J-A23013-14

NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P 65.37

D.S.,                                       : IN THE SUPERIOR COURT OF
                                            :      PENNSYLVANIA
                    Appellant               :
                                            :
              v.                            :
                                            :
S.S.                                        :
                                            :
                    Appellee                : No. 2037 WDA 2013

               Appeal from the Order entered December 4, 2013,
                   Court of Common Pleas, Allegheny County,
  Civil Division at No(s): FD-96-02467-008 PACSES Case No. 632003256

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED AUGUST 22, 2014

                                                                rder entered by

the Allegheny County Court of Common Pleas denying his motion to modify




and refusing his request for genetic testing, based upon a finding of

paternity by estoppel. After careful review, we affirm.

        The trial court aptly summarized the facts of the case as follows:

              [Father] and [Mother] were involved in an intimate
              relationship in 1996. In that year, Mother gave birth
              to [][S]on and petitioned for child support against
              Father.    On August 5, 1996, Father signed an
              [a]cknowledgment of [p]aternity for [Son] and
              consented to a child support order. Three years
              later, in 1999, Mother gave birth to [] [D]aughter
              and named Father as the father of that child as well.
              Again, Father signed an acknowledgement of
              paternity. Mother and Father never married and he
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          characterizes their relationship in his testimony as

          intimate relationship ended.      Mother      and []
          [C]hildren live in North Carolina. Father     lives in
          Pittsburgh but works for an airline in        Atlanta,
          Georgia and is able to see [] [C]hildren      twice a
          month.

          For the last 17 years, Father has maintained an on-
          going parental relationship with both children, seeing
          them twice a month, exercising custody, and taking
          them on many vacations. Father testified he had

                                                         garding
          any other father figure.[FN]

          In June of 2012, Father took both children on a
          beach vacation. While there, he took a picture of the
          children on the beach.       That picture made him
          realize that [] [C]hildren did not really look like him
          and he began to question whether they were his
          children. Father decided to purchase DNA tests and
          informed [] [C]hildren that he was testing their DNA
          to determine if he was their father. The results
          demonstrated unequivocally that he was not the
          father of either child. He opened the tests and
          shared the results with [] [C]hildren, causing them
          both great distress.

          After discovering that the children were not his
          biological children, he continued to exercise custody,
          visit with them, and take them on vacation. He also
          continued to pay child support for them for a full
          year. Furthermore, Father testified he intends to


          lives.

          On August 14, 2013, Father filed a petition for
          genetic testing and to modify his child support. A


          who found it was in the best interest of [] [C]hildren



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            that the doctrine of Paternity by Estoppel be applied.
            Father timely filed exceptions, which [the trial court]
            denied on December 4, 2013. This appeal followed.
            _____________________
            [FN]
                 Mother did not attend the hearing and was not
            subpoenaed by Father to do so.

Trial Court Opinion, 2/21/14, at 1-3 (record citations omitted) (footnote in

the original).

      Father filed a timely notice of appeal.    He raises one issue for our

review:

            Whether the trial court erred as a matter of law and
            abused its discretion when it misapplied or overrode
            the law in failing to find that a fraud occurred based
            on the facts of the case, the evidence submitted in
            this case, the testimony of [Father] elicited in the
            case and the established record of the case in
            thereby estopping [Father] from obtaining a [c]ourt
            ordered genetic test?



      We review a child support order, including matters involving a question

of paternity, for an abuse of discretion. Vargo v. Schwartz, 940 A.2d 459,

                                                                           has

overridden or misapplied the law, or if there is insufficient evidence to

                     Id. (citation omitted). The trial court is responsible for

making factual determinations, and we will not disturb its findings if the

record supports them, regardless of whether we would have made a

different decision based on the evidence presented. Id. It is also the role of

the trial court to weigh the evidence presented and to make credibility



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determinations. Id.                                          ee to believe all,

part, or none of the evidence and we as an appellate court will not disturb

                                                      Id. (citation, formatting

and quotations omitted).

         Applying the doctrine of paternity by estoppel, the trial court found




interests.1 Trial Court Opinion, 2/21/14, at 3, 6-7. The trial court based its

finding

time of their births; continued to pay child support and behave as their

father after learning he was not in fact their father; and failed to provide

sufficient evidence that he was i

fraud.     Id. at 3-4, 5.   It therefore required him to continue to pay child

support and denied his request for a DNA test through the courts.

         Father asserts that the application of the doctrine of paternity by

estoppel in this case was error, as the evidence of record supports a finding

that Mother fraudulently induced him to accept paternity; once Father




1
  We note that Mother and Father were never married, and thus there was
no cause to determine whether the presumption of paternity applied in this
case. See
paternity is the preservation of marriages. The presumption only applies in
cases where that policy would be advanced by the application; otherwise, it
                  Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999).


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J-A23013-14


                                       already aware that Father is not their



                                                    -29.

      We begin with some background information on the doctrine of

paternity by estoppel.

            Estoppel in paternity actions is a legal determination
            based on the conduct of the mother and/or the
            putative father with regard to the child, e.g., holding
            out the child to the community as [their child] and/or
            supporting the child. If the evidence is sufficient,
            estoppel may bar either a putative father from
            denying paternity or a mother from succeeding in a
            claim of paternity against a third party. Estoppel
            rests on the principle that a person may not
            challenge his role as a parent once he has accepted
            it, even with contrary DNA and blood tests.

Vargo

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

                                                 Doran v. Doran, 820 A.2d

1279, 1283 (Pa. Super. 2003) (citation and quotation omitted).

            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 has known
            all his life is not in fact his father.

J.C. v. J.S., 826 A.2d 1, 4 (Pa. Super. 2003) (citation omitted).




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            Evidence of fraud or misrepresentation with regard
            to issues of paternity is relevant to the application of
            estoppel and must be considered by the trial court.
            In some situations, fraud can preclude the
            application of paternity by estoppel. Particularly
            where fraud or misrepresentation is involved, courts
            applying the doctrine of paternity by estoppel have
            taken care to consider evidence of the [putative
                                                          y before

            biological father, but also after becoming aware of
            his non-parentage.

Vargo, 940 A.2d at 464 (internal citations omitted) (emphasis in the

original). To rescind an acknowledgement of paternity based on fraud, the

father   must   establish   the   fraud    by   clear   and   convincing   evidence.

23

(2) a fraudulent utterance, (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 a proximate

         Doran, 820 A.2d at 1284.

            Absent any overriding equities in favor of the
            putative father, such as fraud, the law cannot permit
            a party to renounce even an assumed duty of
            parentage when by doing so, the innocent child
            would be victimized. Relying upon the representation
            of the parental relationship, a child naturally and
            normally extends his love and affection to the
            putative parent. The representation of parentage
            inevitably obscures the identity and whereabouts of
            the natural father, so that the child will be denied the
            love, affection and support of the natural father. As
            time wears on, the fiction of parentage reduces the
            likelihood that the child will ever have the
            opportunity of knowing or receiving the love of his



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              natural father. While the law cannot prohibit the
              putative father from informing the child of their true
              relationship, it can prohibit him from employing the
              sanctions of the law to avoid the obligations which
              their assumed relationship would otherwise impose.

                                   *    *    *

              [T]he determination of paternity by estoppel should
              be better informed according to the actual best
              interests of the child, rather than by rote
              pronouncements grounded merely on the longevity
              of abstractly portrayed (and perhaps largely
              ostensible) parental relationships.

K.E.M. v. P.C.S., 38 A.3d 798, 807-08, 809 (Pa. 2012) (citation omitted).

        Father first argues that the trial court erroneously failed to find that

fraud precluded the application of paternity by estoppel in this case.

                       -20.   He asserts that Doran v. Doran is controlling

precedent. Id. at 16-20.

        In Doran, the mother, unbeknownst to her husband, had an

extramarital affair.    The affair resulted in the conception of a child, but

believing the child was his, the husband raised and supported the child.

Although their marriage ended in divorce, the now ex-husband paid child

support and exercised periods of custody with the child. Doran, 820 A.2d at

1281.

                                                                               -

                                                                       -

house. This prompted the ex-husband to ask the mother whether the child

was the ex-


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Approximately five years later, however, the ex-husband became suspicious



got older. The results of a DNA test confirmed that the ex-husband was not

                                         -



                                              Id.

      The trial court found, and this Court affirmed, that the doctrine of



Specifically, we concluded that the record supported the following finding of

the trial court:

             Mr. Doran had been operating for more than a
             decade under the misrepresentation that he was,


             misstatements and deceptions to him. She deluded
             herself by refusing to even consider that her child
             might be fathered by the man with whom she had an
             illicit affair. She never once mentioned her
             meretricious relationship with this third party to her
             husband. Instead, she fallaciously led him to believe,
             at the same time she was seeking child support from

             been forthright to her spouse and explained what

             her husband may certainly have acted differently.
             Unfortunately,   her    deceit,    falsehoods   and
             misrepresentations gave Mr. Doran no reason but to
             treat the child as his own      with love, care and
             respect, as only a decent human being would do
             under the circumstances.

Id. at 1284.




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J-A23013-14


                                                                             s

little resemblance to that of the Doran case. Here, Mother was not present

for the hearing; Father was the only testifying witness.    He presented no

evidence that he believed he and Mother were in an exclusive relationship at

                           conception, that he was unaware that she was

having sex with another man or other men at that time, or that he had no

reason to doubt that he was the father of Children.        Moreover, there is

                                                         -husband in Doran,




contrary, and as discussed in greater detail infra, the record reflects that

after receiving the results of the private DNA test, Father continued to

                                                    See N.T., 8/28/13, at 9,

13, 14, 16.

      This case more closely resembles the case of J.C. v. J.S. In that case,

the mother had an extramarital affair that her husband discovered

approximately six months before the birth of what the husband believed was

their first child. The parties reconciled and subsequently had a second child.

The parties divorced and the now-ex-husband began paying child support for

the two children. Approximately a year later, when the oldest child was six

years old, the mother informed her ex-husband that he was not the oldest

                                    -husband continued to treat the child as



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J-A23013-14


his own, enjoying regular periods of custody with him and supporting him

financially. J.C., 826 A.2d at 2-3.



father, the ex-husband filed a petition for a DNA test, which the court

denied.   Thereafter, he filed a petition to modify his support obligation to

relieve him of paying child support for the oldest child, which the court also

denied. On appeal from the latter order, we affirmed, finding that because

the ex-

not the father, it precluded a finding of fraud, and that application of the

doctrine of paternity by estoppel was proper. Id. at 4.

      The record in the case before us reflects that upon learning that he

was not the biological father of Children, Father continued to act as their

father and do for them as he had done prior to receiving the DNA test



8/28/13, at 9); he paid child support (id. at 13); he did not make any



payments for over a year following the DNA test results (see id. at 15); he

bought Children clothing and paid for their cellphones (id. at 14); and he

took them on multiple vacations and continued to have custodial time with

Children (id. at 16). Indeed, at the hearing, he testified that in spite of his




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J-A23013-14




                                                         Id. at 20.

     As stated by the trial court,



                                                        see generally, N.T.,

8/28/13, at 5-21.   Viewing the record of the case, including evidence of



our case law instructs,

finding that Father failed to present clear and convincing evidence to prove

that Mother induced him to accept paternity of Children through fraud. See

Vargo, 940 A.2d at 464; Doran, 820 A.2d at 1284; 23 Pa.C.S.A. §

5103(g)(2). As such, this argument fails.

     We are likewise unconvinced that the mere fact that Children are

aware that Father is not their biological father precludes application of the

doctrine of paternity by estoppel. See                        -24. According to



paternity by estoppel was meant to prevent.        The legal fiction no longer

                                              Id. at 22-23.    However, simply

because Children know that Father is not in fact their father does not

preclude the application of paternity by estoppel, especially since Father is




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J-A23013-14


the one that destroyed the fiction.2

cannot prohibit the putative father from informing the child of their true

relationship, it can prohibit him from employing the sanctions of the law to

avoid the obligations which their assumed relationship would otherwise

            K.E.M., 38 A.3d at 808 (quoting Commonwealth ex rel.

Gonzalez v. Andreas, 369 A.2d 416, 419 (Pa. Super. 1976) (en banc)).

Furthermore, in Doran, a case in which the mother told the child that her

ex-

absence of a finding of fraud, the doctrine of paternity by estoppel would

have been applicable. See Doran, 820 A.2d at 1281, 1283.

      Father continues by stating that instead,

[] [C]hildren to allow them the freedom to interact with [Father] outside the

scope and strictures of a child support system in an independent manner

without the punitive actions of jail time, significant interest and arrearage

                                          Id. at 23-24.    However, this is a



      The record unequivocally supports a finding that applying the doctrine

of paternity by estoppel is i

supports   Children   by   providing    both    court-mandated   payments   and




2
    Were we to conclude otherwise, the doctrine of paternity by estoppel
would become obsolete, as a parent could avoid its application simply by
telling the children that the person they thought was their father is not.


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J-A23013-14


                                                                    attending

meetings related to their education, taking them on vacation, and spending

time with them. Id. at 5, 9, 15-



clear that Children have a close relationship with him    Daughter cried and

                                                    Id. at 20. Notably, when



that Father was not their legal father, his only resp

                                             Id. at 19. Moreover, Father, too

wishes to continue the relationship with Children, including exercising

visitation and providing financial support. Id. at 21

      A finding that Father is legal

                    Cf. K.E.M.



                                                                    l support



review of the record and the applicable law, we find no abuse of discretion in

the conclusion that applying the doctrine of paternity by estoppel is in

                    ests.

      Order affirmed.




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J-A23013-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2014




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