Moreover, mother’s testimony at the Support De Novo Hearing that she “would also like to have a DNA test done so I do know,” further indicates that she was unaware that Mr. Gatti was not the child’s biolog*11ical father. See Transcript of Proceedings De Novo Support Hearing, August 12, 2004, at 3. Accordingly, this Court did not find any fraudulent conduct on the part of mother sufficient to warrant preclusion of the doctrine of paternity by estoppel.

Trial Court Opinion at 1-2.

¶ 14 Finally, as enacted in Pennsylvania, the Uniform Act on Blood Tests to Determine Paternity gives courts authority to order blood tests only where paternity, parentage or identity of a child is a relevant fact. Blood tests to determine paternity, 23 Pa.C.S. § 5104(c).

¶ 15 Courts have deemed that paternity is not a relevant factor when the father has voluntarily and in writing acknowledged paternity and entered into an agreed support Order for the child, Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988), or when mother has sought and received prior custody and support Orders which determined paternity as a matter of law, Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989).

¶ 16 For the above reasons, I would affirm the Order of the trial court.

. Pennsylvania Rule of Appellate Procedure 302, Requisite for Reviewable Issue, provides:

(a) General rule..—
Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.

. “An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice.” See Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403 (2003) (citations omitted).

. A party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) Order. Commonwealth v. Kohan, 825 A.2d 702 (Pa.Super.2003).