J-A30038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.S.M.                                :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                  Appellant           :
                                      :
            v.                        :
                                      :
E.M.S.                                :
                                      :
                  Appellee            :   No. 1151 MDA 2016

                 Appeal from the Order Entered June 10, 2016
                 in the Court of Common Pleas of York County
                     Civil Division at No: 2016-FC-366-23

BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 24, 2017

      A.S.M. (“Father”) appeals from the order entered June 10, 2016, in the

Court of Common Pleas of York County, which denied his complaint to

disestablish paternity and for genetic testing with respect to his minor male

child, B.P.M. (“Child”), born in September 2007.      After careful review, we

affirm.

      We summarize the relevant factual and procedural history of this

matter as follows. Father and Mother were never married, but dated from

approximately 2006 to 2008. N.T., 6/9/16, at 5-6, 13, 32. Father executed

an acknowledgment of paternity form at or near the time of Child’s birth,

and became Child’s legal father.    Id. at 20, 35, 55.    The record does not

reveal that Father made any effort to rescind the acknowledgment of

paternity, or to challenge his paternity of Child in any way, until Mother filed
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for child support in 2010.    Id. at 19; Defendant’s Exhibit 2 (“Summary of

Trier of Fact” prepared by support conference officer) at 2. According to the

parties’ child support order, dated April 5, 2010, Father and Mother

“agree[d] to    private   paternity   testing at the   expense   of [Father].”

Defendant’s Exhibit 1 (child support order) at 3. However, the record does

not indicate that a paternity test was ever conducted.

      On March 1, 2016, Father filed a complaint to disestablish paternity

and for genetic testing. Father attached to his complaint a copy of what he

averred was a paternity test indicating that another man, R.F., is the

biological father of Child.   The trial court conducted a hearing on June 9,

2016. Following the hearing, on June 10, 2016, the court entered an order

denying Father’s complaint.    Father filed a motion for additional testimony

on June 10, 2016, which the court denied by order entered June 14, 2016.

Father timely filed a notice of appeal on July 8, 2016, along with a concise

statement of errors complained of on appeal.        Then, on July 21, 2016,

Father filed a motion to vacate order and second motion for additional

testimony. The court denied this motion on August 1, 2016. Father did not

file a notice of appeal from the order denying this latter motion.

      Father raises three issues for our review, which we have reordered for

ease of disposition.

      [I.] Whether the [trial] court erred as a matter of law when it
      failed to apply the standard to challenge an acknowledgement of
      paternity as set forth in 23 Pa.C.S.[A.] § 5103, providing that an


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     acknowledgement may only be challenged on the basis of fraud,
     duress or material mistake of fact?

     [II.] Whether the [trial] court abused its discretion or committed
     an error of law in its decision dated June 10, 2016, denying
     [Father’s] request for a Paternity Test, in that a previous order
     entered by the York County Court of Common Pleas in the
     Domestic Relations matter, regarding the same parties and the
     same subject minor child, allowed for [Father] to obtain the
     Paternity Test at his cost, with which [Mother] failed to comply?

     III. Whether the [trial] court erred as a matter of law and
     abused its discretion in denying [Father’s] Motion for Additional
     Testimony as well as [Father’s] Motion to Vacate Order and
     Second Motion for Additional Testimony?

Father’s Brief at 7 (suggested answers omitted).

     We consider Father’s claims mindful of our well-settled standard of

review.

     [W]e review the trial court's order for an abuse of discretion or
     error of law. Abuse of discretion exists where the trial court
     overrides or misapplies the law, or if there is insufficient
     evidence to sustain its order. We will not disturb the trial court's
     findings if they are supported by competent evidence, and may
     not reverse simply because we might have made a different
     finding.

R.W.E. v. A.B.K., 961 A.2d 161, 165-66 (Pa. Super. 2008) (citations

omitted).

     Pursuant to 23 Pa.C.S.A. § 5103(a), the father of a child born out of

wedlock     may   file   an   acknowledgement   of   paternity   form   with   the




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Pennsylvania Department of Human Services.1               If the child’s mother

consents to the acknowledgment of paternity, Section 5103(a) provides that

“the father shall have all the rights and duties as to the child which he would

have had if he had been married to the mother at the time of the birth of the

child[.]” 23 Pa.C.S.A. § 5103(a). “Notwithstanding any other provision of

law, an acknowledgment of paternity shall constitute conclusive evidence of

paternity without further judicial ratification in any action to establish

support.” 23 Pa.C.S.A. § 5103(d).

       Section 5103(g) provides that an acknowledgement of paternity may

only be rescinded under certain limited circumstances.

       (g) Rescission.—

              (1) Notwithstanding any other provision of law, a
              signed, voluntary, witnessed acknowledgment of
              paternity subject to 18 Pa.C.S. § 4904 shall be
              considered a legal finding of paternity, subject to the
              right of any signatory to rescind the acknowledgment
              within the earlier of the following:

                      (i) sixty days; or

                      (ii) the date of an administrative or
                      judicial proceeding relating to the child,
                      including, but not limited to, a domestic
                      relations section conference or a
                      proceeding to establish a support order
                      in which the signatory is a party.

____________________________________________


1
  Section 5103(a) refers to the “Department of Public Welfare,” which was
renamed the “Department of Human Services” effective November 24, 2014.
See 62 P.S. § 103.



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           (2) After the expiration of the 60 days, an
           acknowledgment of paternity may be challenged in
           court only on the basis of fraud, duress or
           material mistake of fact, which must be
           established by the challenger through clear and
           convincing evidence. An order for support shall not
           be suspended during the period of challenge except
           for good cause shown.

23 Pa.C.S.A. § 5103(g) (emphasis added).

     For the purposes of rescinding an acknowledgment of paternity, fraud

consists of the following elements.       “(1) a misrepresentation, (2) a

fraudulent utterance thereof, (3) an intention by the maker that the

recipient will thereby be induced to act, (4) justifiable reliance by the

recipient upon the misrepresentation, and (5) damage to the recipient as the

proximate result.” R.W.E., 961 A.2d at 167 (quoting B.O. v. C.O., 590 A.2d

313, 315 (Pa. Super. 1991)).

     A misrepresentation need not be an actual statement; it can be
     manifest in the form of silence or failure to disclose relevant
     information when good faith requires disclosure.        Fraud is
     practiced when deception of another to his damage is brought
     about by a misrepresentation of fact or by silence when good
     faith required expression.          Fraud comprises anything
     calculated to deceive, whether by single act or combination, or
     by suppression of truth, or suggestion of what is false, whether
     by direct falsehood or innuendo, by speech or silence, word of
     mouth, or look or gesture.

Id. at 167-68 (quoting Glover v. Severino, 946 A.2d 710, 713 (Pa. Super.

2008)) (emphasis in original).

     In his first issue, Father argues that the trial court erred by failing to

apply the standard set forth at Section 5103(g). Father’s Brief at 12, 16-20.

Father argues that Mother engaged in fraud by omission by failing to notify

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him that he may not be Child’s biological father, and that he was operating

under a material mistake of fact, in that he believed that he was Child’s

biological father. Id. at 18-19. Father contends that the court would have

granted his complaint to disestablish paternity if it had applied Section

5103(g) correctly. Id. at 19.

      In its opinion accompanying the order on appeal, the trial court

considered whether Father executed the acknowledgement of paternity as a

result of “fraud, coercion, or mutual [sic] mistake of fact.”      Trial Court

Opinion, 6/10/2016, at 4.       The court concluded that none of these was

present, as Father knew that he may not be Child’s biological father when

the acknowledgment was signed.        Id.   Specifically, the court found that

Mother and Father discussed the possibility that Father may not be Child’s

biological father at the time Child was born, and “the fact that the issue of

paternity came up at all shortly after the birth of [Child] would be an

indicator that [Father] had some sincere doubts as to the paternity of the

child[.]”   Id. at 4-5. The court also noted that Father raised the issue of

paternity during the 2010 support conference, which “would be yet another

indicator of [Father’s] doubts as to paternity.” Id. at 5.

      After carefully examining the record in this matter, we conclude that

the trial court did not abuse its discretion. Father testified during the June

9, 2016 hearing that he had no idea that he might not be Child’s biological

father prior to Child’s birth. N.T., 6/9/16, at 6. Curiously, however, Father

reported that the subject of paternity came up almost immediately after

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Child was born. Father recalled, “[Mother] had clearly stated to me during

the birth of the child that when the nurse had brought out the paperwork, if

I did not sign the paperwork, and if I requested paternity testing, that she

would leave with the child and take me to Court at that time for support.”

Id. at 6. Father further testified, “I remember it. Clearly it was stated to

me. If I do not sign acknowledgment of paternity, she will take the child --

my child is what she said, and leave and take me to Court at that time.” Id.

at 18.

         In addition, Mother testified that she did not know who Child’s

biological father was at the time he was born. Id. at 36. Mother stated, “I

never said that [Father] was without a shadow of a doubt [Child’s] father.

He knew which is obviously why he has been questioning paternity since day

one.” Id. Mother reported that she and Father broke up for about three or

four weeks around the time Child was conceived. Id. at 36, 39. According

to Mother, Father knew that she had been dating R.F. during that time, as

evidenced by a “confrontation” that took place between R.F. and Father. Id.

at 40.     Mother acknowledged that she could “not recall having a specific

conversation” with Father regarding his paternity of Child.       Id. at 37.

However, Mother explained, “I think it came up in arguments. It was never

a direct conversation regarding someone else being the father of the child.

It was typically something that was thrown out in arguments.” Id. at 41.

         Accordingly, the record supports the finding of the trial court that

Mother and Father discussed Father’s paternity of Child at or near the time

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Child was born, and that Father “had some sincere doubts” that he was

Child’s biological father.   Trial Court Opinion, 6/10/2016, at 5.      Indeed,

Father’s own testimony strongly supports this finding, as he testified

discussing the possibility of a paternity test with Mother “during the birth of

the child.” N.T., 6/9/16, at 6. Given that Father was aware that he may not

be Child’s biological father at the time of Child’s birth, Father has failed to

prove that he executed the acknowledgment of paternity as a result of fraud,

duress, or a material mistake of fact.

      In his second issue, Father argues that the trial court erred or abused

its discretion by failing to direct that he is entitled to a paternity test

pursuant to the April 5, 2010 support order. Father’s Brief at 11-12, 14-16.

Father contends that the court failed to provide a valid reason for declining

to enforce the 2010 order, and that by doing so the court risked

“encourag[ing] the general public to ignore orders.”       Id. at 15.    Father

suggests that, “[a]s public policy, the Court should enforce all prior orders of

court, absent any previous abuse of discretion or invalid orders.” Id. at 16.

      The trial court only briefly addressed this claim in its opinion pursuant

to Pa.R.A.P. 1925(a). The court explained, “While [Father] testified that he

asked for paternity testing at some point in 2010, testimony indicated that

he did not pursue testing.” Trial Court Opinion, 7/25/2016, at 2.

      Initially, we note that Father’s claim is underdeveloped. Father does

not direct our attention to any authority indicating that the trial court was

obligated to order a paternity test pursuant to the 2010 order.          Father

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merely cites case law providing that courts have the ability to enforce their

own orders. See id. at 14 (citing Davin v. Davin, 842 A.2d 469, 472 (Pa.

Super. 2004); Lindsey v. Lindsey, 492 A.2d 396, 398 (Pa. Super. 1985)).

Thus, Father has waived this issue. See In re W.H., 25 A.3d 330, 339 n.3

(Pa. Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011) (quoting In re

A.C., 991 A.2d 884, 897 (Pa. Super. 2010)) (“‘[W]here an appellate brief

fails to provide any discussion of a claim with citation to relevant authority

or fails to develop the issue in any other meaningful fashion capable of

review, that claim is waived.”’).

      Moreover, even addressing Father’s claim on the merits, he still is not

entitled to relief. As explained above, Section 5103(g) provides that Father

may only rescind the acknowledgment of paternity by proving fraud, duress,

or a material mistake of fact by clear and convincing evidence. 23 Pa.C.S.A.

§ 5103(g). Even if Father were to obtain a paternity test showing that he is

not Child’s biological father, such a test would fail to satisfy the

requirements of Section 5103(g), and Father would remain Child’s legal

father. Cf. Lynn v. Powell, 809 A.2d 927, 929-30 (Pa. Super. 2002) (citing

McConnell v. Berkheimer, 781 A.2d 206, 210 (Pa. Super. 2001))

(explaining in the context of paternity by estoppel that “the law does not

allow a person to challenge his role as a parent once he has accepted it,

even with contrary DNA and blood tests”).

      Finally, in his third issue, Father argues that the trial court erred and

abused its discretion by denying Father’s motion for additional testimony, as

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well as Father’s motion to vacate order and second motion for additional

testimony. Father’s Brief at 12-13, 21-25.

     [T]he general rule is that a court may, in its discretion, reopen
     the case after a party has closed for the taking of additional
     testimony, but such matters are peculiarly within the sound
     discretion of the trial court . . . . Such a ruling will be disturbed
     only if the court has abused its discretion. However, a case
     should ordinarily be reopened where it is desirable that further
     testimony be taken in the interest of a more accurate
     adjudication and where an honest purpose would be justly
     served without unfair disadvantage.

Beaumont v. ETL Services, Inc., 761 A.2d 166, 168 (Pa. Super. 2000)

(quoting Beneshunas v. Independence Life & Accident Insurance Co.,

512 A.2d 6, 9 (Pa. Super. 1986)) (citations and quotation marks omitted)

(emphasis omitted).

     Here, Father explains that he intended to call Mother’s ex-husband,

M.D., as a witness during the hearing on June 9, 2016. Id. at 21. However,

Father   contends   that   Mother   prevented   him   from   calling   M.D.   by

“orchestrat[ing] a series of events” which caused M.D. to be incarcerated

due to an alleged parole violation the evening prior to the hearing. Id. at

21-23.   Father insists that M.D. would have testified that Mother “made

statements to him that she had intentionally misled [Father] into believing

that he was the father of the child,” and that this testimony would help

demonstrate that Mother perpetrated a fraud upon Father. Id. at 23.

     In its orders denying Father’s motions for additional testimony, the

trial court explained that it denied Father’s complaint to disestablish

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paternity based on “conversations that took place” between Mother and

Father, and that any additional testimony presented by M.D. would not have

changed the result in this case.     Order, 6/14/16, at 1; see also Order,

8/1/16, at 2.

          With respect to Father’s first motion for additional testimony, we

observe that Father did not allege in that motion that Mother was

responsible for preventing M.D. from testifying, nor did Father explain why

he believed that M.D.’s testimony would change the trial court’s findings in

this case. Instead, Father indicated merely that M.D. is a “key witness,” and

that he was unable to testify due to being recently incarcerated. Motion for

Additional Testimony, 6/10/2016, at ¶ 3-7.         We discern no abuse of

discretion by the court in denying this motion given Father’s failure to

articulate any clear reason to reopen the record.       Further, as discussed

above, Father’s own testimony strongly supports the finding of the trial court

that Father had sincere doubts as to his paternity of Child at the time Child

was born. It was within the court’s discretion to conclude that any additional

testimony presented by M.D. would not have caused it to reach a different

result.

      With respect to Father’s motion to vacate order and second motion for

additional testimony, this motion was not filed until July 21, 2016, long after

Father filed his notice of appeal on July 8, 2016, and the thirty-day appeal

period expired on July 11, 2016. Our review of the record does not indicate


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that Father filed a notice of appeal from the order denying this latter motion.

Thus, that order is not presently before this Court.

      Based on the foregoing, we conclude that the trial court did not abuse

its discretion by denying Father’s complaint to disestablish paternity and for

genetic testing. Accordingly, we affirm the order of the trial court.

      Order affirmed.

      Judge Olson joins this memorandum.

      Judge Bowes files a concurring memorandum.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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