J-S25041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 Y.E.                                     :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellee             :
                                          :
               v.                         :
                                          :
 R.M.M.                                   :
                                          :
                     Appellant            :       No. 1940 MDA 2019

                Appeal from the Order Entered October 25, 2019
               In the Court of Common Pleas of Lancaster County
                   Domestic Relations at No(s): 2019-00171,
                              PACSES: 917116061


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.:                                FILED JULY 29, 2020

        Appellant, R.M.M., appeals from the order entered in the Lancaster

County Court of Common Pleas, which found Appellant to be the father of S.M.

(“Child”) via the doctrine of paternity by estoppel and ordered Appellant to

pay child support and arrears to Appellee, Y.E. For the following reasons, we

reverse.

        The relevant facts and procedural history of this case are as follows.

The parties married in March 1996. Appellee gave birth to Child in March

2016.      Following Child’s birth, Appellant signed an acknowledgment of

paternity form. The parties separated shortly thereafter in June 2016, and

divorced in October 2018. The parties continued to live together, however,

until February 2019. On January 23, 2019, Appellee filed a pro se complaint

for child support against Appellant. Following a support conference before a
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domestic relations officer on February 22, 2019, the court entered an interim

order on March 1, 2019, requiring Appellant to pay Appellee $529.15 per

month in child support, plus $52.00 per month in arrears.               Appellant

subsequently filed a pro se appeal for a trial de novo, and the court scheduled

a de novo support hearing for July 12, 2019.

      At the July 12th hearing, Appellant contested his paternity of Child. A

Spanish interpreter was present at the hearing and provided translation

services for both Appellant and Appellee. Appellant testified that the hospital

employee who had him sign the acknowledgement of paternity form only

spoke English and did not explain the significance of the form to him. (See

N.T. Hearing, 7/12/19, at 7). Appellant explained that it was difficult to tell if

Child was his at the time of her birth, but he later came to realize Child did

not resemble him as she grew older. (Id.) Appellant testified that he and

Appellee divorced in October 2018 because Appellee was “unfaithful.” (Id.).

Appellant explained that he and Appellee continued to live together until

February 2019, when Appellee changed the locks on their home. (Id. at 7-

8). Since their separation, Appellant stated that he has seen Child and has

taken her “to parks, to stores,” but clarified that he has “no authority

towards…[C]hild…because [Appellee] and her partner don’t allow it….” (Id. at

8).

      Appellee also testified at the hearing. Appellee stated that since their

separation, Appellant “doesn’t even go and see…[C]hild, nothing.” (Id. at 9).


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Appellee stated that in the past three months, Appellant has seen Child “[o]nly

a few” times. (Id. at 11). Appellee admitted that she does not have any

custody agreement with Appellant concerning Child.             (Id.)   Significantly,

Appellee agreed that Appellant is not Child’s biological father and explained

that Child’s biological father does not see Child. (Id. at 9-13).

        On July 18, 2019, the court entered an order requiring Appellant to

submit to a paternity test and scheduling an additional hearing following

receipt of the test results. On August 26, 2019, the DNA test result report

was filed. The report confirmed that Appellant is not Child’s biological father.

        The court held the follow-up hearing on October 22, 2019. The parties

appeared pro se and testified via an interpreter. At the hearing, Appellant

testified that he signed the acknowledgement of paternity form “[b]ecause

[Child] was born while we were married and [Appellant] wasn’t aware of what

was going on.” (See N.T. Hearing, 10/22/19, at 3). Appellant stated that he

sees Child “[a]lmost every weekend” for “eight to nine hours,” and that Child

calls Appellant “Papa.” (Id. at 3-5). Appellant further explained that although

Child’s biological father is not present in Child’s life, “the [biological] father

of…[C]hild lives in Lancaster also and it creates a lot of confusion….” (Id. at

8-9).

        Appellee testified that Child’s biological father knows he is Child’s father,

but that he is not involved in Child’s life and has never met Child. (Id. at 9-

10). Appellee further stated, “If [Appellant] doesn’t want to be responsible


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for [Child], the mandatory situation that she, [Child], has his last name, and

we can just erase it and we can get out of this problem.” (Id. at 11). Appellee

concluded that she would like the court to deem Appellant the father of Child

because he is a “good man” and a “good father.” (Id. at 12).

      Following the hearing, the court entered an order on October 25, 2019,

finding Appellant to be Child’s father via the doctrine of paternity by estoppel

and ordering Appellant to pay Appellee $495.74 per month in child support,

plus $49.00 per month in arrears. Appellant timely filed a notice of appeal on

November 22, 2019. On December 6, 2019, the court directed Appellant to

file a concise statement of errors complained of on appeal, per Pa.R.A.P.

1925(b); Appellant timely complied on January 3, 2020.

      Appellant raises one issue on appeal:

         Did the trial [c]ourt err in finding that paternity by estoppel
         is applicable in this case when both parties agree that
         Appellant is not the biological father of…[C]hild, when the
         identity of the biological father is known to both parties,
         when there is no intact marriage or family to defend, when
         Appellant established, by clear and convincing evidence,
         that he does not understand English and was not aware of
         the contents and the legal implications of the
         acknowledgment of paternity that he signed at the hospital
         following…[C]hild’s birth, when Appellant has not sought
         custody rights to…[C]hild, and when Appellant ceased to
         provide emotional and financial support for…[C]hild upon
         learning of Appellee’s deception?

(Appellant’s Brief at 7).

      Appellant argues the trial court erred in applying the doctrine of

paternity by estoppel. Appellant concedes that he acted as a parent to Child


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for the first three years of her life.    Nevertheless, Appellant insists that

Appellee misled him to believe he was Child’s biological father during this

period. Appellant asserts that he did not learn of Appellee’s deception until

Child grew older and did not bear a resemblance to Appellant.          Appellant

contends the DNA test provided unequivocal evidence that he is not Child’s

biological father.

      Appellant further avers that he and Appellee are now divorced and are

living separately. Appellant maintains that there is no intact marriage through

which Appellant should be recognized as Child’s father.            Furthermore,

Appellant alleges both he and Appellee know the identity of Child’s biological

father, and that Child’s biological father should be responsible for financially

supporting Child. Appellant concludes the trial court misapplied paternity by

estoppel in this case, and this Court must reverse the court’s order finding

Appellant to be Child’s father and requiring him to pay child support.       We

agree with Appellant’s position.

      In reviewing matters of child support and cases involving a question of

paternity, we will not disturb a trial court order absent an abuse of discretion.

Vargo v. Schwartz, 940 A.2d 459, 462 (Pa.Super. 2007).

         An abuse of discretion exists if the trial court has overridden
         or 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 reviewing court will not disturb the
         trial court’s findings if they are supported by competent
         evidence. It is not enough for reversal that we, if sitting as
         a trial court, may have made a different finding.


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

Further:

           “The finder of fact is entitled to weigh the evidence
           presented and assess its credibility.” Smith v. Smith, 904
           A.2d 15, 20 (Pa.Super. 2006). In so doing, the finder of
           fact “is free to believe all, part, or none of the evidence and
           we as an appellate court will not disturb the credibility
           determinations of the court below.” Id. (citation omitted).

Vargo, supra.

      “The presumption of paternity, i.e., the presumption that a child

conceived or born during a marriage is a child of the marriage, …is one of the

strongest presumptions known to the law.”          Id. at 463 (citation omitted).

Because the policy underlying the presumption is the preservation of

marriages, “the presumption of paternity applies only where the underlying

policy to preserve marriages would be advanced by application of the

presumption.” Id. (emphasis in original). Thus, the presumption of paternity

is not applicable when there is no longer an intact family or a marriage to

preserve. Id. If the presumption of paternity is inapplicable, the court must

then consider whether the doctrine of paternity by estoppel applies to the facts

of the case. Id. at 464.

           “Generally, estoppel in paternity issues is aimed at
           achieving fairness as between the parents by holding both
           mother and father to their prior conduct regarding paternity
           of the child.” Buccieri v. Campagna, 889 A.2d 1220, 1224
           (Pa.Super. 2005) (quoting Freedman v. McCandless, 539
           Pa. 584, 592, 654 A.2d 529, 533 (1995)). This Court has
           held that the principle of paternity by estoppel is well suited
           to cases where no presumption of paternity applies. Gulla
           v. Fitzpatrick, [596 A.2d 851, 858 (Pa.Super. 1991)]. The

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       number of months or years a party held out another as the
       father of a child is not determinative of an estoppel claim.
       Id. “Rather, it is the nature of the conduct and the effect
       on the father and the child and their relationship that is the
       proper focus of our attention.” Id.

       Estoppel has been used variously in cases involving
       paternity and support. See, e.g., Fish v. Behers, 559 Pa.
       523, 741 A.2d 721 (1999) (holding as between mother and
       biological father, mother was estopped from asserting
       paternity of biological father, where she repeatedly assured
       her ex-husband that he was child’s biological father);
       Moyer v. Gresh, 904 A.2d 958 (Pa.Super. 2006) (holding
       as between putative father and biological father, biological
       father was estopped from challenging paternity of putative
       father where putative father raised child for nine years);
       Buccieri, supra (holding biological father was estopped
       from asserting paternity due to eight-year delay in
       accepting any responsibility as parent); J.C. v. J.S., 826
       A.2d 1, 5 (Pa.Super. 2003)[, appeal denied, 576 Pa. 724,
       841 A.2d 531 (2003)] (holding putative father was estopped
       from denying paternity because he continued to act as
       child’s father after his paternity was disproved); Gulla,
       supra (holding as between mother and putative father,
       mother was estopped from denying paternity of putative
       father where she had held him out as child’s father). Even
       in the context of a marriage, the principle of estoppel can
       be applied if fraud occurs. See also Doran, supra (holding
       husband was not estopped from denying paternity of child
       born during husband’s marriage to mother, where she
       deceived him into believing he was child’s biological father);
       Kohler[ v. Bleem, 654 A.2d 569 (Pa.Super. 1995), appeal
       denied, 541 Pa. 652, 664 A.2d 541 (1995)] (holding
       biological father could not assert estoppel to prevent
       presumptive father from denying paternity, in light of
       conclusive      evidence     of   paternity,    fraud     and
       misrepresentation on issue of true identity of biological
       father, and absence of intact family).

                                *    *    *

       “Estoppel in paternity actions is based on the public policy
       that children should be secure in knowing who their parents
       are….” Gebler v. Gatti, 895 A.2d 1, 3 (Pa.Super. 2006)

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        (citing Brinkley v. King, 549 Pa. 241, 701 A.2d 176
        (1997)). “The doctrine is designed to protect the best
        interests of minor children by allowing them to ‘be secure in
        knowing who their parents are.’” Moyer, supra (internal
        citation omitted). The application of paternity by estoppel
        in any form is very fact specific and must be grounded in a
        close analysis of the circumstances of the case. Gebler,
        supra (citing T.L.F. v. D.W.T., 796 A.2d 358, 363
        (Pa.Super. 2002)); Matter of Green, [650 A.2d 1072, 1075
        (Pa.Super. 1994)]. The length of time involved is only one
        circumstance to be considered. Gulla, supra. This Court
        has also considered society’s concerns for stability in the
        child’s life, such as whether there is a stable family unit to
        preserve. Buccieri, supra. An additional factor is whether
        the child’s father “is willing to care [for the child]…and
        capable of doing so….” Moyer, supra at 963.

Conroy v. Rosenwald, 940 A.2d 409, 416-17 (Pa.Super. 2007).

     Instantly, in its Rule 1925(a) opinion, the trial court explained that it

reconsidered its original decision, and now agrees with Appellant that the

doctrine of paternity by estoppel does not apply here. The court reasoned:

        The facts presented to the court are difficult ones.
        [Appellant] has stood in the role of a father to…[C]hild for
        over three years. He loves…[C]hild, is called “papa” by
        …[C]hild, and spends time with…[C]hild.          [Appellee]
        believes he is a good man who has been a good father
        to…[C]hild. Do these facts require the court to declare
        [Appellant] to be …[C]hild’s father by estoppel?

        The child was born when the parties were married and living
        as an intact family,1 but they are no longer together and
        have no intention of reconciling. Not only was…[C]hild born
        during the marriage, but [Appellant] signed an
        acknowledgement of paternity. [Appellant] was credible in
        his testimony that he was both unaware of the contents of
        the acknowledgement of paternity and of the fact
        that…[C]hild was not his.       Title 23 Pa.C.S.A. § 5103
        provides:

           (2)   After   the   expiration   of   the   60   days,   an

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          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)(2). [Appellant] has established by
       clear and convincing evidence that he does not understand
       English and was not aware of the contents of the
       acknowledgement he signed, as well as that he was
       [un]aware of the child not being his. Based upon these
       facts, the court finds he signed the acknowledgment based
       on a mistake of fact and permits him to revoke it. That,
       however, does not end the analysis. The court must
       determine if [Appellant] should be declared the child’s father
       by estoppel.

          1The presumption of paternity applies to situations in
          which there is an intact marriage to be protected.
          Such is not the case here.

       …Here…there is no intact marriage through which
       [Appellant], as the husband of [Appellee], should be
       recognized as her child’s father. Since separation, though
       he has seen…[C]hild, [Appellant] has not sought custody
       rights to…[C]hild. There is no tie he has with…[C]hild other
       than his good will towards her.

       …[Appellant] had acted as father to…[C]hild for three years
       prior to his separation from [Appellee]. Once separated, he
       continued to occasionally see…[C]hild, but never for an
       overnight. …[C]hild’s biological father, while playing no role
       in her life presently, is known within the community and
       known to both [Appellee] and [Appellant]. The court must
       determine, on the facts provided, whether declaring
       [Appellant] to be…[C]hild’s father by estoppel is in…[C]hild’s
       best interest.

                                *    *    *

       The legal fiction of paternity by estoppel retains its greatest
       force where there is truly an intact family. That is not the
       case between the parties. …[C]hild was fortunate to have

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           [Appellant] step in as a father figure for the first three years
           of her life, but the obligation of support and responsibility of
           fatherhood must lie with the biological father. Upon careful
           reconsideration, the court believes it erred to declare
           [Appellant] to be…[C]hild’s father by estoppel.

(See Trial Court Opinion, filed December 18, 2019, at 3-6). We agree with

the court’s analysis.

         The record here shows that the parties married in 1996. Around the

time of Child’s conception, Appellee engaged in an extramarital affair.

Appellee did not inform Appellant of the affair. In March 2016, Appellee gave

birth to Child, and Appellant signed an acknowledgment of paternity form

believing he was Child’s biological father. For the next few years, Appellant

treated Child as his own. The parties divorced in October 2018, and Appellant

moved out of the marital home in February 2019, after Appellee changed the

locks.     Since their separation, Appellant has continued to see Child on

occasion, but has not sought custody or otherwise attempted to maintain his

parental role in Child’s life. Additionally, there is no evidence that the parties

intend to reconcile.

         As there is no intact family unit to preserve, the presumption of

paternity does not apply in this case. See Vargo, supra. Under the facts of

this case, the doctrine of paternity by estoppel is also inapplicable. See N.C.

v. M.H., 923 A.2d 499 (Pa.Super. 2007) (holding doctrine of paternity by

estoppel was inapplicable where appellant operated for over ten years under

false pretense that he was child’s father due to mother’s failure to inform



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appellant of extramarital affair she had around time of child’s conception);

Gebler, supra (holding trial court erred in applying doctrine of paternity by

estoppel where appellant’s behavior as responsible father for first eighteen

months of child’s life was due to mother’s concealment of existence of other

sexual partners around time of child’s conception). Based upon the foregoing,

we reverse the order finding Appellant to be Child’s father via the doctrine of

paternity by estoppel and requiring Appellant to pay child support.

      Order reversed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/29/2020




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