P.C.S. v. J.E.B.

659 A.2d 1043, 442 Pa. Super. 388, 1995 Pa. Super. LEXIS 1698
CourtSuperior Court of Pennsylvania
DecidedJune 8, 1995
StatusPublished
Cited by3 cases

This text of 659 A.2d 1043 (P.C.S. v. J.E.B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.C.S. v. J.E.B., 659 A.2d 1043, 442 Pa. Super. 388, 1995 Pa. Super. LEXIS 1698 (Pa. Ct. App. 1995).

Opinion

FORD ELLIOTT, Judge:

Appellant comes before us challenging an order entered in the support action below, July 18, 1994, directing blood testing of all relevant parties pursuant to 23 Pa.C.S.A. § 5104. For the purposes of both confidentiality and convenience, we shall refer to the various parties as follows: plaintiff/appellee, P.C.S., shall be “Wife;” additional defendant/appellee, R.A.S., shall be “Husband;” and defendant/appellant, J.E.B., shall be “Putative Father.” Upon careful review of the issues raised on appeal by Putative Father, we affirm.

The facts underlying this appeal bear review. Husband and Wife were married September 19, 1981. A child was born to Husband and Wife on October 31, 1985, and is not the subject of these proceedings. In July 1989 Husband underwent a vasectomy procedure. Thereafter, until July 1992, Husband and Wife engaged in regular sexual intercourse without benefit of any other form of contraception. Wife did not conceive during this time. Husband and Wife separated in mid-July 1992, and Husband moved out of the marital residence.

In August 1992, Wife began a sexual relationship with Putative Father, whom she had known since 1986. Wife and Putative Father engaged in sexual intercourse several times during August and continued until a reconciliation between Husband and Wife occurred [1045]*1045during the first week of September 1992. Husband then moved back into the marital residence. We note that testimony was adduced that Husband and Wife engaged in sexual relations during the period of separation. Notes of testimony, 7/11/94 at 240. Wife first learned that she was pregnant on September 15, 1992.1 It is this child that is the subject of the instant support action.

On September 29, 1992, Husband underwent, for the first time, a fertility test which verified that he was infertile. Husband continued to reside with Wife, but eventually filed for divorce February 9,1993. The child that is the subject of this support action was born May 19, 1993. The divorce between Husband and Wife was finalized May 27, 1993. Husband continued to reside with Wife until approximately July 13, 1993, at which time he moved from the household. Husband removed himself from the household when it became clear that Wife would not give up the subject child for adoption. Notes of testimony, 7/11/94 at 21-22.

On appeal, the Putative Father raises multiple arguments which may effectively be couched as three distinct issues:

1. Has the presumption that a child born during a marriage is a child of that marriage been overcome by clear and convincing evidence?
2. Are Husband and/or Wife estopped from asserting paternity outside of the marriage?
3. Have Husband and Wife effectively admitted the paternity of Husband by failing to respond to Putative Father’s Request for Admissions, pursuant to Pa.R.C.P. Rule 4014(b)(d), 42 Pa.C.S.A.?

We shall address these matters seriatim.

Putative Father’s fust and second issues challenge the ability of the trial court to order blood testing of the respective parties pursuant to 23 Pa.C.S.A. § 5104. We begin our discussion of Putative Father’s first issue by observing that one of the strongest presumptions known to our law is that a child born to a married woman is a child of the marriage. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Kohler v. Bleem v. Kohler, 439 Pa.Super. 385, 654 A.2d 569 (1995); McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738 (1992), allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992). Blood testing may not be used to rebut this presumption in the first instance; rather, the presumption must first be rebutted by other clear and convincing evidence. McCue, supra.

Putative Father relies on various case precedents for the proposition that this presumption can only be overcome by clear and convincing proof of either non-access or impotency, citing, inter alia, Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993). We agree, generally, with this proposition. However, Putative Father goes on to contend that the impotency prong for rebutting the presumption is restricted to meaning incapacity for sexual intercourse. Putative Father derives his definition of impotency from Manbeck v. Manbeck, 339 Pa.Super. 493, 489 A.2d 748 (1985), an appeal from a divorce action in which the marriage was annulled because of the ivife’s “impotency” (incapacity for sexual intercourse). Putative Father’s argument concludes that since Husband and Wife admit to sexual intercourse before and during the time of conception, obviously impotency has not been proven by any evidence, clear, convincing, or otherwise. We disagree.

Putative Father misperceives our case law. Although many cases do speak of rebutting the presumption of paternity by clear and convincing evidence of non-access or impotency, we do not believe that our precedents mean to restrict the impotency prong to impotency per se. We believe that our cases actually intend impotency to refer also to an inability to procreate. This can be readily shown by reciting to precedent ourselves:

This presumption (which we will henceforth refer to as the presumption that a child born to a married woman was the [1046]*1046child of that marriage) could traditionally be overcome only by proof that the husband did not have access to his wife during the period of possible conception, or by proof of the husband’s impotency or sterility.

John M. v. Paula T. at 313-14, 571 A.2d at 1384 (citations omitted).

‘Traditionally, that presumption could be rebutted only by proof that a husband was incapable of procreation or had no access to his wife during the relevant period.’

McCue v. McCue, supra at 75, 604 A.2d at 740 (citations omitted). Thus, we find no merit to Putative Father’s argument. The presumption can be rebutted by clear and convincing evidence of sterility or an inability to procreate. We believe that a vasectomy, where the operation’s success is confirmed by a sperm count analysis, qualifies as clear and convincing evidence of an inability to procreate.

Obviously, anticipating this conclusion, Putative Father also raises the argument that a post-conception fertility test cannot be used to verify the results of a vasectomy. Putative Father recites Bohn v. Lunger, 340 Pa.Super. 369, 490 A.2d 465 (1985), for this proposition. In Bohn the trial court refused to allow the defendant to introduce medical testimony that he was found asper-matic during a test performed four months after the birth of the child. The court ruled the test irrelevant because it did not indicate the defendant’s condition at the time of conception. The court also indicated evidence casting doubt on whether defendant ever underwent a vasectomy.

We do not find

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Bluebook (online)
659 A.2d 1043, 442 Pa. Super. 388, 1995 Pa. Super. LEXIS 1698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pcs-v-jeb-pasuperct-1995.