J.J. v. M.C.

37 Pa. D. & C.5th 272
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedFebruary 25, 2014
DocketNo. 12-009900; 412 EDA 2014; 416 EDA 2014
StatusPublished

This text of 37 Pa. D. & C.5th 272 (J.J. v. M.C.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.J. v. M.C., 37 Pa. D. & C.5th 272 (Pa. Super. Ct. 2014).

Opinion

DOZOR, J.,

AMENDED OPINION1

This appeal is considered as a direct appeal from this court’s January 27, 2014 “order granting petitioner’s request for paternity and genetic testing and denying preliminary objections.” The nature and history of the case is as follows:

[274]*274On December 6, 2012, Appellee, J.J., filed a complaint to establish paternity and genetic testing of minor child born on September 8, 2012. The complaint to establish paternity and genetic testing was scheduled before a master for a January 2, 2013 Hearing. On December 19, 2012, appellant Mother M.C. filed an answer to the complaint to establish paternity and genetic testing. The January 2, 2013 hearing before the master was continued to January 22,2013. On January 22,2013, appellant mother’s counsel requested that this case be relisted before a judge pursuant to Pa.R.C.P. 1915.4-l(b)(l), due to the complex issues of paternity in this case.

On February 26,2013, the undersigned court scheduled this case for a pre-trial conference on May 2, 2013. In preparation for the pre-trial conference this court requested that the parties submit concise conference statements. On April 24, 2013 appellant mother filed a petition to strike paragraph 21 and Exhibit “E” of plaintiff’s concise conference statement.2 On April 25, 2013, petitioner filed a response to defendant mother’s petition to strike paragraph 21 and Exhibit “E” of plaintiff’s concise conference statement.

This court held a pre-trial conference on this case on May 22, 2013. Thereafter, this court scheduled this case for a trial date on October 7, 2013.

On October 3, 2013, appellant mother’s husband (D.T.) filed a petition to intervene and to change the case caption. On October 3, 2013, appellant mother and appellant intervener husband, D.T. (appellant mother’s husband), filed preliminary objections seeking dismissal of petitioner’s complaint on the basis that the child was [275]*275born into an intact marriage and thus the presumption of paternity bars petitioner’s complaint.

On October 7,2013, this court issued an order granting appellant mother’s motion to strike paragraph 21 and Exhibit “E” of plaintiff’s concise conference statement. This court granted the petition to strike paragraph 21 and Exhibit E, in an abundance of caution and to preserve the record. The effect of this court’s ruling removed from the records any reference of the results of the paternity test that was taken in June of 2012 between appellant mother, appellee and the then unborn minor child.

Additionally, on October 7, 2013, this court issued an order granting appellant intervener husband (D.T.’s) petition to intervene and change the case caption.

This court held a hearing in this matter on October 7th and 8th, 2013 and after the trial, this court took the matter under advisement. All of appellants’ arguments were based on their claim that proper application of the presumption of paternity bars appellee from asserting any parental claim to the minor child.

After receiving memoranda of law from all parties involved, this court issued an order on January 27, 2014, denying appellants’ preliminary objections and granting appellee’s request for genetic testing. The effect of the January 27,2014 order was that the preliminary objection which sought dismissal of appellee’s complaint to establish paternity and genetic testing on the basis that the child was born into an intact marriage and thus the presumption of paternity barred appellee’s complaint was denied and appellant mother, appellee and minor child were ordered to report to the Domestic Relations Office (DRO) within ten (10) days of the date this order to undergo genetic testing.

[276]*276On January 29, 2014, appellant mother filed an “emergency motion to stay enforcement of January 27, 2014 order granting petitioner’s request for paternity and genetic testing and denying preliminary objections.” Appellant mother also filed a timely “notice of appeal” and her “concise statement of matters complained of on appeal.”

On January 30, 2014, this court issued an order granting appellant mother’s emergency motion to stay enforcement of January 27, 2014 order which granted petitioner’s request for paternity and genetic testing and denying preliminary objections until a decision is made by the Superior Court on appellants’ appeal of said order.

On January 31,2014, appellant intervener husband filed a timely “notice of appeal” and his “concise statement of matters complained of on appeal.”

This court notes that no request was made by this court of either appellant pursuant to Pennsylvania Rules of Appellate Procedure 1925(a) for a concise statement of matters complained of on appeal as both parties filed their concise statements contemporaneously with their notice of appeals. On February 11, 2014, this court received a letter from the Superior Court informing this court that the appeals in this case have been designated as a “children’s fast track appeal.”

Both appellants’ concise statements of matters raised on appeal raise similar, if not identical, issues of error on the part of this court in issuing the January 27,2014 order. The issues, which have been consolidated, are as follows:

1. This court erred and committed an abuse of discretion when determining that appellee failed to overcome the application of the presumption of paternity by not [277]*277establishing that appellant intervener husband was “incapable of fathering a child or did not have access to wife” and determining that appellant mother and appellant intervener husband did not have an intact marriage.
2. This court erred and committed an abuse of discretion when this court admitted evidence of appellee’s related to the period of time prior to the date of minor child’s birth.
3. This court erred and committed an abuse of discretion when determining that appellant intervener husband could not have known of appellant mother’s conduct.
4. This court erred as a matter of law in confusing the presumption of paternity with paternity by estoppel doctrine.

FACTS:

There was no dispute during the trial that appellant mother and appellant intervener husband were married on June 21, 2007 and there was no dispute that on the date of the minor child’s birth, September 8, 2012, appellant mother and appellant intervener husband remained legally married. This court also notes that appellant intervener husband’s name is listed as the father of minor child on the birth certificate. N.T., 10/07/2013, Vol. 1, pgs. 202 and Exhibit D-l. Additionally, it is not in dispute that prior to becoming pregnant with minor child, appellant mother engaged in an extended extra-marital affair with appellee.

Appellant mother is employed as a registered nurse at Jefferson University Hospital, Methodist Division who began communicating with appellee when appellee contacted her via Facebook. The online communication between appellee and appellant mother began in June of [278]*2782011 and quickly became a physical affair.

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Bluebook (online)
37 Pa. D. & C.5th 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jj-v-mc-pactcompldelawa-2014.