Kohler v. Bleem

• Decision Date: 06 February 1995
• Citation: 654 A.2d 569,439 Pa.Super. 385
• Parties: Linda KOHLER v. David BLEEM v. Benjamin KOHLER, Appellant.
• Court: Pennsylvania Superior Court

Page 569

654 A.2d 569

439 Pa.Super. 385

Linda KOHLER v. David BLEEM v. Benjamin KOHLER, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 27, 1994.

Filed Feb. 6, 1995.

Gregory A. Henry, Bradford, for appellant.

Dennis Luttenauer, Kane, for appellee David Bleem.

Before CIRILLO, TAMILIA and HOFFMAN, JJ.

CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of McKean County. We reverse.

Appellant Benjamin S. Kohler was voluntarily sterilized by vasectomy in June of 1970. Mr. Kohler's semen was tested in August of 1970 and no spermatozoa were seen. Four years later, appellant married appellee Linda M. Kohler. Mrs. Kohler was aware of Mr. Kohler's vasectomy prior to the marriage.

Early in 1982 Mrs. Kohler determined that she was pregnant. She told her husband that the father of the child was a man from Buffalo; she made up a first name and told Mr. Kohler that she did not know exactly where he lived. Despite the circumstances, Mr. Kohler agreed to stay with Mrs. Kohler and help her financially as Mrs. Kohler was unemployed and her health insurance was maintained through Mr. Kohler's employer.

Mrs. Kohler's daughter, Leslie, was born in June of 1982. It was not until 1987 that Mr. Kohler learned that Leslie's father in fact was Mr. Bleem, a next-door neighbor and friend of the Kohlers. Mr. Bleem admitted his paternity to Mrs. Kohler and to Mrs. Kohler's sister; he did not, however, admit this to Mr. Kohler.

In the meantime, Mr. Kohler had contrived a story to his own mother that his vasectomy had been reversed. He did this, apparently, so as not to upset his mother. Thereafter, Mr. Kohler told his mother the truth, as he then understood it. This was prior to Mr. Kohler's learning that Mr. Bleem was Leslie's father.

Mr. Bleem and Mrs. Kohler had been involved in an adulterous relationship for approximately four years prior to Leslie's birth; they continued the relationship after Leslie's birth. In 1988, one year after learning of the relationship between his wife and Mr. Bleem, Mr. Kohler left the marital home. Mr. Kohler testified that he could live with the idea that a stranger had fathered his wife's child, but he could not tolerate the idea of living next door to the man.

After the Kohlers separated, Mr. Bleem maintained a relationship with both Mrs. Kohler and Leslie. Leslie referred to Mr. Bleem as "Uncle Dave." Mr. Bleem had been in frequent contact with Leslie since her birth and he continued that relationship with her after the Kohlers' separation. Leslie continued to visit and spend the night at Mr. and Mrs. Bleem's home. Mr. Bleem bought presents for Leslie, gave Mrs. Kohler money for Leslie's benefit, and visited Leslie frequently.

On May 16, 1989, Mrs. Kohler filed a support action against Mr. Bleem; at this point, Mr. Bleem restricted his contact with Leslie and filed a complaint to join Mr. Kohler as an additional defendant. The trial court ordered blood tests for all parties involved. The tests revealed that Mr. Kohler was positively excluded as Leslie's father, and that the probability of Mr. Bleem's paternity was 98.72%.

In March of 1990, Mr. Kohler filed a complaint in divorce; he made no claim for custody, partial custody, or visitation of Leslie. The Kohlers were divorced on August 16, 1990.

On January 27, 1992, Mr. Bleem filed a motion for summary judgment averring that Mr. and Mrs. Kohler were both estopped from denying Mr. Kohler's paternity. The trial court denied Mr. Bleem's motion, stating:

... [Mr. Kohler] is sterile and cannot be the father of the child; ... the plaintiff has rebutted the presumption that the child born during the marriage is a child of the marriage by clear and convincing evidence ...

The matter proceeded to trial. Following trial, the court held against Mr. Kohler on the issue of paternity, stating the following ruling from the bench:

In this case it seems to me that the paternity by estoppel doctrine serves no significant purpose. It's undisputed, I find as a fact that it's undisputed that the defendant [Mr. Bleem] is in fact the father, that Leslie knows he is the father, that the marriage is no longer intact, that Mr. Kohler assumed the duties initially of parenthood through a misrepresentation and [sic] acquiesced in by Mr. Bleem. This raises a question in my mind about whether Mr. Kohler should be relieved of his obligation [of] support once the true facts are known and the marriage is broken. However, I find no precedent in the law for doing so and I feel that the present state of the law requires that the support obligation be placed on Mr. Kohler.

A final order of support was entered against Mr. Kohler on March 29, 1994. This appeal followed. Mr. Kohler raises the following issues for our review:

1. Whether the trial court erred in concluding that, under the facts of this case, it had no choice but to apply the doctrine of paternity by estoppel?

2. Whether precedent demands the application of the paternity by estoppel doctrine to a case involving a child born in wedlock, involving fraud, and where neither the best interests and welfare of the child nor public policy would be advanced by the invocation of the estoppel doctrine by the actual father or on behalf of the child?

3. Whether, under the facts of this case, the actual father was, because of his participation in fraud, estopped from invoking the doctrine of paternity by estoppel?

4. Whether the trial court erred in concluding that the appellant's acts of equitable estoppel [sic] were adequately established as a matter of law?

5. Whether the actual father lacked standing to invoke the doctrine of paternity by estoppel and was, himself, estopped to deny the paternity of the child?

One of the strongest presumptions in the law is that a child born to a married woman is a child of the marriage. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Coco v. Vandergrift, 416 Pa.Super. 444, 611 A.2d 299 (1992); McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738 (1992); Donnelly v. Lindenmuth, 409 Pa.Super. 341, 597 A.2d 1234 (1991). Historically, this presumption was referred to as the "presumption of legitimacy." Dennison v. Page, 29 Pa. 420 (1857); Cairgle v. American Radiator & S.S. Corp., 366 Pa. 249, 77 A.2d 439 (1951); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962).

In John M., supra, 524 Pa. at 306, 571 A.2d 1380, the Pennsylvania Supreme Court reaffirmed the force of this presumption, characterizing it as "one of the strongest presumptions known to law." Id. at 312-13, 571 A.2d at 1383 (citing Cairgle, supra 366 Pa. 249, 77 A.2d at 439); see also Selm v. Elliott, 411 Pa.Super. 602, 602 A.2d 358 (1992).

The "presumption of legitimacy" arose from the reluctance of the law to declare a child "illegitimate," because the status "illegitimate" historically subjected a child so labelled to significant legal and social discrimination.[ ¹] [citations omitted]. In Pennsylvania, however, the General Assembly has eliminated the legal distinction (and discrimination) between "legitimate" and "illegitimate" children.[ ²

John M., 524 Pa. at 312 n. 2, 571 A.2d at 1383 n. 2. The Court also noted that since the legal distinction between "legitimate" and "illegitimate" children had been eliminated by statute, the phrase "presumption of legitimacy," had been rendered meaningless. The Court announced, therefore, that it would no longer "use the phrase 'presumption of legitimacy' to describe the 'presumption that child born to a married woman is a child of the marriage,' and therefore of the woman's husband." Id. at 312 n. 2, 571 A.2d at 1384 n. 2. Following our Supreme Court's lead, this court will refer to the presumption accordingly.

The strength of the presumption is grounded in the Commonwealth's interest in protecting the family, "the basic and foundational unit of society." Id. at 318, 571 A.2d at 1386 (citing Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1957)). The presumption is, however, a rebuttable one. Traditionally, this presumption could be overcome only by proof that the husband did not have access to his wife during the period of possible conception, or by proof of the husband's impotency or sterility. Id. at 313-15, 571 A.2d at 1384. See Michael H. v Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989); Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1957); Cairgle, supra, 366 Pa. at 249, 77 A.2d 439; Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993); Burston v. Dodson, 257 Pa.Super. 1, 390 A.2d 216 (1978).

At common law a child born of a married woman was conclusively presumed to be legitimate unless her husband was not within the four seas which bounded the kingdom, but later it was held that the presumption of legitimacy could be overcome if the husband and wife lived at a distance from each other so that access was very improbable. This was the rule applied in Pennsylvania in 1814. Commonwealth v. Shepherd, 6 Binney 283, 286.

Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 282-84, 184 A.2d 351, 355 (1962). ³ Evidence offered to rebut this presumption must be clear and convincing. McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738,appeal denied, 531 Pa. 655, 613 A.2d 560 (1992). ⁴

Here, the trial court found that clear and convincing evidence had been presented with respect to Mr. Kohler's sterility so as to rebut the presumption that Leslie was a child of the marriage. Nonetheless, the trial court applied the doctrine of paternity by estoppel, finding no precedent for precluding application of the doctrine.

The principle that a husband is estopped from denying paternity where he has accepted his wife's child and held it out as his own emerged in Goldman, supra, 199 Pa.Super. at 274, 184 A.2d 351. There, the parties, husband and wife, had three children born of the...