Tregoning v. Wiltschek

782 A.2d 1001, 2001 Pa. Super. 243, 2001 Pa. Super. LEXIS 2104

• Court: Superior Court of Pennsylvania
• Decided: August 20, 2001
• Status: Published

Opinions

CAVANAUGH, J.:

¶ 1 This is an interlocutory appeal from the lower court’s order requiring appellant, Walter Wiltschek, to submit to a blood test for the purpose of determining paternity. Because we find that appellee, Karen A. Tregoning, is estopped from denying the paternity of Mr. Wiltschek, we reverse.

¶ 2 The dispute between the parties relates to Jazmín Wiltschek, born on January 31, 1995, to her natural mother, defendant below Monica del Carmen Gomez Perez, in Santiago, Chile.¹ Appellant was named as the father on the birth certificate. Also on January 31, 1995, appellant and Ms. Gomez Perez purported to marry one another, despite appellant’s being married to appellee at the time. Two weeks later, appellant and the natural mother took Jazmín from Chile to Toronto, Canada, where appellee awaited their arrival. (At that time, appellee had in her custody a child the parties sought to adopt, but was later returned to the child’s birth mother in York County pursuant to court order.) Ms. Gomez Perez returned to Chile where she has remained. Although Walter and Karen had become divorced, they lived together as a family unit with Jazmín in Europe for the next two years and then returned to the United States in April, 1997. They parted company later in 1997. In early 1998, Karen married Maurice Tre-goning, and she and Jazmín took up residence with him and his two adolescent children. Walter frequently traveled internationally for extended periods of time on business. During the years 1998, 1999, and 2000, he maintained contact with Jaz-mín and exercised custody over her one night per week during those times he was in the United States.

¶ 3 In August, 2000, appellant assumed sole custody of Jazmín. He enrolled her in a religious school and did not advise appel-lee of her whereabouts. Custody litigation ensued, and the parties have agreed to a temporary custody order, which is not at issue on appeal. The only portion of the lower court order before us is the order that appellant submit to a blood test, pursuant to 23 Pa.C.S.A. § 5104.²

¶ 4 The statutory authority for the court ordering of blood tests to determine paternity is as follows:

In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage of identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

23 Pa.C.S.A § 5104(c).

¶ 5 Whether to allow paternity testing raises issues of presumptive paternity, estoppel, and both societal and familial interests. Strayer v. Ryan, 725 A.2d 785, 787-788, n. 1 (Pa.Super.1999). The presumption of paternity only applies in cases where the policy of preservation of marriages may be advanced. Fish v. Behers, 559 Pa. 523, 741 A.2d 721 (1999). Where there is no longer an intact family or marriage to preserve, the presumption of paternity is inapplicable. Id. A party may be estopped from denying a husband’s paternity of a child if either the husband or the wife holds the child out to be the child of the marriage. Id. As explained by the supreme court:

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 this conduct be permitted to sue a third party for support, claiming that the third party is the true father.

Under 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. The 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., at 723 (quoting Freedman v. McCandless, 539 Pa. 584, 654 A.2d 529, 532-533 (1995) and Jones v. Trojak, 535 Pa. 95, 634 A.2d 201, 206 (1993)).

¶ 6 In the instant case, the evidence establishes that appellee previously accepted appellant’s holding himself out as the father of Jazmín. The following facts of record are probative: 1) Jazmín bears appellant’s last name; 2) appellant is named as Jazmin’s father on her birth certificate; 3) appellee lived as a family unit with appellant and Jazmín in Europe for the first two years of Jazmin’s life; 4) appellee filed a petition for custody on August 29, 2000, throughout which she identified and referred to appellant as “father;” 5) appellant’s Austrian passport issued in 1995 listed Jazmín as his daughter; and 6) appellee filed an emergency custody petition on November 6, 2000, in which she again throughout referred to appellant as the “father.”

¶ 7 Appellee has previously accepted the status of appellant as the father of Jazmín. During the period of time between 1995 and 1997 it served appellee’s interest for appellant to be considered the father of Jazmín since it was expedient and enabled both parties to travel together with Jazmín as a functional family unit. Now appellee would find it in her interest for appellant to be considered a third party with only in loco parentis status given her plans to formally adopt Jazmín with her current husband. The law will not countenance this attempt to selectively employ principles so fundamental to the well-being of the child involved in an issue of paternity. Public policy demands that children have the right to certainty in their relationships with their parents. Bahl v. Lambert Farms, Inc., 2001 PASuper 125, ¶ 18, 773 A.2d 1256 (2001). As we quoted in Bahl:

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. Fish v. Behers, 741 A.2d at 724 (citations omitted).

Id.

¶8 There can be no other reasonable reading of the record but that when it suited appellee’s interests she accepted appellant’s role as the father of Jazmín. That position having been accepted and promoted by both parties requires the conclusion that appellee is- now legally es-topped from asserting a challenge to the paternity of appellant.

¶ 9 Since appellee is estopped from challenging the paternity of appellant, the blood tests are rendered irrelevant. We conclude that it was error for the lower court to order testing of appellant since he has never denied paternity and since ap-pellee’s actions evidence her prior acceptance of appellant as the father of Jazmín. See Fish v. Behers, supra.

¶ 10 We note the limits of our ruling in this matter. It does not decide any issue of custody or support. We are not faced with issues regarding termination of appellant’s parental rights or legal adoption of Jazmín by the Tregonings. Nor are we asked to render judgment regarding the means by which these parties obtained custody of Jazmín from her native Chile without necessity of involvement of the legal system.

¶ 11 Order reversed to the extent it required appellant to submit to a blood test. Case remanded. Jurisdiction is relinquished.

If 12 Judge BECK files a dissenting opinion.

1 . Ms. Gomez Perez did not participate in the proceedings below and is not a participating party on appeal. All references to "appellant” are to Walter Wiltschek.

2 . This court has jurisdiction over the interlocutory appeal of the order. See Freedman v. McCandless, 539 Pa. 584, 654 A.2d 529 (1995); Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993); cf. D.L.H. v. R.W.L., 2001 PASuper 160, 777 A.2d 1158 (2001) (no interlocutory appeal after parties submit to blood tests without complaint).