Ruth F. v. Robert B.

• Decision Date: 06 February 1997
• Citation: 690 A.2d 1171,456 Pa.Super. 398
• Parties: RUTH F. v. ROBERT B., Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 1171

690 A.2d 1171

456 Pa.Super. 398

RUTH F. v. ROBERT B., Jr., Appellant.

Superior Court of Pennsylvania.

Argued Sept. 4, 1996.

Filed Feb. 6, 1997.

Michael Fiffik, Pittsburgh, for appellant.

Carol L. Hanna, Bethel Park, for appellee.

Before CAVANAUGH, J., CIRILLO, President Judge Emeritus, TAMILIA, KELLY, JOHNSON, FORD ELLIOTT, SAYLOR, EAKIN and SCHILLER, JJ.

TAMILIA, Judge.

Robert B., Jr., putative father of Zachary F., appeals from the May 9, 1995 Order directing him, along with Zachary and appellee/mother, Ruth F., to submit to blood testing for the purpose of determining Zachary's paternity. At the time of conception of Zachary and until 1992, a period of more than three years, mother lived with Zachary's presumptive biological father, David F., as man and wife in an intact family relationship. Ruth and David F. separated in August, 1992, and divorced in December, 1993. As part of the divorce agreement, the parents agreed that husband would support the two older children he fathered during the marriage but not Zachary. Preliminarily, we find this agreement a nullity as parents may not bargain away the rights of their children to support. Hyde v. Hyde, 421 Pa.Super. 415, 618 A.2d 406 (1992).

The issue squarely presented by this appeal is whether mother is estopped from denying the paternity of the presumptive father, David F., and pursuing a paternity and support action against the putative father, Robert B., Jr. The trial court, after review of ex parte testimony by the mother before a court-appointed hearing officer, affirmed the finding of the hearing officer that the mother overcame the presumption of legitimacy because of non-access and that the behavior of the presumptive father, David F., and/or herself was insufficient to establish an estoppel. Based upon this finding and conclusions drawn from the mother's testimony, the trial court authorized blood testing of the mother, son Zachary and appellant.

We believe the trial court was in error. The Order must be vacated and the support action against Robert B., Jr., must be dismissed with prejudice.

The law in Pennsylvania as to estoppel in determining the legal relationship between a married man and woman and a child conceived during the marriage is well established, clearly stated and easily applied. From time to time, there arise nuances in fact situations which confuse the application of the doctrine, but these invariably give way to a careful application of policy considerations and time-honored standards of proof. This is such a case. Initially, despite attempts in recent times to insinuate otherwise and the advent of modern technology by discovery of almost incontrovertible means of proving paternity through genetic, HLA and DNA testing, the resolution of the issue of paternity is determined by behavior, conduct and intent during a particular period of time. This determination is unaffected by performance of or demand for blood tests, which are irrelevant to the issue.

The right to obtain a blood test to determine paternity is established by Pa.R.C.P. 4010, Physical and mental examination of persons, and/or rule 1915.8, Physical and mental examination of persons, when the paternity is in controversy. The Order may be made only on motion for good cause shown. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990). In a case where the custody or support of a child conceived during marriage is at issue, and this turns on the parentage of the child by the husband/father, the presumption of legitimacy of the child must effectively be rebutted before there is good cause to permit the grant of the motion for a blood test. "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 labeled to significant legal and social discrimination." Id. at 312 n. 2, 571 A.2d at 1383 n. 2 (citations omitted).

This case turns on whether the presumption of legitimacy has been rebutted, which in turn is conditioned upon whether the parties are estopped from relying on evidence leading to rebuttal of the presumption of legitimacy. The law of Pennsylvania has evolved to the point that paternity may be established for all purposes, when legitimacy is in question, in one of several ways.

The General Assembly has codified the principle of "paternity by estoppel" in its Act of June 17, 1971, P.L. 175, No. 17, § 1, as amended by Act of November 26, 1978, P.L. 1216, No. 288 § 1, 48 Pa.Stat.Ann. § 167 (Purdon's Supp.1989) (hereinafter referred to as "section 167"), which provides:

Children; legitimacy; determination of paternity

(a) Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That all children shall be legitimate irrespective of the marital status of their parents and in any and every case where children are born out of wedlock they shall enjoy all the rights and privileges as if they had been born during the wedlock of such parents, except as otherwise provided in Title 20 Pa.C.S.

(b) For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:

(1) If the parents of a child born out of wedlock shall have married each other.

(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

(3) If there is clear and convincing evidence that the man was the father of the child which may include a prior court determination of paternity.

John M., supra at 318-319, 571 A.2d at 1386-1387 (emphasis in original). The highlighted portions of the above statute clearly apply to the facts of this case.

The evidence detailed at the proceeding before the hearing officer is clear and convincing of the parental commitment and involvement of David F. with and on behalf of Zachary. The hearing officer and trial court willingly accepted a revisionist view of the facts to which the mother testified and which were uncontradicted by David F., as he was not present. In its memorandum, the court states: "It is well settled that paternity-by-estoppel operates against a husband only if, from the time he became reasonably aware of his non-paternity, he continues to accept parental responsibility for the child and hold the child out as his own." (Memorandum Kaplan, J., 5/9/95, p. 5; citations omitted.) In this case, the trial court found husband did not become reasonably aware of his non-paternity until May, 1992, when the mother finally told him the truth of Zachary's paternity.

Despite the fact the husband was not present and the testimony of the mother was self-serving, it became clear on cross-examination of the mother that the husband had been aware of the likelihood that some other person fathered Zachary. At the outset, according to appellee, she and Mr. F. had not had intercourse during several months covering the period of conception, although still married. Previously having fathered two other children during this union and with the knowledge of the normal term of a pregnancy, Mr. F. could be expected to question his paternity and to be reasonably sure that Zachary was not fathered by him. On cross-examination, Mrs. F. responded as follows:

Q. And you did, however, indicate that [Mr. F.], from the early years of the child's life with you suspected that the child was not his; is that correct?

A. Yes.

Q. And he continued, however, to treat the child as his own and raise the child as one of his children?

A. Yes.

(H.T., 9/7/94, pp. 8-9.) And later in the questioning, Mrs. F. acknowledged that from the child's early years Mr. F. said the child was not his and that it was an ongoing contention in the marriage (id. at 13). Notwithstanding, they both maintained a family relationship, treated Mr. F. as the father and to this day, seven years after birth, Zachary believes Mr. F. to be his father. On her own, appellee decided to repudiate the relationship, telling Mr. F. he was not the father in May, 1992, which was followed by a voluntary blood test which excluded him as the father.

This exchange is telling and convincing that Mr. F., under any definition of a discovery rule that might be applied to this case, did or should have known of his non-paternity and yet failed to take any purposeful steps to exculpate himself from the responsibility he had undertaken. Rather, the evidence is clearly to the contrary--Zachary was born into an intact family on June 7, 1989, and for the next three years Mr. F. held the child out as his own, supporting him financially as well as emotionally. "[David F.]" was listed on Zachary's birth certificate as his father; Mr. F. included Zachary on his medical plan and regularly claimed him as a dependent on the family's tax returns. In addition, the mother testified (as corroborated by testimony of Mr. B.) that in either late '91 or early '92 (well before the separation in October, 1992 or "disclosure" in May, 1992), Mr. F. met with appellant Robert B. and proposed a transfer to Mr. F. of a piece of property as financial compensation to set at rest any paternity claims against appellant. Mr. B. refused. In the spring and summer of 1992, appellee brought things to a head by declaring that Robert B. was the father. Despite Mrs. F.'s desire to continue as a family unit, in order to retaliate against her and Mr. B., Mr. F., in October, 1992, filed a support action against Mr. B. and Mrs. F. on behalf of Zachary. The complaint was dismissed because of the estoppel principle and no appeal was taken by Mr. F. It appears that dismissal by Judge Kaplan in that action resolved the paternity issue as to Mr. F.'s...