BS v. TM

• Decision Date: 21 August 2001
• Citation: 782 A.2d 1031
• Parties: B.S. and R.S., Appellants v. T.M.
• Court: Pennsylvania Superior Court

782 A.2d 1031

B.S. and R.S., Appellants v. T.M.

Superior Court of Pennsylvania.

Argued January 9, 2001.

Filed August 21, 2001.

Reargument Denied October 25, 2001.

Cindy L. Calarie, Kittanning, for B.S., appellant.

Nicholas J. Mikesic, Indiana, for R.S., appellant.

Alberta R. Beardsley, Kittanning, for appellee.

Before: FORD ELLIOTT, MUSMANNO, and KELLY, JJ.

FORD ELLIOTT, J.

¶ 1 In this case, we are asked to decide whether the trial court's decision to refuse to apply the presumption of paternity was in error. Appellants, B.S. and R.S.,¹ have been granted permission to appeal from an interlocutory order dismissing their preliminary objections.² Appellants, however, have abandoned their preliminary objections in the nature of a demurrer and instead challenge appellee's standing or right to sue. (See trial court opinion, 2/9/00 at 1.) We affirm.

¶ 2 The facts of this case, as summarized by the trial court, are as follows.

In the summer of 1998, B.S. was experiencing marital difficulties with her husband, R.S. She was emotionally upset following a miscarriage, and felt that her husband had emotionally abandoned her. B.S. began spending time with T.M., a friend of the [sic] R.S. and B.S. This friendship grew into an intimate sexual relationship, lasting from July through September 13, 1998. The child, J., was conceived in late August or early September. Although they did not have sexual intercourse after September 13, 1998, they continued, through the spring of 1999, with varying frequency, to date one another, stay overnight in hotels together, and have physical contact, including oral sex.

During the third week of September, 1998, T.M. and B.S. met one another at Mack Park in Indiana County. At that time, B.S. performed a home pregnancy test on herself in the women's restroom. After obtaining a positive result, she returned to T.M. and asked: `Well daddy, what are we going to do now?' B.S. also told T.M. that she had not been having sexual relations with R.S. around the time of conception. On September 18, 1998, B.S. separated from her husband and moved in with her parents, taking her three older children with her. Paternity testing was done on December 23, 1998. The results of this test are known to the parties.

All three of the parties were involved to some extent in counseling, and B.S.'s level of contact with both men experienced peaks and valleys. She attended some counseling sessions with her husband and spent some weekends with him during October and November, 1998, although it was not clear what transpired between them during the time they spent together. B.S. and T.M. attended counseling together with Father L.K., B.S.'s parents' parish priest.

B.S. gave birth to J. on May 12, 1999 at Butler Memorial Hospital, choosing that site because she believed no one there would know her (R.S. and B.S. had lived together in Indiana County). At that time, she was still living with her parents (also in Indiana County). T.M. was present at J.'s birth, which was by Caesarian section. R.S. was not present. B.S. named T.M. as J.'s father on the acknowledgment of paternity form provided by the hospital. Furthermore, the Court also specifically finds that T.M. exerted no undue influence or coercion upon B.S. at any time throughout the course of events leading to the instant lawsuit. Immediately following the birth, T.M. added J. to his health insurance policy coverage. While B.S. was still in the Hospital, T.M.'s mother and sister visited B.S. and J., and were treated as grandmother and aunt respectively.

J. was baptized by Father K. on June 13, 1999. T.M. participated in the baptism as J.'s father. Additionally, B.S. chose T.M.'s sister to stand as Christian witness (godmother) for J. Part of the reason for this choice was that B.S. had no Catholic friends or family members who were willing to stand as godmother for J. R.S. was not present at the baptism.

Throughout the time period from conception until shortly before J.'s birth, B.S. and T.M. did things that evidenced their common intent to remain together indefinitely. In the winter and spring of 1999, they searched for a house together, and B.S. wrote to T.M. concerning her plans for decorating one of the houses they viewed (see, Plaintiff's Exhibit 2). In February of 1999, B.S. filed a complaint seeking a divorce from R.S. This complaint was not withdrawn until September 13, 1999.

In the spring of 1999, T.M. bought a life insurance policy, the purpose of which was to provide for the baby in the event of his death. B.S. provided input on what the face amount of the policy should be. The beneficiary was B.S. initially, but a trustee is now the policy beneficiary (with J. being the trust beneficiary).

Several of the exhibits introduced by T.M. were writings by B.S. indicating her intent to spend her life with T.M. and not R.S. For example, in letters to T.M., she referred to the child of T.M.'s marriage as `a part of our family,' wrote of `hope and anticipation of the years we will now be together,' and planned for Valentine's Day 2000. She also thanked T.M.'s sister in writing for welcoming J. into the T.M. family (see, Plaintiff's Exhibits 2,3,6-9). These written communications ranged from January to May, 1999, but were more frequent in the winter than in the spring.

In early June of 1999, B.S. unequivocally broke off the romantic relationship between herself and T.M. T.M. did not press the issue at that time because B.S.'s parents stated that she was suffering from post-partem [sic] depression, that she `needed space,' and that she would `come around.' T.M. did remain on speaking terms with B.S. and her parents for some period after that, probably extending into August or September of 1999. His regular visits to J. in B.S.'s parents' home continued through mid-August, and the last visit he was permitted to make was on September 5, 1999.

Beginning in early July of 1999, B.S. was considering reconciliation with her husband, but was also looking for a house where she and her children could live by themselves. R.S. apparently wanted to start dating B.S. again, but he needed `to break a few ties of his own that he made during the separation.' T.M. knew of these intentions (both possible reconciliation and searching for a place to live alone) soon thereafter because they appeared on an Internet bulletin board. By the end of July, B.S. wanted to eliminate T.M. from the picture entirely. She discussed (again on an Internet bulletin board) moving back in with her husband as a device for improving her legal position with respect to T.M. (see, Plaintiff's Exhibits 11-13).

Soon after T.M.'s last visit to J., he took steps to ensure his legal rights to see her by filing a Petition for Special Relief on September 9, 1999, and then a Complaint for Partial Custody on September 21. Also after that visit, B.S. withdrew her support complaint against T.M. (September 7, 1999), withdrew her divorce complaint against R.S. (September 13, 1999), and moved back in with her husband. R.S. is willing to live with his wife under their former family arrangement despite knowledge of all that has transpired.

Trial court opinion, 2/9/00 at 1-6.

¶ 3 B.S. and R.S. raise the following issues for our review:

I. WHETHER THE PRESUMPTION OF PATERNITY BARS [T.M.], THE APPELLEE, FROM SEEKING TO ESTABLISH THAT HE IS THE FATHER OF [J.], THE YOUNGEST OF FOUR CHILDREN BORN TO [B.S.], APPELLANT, DURING HER MARRIAGE TO [R.S.], APPELLANT.

II. WHETHER THE TEMPORARY SEPARATION OF THE APPELLANTS SERVES TO TERMINATE THEIR STATUS AS AN `INTACT FAMILY' AND RENDER THE PRESUMPTION OF PATERNITY INAPPLICABLE.

Appellants' brief at 3.

¶ 4 The presumption that a child born during the marriage is a child of the husband is always the starting point in a contest involving the parentage of a child born during coverture. Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252, 1255 (1993). Moreover, the strength of the presumption that a child born to a married woman is a child of the marriage is grounded in the Commonwealth's interest in protecting the family unit. John M. v. Paula T., 524 Pa. 306, 317-19, 571 A.2d 1380, 1386 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). Although the presumption may be rebutted by clear and convincing evidence of husband's non-access, impotency, or sterility, Woy v. Woy, 444 Pa.Super. 232, 663 A.2d 759, 761 (1995), the presumption is irrebuttable where mother, child, and husband live together as an intact family and husband assumes parental responsibility for the child. Sekol v. Delsantro, 763 A.2d 405, 408 (Pa.Super.2000).

¶ 5 B.S. and R.S. argue that the presumption of paternity applies. Basically, they contend that their family is intact and was intact when T.M. filed his petition for special relief on September 9, 1999. Our supreme court in Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997), examined the application of the presumption of paternity under Pennsylvania law in the context of modern society. Lisa and George Brinkley were married at the time their daughter was conceived. Lisa testified that at the time of conception, she did not have sexual relations with her husband George. Instead, Lisa was having sexual relations with Richard King. When George learned Lisa was pregnant by Richard King, he filed for divorce. Lisa testified that King came to the hospital when the child was born and visited on a weekly basis for approximately two years. When Lisa filed a complaint for support against King, the visits terminated. King denied paternity and refused blood testing. Lisa sought an adjudication of paternity. King responded that the presumption of paternity applied and that Lisa had failed to rebut the presumption that George Brinkley, her former husband, was the child's father. Id. at 244-46, 701 A.2d at 178.

¶ 6 The trial court agreed with King and concluded that Lisa was unable to establish that George Brinkley "had no access during the...