Sanders v. Sanders

• Decision Date: 03 May 1989
• Citation: 558 A.2d 556,384 Pa.Super. 311
• Parties: Ernestine Walker SANDERS v. Mike SANDERS, Jr., Appellant (Two Cases). 2 Phila. 1988, 1029 Phila. 1988
• Court: Pennsylvania Superior Court

Page 556

558 A.2d 556

384 Pa.Super. 311

Ernestine Walker SANDERS v.Mike SANDERS, Jr., Appellant(Two Cases).

2 Phila. 1988, 1029 Phila. 1988

Superior Court of Pennsylvania.

Argued Jan. 20, 1989.

Filed May 3, 1989.

William Goldstein, Philadelphia, for appellant.

Allen N. Abrams, Philadelphia, for appellee.

Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.

CIRILLO, President Judge:

This is a consolidated appeal from two orders entered in the Court of Common Pleas of Philadelphia County.The parties, appelleeErnestine Walker Sanders("Mrs. Sanders") and appellantMike Sanders, Jr., ("Sanders") were married in 1972 and divorced in 1980.Previously, Mrs. Sanders had been married to Mr. James Walker("Walker").During her marriage to Walker, two children were born, Sheila and Steven.This dispute involves the paternity and support of Steven.Steven's birth certificate identifies his mother as Ernestine Walker, appellee here, and his father as James Walker.

When appellee and Walker separated, appellee filed a complaint for support against Walker.On April 4, 1972, an order was entered in the Court of Common Pleas, Family Court Division, D.R. # 256613, requiring Walker to pay $18.00 a week for each of his two children, Sheila and Steven.In September of 1981, the order as to Sheila was vacated as of July 6, 1981, the date of her eighteenth birthday, and the order as to Steven was increased to $25.00 per week.This amendment was agreed upon by the parties and reduced to a formal court order and entered on September 4, 1981, D.R. # 256613.No appeal was taken.

In April of 1979, Mrs. Sanders filed a complaint for support against Sanders on behalf of Steven and also on behalf of Celeste, a daughter born during her marriage to Sanders.In February of 1982the parties entered into a settlement agreement, which was approved by the court.In that agreement, Sanders was required to pay $83.00 per week for child support.The agreement stated that Steven and Celeste Sanders were the "minor children of Mike Sanders, Jr. and Ernestine Walker Sanders."The parties entered into a stipulation which provided that Mrs. Sanders would not "initiate or file any action in any court to increase support for their children, Steven and Celeste[.]"Thereafter, in August of 1985, Mrs. Sanders filed a complaint for support.The hearing officer proposed that support be increased from $83.00 per week to $160.00 per week.As a result of testimony from that hearing, it was determined that Mrs. Sanders was already receiving $100.00 per month in voluntary support for the minor child Steven from Walker, her first husband.Notwithstanding the consensual support order between Mrs. Sanders and Walker, Mrs. Sanders maintained that appellant Sanders is Steven's natural father.

Sanders filed exceptions to the proposed support order.These exceptions were granted, and the case was remanded for specific findings of fact and conclusions of law as to appellant's obligation to support Steven.At that hearing, Mrs. Sanders testified that Steven was born during her marriage to Walker, and that Walker was identified as the father on Steven's birth certificate.Despite this, she maintained that Sanders was the natural father of Steven.The court ordered the parties to submit to blood tests, after which the matter was to be re-listed to resolve the issue of paternity.

Sanders took exception to the court's order, arguing that the court was without jurisdiction to order blood tests since a previous agreement for an order of support between Mrs. Sanders and Walker had already established the paternity of Steven.These exceptions were denied, and Sanders was ordered to pay $160.00 per week for both children.The order was dated March 12, 1987.On April 7, 1987, this order was vacated pending adjudication of Sanders' motion for reconsideration.On May 13, 1987, the order was amended, reinstating the original temporary order of $83.00 per week.On December 2, 1987, the trial court entered the following order for support:

The Court finds that the Order of March 12, 1987 was entered in error since the proposed order of $160.00 per week was no longer in existence after the remand.Wherefore, the defendant's Motion to Reconsider is Granted, and the Order of March 12, 1987 is hereby Vacated.

The temporary order of October 23, 1985 requiring the defendant to pay $83.00 per week is continued.Further, Ernestine Walker Sanders, Mike Sanders, Jr. and the child, Steven, are to submit to H.L.A. blood studies.Re-list before Judge Levin upon completion of tests.This Court will reserve decision on the issue of the Court's right to determine paternity because of the prior adjudication in the James Walker case.

Sanders did not appear for the blood tests and filed an appeal on December 23, 1987 from the temporary support order of December 2, 1987.On March 22, 1988, the court found him in contempt.Two days later Sanders filed an appeal from the order holding him in contempt.Pursuant to the parties' stipulation, the appeals were consolidated.

Sanders raises one issue for our review: Does the entry of an order for support of a child from which no appeal was taken necessarily determine the issue of paternity and therefore bar further reconsideration of that issue at a later date?The order to which appellant refers is the consensual support order between Mrs. Sanders and Walker, from which Walker never appealed.Sanders argues that this order established Walker as the father of Steven, that since no appeal was ever taken from that order the parties are precluded from relitigating the paternity issue, and that therefore the support order and the contempt order should be vacated.

We note initially that the December 2 order is a hybrid order, containing both an order for support and an order directing Sanders to submit to blood testing.That part of the order pertaining to support is a temporary order, not a final order.The appeal, therefore, is premature and must be quashed.DeWald v. Pauline, 312 Pa.Super. 391, 458 A.2d 1016(1983)(final order is one which ends litigation, or alternatively, disposes of the entire case; an order is interlocutory and not final and appealable unless it effectively puts the defendant"out of court");Nixon v. Nixon, 312 Pa.Super. 313, 458 A.2d 976(1983)(where no final order of support exists, the order is interlocutory and unappealable).

With respect to that part of the order requiring Sanders to submit to blood testing, we find the appeal therefrom is properly before us.SeeCommonwealth ex rel. Coburn v. Coburn, --- Pa.Super. ---, 558 A.2d 548(1989);Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 303 n. 3, 472 A.2d 1128, 1130 n. 3(1984);see alsoCommonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782(1963)(an appeal may be maintained from an order directing a blood test to determine paternity entered in a support action, and such appeal is not subject to dismissal on the theory that the order is interlocutory).¹Sanders argues that the court's order requiring him to undergo H.L.A. blood testing is improper because the issue of paternity is settled.Sanders argues that the case of R.J.K. v. B.L., 279 Pa.Super. 71, 420 A.2d 749(1980), is controlling.

In R.J.K., the parties lived together at various times between 1972 and 1977.During this time, two children were born.The parties were separated, although appellee/mother continued to see her husband, the appellant, on an irregular basis.She also persuaded appellant to sign a support agreement for one of her children, and later, to agree to an increase in the support to include her second child.Both consensual support orders were approved by the court.No appeal was taken from either order.Appellant failed to comply with the support order, and appellee filed a rule to show cause why the appellant should not be held in contempt.In response, appellant filed a petition to strike the support order.The petition was denied, and appellant was found in contempt.He appealed, and this court affirmed, reiterating the well-settled rule that entry of a court order for support of a child, from which no appeal is taken, necessarily determines the issue of paternity.Id.[384 Pa.Super. 317] at 73-74, 420 A.2d at 750.Absent an appeal, the doctrine of res judicata "operates to foreclose any subsequent challenge on the issue of paternity."Id. at 74, 420 A.2d at 751,citingCommonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490(1964).See alsoWachter v. Ascero, 379 Pa.Super. 618, ---, 550 A.2d 1019, 1020(1988)(absent an appeal taken directly from the order of support, or the showing of fraud in relation to that order, the aggrieved party is foreclosed from challenging the paternity of the child; the issue of paternity is established as a matter of law);Shindel v. Leedom, 350 Pa.Super. 274, 278, 504 A.2d 353, 355(1986);Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 174, 384 A.2d 1285, 1287(1978).

An examination of the case law reveals that in the cases applying the doctrine of res judicata for the purpose of precluding relitigation of the paternity issue, the party appealing or contesting his paternity was the same party who was previously ordered to pay support, or who had previously entered into a consensual order of support.In order for the doctrine to apply, there must be a coalescence of (1) identity of cause of action; (2) identity of persons to the action; (3) identity of the quality or capacity of the parties; and (4) identity of the thing sued upon.Gardner v. Gardner, 371 Pa.Super. 256, 261, 538 A.2d 4, 7(1988);Brandschain v. Lieberman, 320 Pa.Super. 10, 466 A.2d 1035(1983).In the caseswe have reviewed, there existed an identity of the parties to both causes of action.See, e.g., Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019(filed Dec. 1, 1988);Schultz v. Connelly, 378 Pa.Super. 98, 548...