Conroy v. Rosenwald

• Decision Date: 28 December 2007
• Docket Number: No. 170 EDA 2007.,170 EDA 2007.
• Parties: Jennifer L. CONROY, Appellee v. Glen ROSENVVALD, Appellant.
• Court: Pennsylvania Superior Court

940 A.2d 409

Jennifer L. CONROY, Appellee v. Glen ROSENVVALD, Appellant.

No. 170 EDA 2007.

Superior Court of Pennsylvania.

Argued June 27, 2007.

Filed December 28, 2007.

Norman Perlberger, Bala Cynwyd, for appellant.

Brian J. Carberry, Philadelphia, for appellee.

BEFORE: TODD, GANTMAN, and KELLY, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Glen Rosenwald, asks us to determine whether the trial court erred when it estopped Appellant from denying paternity of T.G. ("Child"), as of May 12, 2001, and reinstated a prior order for child support in favor of Appellee, Jennifer L. Conroy. We hold that the court properly applied the doctrine of paternity by estoppel under the circumstances of this case. Accordingly, we affirm.

¶ 2 The trial court opinion sets forth the relevant facts and procedural history of this case as follows:

A statement of facts is in order. As both counsel recognize, this case is like no other and, thus, presents issues of first impression. [Appellee], during relevant times, was having sexual relations with Michael Guinan (alleged father by estoppel [¹]) and [Appellant]. [Appellee] was married to neither Mr. Guinan nor [Appellant] at any time. [Appellant] was married to his former wife during the relevant times.

[Appellee] became pregnant sometime in March, April or May of 1995. [Child] was born on 12/12/95. Prior to birth and continuing for a period of approximately two (2) to two and one-half (2 years, Mr. Guinan, [Appellee] and [Child] lived together, along with [Appellee's] minor sister, Angeline Conroy, a witness in this matter. Michael Guinan purchased a house and went to settlement on August 28, 1995, and [Appellee] and Michael Guinan moved in while she was pregnant. At the trial, on paternity by estoppel, which commenced and concluded on November 29, 2006 ..., Michael Guinan was not called as a witness by either party, since he currently, allegedly, resides in Delaware. Many facts are disputed. However, the following facts are of record. [Appellant], during the relevant times, was purportedly unable to naturally conceive a child. .While [Appellant was] married to his former wife, that relationship produced four (4) children, three of whom were [conceived through] either artificial insemination or in vitro fertilization. The last child of [Appellant's] marriage was conceived prior to the conception of [Child], and without artificial insemination or in vitro fertilization. After [Appellee] discovered she was pregnant, she moved into the home that Michael Guinan had recently purchased. Michael Guinan and [Appellee] continued to reside there, although there was testimony by [Appellee] that there were frequent periods of separation, with each of them leaving at various times. It was Michael Guinan's house, and he paid the mortgage and most of the living expenses. [Appellee] indicated she contributed some to expenses, although admittedly she did not know to which expenses the contributions were applied.

[Appellee] had been employed by [Appellant] for eight (8) or so years and thus a relationship other than physical had been established. For all intents and purposes, there was admittedly little contact between [Appellee] and [Appellant] during the first two or more years or so of [Child's] life. However, it was uncontradicted that [Appellant] was invited to what was billed as a first birthday/christening party of [Child] in December of 1996. [Appellant] attended without his wife, at Michael Guinan's home with [Appellee'] family and Michael Guinan's family. In addition, [Appellant] visited [Appellee] and [Child] while they were hospitalized following the birth.

Herein lies the problem. [Appellee] and Michael Guinan separated. [Appellee] moved frequently. [Appellee] has sought custody (and perhaps support, but the record is unclear) from Michael Guinan in August 1998, but [Appellee] did not pursue this action, and it was dismissed. A support action was filed by [the Department of Public Welfare], with [Appellee] as plaintiff, on August 31, 2001, against Michael Guinan, but that action was dismissed and marked "Settled by outside agreement." No such agreement is of record. Reliance was made on the computer docket history and notes only. [Appellee] denies knowledge of any such agreement. She failed to appear at scheduled hearing, although Michael Guinan was represented by counsel. Thus, in 1998 and 2001 the two actions by [Appellee] and DPW against Michael Guinan never resulted in a meaningful court order.

Here, the water becomes muddy. [Appellee] indicates that Michael Guinan at some time advised her that he was not the father of [Child] (record unclear as to the specific "time"), and he had DNA evidence to prove it. However, this Court learned during the trial, that there is no documentation in either file to prove the allegation, thus references to Michael Guinan's paternity (or lack thereof) is gross hearsay, at best. . . Subsequently, on May 20, 2002, [Appellee] filed for support against [Appellant]. At a listing, according to the file, [Appellant] asked the [c]ourt for a hearing on paternity by estoppel; his request was denied summarily. The court ordered immediate DNA testing over [Appellant's] objection. [Appellant] was represented by counsel. The DNA test was administered, after [Appellant] was taken from the courtroom in handcuffs by the Sheriff, under protest. Subsequently, when a Support Order was entered against [Appellant], appeals were filed to the Superior Court, with no meaningful results, until this instant Remand, since prior orders of support were not final appealable orders.[²]

The problem: [Because] a hearing was never held on [Appellant's] request for a trial on paternity by estoppel, was the intervening DNA test and results thereof, without [Appellant] being first afforded his due process rights to such a hearing and confrontation of witnesses, diapositive of legal paternity and the ensuing obligations which flow therefrom, or in other words, should the doctrine of estoppel be applied against either [Appellee] or [Appellant] herein? If the doctrine of estoppel is applied, what effect, if any, should this [c]ourt give to the scientific advances that underpin the facts when applying this doctrine?

At the outset, although [Appellant] demanded a hearing on paternity by estoppel, which is his recognized right, he testified at [the current] trial that he believed he [might] be [Child's] father when [Child] was about 3 years old. This is because [Child's] eyes then turned brown, while Mr. Guinan and [Appellee] both have blue eyes,² making it genetically improbable for Mr. Guinan to be the biological father. It appears from the record that Michael Guinan first indicated to [Appellee] that "two blue eyes do not make brown eyes" and [Appellee] subsequently discussed this with [Appellant]. Furthermore, [Appellant] acknowledged that he recognized [at another time] that [Child] has some resemblance to his oldest child [ ].

^2. This is testimonial only [because] this [c]ourt has never seen Mr. Guinan and no proof of nor objection to this "conclusion" was ever made. (Trial Court Opinion, dated February 27, 2007, at 2-5) (internal citations omitted). The court explained:

On November 29, 2006, this [c]ourt entered a Final Memorandum Order [dated December 19, 2006 and entered December 20, 2006] finding that [Appellant] is the legal father of [Child] as of 5/21/2001, and that [Appellee] is estopped from claiming [Appellant] is the father prior to that date.

(Id. at 1-2). On December 21, 2006, the court reinstated the prior support order of $1,411.40/month, which had been previously entered on September 16, 2005. Appellant timely filed a notice of appeal on January 18, 2007.³ On January 22, 2007, the court ordered. Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on February 2, 2007.

¶ 3 Appellant raises three issues for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION IN ALLOWING APPELLEE TO PROCEED AGAINST APPELLANT FOR CHILD SUPPORT, DESPITE APPELLANT'S CLAIM OF PATERNITY BY ESTOPPEL?

DID THE TRIAL COURT ABUSE ITS DISCRETION BY ADMITTING EVIDENCE OF APPELLANT'S DNA TESTING AND THE POST-DNA CONDUCT DURING THE ESTOPPEL HEARING?

DID THE TRIAL COURT ABUSE ITS DISCRETION IN GRANTING' PARTIAL ESTOPPEL?

(Appellant's Brief at 5).

¶ 4 For purposes of disposition, we address Appellant's issues together. Appellant argues Appellee's conduct for the six and one-half years between Child's birth on December 12, 1995, until Appellee initiated her support action against Appellant on May 20, 2002, was sufficient to estop Appellee from ever seeking child support from Appellant. According to Appellant, (1) Appellee listed Mr. Guinan as Child's father on the birth certificate; (2) Appellee and Mr. Guinan functioned as a family until Child was two years old and acted as Child's parents for the first five years of Child's life; (3) after Appellee and Mr. Guinan ended their relationship, Mr. Guinan continued to see Child, to pay the mortgage and expenses on the home where Appellee and Child lived, and to carry Child on his health insurance; (4) Appellee brought two actions against Mr. Guinan for child support; (5) even after Appellee and Mr. Guinan ended their relationship, Mr. Guinan continued to exercise partial custody of Child. Appellant maintains Appellee told Child that Appellant was her father only after the DNA test results, but until that time, Child believed Mr. Guinan was her father.

¶ 5 Appellant further claims he did not voluntarily acknowledge paternity in 2001 or at any other time, and his supposed admission is based solely on Appellee's testimony, which lacks credibility. To the contrary, Appellant avers he did not concede or believe he was Child's father at any time before the DNA test results. Appellant asserts his ex-wife was unaware of Child until Appellee went to her home and...