Zakeosian v. Zakeosian

30 Pa. D. & C.4th 282, 1996 Pa. Dist. & Cnty. Dec. LEXIS 329
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedFebruary 27, 1996
Docketno. A06-95-60123-S
StatusPublished

This text of 30 Pa. D. & C.4th 282 (Zakeosian v. Zakeosian) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zakeosian v. Zakeosian, 30 Pa. D. & C.4th 282, 1996 Pa. Dist. & Cnty. Dec. LEXIS 329 (Pa. Super. Ct. 1996).

Opinion

RUFE, J., J.,

— This opinion is written pursuant to an appeal by Michael A. Zakeosian from our order of December 13, 1995 denying his petition to vacate an existing support order entered by this court on March 21, 1995.

On January 10, 1995, Laura Zakeosian, the former spouse of Michael A. Zakeosian, filed a petition for support of one child, Chelsea Ann. At a hearing before the undersigned on March 21,1995, an order was entered requiring defendant to pay $10 per week for support and to provide health care coverage for Chelsea. Defendant raised the issue of paternity at that time.

The docket reflects that defendant filed a petition seeking reconsideration of the support order and requesting that the parties be ordered to submit to blood testing. A rule returnable date of May 8, 1995 was issued. The docket further reflects that a motion to make rule absolute was filed by defendant on June 6, 1995. As part of the motion, defendant averred that no response to the rule to show cause had been filed by plaintiff. Relying upon the averments as pleaded in defendant’s motion, the court made the rule absolute and granted defendant’s request for blood testing. Subsequently, at a contempt hearing1 held before the court on November 27, 1995, it was learned that plaintiff, [284]*284acting pro se, had filed a response to both the motion for reconsideration and to the petition for blood testing but had failed to serve them upon defendant. Recognizing that the rule absolute was entered in error, the court proceeded to hear evidence concerning the issue of paternity.

The evidence offered at the hearing established that Michael and Laura Zakeosian were married on December 7, 1985 and divorced on June 24, 1991. Three children were bom during the course of the marriage, Corey, age 9, was bom on February 27, 1986, Craig, age 8, was bom on May 17, 1987, and Chelsea, age 6, was bom on February 10, 1989. Plaintiff and defendant both testified that they were living together on May 3, 1988, the approximate date of Chelsea’s conception. In early June of 1988, plaintiff moved out of the marital home. She testified that she had been involved in another relationship for some three months prior to moving out. Upon learning that she was pregnant, plaintiff contacted defendant and informed him of the pregnancy. Defendant testified that although he had some doubts as to whether the child was his, he agreed to try and make the marriage work. Plaintiff moved back into the marital home in August of 1988.

The couple lived together during the entire pregnancy and for several months thereafter until they separated in August of 1989. Plaintiff maintained physical custody of Chelsea, while the two boys resided with defendant. Since plaintiff and defendant maintained an amicable relationship with one another, visitation was never formalized by court order. Defendant saw Chelsea every other weekend, on average, until the time of the divorce in 1991. After the divorce, defendant made requests to visit with Chelsea and she would spend approximately one weekend a month with defendant and her brothers. [285]*285Defendant conceded that Chelsea called him, “Dad” and that he held himself out to be Chelsea’s father to both friends and family. Chelsea referred to defendant’s parents as “Granny and Pop-Pop.” Defendant was listed as the father of Chelsea on her birth certificate. Defendant also stated that he celebrated birthdays with Chelsea and that the two exchanged Christmas presents. Likewise, Chelsea was present in two family photographs, one with defendant and her two brothers, and another with defendant’s current wife and her children. The first was taken in 1992 and the second in 1993.

Based upon the testimony produced at the hearing on November 27,1995, we refused to vacate the original support order entered on March 21, 1995. The decision was based upon a finding that defendant had not overcome the presumption of legitimacy and, additionally, that he was estopped from disputing paternity by his conduct both prior to and after Chelsea’s birth. Defendant now appeals our order contending that it was error for the court not to have considered the results of the blood test eliminating him as Chelsea’s biological father.

The presumption that a child bom to a married woman is a child of the marriage is one of the strongest presumptions known to the law. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850 (1990); McCue v. McCue, 413 Pa. Super. 71, 604 A.2d 738 (1992); Kohler v. Bleem, 439 Pa. Super. 385, 654 A.2d 569 (1995). While the strength of the presumption stems from society’s interest in protecting the best interests of children, the presumption is a rebuttable one. Kohler, supra at 391, 654 A.2d at 572. The presumption of legitimacy can be overcome by clear and convincing evidence establishing that the husband was impotent or did not have sexual access to [286]*286the wife at the time that the child was conceived. Freedman v. McCandless, 539 Pa. 584, 591, 654 A.2d 529, 532 (1995).

In the instant matter, because the child was bom during the course of the marriage, the presumption of legitimacy applied. Thus, Mr. Zakeosian could only have challenged the presumption by presenting clear and convincing evidence that he did not have sexual access to plaintiff at the time of conception or that he was physically incapable of conceiving a child. Mr. Zakeosian’s testimony did not support either of those situations. Rather, both plaintiff and defendant testified that the parties were still living together at the time of conception. Having failed to overcome the presumption, the blood tests were irrelevant to a determination of paternity and therefore, were not considered by this court.

Additionally, “application of estoppel principles may be employed to determine whether the presumption may be rebutted. If the estoppel principles are applicable, the presumption will generally prevail.” Kohler, supra at 395, 654 A.2d at 574. The Pennsylvania Supreme Court revisited the concept of estoppel in Freedman, stating:

“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 tme father.” Id. at 591, 654 A.2d at 532-533.

Estoppel cases have determined that when the doctrine applies, blood tests may well be irrelevant because [287]*287the law will not allow a person in such a circumstance to challenge the role which he or she has previously accepted. John M., supra at 318, 571 A.2d at 1386; Jones v. Trojak, 535 Pa. 95, 105, 634 A.2d 201, 206 (1993).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Scott v. Mershon
576 A.2d 67 (Supreme Court of Pennsylvania, 1990)
McCue v. McCue
604 A.2d 738 (Superior Court of Pennsylvania, 1992)
John M. v. Paula T.
571 A.2d 1380 (Supreme Court of Pennsylvania, 1990)
Freedman v. McCandless
654 A.2d 529 (Supreme Court of Pennsylvania, 1995)
Kohler v. Bleem
654 A.2d 569 (Superior Court of Pennsylvania, 1995)
Jones v. Trojak
634 A.2d 201 (Supreme Court of Pennsylvania, 1993)
Chrzanowski v. Chrzanowski
472 A.2d 1128 (Supreme Court of Pennsylvania, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
30 Pa. D. & C.4th 282, 1996 Pa. Dist. & Cnty. Dec. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zakeosian-v-zakeosian-pactcomplbucks-1996.