J-S51031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.A.G.,                                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                    Appellee

          v.

R.L.B., JR.,

                    Appellant                        No. 655 MDA 2014


               Appeal from the Order entered on December 6, 2013,
                in the Court of Common Pleas of Lancaster County,
                     Domestic Relations, at No(s): 2013-00282

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 18, 2014

      R.L.B., Jr. (“Appellant”), appeals, pro se, from the Order requiring him

to provide support to M.C. (“Child”), born in June 2004, who resides in the

Commonwealth of Virginia with S.A.G. (“Mother”). We reverse and remand

for further proceedings.

      On January 23, 2013, Mother filed a Support Petition, seeking support

for Child from Appellant and requesting a determination of paternity of Child.

In response to Mother’s Support Petition, the trial court ordered Appellant to

undergo genetic testing.        Appellant filed Preliminary Objections to the

Support Petition, asserting the doctrine of paternity by estoppel with regard

to another male individual, R.C.      The trial court then stayed the genetic

testing Order, pending a paternity hearing.
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        Following a paternity hearing conducted on April 16, 2013, the trial

court again ordered Appellant to undergo genetic testing.      The trial court

also ordered certified copies of all court orders from Virginia regarding Child

(whether in custody or support actions, including any paternity action

involving R.C.).    The trial court scheduled another paternity hearing for

August 7, 2013.

        Genetic test results dated May 21, 2013 indicated a 99.99% or more

probability that Appellant is the biological parent of Child. Accordingly, on

May 23, 2013, the trial court issued a Rule against Appellant, pursuant to

Pa.R.C.P. 1910.15(d)(3), directing him to show cause why an order should

not be entered finding him to be Child’s father, and referring the action to

conference and hearing, as in other actions for support.1

        On August 7, 2013, the trial court conducted a second paternity

hearing, at which both Mother and Appellant testified. 2 The trial court also

questioned Child, in camera, in the presence of Mother’s counsel, with

Appellant’s agreement. Appellant also agreed to the admission of certified


1
  The    trial court initially directed that the Rule was returnable within 20
days.    However, the trial court entered an amended Order directing the Rule
to be   returnable at the paternity hearing scheduled for August 7, 2013, at
which   Appellant’s written response to the Rule would be addressed.
2
  Appellant was represented by counsel, David Wedge, Esquire (“Attorney
Wedge”), at the first paternity hearing, but appeared pro se at the second
hearing. No entry of appearance for Attorney Wedge appears on the docket
or in the certified record, nor is there any order granting the withdrawal of
Attorney Wedge as counsel.


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copies of two court Orders from Virginia (“the Virginia court Orders”)

regarding     Child.3    N.T.,   8/7/13,   at   5-6.     Additionally,   Appellant

acknowledged that genetic testing established that he was the biological

father of Child. Id. at 4.

        On September 4, 2013, the trial court entered an Order (“Paternity

Order”)4 finding that, based on the testimony presented and the results of

genetic testing, Appellant was both the biological and legal father of Child,

noting that genetic testing established, to a high degree of scientific

probability, that Appellant is the biological parent of Child. Trial Court Order,

9/4/13, at 1.    On September 5, 2013, the trial court ordered Appellant to

appear before a conference officer for support proceedings on October 7,

2013.

        Appellant, pro se, filed a Motion for Reconsideration of the trial court’s




3
  The Virginia court Orders included an October 19, 2011 Consent Order
(“the Virginia Consent Order”) declaring R.C. the “psychological” father of
Child and awarding joint physical custody of Child to Mother and R.C.; and
an October 19, 2011 Order finding that R.C. is not Child’s biological father.
See N.T., 8/7/13, at 20-25; Plaintiff’s Exhibits 1 and 2.
4
 The Paternity Order is dated September 3, 2013, but was not entered until
September 4, 2013.


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Paternity Order.5 The trial court determined that it “was not bound to act

upon Appellant’s [M]otion [for Reconsideration of the trial court’s Paternity

Order], and did not do so.” Trial Court Opinion, 6/6/14, at 1 ¶¶ 2-3.

      On October 7, 2013, support proceedings were conducted before a

conference officer, who issued a Recommended Order for support of Child to

the trial court. On October 8, 2013, the trial court adopted the conference

officer’s Recommended Order, and entered an interim support Order

directing Appellant to provide support for Child.6

      On October 15, 2013, Appellant, pro se, filed a Demand for Hearing

regarding the Recommended Order, asserting that the amount of support

was excessive.     On December 5, 2013, the trial court held a hearing

regarding the Recommended Order, at which Appellant raised R.C.’s custody


5
  The Motion for Reconsideration is not indicated on the trial court’s docket,
nor is it included in the certified record. However, the trial court discussed
the Motion for Reconsideration in its Opinion, and indicated that it was filed
on October 2, 2013. See Trial Court Opinion, 6/6/14, at 1 ¶¶ 2-3. An
attachment to Appellant’s Brief, entitled “Motion for Reconsideration,” is
date-stamped September 24, 2013.            The trial court has provided no
explanation as to its failure to include the Motion for Reconsideration either
on its docket or in the certified record. Accordingly, we have no means of
determining when it was actually filed. We remind the trial court that the
prothonotary must inspect documents presented for filing to ensure that
they are in proper form, but the prothonotary has no power to reject
documents, and must enter all documents for filing on the trial court’s
docket. See Amicone v. Rok, 839 A.2d 1109, 1115 (Pa. Super. 2003).
6
  The trial court found Appellant’s net monthly income to be $1,639.57, and
Mother’s net monthly income to be $0. The trial court set the amount of
Appellant’s monthly support payment at $434.00 ($395.00 of which was
current support and $39.00 of which was arrears), and directed that
arrearages, in the amount of $3,806.38, were due, in full, immediately.
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rights, and argued that the doctrine of paternity by estoppel precluded

Mother from seeking support from Appellant.      N.T., 12/5/13, at 5-6.    On

December 9, 2013, the trial court entered an Order (“Support Order”)7

adopting as final the conference officer’s Recommended Order.

     On January 31, 2014, Appellant, through counsel,8 filed a Demand for

Hearing on his pro se Motion for Reconsideration of the Paternity Order. 9 In

his Demand for Hearing, Appellant asserted that (1) the trial court erred in

finding him to be Child’s father, in light of the Virginia Consent Order

declaring R.C. the psychological father of Child and awarding joint physical

custody of Child to Mother and R.C.; and (2) R.C. held himself out to be

Child’s father since her birth. See Demand for Hearing, 1/31/14, at 1.

     On February 10, 2014, the trial court dismissed, with prejudice,

Appellant’s Demand for Hearing on his Motion for Reconsideration of the

Paternity Order. The trial court reasoned that Appellant was foreclosed from

7
 The Support Order is dated December 6, 2013, but was not filed until
December 9, 2013.
8
  Appellant’s Demand for Hearing on his pro se Motion for Reconsideration of
the Paternity Order was filed by Thomas Cusack, Esquire (“Attorney
Cusack”). No entry of appearance for Attorney Cusack appears on the
docket or in the certified record.
9
  This Demand for Hearing was not entered on the trial court’s docket, but is
referenced in and attached to the trial court’s February 10, 2014 Order. See
Trial Court Order, 2/10/14, at 1, and Exhibit thereto. The trial court’s Order
also references Mother’s Reply to Appellant’s Demand for Hearing. See id.
at 1. However, Mother’s Reply was not entered on the trial court’s docket,
and is not attached to the February 10, 2014 Order or otherwise in the
certified record. See id.; see also Amicone, supra.


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challenging the Paternity Order due to his failure to file a timely appeal from

the Support Order. See Trial Court Order, 2/10/14, at 3.

      On April 2, 2014, Appellant, pro se, filed an appeal.10      On appeal,

Appellant raises the following issues for our review:

      Is Appellant entitled to a new trial when, applying []
      Pennsylvania [] [l]aw, the trial court abused its discretion and/or
      misapplied the law by:

          a. Omitting or failing to include evidence in the
             determining order, namely the [Virginia Consent
             O]rder [] naming [R.C.] the father of [Child][?]

          b. Refusing to acknowledge that this voluntary
             Acknowledgement of Paternity may only be cancelled
             by either party within 60 days after the form is signed
             or the date of a court proceeding related to the child,
             whichever is sooner.       After the 60 days, the
             acknowledgement of paternity may be challenged in
             court ONLY on the basis of fraud, duress or material
             mistake of fact[?]

Appellant’s Brief at 7.

      Initially, we must determine whether this Court lacks jurisdiction over

this appeal due to timeliness considerations. Both the trial court and Mother

contend that Appellant’s appeal is untimely and, hence, this Court lacks




10
   Appellant improperly filed his appeal with our Supreme Court, which
transferred the appeal, and Appellant’s accompanying Concise Statement of
Errors Complained of on Appeal, to this Court in an Order entered April 15,
2014. The Supreme Court noted that Appellant appeared to be appealing
the Support Order. See Order, 4/15/14, at 1.


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jurisdiction over this appeal.11 See Trial Court Opinion, 6/6/14, at 2-3 ¶¶ 7,

8, 11, 12; see also Mother’s Brief at 1, 3, and 8.

        Mother claims that Appellant improperly challenged the trial court’s

failure to rule on his Motion for Reconsideration of the Paternity Order, as it

had already been denied by operation of law.         See Mother’s Brief at 8-9

n.11.    Mother asserts that Appellant should have appealed the Support

Order. Id. Finally, Mother contends that Appellant’s appeal, forwarded to

this Court from the Supreme Court, was improperly filed pro se, although

Appellant’s counsel had not filed a praecipe for withdrawal. Id. at 9.

        Initially, pursuant to Rule 1910.15(f) of the Pennsylvania Rules of Civil

Procedure, an order establishing paternity is not an appealable order, and

the issue of paternity may be included in an appeal from the final order of

child support.    See Pa.R.C.P. 1910.15(f).    Therefore, Appellant’s failure to

timely challenge the Paternity Order is not fatal to his appeal if he timely

appealed from the Support Order.

        Pursuant to Pa.R.C.P. 236(a)(2), the prothonotary must immediately

give written notice to the parties of any order entered by the trial court.

See Pa.R.C.P. 236(a)(2).      Additionally, the prothonotary must note in the

docket the giving of such notice. See Pa.R.C.P. 236(b). Finally, the date of

entry of an order is “the day on which the clerk makes the notation in the

11
   Mother filed a Motion to Dismiss the appeal. On June 3, 2014, this Court
denied Mother’s Motion to Dismiss, without prejudice to Mother’s right to re-
raise the timeliness issue in her appellate brief.


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docket that notice of entry of the order has been given as required by

Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b) (emphasis added).

      Our Supreme Court has held that “an order is not appealable
      until it is entered on the docket with the required notation that
      appropriate notice has been given.”          Frazier v. City of
      Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999)
      (emphasis added). Where there is no indication on the docket
      that Rule 236(b) notice has been given, then the appeal period
      has not started to run. Id. at 621-22, 735 A.2d at 115. Our
      Supreme Court has expressly held that this is a bright-line rule,
      to be interpreted strictly. That the appealing party did indeed
      receive notice does not alter the rule that the 30-day appeal
      period is not triggered until the clerk makes a notation on the
      docket that notice of entry of the order has been given. Id.

In re L.M., 923 A.2d 505, 508 (Pa. Super. 2007).

      Our review of the record reveals that the prothonotary failed to

indicate on the trial court docket that it provided notice of the Support Order

to the parties, in compliance with Pa.R.C.P. 236(b).12       Thus, the appeal

period was not triggered.     See Frazier, 735 A.2d at 115.        Accordingly,

Appellant’s appeal from the Support Order is not untimely, and we will

proceed to review the merits of the appeal.

      Our standard of review of support determinations involving a question

of paternity is that of an abuse of discretion. See Vargo v. Schwartz, 940

A.2d 459, 462 (Pa. Super. 2007).

      An abuse of discretion exists if the trial court misapplied the law,
      or if there is insufficient evidence to sustain the order.
      Moreover, resolution of factual issues is for the trial court, and a

12
  We note, with disapproval, that the trial court’s docket fails to reflect that
Rule 236(b) notice was issued for any of the Orders entered in this case.


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      reviewing court will not disturb the trial court’s findings if they
      are supported by competent evidence. It is not enough that we,
      if sitting as a trial court, may have made a different finding.

Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003) (quotations

omitted). When evaluating a support order, this Court may only reverse the

trial court’s determination where the order cannot be sustained on any valid

ground.   R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013) (involving a

claim of paternity by estoppel).

      Appellant contends that the trial court failed to consider all of the

evidence in the case, and misapplied the law through the omission of

evidence. Appellant’s Brief at 13-14. Specifically, Appellant contends that

the trial court failed to consider the Consent Order naming R.C. as Child’s

father.   Id. at 13.   Appellant points out that R.C. signed Child’s birth

certificate and that Child bears R.C.’s surname. Id. at 15. Thus, Appellant

argues, R.C. is Child’s father by means of the doctrine of paternity by

estoppel. Id. at 11-12.

            Estoppel in paternity actions is merely the legal
      determination that because of a person’s conduct (e.g., holding
      out the child as his own, or supporting the child) that person,
      regardless of his true biological status, will not be permitted to
      deny parentage, nor will the child’s mother who has participated
      in this conduct be permitted to sue a third party for support,
      claiming that the third party is the true father.... [T]he doctrine
      of estoppel in paternity actions is aimed at “achieving fairness as
      between the parents by holding them, both mother and father,
      to their prior conduct regarding the paternity of the child.”




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Brinkley v. King, 701 A.2d 176, 180 n.5 (Pa. 1997) (emphasis and citation

omitted).   The doctrine of paternity by estoppel seeks to protect the

interests of the child. T.E.B. v. C.A.B., 74 A.3d 170, 173 (Pa. Super. 2013).

              Estoppel is based on the public policy that children should
      be secure in knowing who their parents are. If a certain person
      has acted as the parent and bonded with the child, the child
      should not be required to suffer the potentially damaging trauma
      that may come from being told that the father he had known all
      his life is not in fact his father.

Id. at 173 (citation omitted).

      The doctrine has most usually been applied either to (1) preclude a

man who had held a child out as his own from avoiding further support of

the child after his relationship with the mother had ended; or (2) preclude a

woman who had held one man out as her child’s father from seeking support

from another man later on. Id. at 174 (citation omitted).

      Paternity by estoppel will apply only where it can be shown, on a

developed record, that it is in the best interests of the involved child.

K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa. 2012). In R.K.J., the court, relying

on K.E.M., specifically recognized the following factors as relevant to the

child’s best interests in a support case involving an allegation of paternity by

estoppel:

      (1) a party cannot renounce an assumed duty of parentage
      when the innocent child would be victimized; (2) the law can
      prohibit a putative father from employing sanctions of the law to
      avoid the obligations that his assumed relationship with the child
      would impose; (3) the closeness of the child’s relationship to the

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      putative father; (4) the harm that would befall the child if the
      putative father’s parental status were to be disestablished; and
      (5) the need for continuity, financial support, and potential
      psychological security arising out of an established parent-child
      relationship.
R.K.J., 77 A.3d at 38.

      Here, in the Paternity Order, the trial court indicated, without

discussion, that it considered the testimony presented and the results of

genetic testing before determining that Appellant is both the biological and

legal father of Child. See Trial Court Order, 9/4/13, at ¶ 1. The trial court

failed to include any discussion reflecting either its consideration of

Appellant’s claim of paternity by estoppel, or the five factors identified in

R.K.J. as relevant to a determination of paternity when there is a question

of paternity by estoppel.13    Notably, no testimony was received by R.C.,

whom Appellant seeks to establish, through estoppel, is Child’s father.14


13
   In its February 10, 2014 Order, the trial court observed that its prior
determination that Appellant is the biological and legal father of Child was
based on “extensive testimony and other evidence presented in the course
of the hearing” and “the results of genetic testing that established to a high
degree of scientific probability that Appellant is the biological parent of
Child.” See Trial Court Order, 2/10/14, at 2. The trial court also noted that
it had reviewed the Virginia court Orders. Id. Finally, the trial court
indicated, without discussion, that “the record contains evidence which bears
upon the biological, social and emotional relationships between Child and the
various father figures in [C]hild’s life, and it includes evidence sufficient to
support the making of findings in respect to [C]hild’s best interest.” Id.
While this Order references a broader basis for the trial court’s determination
than was indicated in the Paternity Order, the trial court nevertheless failed
to discuss either the claim of paternity by estoppel or the five factors
identified in R.K.J.
14
  As noted by the Court in K.E.M., “absent undue hardship or impossibility,
we do not believe a court should dismiss a support claim against a purported
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Thus, we remand the matter to the trial court to consider the five factors

identified in R.K.J.15

      Order reversed.     Case remanded for further proceedings consistent

with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2014




biological father based on an estoppel theory vesting legal parenthood in
another man without the latter being brought before the court at least as a
witness.” K.E.M., 38 A.3d at 809.
15
   We recognize that the trial court may need to take additional evidence
and/or conduct further hearings in order to properly consider the five factors
identified in R.K.J. Moreover, the trial court has the authority to appoint a
guardian ad litem to advocate Child’s best interests in concrete terms. See
K.E.M., 38 A.3d at 809.
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