Weidman v. Weidman
Decision Date | 26 September 2002 |
Citation | 808 A.2d 576 |
Parties | Melissa L. WEIDMAN, Appellant, v. Robert J. WEIDMAN Appellee. |
Court | Pennsylvania Superior Court |
John J. Ferry, Palmyra, for appellant.
William H. Sturm, Myerstown, for appellee.
Before: TODD, J., CERCONE, P.J.E., and CAVANAUGH, JJ.
OPINION BY CAVANAUGH, J.:
¶ 1 This is an appeal from an order which relieved appellee-Robert J. Weidman from the obligation to provide parental support for a minor child, Xavier Robert Weidman, who was born during the course of the parties' marriage, but who is not the biological son of appellee. The court found that appellee did not have an ongoing responsibility to support Xavier because appellee acted in loco parentis to the child, and that the support provided by him while the parties were an intact family unit could be stopped upon their separation and divorce. The appellant argues that although appellee is not the biological father of Xavier, appellee is estopped from denying paternity due to his conduct. Upon review, we reverse.
¶ 2 The facts, as supported by the record, are that Robert and Melissa Weidman were married on March 20, 1992. A son, Jordan, was born on November 13, 1992. A daughter, Miranda, was born on September 26, 1994. After the births of these two children, appellee underwent a vasectomy on January 20, 1995. Thereafter, appellant conceived Xavier, who was born on September 28, 1998. The parties separated in January, 2000. Appellee sued for divorce in February, 2001, and the decree in divorce was entered on September 28, 2001. There is no dispute that appellee is not the biological father of Xavier.
¶ 3 At the evidentiary hearing conducted pursuant to appellant's petition for support of Xavier, appellee testified to the following, as aptly summarized by the lower court in its opinion:
Lower court opinion, at 3 (March 22, 2002).
¶ 4 Although Xavier was conceived and born while the parties were married to one another, the rebuttable presumption of paternity is not applicable since they no longer have an intact marriage to be preserved. Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997); Tregoning v. Wiltschek, 782 A.2d 1001 (Pa.Super.2001); McConnell v. Berkheimer, 781 A.2d 206 (Pa.Super.2001).
¶ 5 Where the presumption of paternity does not apply, the question of the application of the doctrine of estoppel arises. Brinkley, supra, at 180. A (former) husband may be estopped from denying paternity of a child born during a marriage if either he or his wife holds the child out to be the child of the marriage. Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 723 (1999). The doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child. Jones v. Trojak, 535 Pa. 95, 634 A.2d 201, 206 (1993) (quoted in T.L.F. v. D.W.T., 796 A.2d 358, 363 (Pa.Super.2002)).
¶ 6 In finding that the doctrine of estoppel applied, the supreme court in Fish considered the following facts as indicia of holding out the child as one's own and/or providing support:
¶ 7 In McConnell, this court determined that the doctrine of estoppel applied against a putative unwed father (appellee) based upon the following:
¶ 8 Holding that a step-mother was estopped from denying the paternity of her former husband, this court in Tregoning, found the following facts probative of the issue:
¶ 9 Looking to the facts of the instant case, we find that the lower court erred in failing to find that appellee was estopped from denying paternity of Xavier. There is no issue of fraud by the mother since appellee testified that he always knew that Xavier was not his biological son, based upon the facts of his vasectomy and the lack of physical resemblance. Appellee treated Xavier from birth until the age of two years as he did his other two children. Appellee is named as father on Xavier's birth certificate, and Xavier was claimed as a dependent on the jointly filed tax returns while the parties remained married. Appellee provided support and care for Xavier by feeding him, changing diapers, and providing companionship and supervision. Xavier's name had been tattooed on appellee's chest, along with the names of Jordan and Miranda.
¶ 10 In considering all these facts, the lower court determined that appellee acted in loco parentis and basically provided the...
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