RUTH F. v. Robert B.

690 A.2d 1171, 456 Pa. Super. 398, 1997 Pa. Super. LEXIS 241

• Court: Superior Court of Pennsylvania
• Decided: February 6, 1997
• Status: Published

Opinions

TAMILIA, Judge.

Robert B., Jr., putative father of Zachary F., appeals from the May 9, 1995 Order directing him, along with Zachary and appellee/mother, Ruth F., to submit to blood testing for the purpose of determining Zachary’s paternity. At the time of conception of Zachary and until 1992, a period of more than three years, mother lived with Zachary’s presumptive biological father, David F., as man and wife in an intact family relationship. Ruth and David F. separated in August, 1992, and divorced in December, 1993. As part of the divorce agreement, the parents agreed that husband would support the two older children he fathered during the marriage but not Zachary. Preliminarily, we find this agreement a nullity as parents may not bargain away the rights of their children to support. Hyde v. Hyde, 421 Pa.Super. 415, 618 A.2d 406 (1992).

The issue squarely presented by this appeal is whether mother is estopped from denying the paternity of the presumptive father, David F., and pursuing a paternity and support action against the putative father, Robert B., Jr. The trial court, after review of ex parte testimony by the mother before a court-appointed hearing officer, affirmed the finding of the hearing officer that the mother overcame the presumption of legitimacy because of non-access and that the behavior of the presumptive father, David F., and/or herself was insufficient to establish an estoppel. Based upon this finding and conclusions drawn from the mother’s testimony, the trial court authorized blood testing of the mother, son Zachary and appellant.

We believe the trial court was in error. The Order must be vacated and the support action against Robert B., Jr., must be dismissed with prejudice.

The law in Pennsylvania as to estoppel in determining the legal relationship between a married man and woman and a child conceived during the marriage is well established, clearly stated and easily applied. From time to time, there arise nuances in fact situations which confuse the application of the doctrine, but these invariably give way to a careful application of policy considerations and time-honored standards of proof. This is such a case. Initially, despite at- . tempts in recent times to insinuate otherwise and the advent of modern technology by discovery of almost incontrovertible means of proving paternity through genetic, HLA and DNA testing, the resolution of the issue of paternity is determined by behavior, conduct and intent during a particular period of time. This determination is unaffected by performance of or demand for blood tests, which are irrelevant to the issue.

The right to obtain a blood test to determine paternity is established by Pa.R.C.P. 4010, Physical and mental examination of persons, and/or rule 1915.8, Physical and mental examination of persons, when the paternity is in controversy. The Order may be made only on motion for good cause shown. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990). In a case where the custody or support of a child conceived during marriage is at issue, and this turns on the parentage of the child by the husband/father, the presumption of legitimacy of the child must effectively be rebutted before there is good cause to permit the grant of the motion for a blood test. “The ‘presumption of legitimacy’ arose from the reluctance of the law to declare a child illegitimate, because the status ‘illegitimate’ historically subjected a child so labeled to significant legal and social discrimination.” Id. at 312 n. 2, 571 A.2d at 1383 n. 2 (citations omitted).

This case turns on whether the presumption of legitimacy has been rebutted, which in turn is conditioned upon whether the parties are estopped from relying on evidence leading to rebuttal of the presumption of legitimacy. The law of Pennsylvania has evolved to the point that paternity may be established for all purposes, when legitimacy is in question, in one of several ways.

The General Assembly has codified the principle of “paternity by estoppel” in its Act of June 17, 1971, P.L. 175, No. 17, § 1, as amended by Act of November 26, 1978, P.L. 1216, No. 288 § 1, 48 Pa.Stat.Ann. § 167 (Purdon’s Supp. 1989) (hereinafter referred to as “section 167”), which provides:

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 children are born out of wedlock they shall enjoy all the rights and 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 prior 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.

The evidence detailed at the proceeding before the hearing officer is clear and convincing of the parental commitment and involvement of David F. with and on behalf of Zachary. The hearing officer and trial court willingly accepted a revisionist view of the facts to which the mother testified and which were uncontradicted by David F., as he was not present. In its memorandum, the court states: “It is well settled that paternity-by-estoppel operates against a husband only if, from the time he became reasonably aware of his non-paternity, he continues to accept parental responsibility for the child and hold the child out as his own.” (Memorandum, Kaplan, J., 5/9/95, p. 5; citations omitted.) In this case, the trial court found husband did not become reasonably aware of his non-paternity until May, 1992, when the mother finally told him the truth of Zachary’s paternity.

Despite the fact the husband was not present and the testimony of the mother was self-serving, it became clear on cross-examination of the mother that the husband had been aware of the likelihood that some other person fathered Zachary. At the outset, according to appellee, she and Mr. F. had not had intercourse during several months covering the period of conception, although still married. Previously having fathered two other children during this union and with the knowledge of the normal term of a pregnancy, Mr. F. could be expected to question his paternity and to be reasonably sure that Zachary was not fathered by him. On cross-examination, Mrs. F. responded as follows:

Q. And you did, however, indicate that [Mr. F.], from the early years of the child’s life with you suspected that the child was not his; is that correct?

A. Yes.

Q. And he continued, however, to treat the child as his own and raise the child as one of his children?

A. Yes.

(H.T., 9/7/94, pp. 8-9.) And later in the questioning, Mrs. F. acknowledged that from the child’s early years Mr. F. said the child was not his and that it was an ongoing contention in the marriage (id. at 13). Notwithstanding, they both maintained a family relationship, treated Mr. F. as the father and to this day, seven years after birth, Zachary believes Mr. F. to be his father. On her own, appellee decided to repudiate the relationship, telling Mr. F. he was not the father in May, 1992, which was followed by a voluntary blood test which excluded him as the father.

This exchange is telling and convincing that Mr. F., under any definition of a discovery rule that might be applied to this case, did or should have known of his non-paternity and yet failed to take any purposeful steps to exculpate himself from the responsibility he had undertaken. Rather, the evidence is clearly to the contrary — Zachary was born into an intact family on June 7, 1989, and for the next three years Mr. F. held the child out as his own, supporting him financially as well as emotionally. “[David F.]” was listed on Zachary’s birth certificate as his father; Mr. F. included Zachary on his medical plan and regularly claimed him as a dependent on the family’s tax returns. In addition, the mother testified (as corroborated by testimony of Mr. B.) that in either late ’91 or early ’92 (well before the separation in October, 1992 or “disclosure” in May, 1992), Mr. F. met with appellant Robert B. and proposed a transfer to Mr. F. of a piece of property as financial compensation to set at rest any paternity claims against appellant. Mr. B. refused. In the spring and summer of 1992, appellee brought things to a head by declaring that Robert B. was the father. Despite Mrs. F.’s desire to continue as a family unit, in order to retaliate against her and Mr. B., Mr. F., in October, 1992, filed a support action against Mr. B. and Mrs. F. on behalf of Zachary. The complaint was dismissed because of the estoppel principle and no appeal was taken by Mr. F. It appears that dismissal by Judge Kaplan in that action resolved the paternity issue as to Mr. F.’s paternity on the basis of estoppel. Also, as to the issue of paternity, the principle of res judicata prevents any action by Mrs. F. against Mr. B.

Where parties have been afforded an opportunity to litigate a claim before a court of competent jurisdiction, and where the court has finally decided the controversy, the interests of the state and of the parties require that the validity of the claim and any issue actually litigated in the action not be litigated again.

Ham v. Sulek, 422 Pa.Super. 615, 621-622, 620 A.2d 5, 8 (1998). Regardless of whether the plaintiff effects a recovery in the first action, he [or she] may not relitigate an action which has once been adjudicated. 46 AmJur.2d, Judgments § [524].

Application of the doctrine of res judicata requires that the two actions possess the following common elements: (1) identity of the thing sued upon; (2) identity of the cause of action; (8) identity of the parties; (4) identity of the capacity of the parties. Matternas v. Stehman, 434 Pa.Super. 255, 261, 642 A.2d 1120, 1123 (1994); McArdle v. Tronetti 426 Pa.Super. 607, 612, 627 A.2d 1219, 1222 (1993), allocatur denied, 537 Pa. 622, 641 A.2d 587 (1984) [ (1994) ]; Banker v. Valley Forge Ins. Co., 401 Pa.Super. 367, 373-374, 585 A.2d 504, 508 (1991), allocatur denied, 529 Pa. 615, 600 A.2d 532 (1991).

Id. [Dempsey v. Cessna Aircraft Co., 439 Pa.Super. 172] at 174-78, 653 A.2d [679] at 680-81 [ (1995) ]. See also: Hammel v. Hammel, 431 Pa.Super. 230, 237-239, 636 A.2d 214, 217-218 (1994); Morgan Guar. Trust Co. v. Staats, 428 Pa.Super. 479, 491-493, 631 A.2d 631, 367-638 (1993).

Principles of res judicata are also applicable to determinations of paternity. See: Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Gardner v. Gardner, 371 Pa.Super. 256, 538 A.2d 4 (1988), allocatur denied, 521 Pa. 605, 555 A.2d 115 (1989); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987); Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986); R.J.K. v. B.L., 279 Pa.Super. 71, 420 A.2d 749 (1980); Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490 (1964).

Scott v. Mershon, 441 Pa.Super. 551, 657 A.2d 1304 (1995).¹ Notwithstanding the res judicata finding, we believe a full discussion of the remaining issues will facilitate the resolution of cases such as this by the courts.

While this case was treated at the outset as an estoppel case as to the presumptive father, it actually turns on whether or not the mother is estopped from denying the legitimacy of Zachary. The facts are incontrovertible as to the mother. In fact, at oral argument mother’s attorney said the parties agreed there was non-access between Mrs. F. and her husband at the time of conception and that she knew Mr. B. was the only other likely biological parent. Additionally, Mrs. F. kept the family intact, allowed the husband to exercise and fulfill the role of father for over three years, and even now, at seven years of age, Zachary believes Mr. F. is his father. The time during which the concept of intact family attaches is at the time of birth and the years thereafter during which the parents treat the child as a member of the family unit. The dissolution of the marriage in 1992-1994 had no bearing on the intact status of the family for purposes of estoppel, and once the mother, with irrefutable knowledge of the child’s paternity, manifests the intent and conducts herself in a manner leading her husband, the child and the world to treat Zachary as a child of the marriage, she is estopped from denying the parentage of the child now that she wishes to end the marriage and believes a better provider of support would be Mr. B.

In a recent Superior Court case referencing Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), we reasoned:

Jones teaches that this Commonwealth has a concern for the “family unit.” The existence of this “unit” is created where the presumed father assumes a parenting role in the life of the child and begins the development of, what is hoped to be, a lifelong bond. While the marriage of mother and husband may ultimately falter, where a parent-child relationship has developed, the Commonwealth’s interest in maintaining this relationship remains, as will the presumption that the child is a child of the marriage. However where no “family unit” has ever existed because husband has not taken on the role as parent to the child, the preservation of a “family unit” is not at issue in resolving paternity matters. Where a parent-child relationship has never existed and husband has not taken on the role of parent to the child, the purpose of the presumption, which is to preserve an existing relationship, is no longer served. Therefore critical to a resolution of any paternity claim is a determination of the relationship of the parties based upon the facts.

Dettinger v. McCleary, 438 Pa.Super. 300, 304, 652 A.2d 383, 385 (1994); see also Kohler v. Bleem, 439 Pa.Super. 385, 405, 654 A.2d 569, 579 (1995) (Tamilia, J., dissenting), alloc. denied, 541 Pa. 652, 664 A.2d 541 (1995) (“The concept of an intact family which the law seeks to protect is the family as it exists at the time of conception or birth of the child (not at the time of separation)”.).

The resolution of this case is governed by Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990), and Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988), which hold that the doctrine of paternity by estoppel may also be applied to the mother who holds her husband out to be the child’s father. Accord, Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976), and John M., supra. The trial court, in an inversion of the rule, considered testimony of non-access when it ignored the estoppel of the mother from testifying to non-access due to the holding out and treating the child as that of the husband despite knowledge that he was not. The trial court’s finding that the mother concealed the truth of Zachary’s paternity from the husband is belied by testimony of the mother and the actions of the father detailed above. The holding out of the child as his own was established by clear and convincing evidence and evidence of husband’s lack of knowledge was not convincing, but rather leads to a fair conclusion that he had reasonable information regarding another person’s paternity. If holding out must be established by clear and convincing evidence, it is reasonable that in the face of such evidence lack of knowledge of the questionable paternity must be equally established by clear and convincing evidence. The reliance on Kohler, supra, by the trial court is misguided. In Kohler, the alleged lack of knowledge of the specific identity of the person fathering the child (as opposed to the knowledge the husband could not have fathered the child because he had a vasectomy) was the basis upon which the majority allowed testimony to rebut the presumption of legitimacy created by the estoppel doctrine. The Kohler Opinion has not changed the law of parental estoppel but turns on unique facts not applicable here. Here, the husband knew the putative father because he attempted to make a deal with him to obtain property in exchange for continued support of the child while the family was still intact.

In the case of In the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (1988), in which the validity of a contract called a “surrogacy contract” was reviewed by the courts of New Jersey, the New Jersey Supreme Court stated:

We invalidate the surrogacy contract because it conflicts with the law and public policy of this State. While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a “surrogate” mother illegal, perhaps criminal, and potentially degrading to women.

Id. at 411, 537 A.2d at 1234. Here, any exchange of money property between the putative and presumed fathers to finalize paternity and/or support for Zachary would be likewise odious and demeaning to the nature of child care and responsibility in our society. We do not tolerate purchasing children for adoption and the bargaining over parenting rights and duties as to Zachary in exchange for financial consideration is reprehensible. Any agreement reached thereby would have been unenforceable.

The trial court misstates the law when it finds: “The most significant factor in this case, however, was there was no intact family to protect and, therefore no reason to apply the estoppel.” (Memorandum at 6.) Since in most paternity cases in which the estoppel doctrine is applied there has already been a separation or divorce complaint filed, the fact that the family is no longer intact is of little legal significance. The intact family which must be protected is the family from conception until the time the denial of paternity occurs, which can be one, two or even fifteen or sixteen years later. Despite dissolution of a marriage, certain aspects of most marriages, such as the ongoing relationship between siblings and that of the child to its parents, rights of inheritance, legal rights relating to insurance and accident claims, medical and hospitalization coverage and a myriad of other rights and duties derived from the status of parent and child, remain intact. It is these aspects which are also important considerations when the paternity doctrines are involved. The truth of this position is recognized by the trial court, which states the estoppel doctrine applies in only two instances— support actions where the father denies paternity and partial custody actions where the mother denies paternity. Seger, supra, and In the Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987). In both instances, the marriage is no longer intact but elements of the family remain intact. Thus, the trial court is inconsistent in his analysis of what constitutes an intact family and how it relates to the estoppel doctrine. A clear exposition of the doctrine and the policy reasons behind it were espoused in Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1994), which relies on the estoppel doctrine. Judge Beck, writing for the Chrzanowski panel, stated the policy behind this rule was best expressed in Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. , 369 A.2d 416, 419 (1976).²

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 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.

Chrzanowski, supra, at 306, 472 A.2d at 1132, quoting Gonzalez, supra. In our gender-neutral society, this principle applies equally to the mother. Pennsylvania Constitution, Art. I, § 28, Equal Rights Amendment; 1 Pa.C.S. § 2301, Equality of rights based on sex.

The trial court in this matter goes on and attempts to justify the mother’s actions and to relieve her of the implications of the estoppel doctrine in her interest and presumably in the child’s best interest. These are not relevant considerations in what has been determined to be a public policy pronouncement of overreaching significance to a stable society, where the procreation and rearing of children are placed above the vacillating emotions and inconsistent objectives of the adults involved.³

The trial court also would relieve the mother from the effect of the estoppel because the appellant participated in the child’s creation and asked her to bear the child instead of terminating her pregnancy. All parties should be thankful for that result, however, the putative father has no standing to pursue custody or partial custody or to insist on payment of support, see Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), which relieves the mother and the presumptive father of third party interference enabling them to go forward with treating Zachary as their child and to provide him the best that both have to offer. How could it possibly be in Zachary’s best interest to force him into a relationship with a man whom he does not know, who denies any desire to support him or to become emotionally involved with him? Zachary’s best hope is to remain in a relationship with his half-siblings, his mother and the man he believes is his father and who has treated him as a son for most of his early life.

The trial court admits that in either custody or support, as between either of them (husband and wife), each is estopped from denying paternity of the husband. The court cannot open the door to the wife as against the putative father when it is closed to him for custody purposes and closed to the husband for support purposes. This would create the anomaly that for this unique purpose, the law must recognize two legal fathers. This would be legally untenable and socially unacceptable. Blood tests to determine paternity become relevant and may be ordered only after the presumption of paternity has been overcome. Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993); Zadori v. Zadori, 443 Pa.Super. 192, 661 A.2d 370 (1995). In this case, that presumption has not been overcome because the mother is estopped from denying her husband’s paternity. The trial court was in error in ordering appellant to submit to the blood test.

Order reversed.

Jurisdiction relinquished.

Concurring Statement by CIRILLO, President Judge Emeritus.

EAKIN, J., concurs in the result.

Dissenting Opinion by JOHNSON, J.

Dissenting Opinion by SCHILLER, J., in which KELLY, J., joins.

Dissenting Statement by FORD ELLIOTT, J.

1 . While this issue was neither briefed on appeal nor raised in the court below, since it effects the jurisdiction of this Court to dispose of the matter, we may determine the issue sua sponte.

2 . Throughout this Opinion we have used the term putative father to mean the alleged biological father and presumptive father to mean the husband and legally recognized father. In Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976), putative father is the presumptive father.

3 . In Scott v. Mershon, 441 Pa.Super. 551, n. 2, 657 A.2d 1304, n. 2 (1995), Judge Wieand stated:

2. Whether the law, in this day of great medical and scientific advances, should continue to countenance the concealment of paternity in fact by a sometimes fictional presumption is a policy issue to be decided by the legislature and/or the Supreme Court.