R.W.E. v. A.B.K.

• Decision Date: 24 October 2008
• Docket Number: No. 35 EDA 2007.,35 EDA 2007.
• Citation: 2008 PA Super 253,961 A.2d 161
• Parties: R.W.E., Appellant v. A.B.K. and M.K., Appellees.
• Court: Pennsylvania Superior Court

961 A.2d 161

2008 PA Super 253

R.W.E., Appellant v. A.B.K. and M.K., Appellees.

No. 35 EDA 2007.

Superior Court of Pennsylvania.

Argued May 15, 2008.

Filed October 24, 2008.

Diane R. Thompson, Philadelphia, for appellant.

Angeles Roca, Philadelphia, for A.B.K., appellee.

James A. Rocco and Susanne M. Wherry, Philadelphia, for M.K., appellee.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, LALLY-GREEN, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN and ALLEN, JJ.

OPINION BY DONOHUE, J.:

¶ 1 R.W.E. ("Robert") appeals from the order entered on December 5, 2006 in the Philadelphia County Court of Common Pleas. That order vacated an acknowledgment of paternity executed by Robert and A.B.K. ("Mother") based upon a finding of fraud, and adjudicated M.K. ("Father") the biological father of J.R.K. ("Child"). Robert raises six issues on appeal. Upon careful review, we affirm.

¶ 2 The facts and procedural history relevant to this appeal are as follows. Mother and Robert were involved in an on-again, off-again relationship between approximately February 2002 and November 2003, during which they periodically resided together.¹ In November 2003, Mother and Robert separated for several months before reconciling in mid-February 2004, at which time Robert moved back in with Mother. During this separation between November 2003 and February 2004, Mother became sexually involved with another man, later identified as Father.

¶ 3 In mid-March 2004, Mother told Robert that she was pregnant. She also informed him that she had been sexually intimate with another man and that there was a possibility that this other man was the father of her unborn child. Because of the time frame of her relationships with Father and Robert, Mother believed there was a "50-50" chance that either man could be the father of her child. Mother and Robert agreed to proceed with the pregnancy, that Robert would parent the child, and that neither of them would undergo genetic testing to establish paternity. Mother and Robert resided together during the pregnancy, and Robert was present at the birth of Child on November 12, 2004. Father, who was deployed to Kuwait by the National Guard shortly after his relationship with Mother ended, was not informed of Mother's pregnancy or of Child's birth.

¶ 4 Days after Child's birth, Mother and Robert signed an acknowledgment of paternity form at the hospital provided by the Pennsylvania Department of Public Welfare pursuant to 23 Pa.C.S.A. § 5103. Robert was also identified as Child's father on Child's birth certificate. Mother and Robert continued to live together until sometime in 2005, when Robert moved out of the home occupied by Mother and Child.² Robert alleged that Mother initially allowed him to see Child after their separation but then abruptly terminated his visits.

¶ 5 A custody battle over Child commenced. Robert filed a custody complaint and a petition for emergency relief on December 8, 2005. The trial court held a hearing on Robert's emergency petition, at which the issue of paternity was raised and genetic testing was ordered.³ The results of genetic testing revealed a zero percent probability that Robert was the biological father of Child. In January 2006, Father was advised for the first time that he might be the biological father of Child. N.T., 8/28/06, at 14.

¶ 6 Based on the results of genetic testing, on January 30, 2006 and February 13, 2006, respectively, Mother and Robert filed cross motions for expedited relief regarding paternity and custody issues. At the hearing on these cross motions on February 22, 2006, Mother identified Father as the biological father of Child, and the trial court granted the oral motion of Mother's counsel to join Father as an additional defendant. The trial court resolved the cross motions by ordering additional genetic testing on Father, Mother and Child, and directed Mother and Robert to submit to drug tests and mental health assessments. The genetic testing confirmed the prior results, namely a 99.99 percent probability that Father was the biological father of Child.

¶ 7 Mother, Father and Robert subsequently filed a series of motions and cross-motions regarding both the acknowledgment of paternity form signed by Mother and Robert and Robert's custodial rights. On August 28, 2006, the trial court held an evidentiary hearing on the narrow issue of whether the court should grant Father's petition to set aside the acknowledgment of paternity executed at the time of Child's birth. On December 5, 2006, the trial court issued an opinion and order (1) rescinding the acknowledgment of paternity executed by Robert and Mother due to fraud, (2) adjudicating Father the biological father of Child, and (3) scheduling a hearing to determine whether Robert had standing to pursue custody and visitation rights to Child under an in loco parentis theory.

¶ 8 Robert appealed.⁴ In an opinion dated September 20, 2007, this Court reversed, finding that the trial court had erred in finding that Robert and Mother committed fraud when executing the acknowledgement of paternity. On October 2, 2007, Father filed an application for reargument en banc. On November 27, 2007, this Court granted Father's application for reargument and withdrew the opinion of the original panel. In accordance with Pa.R.A.P. 2140, Father filed a substituted brief with this Court responding to Robert's original three issues on appeal and raising two new issues. Thereafter, Robert re-filed his original brief and also filed a supplemental brief responding to Father's substituted brief and raising one new issue. Mother did not file a brief.

¶ 9 In his original and supplemental briefs, Robert raises the following four issues for this Court's consideration:

• Whether the trial court erred in failing to confirm paternity based on constructive paternity by statute;

• Whether the trial court erred in rescinding the acknowledgment of paternity based on fraud where there was no evidence of fraud in the record;

• Whether the trial court erred in failing to confirm paternity by estoppel; and

• Whether Mother and Father are estopped from challenging Robert's paternity as a result of the trial court's entry of a support order against Robert.

¶ 10 In his supplemental brief, Father raises the following two issues for our consideration:

• Whether the acknowledgement of paternity should have been rescinded based upon mistake of fact; and must fail based on the waiver doctrine and the total absence of substantive support for the claim.

• Whether the trial court's order should be affirmed on the basis of public policy and the best interest of the child analysis.

We address all six issues in turn.

¶ 11 Initially, we note that we review the trial court's order for an abuse of discretion or error of law. Abuse of discretion exists where the trial court overrides or misapplies the law, or if there is insufficient evidence to sustain its order. Vargo v. Schwartz, 940 A.2d 459, 462 (Pa.Super.2007). We will not disturb the trial court's findings if they are supported by competent evidence, and may not reverse simply because we might have made a different finding. Id.

¶ 12 We first address Robert's argument that the trial court erred in failing to find that paternity was conclusively established pursuant to 23 Pa.C.S.A. § 5103 by the acknowledgment of paternity he and Mother signed. Specifically, Robert argues that section 5103 does not provide a third party with standing to challenge an acknowledgment of paternity, and that the statute specifically limits those who can challenge the acknowledgment to signatories to the acknowledgment. The issue presented is a question of statutory interpretation, and as such, our review is plenary. See Peters v. Costello, 586 Pa. 102, 110, 891 A.2d 705, 710 (2005). We conclude that Robert's interpretation conflicts with the plain language of section 5103.

¶ 13 A court must construe the words of a statute according to their plain meaning. See 1 Pa.C.S.A. § 1903(a); see also Colville v. Allegheny Co., 592 Pa. 433, 926 A.2d 424 (2007) (stating that when the words of a statute are clear, there is no need to look beyond the plain meaning of a statute). Section 5103 provides that the "signatories" of an acknowledgment of paternity may rescind such acknowledgment within sixty days. See 23 Pa.C.S.A. § 5103(g)(1). In the provision permitting challenges to acknowledgment based on fraud, duress, or material mistake of fact, however, our Legislature opted for different language. 23 Pa.C.S.A. § 5103(g)(2) provides:

After the expiration of the 60 days, an acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and convincing evidence. An order for support shall not be suspended during the period of challenge except for good cause shown.

23 Pa.C.S.A. § 5103(g)(2) (emphasis added).

¶ 14 There is nothing in section 5103(g)(2) that limits the identity of potential challengers to signatories to the acknowledgment of paternity. If our Legislature had intended such an application, we conclude they would have used the term "signatories" in section 5103(g)(2) to express that limitation. By choosing the broader term "challenger," the Legislature intended to grant non-signatories the power to challenge the acknowledgment under the limited circumstances delineated in subsection (g)(2). Therefore, applying the plain reading of the statute to this case, Mother and Robert (as signatories) could have rescinded the acknowledgment of paternity within sixty days. After sixty days, they, or Father, as a challenger, could assert a challenge under subsection (g)(2) based upon fraud, duress, or material mistake of fact. Accordingly, we find no error in the trial court's finding that Robert's paternity was subject to challenge by Father under the fraud exception in subsection (g)(2).⁵

¶ 15 Next, Robert argues...