Gulla v. Fitzpatrick

• Decision Date: 29 August 1991
• Citation: 408 Pa.Super. 269,596 A.2d 851
• Parties: Richard B. GULLA, Appellee, v. Maria R. FITZPATRICK, Appellant. Richard B. GULLA, Appellant, v. Maria R. FITZPATRICK, Appellee.
• Court: Pennsylvania Superior Court

Page 851

596 A.2d 851

408 Pa.Super. 269

Richard B. GULLA, Appellee, v. Maria R. FITZPATRICK, Appellant.

Richard B. GULLA, Appellant, v. Maria R. FITZPATRICK, Appellee.

Superior Court of Pennsylvania.

Argued April 17, 1991.

Filed Aug. 29, 1991.

Lawrence A. Durkin, Scranton, for appellant (at 1411) and appellee (at 2206).

Stephen A. McBride, Milford, for appellant (at 2206) and appellee (at 1411).

Before MONTEMURO, BECK and TAMILIA, JJ.

BECK, Judge:

Although these cross-appeals arise out of a complicated factual and procedural scenario, the issues posed are well-defined and the proper resolution thereof is clear.

The issues on appeal are whether appellant/cross-appellee, Maria Fitzpatrick, is equitably estopped from questioning the paternity of appellee/cross-appellant, Richard Gulla, as to a child born to Ms. Fitzpatrick in March 1988, and whether the custody proceedings involving the child should be transferred to Rhode Island under the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S.A. § 5341 et seq. (Supp.1991). The trial court found that Ms. Fitzpatrick was equitably estopped and that the proceedings should be transferred. We agree on both counts and affirm.

Fitzpatrick and Gulla met in July 1987. They became sexually intimate around the middle to end of that month and their intimacy continued, albeit sporadically, until the following July. Immediately prior to Fitzpatrick's involvement with Gulla, she had been sexually involved with another man, Major Drummond, for several months. Her relationship with Major Drummond did not end until June 1987.

On August 15, 1987, Fitzpatrick was diagnosed as being pregnant. Upon learning of her pregnancy, Fitzpatrick informed Gulla that the child was his and simultaneously accepted Gulla's prior proposal of marriage.

Gulla was extremely pleased at the thought of becoming a father. Throughout Fitzpatrick's pregnancy, Gulla conducted himself as an attentive expectant father, making plans for the child, attending and paying for Fitzpatrick's pre-natal doctor's visits, and otherwise contributing to Fitzpatrick's support. Fitzpatrick accepted this assistance without objection and responded by treating Gulla as if he were indeed the child's father. She represented that he was the father to a minister they visited at that time and referred to Gulla as the child's father in a letter to Gulla written in December 1987.

Although the parties had planned to marry in December 1987, the wedding never took place, apparently due to Fitzpatrick's vacillation on the subject of marriage. In any event, in early March 1988, Fitzpatrick began experiencing labor pains, substantially prior to her scheduled date of delivery. Gulla accompanied her to the hospital and a few days thereafter, on March 10th, she delivered a baby boy. Hospital records and the birth certificate reflect Gulla as the child's father. Fitzpatrick participated in the preparation of these documents. With Fitzpatrick's consent, the child was named Richard Anthony Gulla, after Mr. Gulla whose first name is also Richard.

Toward the end of Fitzpatrick's pregnancy, Gulla had rented a mobile home for her. He paid the security deposit and at least half of the first month's rent. He paid for the fuel necessary to fill the home's heating tank, rented a truck to move Fitzpatrick in and accomplished the move for her. Gulla also paid various hospital bills in connection with Richard's birth which were not covered by Fitzpatrick's insurance.

Immediately after Richard was born, Fitzpatrick began residing in the mobile home. Gulla testified that for the first three months of the child's life, Gulla lived with him and Fitzpatrick and assumed most of the responsibility for caring for the child. Fitzpatrick stated that Gulla was not actually living with her and the child, but did share in caring for the child. Suffice it to say, Gulla was fully involved with all aspects of the child's life and care. He also contributed to the support of Fitzpatrick and the child by giving Fitzpatrick cash in various amounts from time to time.

Throughout these months, Fitzpatrick continued to assert that Gulla was Richard's father and accepted Gulla's support, both financial and otherwise. She raised no doubts on the issue of paternity. In fact, in April 1988 Fitzpatrick executed an affidavit that Gulla was the father, apparently at Gulla's request.

Since the parties' relationship was deteriorating, Gulla became concerned over whether he would continue to have a right to have contact with the child. After consulting with a lawyer, in May 1988 Gulla presented Fitzpatrick with a proposed joint custody agreement. Fitzpatrick refused to sign the agreement and, for the first time, asserted that she had doubts as to whether Gulla was Richard's father. Rather, she expressed the view that Major Drummond might be the child's father. She stated that she wished to investigate whether this was in fact the case.

Fitzpatrick explained her sudden change of heart regarding the paternity question by testifying that her doubts concerning the child's paternity first arose at this time because it was then that she consulted with a friend who was an obstetrician about the fact that the child had been born with wrinkled skin. She stated that she had wondered about the reason for the condition of the child's skin at birth for some time. Fitzpatrick testified that her friend informed her that such skin is an indication of an overdue child. This revelation, according to Fitzpatrick, convinced her that instead of Richard being premature, as she had thought, he was actually overdue. This would indicate that she had conceived Richard before her involvement with Gulla and during her involvement with Drummond. Thus, Fitzpatrick apparently believes that all of her prior conduct in leading Gulla to believe that he was Richard's father should be disregarded.

Unfortunately for Ms. Fitzpatrick, this saga does not end here. Rather, the record reveals that although Fitzpatrick did continue to investigate the question of Richard's paternity through consultation with various doctors, throughout this time she continued to accept financial and other support from Gulla. Although Gulla was then living in his own home, where he had prepared and equipped a nursery for the child, he continued to have constant contact with the child. In fact, he frequently cared for the child while Fitzpatrick sought employment or was otherwise occupied, often having custody of the child in the evenings and all weekend, and he arranged for and paid for three different babysitters to care for the child after Fitzpatrick became employed in August.

In mid-August, 1988, Fitzpatrick told Gulla that she had investigated the matter fully and was once again satisfied that he was the child's father. Fitzpatrick testified that in actuality, she was still not completely convinced of that fact. Despite these alleged lingering doubts, Fitzpatrick filed a complaint for child support against Gulla in the Court of Common Pleas for Pike County on August 22, 1988. ¹ Apparently the complaint was a form provided by the Domestic Relations Office. Although Gulla was named as the defendant on the complaint, Fitzpatrick also checked a box on the form indicating that paternity was as yet "undetermined." Gulla appeared at the support proceedings and indicated his willingness to support the child. He offered an amount of support and Fitzpatrick agreed to accept that amount. On September 12, 1988, a court order of support in the agreed amount was entered.

Fitzpatrick accepted checks from Gulla pursuant to the court order until October, when she ceased cashing any further checks. Coincidentally, it was also in October when Gulla first filed a complaint for custody of Richard. Fitzpatrick responded by asserting that Gulla was not the child's father. She immediately refused to allow Gulla to take the child in the evenings or on weekends as he previously had and she enrolled the child in a day care center which was instructed not to release the child to Gulla. Nevertheless, Gulla maintained his contact with the child. He called the day care center every day to check on the child and went to the center frequently to visit with Richard during the day.

On November 10, 1988, the trial court entered an Interim Order, based on a stipulation between the parties, providing Gulla with visitation rights. Thereafter, on December 12, 1988, the court ordered the parties and the child to submit to HLA blood testing. The blood tests conclusively excluded Gulla as the biological father of the child. In May 1989, Fitzpatrick sought and received an ex parte order withdrawing the support complaint she had filed in August 1988 and vacating the support order entered in September. Both parties subsequently filed motions for summary judgment on the issue of custody/visitation. Fitzpatrick argued that Gulla had no right to custody or visitation because he was not the child's biological father. Gulla asserted that Fitzpatrick was both collaterally and equitably estopped from questioning his paternity and that he had developed a constructive paternal relationship with the child that could not now be disturbed.

On August 14, 1989, the trial court granted Fitzpatrick partial summary judgment finding that she was not collaterally estopped and denied summary judgment to Gulla. The court found that the mere issuance of a support order at Fitzpatrick's request did not estop her as a matter of law from questioning Gulla's paternity. Thus, the trial court refused to apply those cases which have held that entry of a child support order against a man necessarily includes the determination that the defendant is the child's father, because otherwise there would be no legal duty of support. Thus, the party who sought the support order is thereafter collaterally estopped from raising the paternity issue, which has already been determined as a matter of law....