Freedman v. McCandless

• Decision Date: 15 February 1995
• Citation: 654 A.2d 529,539 Pa. 584
• Parties: Philip FREEDMAN, Appellant, v. Margarite J. McCANDLESS, Appellee.
• Court: Pennsylvania Supreme Court

Page 529

654 A.2d 529

539 Pa. 584

Philip FREEDMAN, Appellant, v. Margarite J. McCANDLESS, Appellee.

Supreme Court of Pennsylvania.

Argued Dec. 8, 1994.

Decided Feb. 15, 1995.

James D. Crawford, Albert Momjian, Philadelphia, for P. Freedman.

George Porter, Hershey, for M. McCandless.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

FLAHERTY, Justice.

This is a child support case involving appeals from two orders of Superior Court. In the first appeal, the trial court ordered appellant Freedman to submit to blood tests and Superior Court quashed Freedman's appeal from the blood test order. Freedman appeals Superior Court's quashing of his appeal from the blood test order. In the second appeal, the trial court entered a support order in the amount of $110 per week plus an arrearage payment of $30 per week. Superior Court vacated the trial court's order of support and remanded the case for a hearing de novo, which was to include consideration of Freedman's claim that there was an improper commingling of adjudicative and adversarial functions in the proceedings before the trial court, 433 Pa.Super. 642, 638 A.2d 275. Freedman appeals Superior Court's order remanding the support matter for a hearing, alleging that both the support order and the blood test order should have been vacated, and also that Superior Court erred in treating the blood test order as a non-appealable interlocutory order.

The relevant procedural history of the case is as follows. The mother of the child, appellee McCandless, filed a complaint for child support against Freedman on January 24, 1990. On April 23, 1990, Freedman filed a motion to add one Grant Thomas Haxall as an additional defendant, alleging that Haxall was the father of the child. ¹ This motion was denied on July 23, 1990. ² A subsequent petition for reconsideration was also denied. Freedman then sought permission from Superior Court to appeal from the denial of his motion to add an additional defendant. On January 29, 1991, Superior Court denied Freedman's petition.

On August 14, 1990, Freedman filed an answer and new matter alleging that the child's father was Haxall; that McCandless and Haxall planned to have the child; that they lived together while McCandless was pregnant; that they agreed to attribute paternity of the child to Haxall on the birth certificate (the child's name is Haxall); that they acknowledged the child as their own at birth; that McCandless and Haxall lived together after the birth of the child; and that Haxall held the child out as his child by paying some of the child's expenses, introducing the child as his son, and by arranging visitation between his parents and the child.

The trial court conducted a hearing on the issues of estoppel and laches on December 23, 1991 and January 14, 1992. At the conclusion of the hearing, the trial court held that McCandless was not estopped from bringing an action for support against Freedman and ordered the parties and the child to submit to blood tests. Freedman's motion for reconsideration was denied on February 21, 1992, and Freedman appealed this order to Superior Court.

Blood testing was scheduled on July 7, 1992 and Freedman did not appear. On August 17, 1992 the trial court conducted a contempt hearing. Freedman was not present at this hearing, and in Freedman's absence, the trial court found that Freedman was the father of the child in question. On September 4, 1992 a conference before a support master was conducted and on September 11, 1992 an order of support was entered for $110 plus $30 on arrearages to be paid on a weekly basis. Freedman filed motions to dismiss and for reconsideration, which were denied, and on September 28, 1992 Freedman demanded a hearing on the support order. The trial court denied the request for hearing on October 1, 1992.

As to Freedman's appeal relating to blood tests, Superior Court quashed the appeal on the grounds that it was interlocutory. According to Superior Court, in order for such an appeal to be heard, there must be a presumptive parent, i.e., the mother must have been married when the child was born, or the case must implicate "situations which permanently place one of the parties out of court." That court went on to observe that presumptive parentage might arise in ways other than a child being born during wedlock, such as when a father holds himself out as the parent; a father having been found to be the parent by a court; or a father having been ordered to pay child support. ³ Even though one of these considerations applies to the facts of this case (Haxall allegedly held himself out to be the father), the court held that before a mother can be estopped from "denying the presumptive parent's paternity, there must unequivocally be a presumptive parent, not the mere supposition of one." Restated, Superior Court apparently means that Freedman cannot successfully claim that McCandless is estopped from denying Haxall's paternity, for Haxall and McCandless were never married. Thus, in Superior Court's view, an interlocutory appeal of a blood test order will be allowed only when there has been a marriage. Superior Court also determined, however, that even if the appeal were permitted, its review of the testimony at the hearings on estoppel indicated that McCandless provided sufficient evidence to dispel the defense of estoppel.

As to Freedman's appeal on the support issue, Superior Court remanded for a de novo support hearing pursuant to Rule 1910.11(i) as well as for a hearing on a collateral matter. ⁴

We granted allocatur in order to address the appealability of blood test orders and to consider whether the trial court's determination of paternity was conducted in a manner violative of due process.

In Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993) this court held that blood test orders are appealable even though they are interlocutory. Id. at 101, 634 A.2d at 204. The rationale for this holding is that it serves the best interests of the child:

Our concern is that once a party to a paternity action submits to a blood test, the psychological and moral damage will have been done, the family unit will have been intruded upon, and, most importantly, the child will have been scarred from the mental stress and the social stigma associated with having the identity of his or her parents investigated. Restated, this Court's concern is that the potential negative ramifications of a blood test on the child are irreversible.

Id. at 103, 634 A.2d at 205.

In Trojak the child's mother claimed that someone other than the man to whom she was married and with whom she was living at the time the child was conceived, one Trojak, was the father. Trojak denied paternity and objected to the trial court's order of blood tests on the grounds that the mother had not rebutted the presumption of her former husband's paternity. In that case, this court held that it is appropriate to determine the actual relationship of the presumptive father (the husband) and natural mother of the child before blood tests are ordered. "A court may order blood tests to determine paternity only when the presumption of paternity [which applies when the mother was married at the time of conception and birth] has been overcome." Trojak, 535 Pa. at 105, 634 A.2d at 206.

The presumption can be overcome by proof that the husband was impotent or did not have sexual access to the wife when the child was conceived. However, if any person, by his or her conduct recognized a given person as the father of the child, that person may be estopped from challenging paternity. The Trojak court pointed out that where estoppel is applied, blood tests may be irrelevant, for the law will not permit a person in estoppel situations to challenge the status which he or she has previously accepted. Only when estoppel does not apply will blood tests be ordered. In Trojak estoppel did not apply because the mother was able to establish by clear, direct, convincing and unanswerable evidence that she and her husband did not live together as an intact family; her husband had not accepted the child as his own; the husband and wife had repudiated their marriage vows long ago; the husband never supported the child in any manner; and when the child was conceived, the husband was impotent.

Our question, thus, is whether the appealability of blood tests, under Trojak, is properly limited to cases in which there is a claim of estoppel and the mother was married when the child was conceived and born. For the reasons that follow we extend the rule of Trojak to apply to all cases for child support where blood tests are ordered and the alleged father seeks to appeal the blood test order based on a claim of estoppel.

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. ⁵ As Superior Court has observed, the doctrine of estoppel in paternity actions is aimed at "achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child." Gulla v. Fitzpatrick, 408 Pa.Super 269, 279, 596 A.2d 851 (1991).

In cases where the mother of the child has been married during conception and birth, estoppel includes the idea that the husband is presumed to be the father of the child, regardless of his true biological status, unless the person challenging this presumption is able to establish that the husband did not have sexual access to the mother of the child or was impotent during the period of conception. ⁶ If the relationship between the husband and wife is that they...