D.S. v. S.S.

• Court: Superior Court of Pennsylvania
• Decided: August 22, 2014
• Docket: 2037 WDA 2013
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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 J-A23013-14

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.

(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.

-

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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