J-E02010-15
J-E02011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Entered January 28, 2014
               In the Court of Common Pleas of Delaware County
                         Civil Division at No: 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 Entered January 28, 2014
               In the Court of Common Pleas of Delaware County
                         Civil Division at No: 12-09900


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
        SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.*


____________________________________________


*
    Judge Allen did not participate in this decision.
J-E02010-15
J-E02011-15


DISSENTING MEMORANDUM BY STABILE, J.:             FILED OCTOBER 14, 2015

      I must respectfully dissent from the Majority’s decision because (a)

J.J., the party with the burden of proof, produced no evidence to challenge

whether the marriage between M.C. and D.T. was not intact as of the time of

his paternity challenge, and (b) the record contains uncontradicted evidence

that M.C. and D.T. remained married, were living together, and were raising

the child as a child of the marriage at the time of J.J.’s paternity challenge.

Binding precedent from our Supreme Court dictates that the relevant inquiry

is as of the time of the paternity challenge, and therefore, the

presumption applies in this case and is irrebuttable. Strauser v. Stahr,

726 A.2d 1052, 1053 (Pa. 1999). The En Banc Majority, in an unpublished

memorandum, has afforded the trial court in this case unreviewable

discretion to disregard uncontradicted facts and, along with them, an

irrebuttable presumption.    I disagree and would reverse the trial court’s

order.

      The pertinent facts are as follows. M.C. and D.T. are legally married

and have been since June 21, 2007.           Minor Child P.T. was born on

September 8, 2012, and D.T. is listed as P.T.’s father on P.T.’s birth

certificate. As explained in the Majority’s Memorandum, M.C. engaged in an

extensive extramarital affair with J.J. that continued through the time of

P.T.’s conception.    While the trial court chronicled in detail the

extramarital events between J.J. and M.C. leading up to the time of


                                     -2-
J-E02010-15
J-E02011-15

P.T.’s birth, the trial court found no facts to support similar conduct

as of the time of P.T.’s birth and J.J.’s paternity challenge. To the

contrary, the uncontradicted record established that, since P.T.’s

birth, M.C. and D.T. have remained married, are living together, and

together are raising P.T. as their child. Under binding precedent that

the Majority and the trial court have ignored, these facts trigger an

irrebuttable presumption that M.C. and D.T. are P.T.’s parents.

       The trial court’s disregard of controlling precedent and uncontradicted

facts culminated in the January 27, 2014 order directing M.C., D.T., J.J. and

Minor Child P.T. to undergo genetic testing.1                M.C.’s deplorable and

duplicitous conduct prior to P.T.’s birth and J.J.’s paternity challenge does

not justify the Majority’s decision to ignore the irrebuttable presumption of

paternity under the guise of deference to trial court fact finding.

       Our   Supreme      Court addressed the          irrebuttable   presumption of

paternity doctrine in Strauser. There, the appellant putative father sought

to establish paternity of a girl born to appellee mother during her marriage.

Strauser, 726 A.2d at 1052-53.                 Appellee mother remained married to

appellee husband throughout the litigation.              Id. at 1053.    Blood tests

indicated a 99.99% probability of appellant’s fatherhood. Id. The appellant

____________________________________________


1
  An order directing or denying genetic testing to determine paternity is
immediately appealable. Barr v. Bartolo, 927 A.2d 635, 638-39 (Pa.
Super. 2007).



                                           -3-
J-E02010-15
J-E02011-15

alleged that appellee mother allowed him frequent visits with the child and

occasionally left her in the appellant’s care. Id. The appellees argued the

presumption of paternity barred the appellant’s paternity challenge.        The

Supreme Court wrote:          “The presumption at issue–that a child born to a

married woman is the child of the woman’s husband–has been one of the

strongest presumptions known to the law.” Id. at 1054. “Traditionally, the

presumption can be rebutted only by proof either that the husband was

physically incapable of fathering a child or that he did not have access to his

wife during the period of conception.” Id.

             Thus, it has been held that, where the presumption
       applies, blood test results (existing or potential) are irrelevant
       unless and until the presumption has been overcome. It has
       also been held that, in one particular situation, no amount
       of evidence can overcome the presumption: where the
       family (mother, child, and husband/presumptive father)
       remains intact at the time that the husband’s paternity is
       challenged, the presumption is irrebuttable. This is such a
       case.

Id. (emphasis added).            “This presumption arose (a) to protect marital

integrity and (b) to prevent a child from being labeled a ‘bastard’ child, a

classification that carried both a social and a legal2 stigma.”    Brinkley v.

____________________________________________


2
   At common law, children born out of wedlock could not inherit from their
fathers and had no right of support from their fathers. Brinkley, 701 A.2d
at 184 n.3. The legal disadvantages to children born out of wedlock have
been eliminated by statute. 23 Pa.C.S.A. § 5102 (“All children shall be
legitimate irrespective of the marital status of their parents, and, in every
case where children are born out of wedlock, they shall enjoy all the rights
and privileges as if they had been born during the wedlock of their parents
(Footnote Continued Next Page)


                                           -4-
J-E02010-15
J-E02011-15

King, 701 A.2d 176, 184 (Pa. 1997) (plurality) (Newman, J. concurring and

dissenting). “The public policy in support of the presumption of paternity is

the concern that marriages which function as family units should not be

destroyed by disputes over the parentage of children conceived or born

during the marriage.” Id. at 180 (Flaherty, C.J., announcing the judgment

of the Court). “Third parties should not be allowed to attack the integrity of

a functioning marital unit, and members of that unit should not be allowed

to deny their identities as parents.” Id.

      In Strauser, the appellant argued the presumption should not apply

because appellees’ ongoing marriage was not loving and intimate and

existed in “name only.”          Strauser, 726 A.2d at 1056.   In other words,

appellees’ conduct evinced the absence of a functioning marital unit.        The

Supreme Court rejected that argument:

             While [a]ppellant’s assertions may be factual, they are not
      unique. To the contrary, they indicate that the marriage of
      Mother and Husband, like many, has encountered serious
      difficulties. It is in precisely this situation, as was suggested in
      [John M. v. Paula T., 571 A.2d 1380 (Pa. 1990), cert. denied,
      498 U.S. 850 (1990)] that the presumption of paternity
      serves its purpose by allowing husband and wife, despite
      past mistakes, to strengthen and protect their family.

Id. (emphasis added).



                       _______________________
(Footnote Continued)

except as otherwise provided in Title 20 (relating to decedents, estates and
fiduciaries).”).



                                            -5-
J-E02010-15
J-E02011-15

        Strauser plainly controls the outcome of this case. In Strauser, as

here, the husband and wife remained married at the time of the paternity

challenge. Even though the mother permitted the putative father to visit

and occasionally babysit the child, and even though the putative father

argued that the mother’s marriage continued in “name only,” the Strauser

Court applied the irrebuttable presumption.         Paternity disputes involving

children born to married couples always evince a marriage with a troubled

past.    The irrebuttable presumption of paternity exists precisely to protect

married couples from legal intrusion by a third party while the marital

reconciliation is ongoing. That is, the presumption exists to protect married

couples such as M.C. and D.T. from third-party paternity challenges while

they work to rebuild their marriage. The Strauser Court’s analysis leaves

no room for a trial court to disregard the presumption based on the court’s

assessment of the egregiousness of the couple’s infidelities prior to the time

of the paternity challenge. That is precisely what the trial court did in this

case.

        To facilitate the trial court’s action, the Majority would clothe the trial

court with effectively unreviewable discretion to find that no intact marriage

exists. Despite uncontradicted evidence that M.C. and D.T. remain married

and living together, the Majority allows the trial court to simply find the

married couple not credible and their reconciliation a sham.            Under the

Majority’s view, an appellate court must then rubber stamp the trial court’s


                                        -6-
J-E02010-15
J-E02011-15

credibility determinations in light of the couple’s infidelities that pre-date

their reconciliation and the paternity challenge to find that the irrebuttable

presumption of paternity no longer applies. Under this regime the centuries-

old policy of protecting married couples from the intrusion of third-party

paternity challenges exists only at the whim of the trial court judge.    Far

from standing as one of the strongest presumptions known to the law, the

irrebuttable presumption of paternity applies if and only if the trial court

deems it appropriate.

      The law does not support this result. The presumption of paternity is a

substantive presumption, and as such J.J. bore the burden of proving its

inapplicability.   C.W. v. L.V. and G.V., 788 A.2d 1002, 1006 (Pa. Super.

2001); Scott v. Mershon, 576 A.2d 67, 69-70 (Pa. Super. 1990). J.J. came

forward with no positive evidence to refute the facts that M.C. and D.T.

remained married at the time of P.T.’s birth and were living together and

raising P.T. as a child of the marriage as of the time of J.J.’s challenge.

Those facts are uncontradicted and they are fatal to J.J.’s paternity

challenge. Strauser. In the absence of any evidence by the moving party,

the trial court had no basis upon which to question the marriage between

M.C. and D.T.      Stated otherwise, the trial court’s doubts about M.C. and

D.T.’s credibility and sincerity were irrelevant to the applicability of the

irrebuttable presumption in this case because the party with the burden of




                                     -7-
J-E02010-15
J-E02011-15

proof offered no evidence to challenge the marriage as of the time of his

paternity challenge.

      Many cases in addition to Strauser support my conclusion. In E.W. v.

T.S. and C.S., 916 A.2d 1197 (Pa. Super. 2007), the putative father sought

custody of a child born during the marriage of husband and mother. Mother

had an affair with putative father during her marriage to husband, and she

was sexually active with both men throughout the time of conception. Id. at

1199-1200. Mother told both putative father and husband the child was his.

Id. at 1200. Husband was present at the birth and baptism and assumed all

parental duties.    Id.   Mother and husband never filed for divorce and

intended to continue their marriage.      Id.   This Court affirmed the order

dismissing putative father’s custody complaint because he could not

overcome the presumption.        Id. at 1206.     Citing Strauser, this Court

reasoned:   “[T]he Strauser Court recognized that in a situation where a

marriage into which a child is born continues and, despite marital problems,

the mother and her husband never separated and ‘have chosen to preserve

their marriage and to raise as a family the . . . children born to them. . .’ the

presumption continues to apply.” Id. at 1201 (internal citation omitted).

      Similarly, the same result was reached in C.W. where the mother and

husband never      separated, were     sexually active    during the    time   of

conception, the child was born during their marriage, husband was present




                                      -8-
J-E02010-15
J-E02011-15

at the child’s birth, husband was named father on the birth certificate, and

husband assumed parental responsibilities. C.W., 788 A.2d at 1006.

      In John M., the putative father had an affair with mother while she

was engaged to be married and the affair continued sporadically during the

marriage.   571 A.2d at 1381.     Putative father challenged paternity of the

couple’s second child.   Id.   The child was born into the marriage and the

couple remained married at the time of the challenge.         Id.   Blood tests

indicated a 97.47 percent probability that putative father fathered the

second child.   Id. at 1382.   Putative father sought custody and visitation,

and he sought to compel the husband to submit to blood testing. Id. The

trial court denied relief, but the Superior Court panel reversed. This Court

reasoned that the Uniform Act on Blood Tests To Determine Paternity,

currently codified at 23 Pa.C.S.A. § 5104, relaxed the presumption of

paternity and tipped the scales in favor of permitting putative father to

compel blood testing of the husband.           Id. at 1384.   This Court also

concluded the putative father had procedural and substantive due process

rights to establish his paternity. Id.

      The Supreme Court reversed, concluding that the Uniform Act on

Blood Tests did not permit a third party standing outside the marriage to

compel a married man to submit to blood tests. Id. at 1385.

            The Superior Court over-emphasized the rights and
      interests of the alleged father and minimized the rights and
      interests of others involved in and affected by its decision,
      namely the mother, her husband, the family unit and the

                                         -9-
J-E02010-15
J-E02011-15

       Commonwealth. When we factor in those rights and interests,
       we find that the scales weigh heavily in this case in favor of
       appellants and against court-ordered blood tests.

                                       […]

       There is, in short, a family involved here. A woman and a man
       who have married and lived together as husband and wife,
       giving birth to and raising four children, have obvious interests in
       protecting their family from the unwanted intrusions of outsiders
       (even ones who have had serious relationships with the mother,
       father or children). The Commonwealth recognizes and seeks to
       protect this basic and foundational unit of society [. . .] by the
       presumption that a child born to a woman while she is married is
       a child of the marriage.

Id. at 1385-86.

       Chief Justice Nix added the following in a concurring statement joined

by a majority of the Justices:      “[A] third party who stands outside the

marital relationship should not be allowed, for any purpose, to challenge the

husband’s claim of parentage.         I believe the presumption in this

situation is irrebuttable and conclusive.”            Id. at 1389 (Nix, C.J.,

concurring) (emphasis added).

       In Coco v. Vandergrift, 611 A.2d 299 (Pa. Super. 1992), as in John

M., a third party challenged paternity of a child born to a married couple.

The third party alleged he had a meaningful relationship with the child and

that the married couple “facilitated partial custody and visitation.”     Id. at

300.   Citing the lead opinion and Chief Justice Nix’s concurring opinion in

John M., this Court wrote: [The Supreme Court] expressed a belief that the

presumption should be irrebuttable in all cases in which the mother, child



                                      - 10 -
J-E02010-15
J-E02011-15

and husband lived together as a family with the husband assuming parental

responsibility, including those in which an outside party claims non-access or

impotency of the husband.” Id. at 301. Thus, the Coco Court concluded

the third party could not prevail because the presumption of paternity

applied and was irrebuttable. Id. See also Donnelly v. Lindenmuth, 597

A.2d 1234, 1236 (Pa. Super. 1991) (presumption of paternity is irrebuttable

where the married couple remains married at the time of the paternity

challenge).

       The Majority relies heavily on Vargo v. Schwartz, 940 A.2d 459, 461

(Pa. Super. 2007), in which four children were born to a married couple, and

the mother filed suit against the putative father for support of the two girls

born to the marriage.         The Vargo Court acknowledged that the married

couple remained married at the time of the paternity challenge.           Id.

Consensual genetic testing confirmed that putative father, not the husband,

fathered the two girls. Id. Putative father argued that, in the eyes of the

law, the husband was the father of the two girls based on the presumption

of paternity. Id. Putative father also argued that the mother was estopped3



____________________________________________


3
    Paternity by estoppel may apply if the presumption of paternity is
inapplicable or has been rebutted. Id. at 464. Given the circumstances of
the case on appeal, this Court has no occasion to analyze paternity by
estoppel.




                                          - 11 -
J-E02010-15
J-E02011-15

from seeking support from him because she and her husband held the girls

out as their own. Id.

      Citing Brinkley, the Vargo court noted that “the presumption of

paternity applies only where the underlying policy to preserve marriages

would be advanced by application of the presumption.”            Id. at 463

(emphasis in original; citing Brinkley, 701 A.2d at 181). The Vargo Court

recognized that the “presumption of paternity is unrebuttable when, at the

time the husband’s paternity is challenged, mother, her husband, and the

child comprise an intact family wherein the husband has assumed parental

responsibilities for the child.” Id. at 463. The Vargo Court also recognized

that, where the marriage is no longer intact at the time of the challenge, the

presumption can be overcome only by clear and convincing evidence of the

husband’s lack of access to the wife or sterility at the time of conception.

Id.

      The Vargo Court wrote:

            In considering whether the presumption of paternity was
      applicable in the instant case, the trial court determined that
      Mother and Mr. Vargo did not have an intact marital relationship
      and there was no marriage to preserve. The trial court therefore
      concluded that applying the presumption of paternity was not
      warranted, since to do so would not advance the policy
      underlying the presumption, i.e., preservation of a marriage.
      There is evidence of record, summarized by the trial court in the
      following paragraph, to support the trial court’s determination
      that ‘the record established a broken marriage and family that
      were not magically restored by [Mr.] Vargo’s periodic visits or
      episodic sex between the parties.’




                                    - 12 -
J-E02010-15
J-E02011-15

              Mother testified that she and Mr. Vargo had separated
       numerous times during their marriage. The most recent
       separation, which began in October 2003, was prompted by
       Mother's revelations to Mr. Vargo that he was not the father of
       the two young girls at the center of the instant dispute. (Notes of
       Testimony (“N.T.”), 9/24/04, at 9, 11).          Although Mother
       testified that Mr. Vargo had lived with her and her children ‘on
       and off’ since the October 2003 separation, Mr. Vargo testified
       that he resided with Mother only when he had nowhere else to
       stay. Mother further testified that efforts to reconcile with Mr.
       Vargo had failed. Mother had filed for divorce (although no
       action had been taken on that filing as of the time of the support
       hearing), and Mr. Vargo in his testimony spoke of a time ‘when
       we get divorced.’

              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 evidence
       summarized above supports the trial court’s findings of fact as to
       the status of the family and the marriage at issue. Furthermore,
       the trial court correctly summarized the law regarding the
       presumption of paternity and applied it to these facts.
       Accordingly, we will not disturb the trial court’s decision, and we
       conclude that Appellant’s first contention—that the trial court
       abused its discretion in failing to apply the presumption of
       paternity—has no merit.

Id. at 466-67 (citations omitted).             The Vargo Court thus concluded the

presumption of paternity did not apply, and ignored the difference between

the irrebuttable and rebuttable presumption.4

____________________________________________


4
    The Supreme Court opinions in Strauser provides for an irrebuttable
presumption where the child is born to an intact marriage that remains
intact at the time of the paternity challenge and a rebuttable presumption
where the child is born to an intact marriage that is no longer intact at the
time of the paternity challenge. Strauser, 762 A.2d at 1054. See also
Brinkley, 701 A.2d at 181.         The Vargo Court did not analyze the
applicability of the rebuttable presumption. Likewise, in Fish v. Behers,
741 A.2d 721 (Pa. 1999), the Supreme Court found the presumption
(Footnote Continued Next Page)


                                          - 13 -
J-E02010-15
J-E02011-15

      The facts of Vargo are plainly distinguishable from those presently at

issue. The husband and mother, while still legally married, no longer lived

together at the time of the paternity challenge and the mother had filed for

divorce. Indeed, the mother testified that efforts at reconciliation failed and

both mother and husband testified about the couple’s pending divorce. The

record in Vargo therefore contained facts from which the mother could

prove the absence of an intact marriage. Such facts are absent here.

      I next consider B.S. v. T.M., 782 A.2d 1031 (Pa. Super. 2001), where

the trial court refused to apply the presumption to a couple who remained

married at the time of the paternity challenge. There, the mother separated

from her husband briefly after she became pregnant with putative father’s

child and remained separated from him, living with her parents, until after

the child’s birth in May 1999. Id. at 1032-33. Putative father was present

at the birth, named as the father on the child’s birth certificate, participated

in the child’s baptism as his father, and purchased a life insurance policy to

provide for the child in the event of the putative father’s death. Id. at 1033.

Putative father and mother voluntarily underwent paternity testing and were

aware of the results.       Id. at 1032.         Mother filed a complaint in divorce in

February of 1999, but withdrew it on September 13, 1999. Id. at 1033.
                       _______________________
(Footnote Continued)

inapplicable where the child was born to an intact marriage that was no
longer intact at the time of the paternity challenge. Instantly, I believe the
irrebuttable presumption applies and therefore I have no occasion to address
the proper application of the rebuttable presumption.



                                           - 14 -
J-E02010-15
J-E02011-15

      In June of 1999, mother abruptly ended her romantic relationship with

putative father.    Her posts on an Internet board indicated she was

considering reconciling with her estranged husband and moving in with him

in order to improve her legal position with respect to the child born of her

relationship with putative father.   Id. at 1034.    Putative father sought to

preserve his rights by filing a petition for special relief on September 9, 1999

and a complaint for partial custody on September 21, 1999.

      In ruling the presumption inapplicable, this Court reasoned:        “Here,

[mother] and [husband] separated from the time of [child’s] conception until

well after birth, a period of approximately one year.” Id. at 1036. “During

that time, [mother] acted as if the separation would be permanent and she

would be with [putative father] indefinitely.”    Id.   “Additionally, [putative

father] undertook the role of father.”    Id.   The B.S. Court considered the

facts before it to fall somewhere in between Strauser, where the marriage

remained intact at all times, and Brinkley, where the marriage had ended

before any party asserted the presumption of paternity.       Id.   “Here, after

living apart for one year, [mother and husband] reconciled and then sought

to apply the presumption in order to defeat [putative father’s] paternity

claim.”   Id.   Essentially, mother and husband “voluntarily gave up the

benefit of the presumption for approximately one year after which they

claimed the benefits of its existence for the first time.” Id. at 1037.




                                     - 15 -
J-E02010-15
J-E02011-15

       Cognizant of the Brinkley Court’s reasoning that the presumption

does not apply where its purpose–to protect a marriage–cannot be fulfilled,

the B.S. court determined that the presumption did not apply. No dispute

existed as to the child’s parentage, and the court did not believe putative

father’s custody petition would do further harm, “as this hellish marital

situation has already occurred.” Id. at 1036-37. Thus, the Court reasoned

the “marriage will succeed or perhaps will fail with or without the application

of the presumption.”         Id. at 1037.          Finally, the B.S. Court reasoned

“application of the presumption could have a deleterious effect on [mother

and husband’s] family, especially on [child], in the future.” Id. at 1037.

       B.S., like Vargo, is plainly distinguishable from the instant case.

Putative father and mother lived together as a family unit for one month

after the child’s birth. After that, mother, by her own admission, moved in

with her husband only to improve her prospects in the pending legal battle

with the putative father. Thus, the record in B.S. contained facts from which

the putative father could carry his burden of proving the absence of an intact

marriage at the time of the paternity challenge.5

       The Majority cites Vargo for the proposition that the existence of an

intact marriage is a question of fact for the trial court. If a dispute exists as
____________________________________________


5
   To the extent some of the legal analysis in B.S. is in tension with the
Supreme Court’s analysis in Strauser, I believe this en banc panel should
disapprove it.




                                          - 16 -
J-E02010-15
J-E02011-15

to whether the married couple remains living together and raising the child

together, I agree. Here, in contrast, where the uncontested facts indicate

that M.C. and D.T. remain married, living together, and raising the child as a

child of the marriage, I believe the trial court committed an egregious error

of law in refusing to apply the irrebuttable presumption of paternity.6 The

trial court’s credibility determinations are not evidence upon which J.J., as

challenger, can bear his burden of proving the absence of an intact

marriage. Where, at the time of the paternity challenge, a couple remains

married, living together despite past difficulties, and raising the child in

question as a child of the marriage, the presumption of paternity applies and

is irrebuttable. John M.; Strauser; Coco; Donnelly.

       I recognize that the continued vitality of the presumption of paternity

has been controversial for some time.              Further analysis of Strauser and

Brinkley illustrates the point. In Brinkley, the mother was married while

the child was conceived, but her husband moved out before the child was

born. Brinkley, 701 A.2d at 177. Mother was having sexual relations with

putative father but not with her husband during the time of conception. Id.

The husband filed for divorce when he learned mother was pregnant. Id. at

177-78. Putative father was present at the child’s birth and saw her weekly

for the first two years of her life.       Id. at 178.    Putative father placed the

____________________________________________


6
    It is worth noting that M.C. and D.T. continue to pursue this joint appeal.



                                          - 17 -
J-E02010-15
J-E02011-15

child on his health insurance and paid some support, but mother eventually

filed a complaint alleging the support was insufficient. Id.

       Putative father argued mother could not pursue a child support action

against him because she failed to rebut the presumption that her former

husband fathered the child. Id. The Supreme Court plurality disagreed:

               In the case at bar, at the time of the complaint for
       support, there was no marriage. Lisa and George Brinkley had
       separated before the birth of the child and were divorced at the
       time of the complaint.          The presumption of paternity,
       therefore, has no application to this case, for the purpose of the
       presumption, to protect the institution of marriage, cannot be
       fulfilled.

Id. at 181 (emphasis added). The Brinkley court agreed unanimously that

the presumption did not apply. No rationale garnered a majority.

       Justice Newman authored a concurring and dissenting opinion in

Brinkley and a dissent in Strauser. She wrote: “The Majority posits that

in this case, where the marriage is intact, ‘public policy’ requires that the

presumption be irrebuttable.          I disagree.”   Strauser, 726 A.2d at 1057

(Newman, J. dissenting). She argued the presumption “should be open to

rebuttal by reliable blood test evidence.” Id.7

____________________________________________


7
  In my view, blood test evidence is irrelevant under the traditional rationale
for the presumption. As explained in the main text, the presumption was
created to protect marriages and to protect children from the ramifications
of illegitimacy. While the legal consequences of illegitimacy have been
removed by statute, the goal of protecting an intact marriage remains the
policy of this State, as per the Majority opinion in Strauser. Admission of
blood test evidence does not advance that goal. This debate has been
(Footnote Continued Next Page)


                                          - 18 -
J-E02010-15
J-E02011-15

      Justice Newman argued the majority’s irrebuttable presumption

contradicted the Uniform Act on Blood Tests to Determine Paternity, 23

Pa.C.S.A. § 5104(c). That statute provides, in relevant part, as follows:

      (c) Authority for test. --In any matter subject to this section in
      which paternity, parentage or identity of a child is a relevant
      fact, the court, upon its own initiative or upon suggestion made
      by or on behalf of any person whose blood is involved, may or,
      upon motion of any party to the action made at a time so as not
      to delay the proceedings unduly, shall order the mother, child
      and alleged father to submit to blood tests. If any party refuses
      to submit to the tests, the court may resolve the question of
      paternity, parentage or identity of a child against the party or
      enforce its order if the rights of others and the interests of
      justice so require.

23 Pa.C.S.A. § 5104(c).           Justice Newman believed, therefore, that the

Strauser majority’s public policy pronouncement contradicted that of the

legislature, as set forth in § 5104(c). She argued the Supreme Court was

not the appropriate body to make such public policy pronouncements,

especially in light of advances in scientific evidence.      “We would be both

naïve and remiss to perpetuate the strength of this presumption and ignore

the results of reliable scientific tests.”          Strauser, 726 A.2d at 1058

(Newman, J. dissenting).

      Concerning the goal of protecting an intact marriage, Justice Newman,

however, advanced the following argument in Brinkley:
                       _______________________
(Footnote Continued)

ongoing at least since the 1950’s. See Commonwealth ex rel. O’Brien v.
O’Brien, 136 A.2d 451, 453-54 (Pa. 1957) (noting the admissibility into
evidence of blood grouping tests in certain cases, though not those where
the presumption applies).



                                           - 19 -
J-E02010-15
J-E02011-15

              The goal of protecting marital integrity is also futile in a
        society where legal marital status does not always translate into
        a loving, intimate, monogamous relationship. The presumption
        that a child born to a married woman is a child of the marriage is
        dubious at best and in many cases, such as here, is absurd. We
        are living a fable, both morally and legally, if we think that a
        family is typified by ‘Father Knows Best,’ where parents and
        children love and respect each other and where husband and
        wife are faithful to each other and adultery is merely a figment
        of one’s imagination. Thus, the presumption that a child born
        during coverture is a child of the marriage has lost its place in
        modern society, especially considering the scientific testing
        available both to prove and to disprove paternity.

Brinkley, 701 A.2d at 185 (footnote omitted). Justice Newman’s argument

has yet to garner the support of a majority of the Supreme Court. As an

intermediate court of appeals, we must faithfully apply binding Supreme

Court precedent.

        In summary, the record evinces M.C. and D.T.’s reconciliation and that

they remain living together and raising P.T. as a child of their marriage. In

this regard, the facts align themselves with Strauser and E.W.          Despite

M.C.’s lack of fidelity to the marriage, M.C. and D.T. were still married and

living together at the time of P.T.’s birth and J.J.’s paternity challenge. As

noted above, Strauser indicates that the inquiry into an intact marriage

must take place as of the time of the paternity challenge.      Strauser, 726

A.2d at 1054. Vargo reiterated that proposition. Vargo, 940 A.2d at 463.

Following Strauser, this Court in E.W. applied the presumption of paternity

where the married couple chose to reconcile despite the marriage’s troubled

past.



                                      - 20 -
J-E02010-15
J-E02011-15

      In summary, Strauser and its progeny bar J.J.’s paternity challenge.

The Strauser Court recognized that parties to a seemingly ruined marriage

sometimes resolve their differences and remain together.         The Strauser

Court expressly rejected putative father’s argument that the marriage

existed in name only, despite the married couple’s troubled past. Strauser,

726 A.2d at 1056.

      The presumption of paternity is never an issue absent marital

infidelities or allegations thereof. In any such case, the trial court might find

the mother not credible based on past conduct. In no case will there be any

guarantee of a lasting marriage.      Perhaps M.C.’s conduct impresses this

Court as especially egregious.    If so, this is a case in which difficult facts

have created bad law.        The irrebuttable presumption of paternity is

meaningless if trial judges have discretion to apply it—or not—based solely

on perceived authenticity of a marital reconciliation. The Majority’s analysis

creates an open invitation to third party attacks on intact but troubled

marriages. That is precisely what the presumption prohibits.

      Perhaps the time has come to dispense with the presumption entirely,

or to reassess the circumstances under which it is applicable and/or

rebuttable.   If so, such action must come from our Supreme Court or the

General Assembly. I would note however in passing, that a strong argument

may be made to preserve the presumption of paternity for those who choose

to marry or remain married, and that the values embodied in the


                                     - 21 -
J-E02010-15
J-E02011-15

presumption are not necessarily outdated. In Obergefell v. Hodges, 135

S.Ct. 1039 (2015), the United States Supreme Court recently reaffirmed this

in the context of confirming that same-sex couples have the right to marry.

The Supreme Court stated: “[T]his Court’s cases and the Nation’s traditions

make clear that marriage is a keystone of our social order.”       Id. at 2590.

Further:

           In Maynard v. Hill, 125 U.S. 190, 121 (1888), the Court
     echoed de Tocqueville, explaining that marriage is ‘the
     foundation of the family and of society, without which there
     would be neither civilization nor progress.’         Marriage, the
     Maynard Court said, has long been ‘a great public institution,
     giving character to our whole civil polity.’ Id., at 213. This idea
     has been reiterated even as the institution has evolved in
     substantial ways over time, superseding rules related to parental
     consent, gender, and race once thought by many to be essential.

Id. at 2601.

           No union is more profound than marriage, for it embodies
     the highest ideals of love, fidelity, devotion, sacrifice, and family.

Id. at 2608.

     Accordingly, I respectfully dissent and would vacate the order on

appeal.




                                    - 22 -
