Sell v. Sell

• Decision Date: 21 July 1998
• Citation: 714 A.2d 1057
• Parties: Mary SELL, Appellee, v. Stephen SELL, Appellant (Two cases).
• Court: Pennsylvania Superior Court

Page 1057

714 A.2d 1057

Mary SELL, Appellee, v. Stephen SELL, Appellant (Two cases).

Superior Court of Pennsylvania.

Argued Feb. 12, 1998.

Filed July 21, 1998.

Virginia I. Cook, Pittsburgh, for appellant.

Mary Sell, pro se, appellee.

Before FORD ELLIOTT, MUSMANNO and HESTER, JJ.

HESTER, Judge:

Stephen Sell ("Father") appeals from the support orders dated July 29, 1996, and October 31, 1996. ¹ The record reveals that Father has engaged in a spurious attempt to avoid his financial obligations with respect to his former wife, Mary Sell ("Mother"), appellee herein, and their adopted daughter, Kaitlin. Rather than provide Kaitlin the necessities of life, Father has chosen to use his financial resources to fund this continuing litigation. We affirm.

The factual and procedural histories follow. Mother and Father were married on May 25, 1990. After unsuccessful attempts to conceive a child, including fertility treatments, the parties contacted adoption organizations in 1993. In anticipation of adoption, both parties signed a letter of intent to adopt and power of attorney to permit Russian authorities to process the adoption. In July, 1994, the parties traveled to Russia to adopt Kaitlin, born December 16, 1993. The record contains a Russian adoption certificate issued July 22, 1994, and a United States certificate of citizenship for Kaitlin dated December 8, 1994.

Shortly after the parties returned to their home in Pittsburgh, their marriage deteriorated culminating in their separation in September, 1994. Mother filed an action for support on September 27, 1994. At this point, Father denied paternity based on the invalidity of the Russian adoption. A support hearing was held on December 22, 1994, after which the trial court entered an interim order requiring Father to pay $710 per month for alimony pendente lite ("APL") and $502 in child support. Father filed exceptions to the interim order.

Before addressing the merits of Father's exceptions concerning the propriety of the amount of APL and child support, the trial court held a hearing on January 2, 1996, to take testimony limited to the issue of the validity of Kaitlin's adoption and in particular, whether Father was estopped from attacking its validity. On January 12, 1996, the trial court recited its opinion in open court and held that Father was estopped from denying Kaitlin's adoption. The court also granted Mother's request for counsel's fees in the amount of $10,000.00. The trial court dictated its reasons for so holding into the record and later formalized its holding estopping Father from challenging Kaitlin's adoption in an order entered on February 16, 1996. The trial court failed to include the award of counsel fees to Mother in the February 16, 1996 order. Also on that date, the trial court remanded the issues of APL and child support to a hearing officer for an additional hearing and the entry of a final recommendation. Father filed a notice of appeal to this court from the February 16, 1996 order. By order dated September 19, 1996, and docketed October 29, 1996, we quashed the appeal as interlocutory.

In the meantime, a final recommendation was mailed to the parties on April 1, 1996. Father filed timely exceptions challenging the trial court's previous finding of estoppel and award of counsel fees. Father also excepted to the hearing officer's final recommendation that he pay APL and child support in the amount of $1,193. Following argument on exceptions, the trial court entered an order on July 29, 1996, denying all of Father's exceptions. The trial court again failed to include the award of counsel fees to Mother in the July 29, 1996 order. Therefore, on October 31, 1996, it entered an order to correct this scrivener's error by adding a paragraph to amend the July 29, 1996 order to include counsel fees. Father appealed the July 29, 1996 order and the subsequent corrective order; the appeals then were consolidated.

Father presents eight issues in a statement of questions, which exceed one page, thereby violating Pa.R.A.P. Rule 2116. While it is within our province to refuse to consider Father's arguments, nonetheless, we will address the merits in the interest of judicial economy. Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352 (1991).

Father's myriad complaints may be summarized into three general categories. First, he argues that the court erred in applying the doctrine of estoppel to preclude him from challenging Kaitlin's adoption. Second, he contends the court erred in awarding Mother $10,000 in attorney fees. Finally, he complains that the trial court erred as a matter of law when it determined the income of the parties and set the support and APL awards. ²

Father argues that the trial court erred in concluding that he was estopped from denying the validity of the Russian adoption decree and paternity of Kaitlin since the doctrine of estoppel is inapplicable to the facts herein. He claims Mother coerced him into continuing with the adoption with threats that she would reveal that he was an alcoholic and that she would harm Leah, his child from a previous marriage. Moreover, Father contends that the Russian adoption was illegal since Kaitlin, in actuality, was "purchased," and he should not be bound by the adoption or required to pay support.

We review the trial court's rationale with respect to its application of the doctrine of estoppel. Clearly, the biological nature of Father's status as Kaitlin's parent is not in question. Rather, appellant's legal status as Kaitlin's Father is the issue before this court. ³ In a brilliant extrapolation of logic and law, the trial court analyzed the Restatement of Conflict of Laws with regard to foreign divorce decrees and the public policy considerations present in this case. The court concluded that Father was estopped from challenging his paternity of Kaitlin. Specifically, the court employed the estoppel doctrine set forth in section 74 of the Restatement (Second) Conflict of Laws, which states: "A person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so." Comment (b) indicates that this type of estoppel is

not limited to situations of 'true estoppel' where one party induces another to rely to his damage upon certain representations. The rule may be applied whenever, under all the circumstances, it would be inequitable to permit a particular person to challenge the validity of a divorce decree.

In Lowenschuss v. Lowenschuss, 396 Pa.Super. 531, 579 A.2d 377 (1990), we relied upon section 74 to illustrate that the doctrine of estoppel could be applied to the following factual situation. In that case, the wife filed a divorce action. The husband, an attorney, defended against the action on the ground that no legal marriage existed between the parties because his wife's previous divorce was invalid. We noted that the parties cohabitated for seventeen years and had four children together. At the time of the marriage, the husband was aware of his wife's previous divorce. Moreover, he knew of the defect in the divorce for at least seven years before his wife instituted the divorce action against him. Therefore, we determined he was estopped from challenging the validity of the marriage.

While the trial court recognized that Lowenschuss involved a third party attack on a prior divorce decree, it nevertheless concluded that the principles in the case were broad enough to encompass the instant matter. The trial court stated, in applying the reasoning of Lowenschuss :

We believe that the doctrine is broad enough to apply in this case where father seeks to avoid the adoption, and thereby cause this child to have no father who would be responsible to carry out parental doctrine, parental obligation.

Thus we believe that the doctrine would be applicable here and it is very much analogous to attacking the foreign decree in this case.

As we already have said, father fully participated in the adoption process, went to Russia, took possession of the child, brought the child back, treated the child as his own. He then, subsequently, separates from mother and wants to avoid child support and parental obligations of this child that he has caused to be brought to the United States and placed with him and mother, and he has treated as his own for a short period of time. To permit him to raise that defense is unconscionable, and would shock the conscious[sic] of the court and of society, and this is a case where estoppel should actually apply thus withholding him from challenging the lawfulness of the adoption.

We note as an aside, that even if this form of general equitable estoppel was not applicable in the case, classic estoppel might well apply against him. In classic estoppel, which it is a much, much more pure legal analysis of the parties seeking to ascertain it, must show you there was misleading conduct by the party against whom estoppel was asserted.

In this case, we believe that father continuously participated in the adoption and led mother forward and indeed the adoption agency and the people in Russia to go forward and to place this child.

There must, secondly, be an unambiguous proof of reasonable reliance on this premise of misrepresentation in this case, and mother certainly relied upon father as she went forward to adopt the child and bring this child into this country and to raise that child.

And thirdly, there must be no duty of inquiry on the parties seeking to assert an estoppel. And again in this case, we believe that mother acted diligently and in good faith to proceed with her husband as they jointly attempted to adopt a child, and, thus, we believe the father, under classic estoppel also would be precluded from attacking this divorce decree.

Trial court opinion at N.T., 1/12/96, at 17-19.

The trial court made the following findings of fact, which are supported by the ...