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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.J.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

M.C. AND D.T.

Appeal of M.C.                                         No. 412 EDA 2014


                    Appeal from the Order January 27, 2014
               In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 12-09900



J.J.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

M.C. AND D.T.

Appeal of D.T.                                         No. 416 EDA 2014


                    Appeal from the Order January 27, 2014
               In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 12-0990

BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 09, 2015

        In these consolidated appeals,1 we consider whether the circumstances

of an extramarital affair are sufficient to find that an existing marriage is not
____________________________________________


1
    We consolidated these appeals sua sponte.
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an “intact marriage” for purposes of the longstanding common law

presumption of paternity. The trial court, the Honorable Barry C. Dozor,

Court of Common Pleas of Delaware County, concluded that the presumption

is inapplicable as there was no intact marriage at the time of the challenge

to husband’s paternity. Finding no abuse of discretion, we affirm.

      For ease of reading, M.C. is the wife; D.T. is the husband; and J.J. is

the paramour. M.C. and D.T. are legally married and have been since June

21, 2007. P.T. was born September, 2012, and D.T. is listed as the father on

the birth certificate. Prior to P.T.’s birth, M.C. engaged in a prolonged

extramarital affair with J.J.

      M.C. and J.J. began communicating online in June 2011. In July, the

pair started a physical affair. She informed him that she was separated from

her husband. That summer the couple vacationed together along with his

family and she told them that the two of them were dating. The relationship

continued and she even, on occasion, spent the night at the home of J.J.’s

mother, leaving for work from there in the morning. M.C. introduced J.J. to

her family and friends. As of Labor Day 2011, M.C. informed J.J. that she

was pregnant. She never informed her husband of the pregnancy. J.J. held

himself out to their friends and family as the father.

      That September the couple leased an apartment together where she

spent three to four nights per week. In October, M.C. miscarried. At that

time, she did not tell J.J. of the miscarriage. She then became pregnant


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again. At the time of her conception, she was having sex with both J.J. and

D.T. Both men knew about this pregnancy, but not of each other.

      By late winter or early spring of 2012, M.C. informed J.J.’s family that

she was separated from her husband. In March 2012, M.C. told J.J. that her

divorce was finalized. J.J.’s family held a baby shower for her. So did D.T.’s

family. In April, M.C. and J.J. had sex in her marital home. The plan was for

J.J. to move into M.C.’s home and the couple ended their lease on the

apartment in May. M.C. spent Mother’s Day with J.J. Also in May, J.J. called

D.T. and asked what the status of his relationship was with M.C. D.T. told

J.J. that they were still married and expecting a child.

      In June, J.J. learned, in a motel room, about the miscarriage, but M.C.

still claimed to be divorced and assured him the child was his. J.J. attended

OB/GYN appointments. When P.T. was born September, 2012, J.J. and his

family arrived at the hospital, but were denied access to the child.

      D.T. testified that he did not see his wife often because she had a

demanding job (M.C. is a registered nurse), friends, and familial obligations,

but that the couple usually spent time together during holidays. M.C. did not

tell him about the miscarriage until January 2013. Both M.C. and D.T.

maintained that the marriage is intact.

      After M.C.’s refusal to permit J.J. contact with the child, his counsel

sent a certified letter to M.C., shortly thereafter demanding contact with the

child. Denied contact with the child, J.J. filed a complaint to establish


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paternity on December 6, 2012. In preparation for a pretrial conference,

M.C. filed a petition to strike any references to a paternity test previously

obtained by J.J. and M.C. D.T. filed a petition to intervene. M.C. and D.T.

filed preliminary objections asserting that J.J. failed to state a claim for relief

in light of the presumption of paternity. The trial court granted M.C.’s motion

to strike the paternity test from the record and granted D.T.’s petition to

intervene. The trial court conducted a two-day hearing. On January 27,

2014, the trial court overruled the preliminary objections and granted J.J.’s

request for genetic testing. M.C. and D.T. timely filed their notices of appeal

and M.C. moved to stay the order pending the outcome of this appeal.

      On appeal, M.C. and D.T. argue that the trial court erred in refusing to

apply the presumption of paternity. We disagree.

      That a child conceived or born during a marriage is presumed to be a

child of the marriage “is one of the strongest presumptions of the law of

Pennsylvania.” CW v. LV, 788 A.2d 1002, 1005 (Pa. Super. 2001) (citation

omitted). See also Strauser v. Stahr, 726 A.2d 1052, 1053-1054 (Pa.

1999). The preservation of marriages is the purpose of the presumption of

paternity. See Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999). The

presumption renders blood test results irrelevant unless and until the

presumption is overcome. See Strauser, 726 A.2d at 1054. “[T]he

presumption is irrebuttable when a third party seeks to assert his own

paternity as against the husband in an intact marriage.” CW, 788 A.2d at


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1005 (citation omitted). See also K.E.M. v. P.C.S., 38 A.3d 798, 806-807

(Pa. 2012) (“As to the presumption of paternity, we note only that recent

Pennsylvania decisions have relegated it to a substantially more limited role,

by narrowing its application to situations in which the underlying policies will

be    advanced   (centrally,   where   there   is   an    intact   marriage   to   be

protected).”); Strauser, 726 A.2d at 1054.

       The relevant time to examine whether the marriage is intact is at the

time of the challenge to a husband’s paternity.          See, e.g., Strauser, 726

A.2d at 1054; Vargo v. Schwartz, 940 A.2d 459, 463 (Pa. Super. 2007).

This is a question for the fact-finder. See id., at 467 (“Whether the family is

intact and there is a marriage to preserve are questions of fact, which, like

all questions of fact, fall squarely within the realm of the fact-finder.”).

       The disposition of this appeal turns on whether M.C. and D.T. had an

intact marriage at the time of the challenge to husband’s paternity. We

stress that the trial court observed the witnesses in person at the two-day

hearing. The trial court methodically reviewed the testimony presented

during the two-day hearing, see Amended Opinion, 2/25/14, at 1-17, and

determined that M.C. and D.T. testified without any credibility. See id., at

25.

       The trial court found that M.C.’s testimony about having an intact

marriage “at any time suggested by the defense [i.e., M.C. and D.T.] had no

credibility or any plausibility of truth.” Id. (emphasis added). The trial court


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characterized D.T.’s testimony as to whether there was an intact marriage as

“doubtful, not reasonable to believe, incomprehensible and beyond the realm

of plausibility.” Id. The trial court found that the marriage at the time of the

challenge to husband’s paternity (and before that as well) was a sham. The

trial court disbelieved the assertions of reconciliation. It was well within the

trial court’s discretion to make these findings. See Vargo. We are bound by

the trial court’s credibility determinations, which we cannot disturb by simply

reading a cold record.

      Based on the findings, the presumption of paternity simply has no

application in this case—there was no intact marriage. Accordingly, we affirm

the orders overruling the preliminary objections and granting the request for

genetic testing.

      Orders affirmed. Jurisdiction relinquished.

      President Judge Gantman joins in the memorandum.

      Judge Stabile files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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