K.E.M. v. P.C.S.

• Decision Date: 21 February 2012
• Citation: 38 A.3d 798
• Parties: K.E.M., Appellant v. P.C.S., Appellee.
• Court: Pennsylvania Supreme Court

38 A.3d 798

K.E.M., Appellant

v.P.C.S., Appellee.

Supreme Court of Pennsylvania.

Submitted Sept. 2, 2011.Decided Feb. 21, 2012.

Jeffrey Charles Marshall, York County Domestic Relations Office, York, for K.E.M.

Kathleen Jo Prendergast, for P.C.S.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice SAYLOR.

In this appeal arising in the child support setting, we consider the application of paternity by estoppel.

Appellant, the mother of G.L.M., filed a complaint seeking support from Appellee, whom she believes to be G.L.M.'s biological father. Appellee responded with a motion to dismiss, relying upon Mother's intact marriage to H.M.M. at the time of G.L.M.'s birth as establishing a presumption of paternity, see Brinkley v. King, 549 Pa. 241, 248–50, 701 A.2d 176, 179–80 (1997) (plurality) (explaining that, “generally, a child conceived or born during the marriage is presumed to be the child of the marriage”), and on H.M.M.'s assumption of parental responsibilities as implicating paternity by estoppel, see Fish v. Behers, 559 Pa. 523, 528, 741 A.2d 721, 723 (1999) (“A party may be estopped from denying the husband's paternity of a child born during a marriage if either the husband or the wife holds the child out to be the child of the marriage.”). See generally Brinkley, 549 Pa. at 249, 701 A.2d at 180 (“The presumption of paternity and the doctrine of estoppel ... embody the two great fictions of the law of paternity: the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents; and the doctrine of estoppel embodies the fiction that, regardless of biology, in the absence of a marriage, the person who has cared for the child is the parent.”).

The common pleas court conducted a hearing on the motion. Appellee offered evidence that, although H.M.M. is not identified as the father on G.L.M.'s birth certificate, baptismal records so indicate. See N.T., Aug. 5, 2010, at 6–7. Furthermore, Appellee's counsel adduced brief testimony from Appellant to the effect that, while she and H.M.M. were separated as of the time of the hearing, neither had commenced divorce proceedings; their last tax returns were filed jointly, with G.L.M. claimed as a dependent; and both contributed to G.L.M.'s upbringing. See id. at 9–10.

On her own attorney's examination, Appellant testified that she married H.M.M. in 1997, and the couple had two daughters. See id. at 11. Appellant discussed her intimate, extramarital affair with Appellee during her marriage and at the point in time at which G.L.M. was conceived. See id. at 12–14. Appellant stated that she eventually advised H.M.M. of her conduct, and H.M.M. did not wish to be identified as the father on the birth certificate. See id. at 15, 19–20. According to Appellant's evidence, genetic testing was performed, which excluded H.M.M. as the biological father. See id. at 16–17 & Ex. R–1. After she received the results, Appellant testified, she also asked Appellee to submit to testing, but he refused, although he acknowledged G.L.M. as his son. See id. at 18, 29. Appellant explained that, throughout the four years of G.L.M.'s life, Appellee had periodically undertaken some degree of involvement in his life, giving Appellant money to buy Christmas presents; providing unsigned cards and some gifts of his own; visiting parks and playgrounds; and supplying a cell phone to assure Appellant's and G.L.M.'s safety. See id. at 20–24, 28. She also testified that G.L.M. referred to both H.M.M. and Appellee as “Daddy,” although Appellee discouraged the latter from doing so. See id. at 30, 34. She and Appellee, Appellant related, discussed plans to establish a household together, but eventually Appellee ended the relationship. See id. at 25–27. In roughly the same time period, H.M.M. separated himself from Appellant. See id. at 9–10, 24.

On redirect examination, Appellee's attorney elicited additional testimony concerning H.M.M.'s pre-separation involvement in G.L.M.'s life, including his performance of a fatherly role and residence with the family until June of 2010. See id. at 33–34.

After taking the matter under advisement, the common pleas court granted Appellee's motion to dismiss the support action against Appellee, finding that the presumption of paternity was controlling and, alternatively, that H.M.M. should be regarded as G.L.M.'s father via paternity by estoppel. See K.E.M. v. P.C.S., No. 01174SA2010, slip op. at 6, 9 (C.P.York, Aug. 25, 2010). As to the former theory, the court observed that the presumption of paternity is considered to be “one of the strongest presumptions within our law.” Brinkley, 549 Pa. at 246, 701 A.2d at 179 (quoting John M. v. Paula T., 524 Pa. 306, 322, 571 A.2d 1380, 1388 (1990) (Nix, C.J., concurring)). The court elaborated that, under the presumption, a party who denies paternity of a child born during an intact marriage has the burden to show by clear and convincing evidence that the presumptive father lacked access to the mother or was incapable of procreation. See id. at 248, 701 A.2d at 179. Additionally, the court explained that the policy rationale supporting the presumption is the concern that intact marriages should not be undermined by disputes over parentage. See id. at 249, 701 A.2d at 180.

The common pleas court recognized that such policy justification does not pertain where there is no intact marriage. See K.E.M., No. 01174SA2010, slip op. at 4–5 (“Where the family unit no longer exists, it defies both logic and fairness to apply equitable principles to perpetuate a pretense.”) (citing, inter alia, Doran v. Doran, 820 A.2d 1279, 1283 (Pa.Super.2003)). Nevertheless, the court highlighted, this determination is one of fact, see Vargo v. Schwartz, 940 A.2d 459, 467 (Pa.Super.2007), and, in the circumstances, it considered Appellant's and H.M.M.'s marriage to be an intact one. Its rationale, in this respect, was as follows:

Over the course of the extensive testimony by [Appellant], we observed that she possesses a great deal of indecision regarding her marriage. We are not convinced that the marriage between [Appellant] and [H.M.M.] is irretrievably broken. We believe reconciliation is possible, particularly in light of the fact there is no divorce proceeding pending. Because the couple is merely separated, the family remains somewhat intact and equitable principles are applicable.

While still applicable, the presumption of paternity has been destroyed in the minds of the parties by the knowledge of the true biological father. There is no dispute that [H.M.M.] did not father the child. [Appellant] testified at hearing that during the pregnancy, she suspected the child was not her husband's, as she was intimate with [Appellee] around the time of conception. Subsequently, she had a DNA test done. The DNA test showed unequivocally, that husband was not the child's father. While presumption of paternity is applicable, we also determine that [Appellant] is equitably estopped from pursuing support/paternity against [Appellee], the biological father.

K.E.M., No. 01174SA2010, slip op. at 5–6.

As to paternity by estoppel, the common pleas court explained that the doctrine embodies a legal determination that one may be deemed a parent based on his holding himself out as such. See Jones v. Trojak, 535 Pa. 95, 105, 634 A.2d 201, 206 (1993) (indicating that “the law will not permit a person in these situations to challenge the status which he or she has previously accepted”); see also Fish, 559 Pa. at 530, 741 A.2d at 724 (stating that “children should be secure in knowing who their parents are[;] if a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father.” (quoting Brinkley, 549 Pa. at 249–50, 701 A.2d at 180)). The court also sought to give effect to the decisions of this Court setting up the presumption of paternity and paternity by estoppel as thresholds to a court directive for genetic testing. See Jones, 535 Pa. at 104–05, 634 A.2d at 206 (“We adopt the approach taken by the Superior Court in Christianson v. Ely, [390 Pa.Super. 398, 568 A.2d 961 (1990) ] which mandates that before an order for a blood test is appropriate to determine paternity the actual relationship of the presumptive father and natural mother must be determined.”); id. at 105, 634 A.2d at 206 (“These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant[.]”).¹

Based on the hearing record, the common pleas court determined that H.M.M. had held himself out as G.L.M.'s father. It continued:

Even after learning that he was not the biological father, [H.M.M.] continued to provide emotional and financial support for the child as well as perform all familial duties as a father would. [H.M.M.] also claimed the child as a dependent every year for tax purposes and was presented at the child's baptism as the child's father. Although the two older daughters from the marriage were well aware that he had not fathered the child, [H.M.M.] declared the child to be his own to the general public.

K.E.M., No. 01174SA2010, slip op. at 9.

Appellant filed a notice of appeal, and the Superior Court affirmed in a divided, memorandum opinion. Initially, the majority differed with the common pleas court's conclusion that the presumption of paternity applied, reasoning that it is inapplicable in circumstances in which it would not protect a marriage “from the effects of disputed paternity.” K.E.M. v. P.C.S., No. 1566 MDA 2010, slip op. at 5 (Pa.Super. Apr. 21, 2011) (quoting B.S. v. T.M., 782 A.2d 1031, 1036 (Pa.Super.2001) (determining that the presumption did not apply where a married couple had reconciled “with full knowledge of all the facts”)); accord ...