J-A02035-19

                               2019 PA Super 60

 J.L.                                     :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 A.L. AND K.L.                            :
                                          :
                     Appellants           :   No. 945 MDA 2018

                Appeal from the Order Entered May 29, 2018
  In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                             2018-CV-1700-MD

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

OPINION BY NICHOLS, J.:                         FILED FEBRUARY 26, 2019

        A.L. and K.L. (Mother and Husband) (collectively, Appellants), appeal

from the order granting J.L.’s (Father) complaint to establish paternity and

directing that E.J.L.L. (Child), born in January 2018, be made available for

genetic testing. Appellants contend that the trial court erred by concluding

they did not have an intact marriage and family when Father filed his

complaint. After careful review of the entire record, we affirm.

        The relevant procedural and factual history are as follows. Appellants

married in 2009 and are the parents of a daughter, J.L., born in October 2012.

N.T. Trial, 5/7/18, at 129-30. Subsequently, between 2016 and 2017, Mother

had two nonviable pregnancies.      Id. at 131-32.   This strained Appellants’

marriage. Id. at 132, 209-10. While Appellants participated in both individual
J-A02035-19


and joint counseling,1 id. at 132, 138, 209-10, they never divorced or filed for

divorce and allegedly continued to have a sexual relationship. Id. at 135,

230. Appellants continued to celebrate holidays and vacation together. Id.

at 144, 227; see also Appellants’ Ex. 11. Upon the advice of their counselor,

they did, however, obtain a separate apartment in September 2017. N.T.

Trial, 5/7/18, at 139-40; see also Appellants’ Ex. 5.

       Meanwhile, Mother met Father at a wedding in March 2017, and began

an affair, which lasted until February 2018. N.T. Trial, 5/7/18, at 133-34.

Mother informed Father that she and Husband had been separated since

November 2016.2 N.T. Trial, 5/4/18, at 14. Moreover, Mother and Father

frequently discussed her strained relationship with Husband. Although Mother

never indicated that she had filed for divorce, Mother referenced divorce on

numerous occasions. N.T. Trial, 5/7/18, at 173-74; N.T. Trial, 5/4/18, at 17,

22, 24-25; see also Father’s Ex. 1. Mother admitted that she lied to and

concealed things from both Husband and Father throughout the course of her

nearly one-year affair with Father. See, e.g., N.T. Trial, 5/17/18, at 351;

N.T. Trial, 5/7/18, at 134, 144, 148, 153, 173, 187-89, 204, 217. Mother

____________________________________________


1 Husband also began taking medication around June of 2017.          N.T. Trial,
5/7/18, at 140-41, 211.
2Father testified that he would have never pursued or continued a relationship
with Mother if she were not separated, as he came from a broken home, and
due to his religious and moral beliefs. N.T. Trial, 5/4/18, at 22, 62.




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acknowledged that during this period of time, she was essentially “living a

double life.” N.T. Trial, 5/7/18, at 196.

       The trial court recounted the facts:

       Mother learned she was pregnant in May of 2017, and all three
       parties participated in a prenatal paternity test, which indicated
       that there was a ninety-nine percent (99%) chance that Father
       was the [c]hild’s biological father.[3]

       Upon learning of the results of the paternity test and until the filing
       of [Appellants’] Answer in this matter, Mother’s actions confirmed
       that Father was the biological father of the [c]hild.[4] Father
       assumed all responsibilities of an expectant [f]ather and along
       with Mother, prepared for the [c]hild’s birth. Mother and Father
       discussed naming the [c]hild, purchased clothing and other items
       for the [c]hild and visited potential daycare centers for the [c]hild.
       Father attended a pre-natal visit with Mother and attended two of
       the [c]hild’s pediatrician visits after the [c]hild was born in
       January of 2018.

       Throughout the pregnancy, Mother and Father continued their
       familial and romantic relationship. At times, Mother included her
       five[-]year-old daughter in their times together. The expectant
       couple posted photographs of themselves together on social
       media and went on several trips together. Mother visited Father




____________________________________________


3 This paternity test was taken in July or August 2017. N.T. Trial, 5/7/18, at
137; N.T. Trial, 5/4/18, at 86. Mother advised Husband of the pregnancy in
May, but did not advise him of her relationship with Father and the potential
question of paternity until June. N.T. Trial, 5/7/18, at 134, 136. Mother,
however, explained to Father that she did not maintain an intimate
relationship with Husband, but had mistakenly slept with Husband on one
occasion. N.T. Trial, 5/17/18, at 300-01; N.T. Trial, 5/4/18, at 38, 43.
4 Both Mother and Husband acknowledged that Father was the child’s
biological father. N.T. Trial, 5/7/18, at 184-85, 201-02, 213.




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       almost weekly at his home in State College. . . .[5] The couple
       regularly presented themselves as being in an intact relationship
       and often engaged in public displays of affection. Father
       introduced Mother to his family, colleagues and friends as his
       girlfriend, a fact which Mother did not dispute.

       During her relationship with Father, Mother continued to maintain
       that she was separated from Husband and that she was working
       toward divorcing Husband as they worked on a shared custody
       arrangement for their five[-]year[-]old daughter.[6] Mother noted
       that the parties maintained a second residence where the non-
       custodial parent could reside, allowing the [c]hild to remain in the
       marital home.[7] When the lease on the second residence expired,
       in December of 2017, Mother rented an apartment in her name
       alone to facilitate separation from Husband,[8] after which she
       referred to the marital residence as “[Husband]’s house.” Father
       and a friend of his helped Mother move into the apartment,



____________________________________________


5Father additionally made some trips to Harrisburg, and Mother and Father
occasionally met between State College and Harrisburg. N.T. Trial, 5/4/18, at
16, 33.
6Around October or November 2017, Mother advised Father that Husband
wished to reconcile and expressed her desire for space. N.T. Trial, 5/7/18, at
142, 146; N.T. Trial, 5/4/18, at 24-25, 82-83.
7 Mother advised Father that she and Husband had secured a one-year lease
for this apartment when it was actually only a three-month lease beginning in
September 2017. N.T. Trial, 5/4/18, at 48, 73-74; see also Appellants’ Ex.
5.
8 Testimony was presented that the leasing company’s policy required that the
marital residence and additional apartment could not both be leased in both
Mother’s and Husband’s names. N.T. Trial, 5/7/18, at 199-200; N.T. Trial,
5/4/18, at 8. Mother testified that the second apartment was obtained in
December 2017, again upon the recommendation of her and Husband’s
marriage counselor, in an effort to afford time and space, and in order to
facilitate the logistics of Father’s visitation with Child upon her birth. N.T.
Trial, 5/7/18, at 145-46.




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       moving items from the marital home to Mother’s apartment,[9]
       including, but not limited to a bed for Mother, a bed for the five[-
       ]year[-]old daughter, Mother’s nursing chair and clothes of
       Mother’s and her daughter. By Mother’s own admissions, Father
       assisted in decorating the apartment and furnishing it for the
       arrival of their [c]hild.

       While Father was not at the hospital for the birth, he did leave his
       conference in Philadelphia when Mother notified him she was
       going into labor. Father did stay with Mother in the recovery room
       and spent at least one overnight with Mother and their newborn
       at the hospital. The [c]hild’s birth certificate includes Father’s
       surname. . . .[10]

Trial Ct. Op., 7/31/18, at 2-4.

       Following Child’s birth, Father            introduced Child to   friends and

colleagues, and attended two pediatric appointments. N.T. Trial, 5/17/18, at

305-07; N.T. Trial, 5/7/18, at 184-85, 194, 205-06; N.T. Trial, 5/4/18, at 28;

see also Father’s Ex. 11.          At Child’s first pediatric appointment, Father

provided his medical insurance.11              N.T. Trial, 5/4/18, at 57-59.   Father

additionally posted with regard to Child and her birth on social media, to which

Mother openly responded. N.T. Trial, 5/7/18, 192-94; N.T. Trial, 5/4/18, at


____________________________________________


9Husband was present when Father and his friend moved the items from the
marital home. N.T. Trial, 5/4/18, at 50.
10 As indicated, Mother and Father had discussed names for Child. Father’s
last name was included as a second middle name. In addition, Child’s first
middle name is Father’s grandmother’s name. N.T. Trial, 5/17/18, 308-09;
N.T. Trial, 5/4/18, at 44-45, 62; see also Father’s Ex. 6.
11 Mother, however, subsequently placed Child on her own medical insurance,
along with herself, Husband, and J.L. N.T. Trial, 5/7/18, at 201-02.




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J-A02035-19


55-56; see also Father’s Ex. 11. Likewise, Appellants, with guidance from

J.L.’s counselor, explained Child’s parentage to J.L.12 N.T. Trial, 5/7/18, at

222, 246.

       Father regularly visited Mother and the [c]hild at Mother’s
       apartment and in public places, as Mother and Father continued
       their romantic relationship until February 21, 2018. The record is
       clear that it was at this time that Mother notified Father that she
       was reconciling with Husband to allow the [c]hild and Mother and
       Husband’s five[-]year[-]old to be together as sisters. After this
       date, Mother unilaterally decided to stop Father’s visit[s] with the
       [c]hild and encouraged [Father] to commence legal action to be
       recognized as the [f]ather of the [c]hild.[13]

Trial Ct. Op., 7/31/18, at 4-5.

       The record establishes that Husband was present in the operating room

with Mother when Child was delivered and was named as Child’s father on the

birth certificate.    N.T. Trial, 5/7/18, at 220; see also Appellants’ Ex. 6.

Husband testified that he was unaware until several weeks prior to trial that

Mother’s and Father’s sexual relationship continued until February 2018. Id.

at 216-17.     He indicated that his relationship with Mother strengthened in

particular after a trip to New Orleans in November 2017. Id. at 224. He and

Mother held Child out as their own to the religious community and otherwise

by having two Jewish baby naming ceremonies and posting and sending birth


____________________________________________


12Testimony was presented that J.L. was told that Child had “two daddies.”
N.T. Trial, 5/7/18, at 222, 246.
13Father testified that he was permitted a visit with Child on March 20, 2018.
N.T. Trial, 5/4/18, at 60.


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J-A02035-19


announcements.      N.T. Trial, 5/7/18, at 157-58, 168, 228-30; see also

Appellants’ Exs. 4, 13. Husband testified that Father’s visitation with Child

became burdensome and that the situation created stress for the family. N.T.

Trial, 5/7/18, at 223.     Husband further stated that Father’s continued

involvement with Husband’s family could be problematic. Id. at 251-52.

      On March 9, 2018, Father filed a complaint to establish paternity and

for genetic testing, to which Appellants responded, in part, that they had never

separated.   The court conducted a hearing on Father’s complaint over the

course of three days: May 4, 7, and 17, 2018. Appellants, as well as Father,

were present and represented by counsel and all testified on their own behalf

and submitted exhibits, which the court admitted.             Father additionally

presented the testimony of Isabel Dupeles, business manager at R.P.

Management     (the   company     responsible   for   the    administration       and

management     of   the   apartment   complex   where       Appellants   reside    in

Harrisburg), and friends, J.B.U. and J.M.P.           Appellants presented the

testimony of N.R.E. (Maternal Grandmother), and friends, M.C.R. and S.H.

      In relevant part, Husband’s testimony revealed his willingness and

desire, regardless of the circumstances, to maintain his marriage with Mother:

      [Husband’s counsel:] . . . So given this -- we’ve got learning of an
      affair, learning that there’s a pregnancy that may not be yours,
      learning that the pregnancy biologically is not yours, learning that
      your wife’s sexual relationship continued with -- and her
      extramarital affair longer than you thought, why are you still here?

      [Husband:] Because I love my wife. And we have 14ish years of
      history together, and we had been through some major traumas.

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J-A02035-19


      We were both hurting in the deepest ways. We both coped with
      that in extraordinarily unhealthy ways. And I knew that this
      woman who I was with over the course of the last couple years
      was not the person that I married, but I knew also that the person
      that I married was very much still there. And perhaps I’m sort of
      a hopeless romantic in some ways, but I felt almost like if I stayed
      there and stuck with everything and to some extent sort of waited
      it out and just kind of was there for her and [J.L.] and now [Child]
      on a daily basis, that we could get through all of this just awfulness
      and emerge stronger in the end.

      And I mean, that’s why, you know, this whole time we’ve been in
      marriage counseling despite all the lies and despite the deception
      and misconceptions and lack of information and then lots of
      information. I love [Mother] too much to give up because we --
      we fell in love with each other for a reason.

N.T. Trial, 5/7/18, at 218.

      Despite their problems, Husband testified that he never felt their

marriage was irretrievably broken. Id. at 225. While the continued sexual

relationship between Mother and Father bothers him, Husband observed that

his and Mother’s relationship has evolved and is at a point where they can

deal with the situation in a more mature way. Id. at 224-25. Husband further

testified as follows:

      [Husband’s counsel: A]t this point in time or at any point in time
      have you felt like you wanted to separate or file for divorce?

      [Husband:] At no point have I felt like I wanted to really separate
      or file for divorce. You know, certainly in the discussions for
      apartments, the idea of separation came up. But it wasn’t really
      something in the end that we ever really felt like we could act
      upon, if not for our [own] sakes, then certainly for [J.L.]’s sake,
      and for [Child]’s sake. You know, I feel that sort of in the heat of
      the moment is when this sort of inner strength of our relationship
      that’s always been there throughout 14 years of a relationship and
      almost nine years of marriage really has come out.


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J-A02035-19


Id. at 225-26.

      On May 29, 2018, the court ordered that Child be made available for

genetic testing, to be arranged and paid for by Father, within twenty days.

On June 8, 2018, Appellants filed a timely notice of appeal, as well as a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

      Appellants then filed a motion to stay the May 29th order, which the

trial court denied on June 12, 2018. Appellants filed an emergency application

for supersedeas with this Court, which we granted on June 14, 2018. The trial

court filed a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellants raise the following question for our review:

      1. Did the lower court err by not applying the presumption of
      paternity in favor of [Appellants] where the undisputed evidence
      demonstrated that they maintained an intact marriage and family
      at the time [Father] filed his complaint?

Appellants’ Brief at 3.

      Appellants argue that the presumption of paternity is irrebuttable when

there is significant evidence of record of an intact marriage. Appellants assert,

“[t]he undisputed facts in this case overwhelmingly established that

[Appellants] and the [c]hild (along with her sister) remained in an intact family

at the time of [Father]’s paternity challenge and through the present day, and

that Husband and Wife remain in an intact marriage.” Id. at 9. Appellants

point to the following: (1) the fact that they remained married and never filed

for divorce; (2) Husband failed to change his Facebook status from married;

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J-A02035-19


(3) Husband attended prenatal appointments and was present at Child’s birth;

(4) Husband was named on Child’s birth certificate; (5) Appellants took part

in photo shoots pre- and post-birth; (6) Appellants sent birth announcements

after Child’s birth; (7) Appellants maintained joint banking accounts and filed

taxes jointly; (8) Appellants maintained joint automobile and property

insurance policies; (9) Appellants celebrated holidays and vacationed

together; (10) Appellants participated in religious ceremonies with respect to

Child; (11) Husband provides for Child’s daily needs and expenses; and (12)

Appellants hold Child out as their child. Id. at 9-11. Appellants liken their

case to E.W. v. T.S., 916 A.2d 1197 (Pa. Super. 2007). Id. at 12. Further,

Appellants maintain that there is nothing to suggest that their presentation of

an intact marriage is “suspicious,” as suggested by the trial court. Id. at 13.

Lastly, Appellants assert that it was error for the trial court to make a

determination rooted in credibility and challenge the court’s reliance on

Mother’s lack of credibility. Id. at 16-17.

      We review the trial court’s order with regard to paternity for an abuse

of discretion or error of law. Barr v. Bartolo, 927 A.2d 635, 639 (Pa. Super.

2007).

      With regard to this standard, we have stated:

      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


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J-A02035-19


      enough [for reversal] that we, if sitting as a trial court, may have
      made a different finding.

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

original and citation omitted).

      Further, “[t]he finder-of-fact is entitled to weigh the evidence presented

and assess the credibility of witnesses. The finder-of-fact is free to believe

all, part, or none of the evidence, and this court will not disturb the trial court’s

credibility determinations.” B.S. v. T.M., 782 A.2d 1031, 1037 (Pa. Super.

2001) (citations omitted); accord E.W., 916 A.2d at 1202.

      The analysis required for a legal determination of paternity has been

summarized as follows:

      [F]irst, one considers whether the presumption of paternity
      applies to a particular case. If it does, one then considers whether
      the presumption has been rebutted. Second, if the presumption
      has been rebutted or is inapplicable, one then questions whether
      estoppel applies. Estoppel may bar either a plaintiff from making
      the claim or a defendant from denying paternity.               If the
      presumption has been rebutted or does not apply, and if the facts
      of the case include estoppel evidence, such evidence must be
      considered. If the trier of fact finds that one or both of the parties
      are estopped, no blood tests will be ordered.

Brinkley v. King, 701 A.2d 176, 180 (Pa. 1997) (plurality).

      Under the law of presumptive paternity, “generally, a child conceived or

born during the marriage is presumed to be the child of the marriage; this

presumption is one of the strongest presumptions of the law of Pennsylvania;

and the presumption may be overcome by clear and convincing evidence . . .

.” Id. at 179 (footnote omitted). This presumption, however, applies only


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where the underlying policy of the presumption, i.e., to preserve marriages,

would be advanced by its application. Id. at 181; see B.S., 782 A.2d at 1035

n.3.

       Turning to paternity by estoppel, this doctrine has been defined as

follows:

       Estoppel in paternity actions is merely the legal determination that
       because of a person’s conduct (e.g., holding out the child as his
       own, or supporting the child) that person, regardless of his true
       biological status, will not be permitted to deny parentage, nor will
       the child’s mother who has participated in this conduct be
       permitted to sue a third party for support, claiming that the third
       party is the true father. As Superior Court has observed, the
       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 conduct regarding the paternity of the
       child.”

Freedman v. McCandless, 654 A.2d 529, 532-33 (Pa. 1995) (citation and

footnote omitted).14

       In B.S., B.S. had an affair with T.M. while married to R.S. Shortly after

learning she was pregnant, B.S. separated from and moved out of her home

with R.S. B.S. expressed her desire for a future with T.M. and even looked


____________________________________________


14 As was explained, paternity by 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” otherwise. Brinkley, 701 A.2d at 180. This doctrine has been narrowed
to apply “only where it can be shown, on a developed record, that it is the
best interests of the involved child.” K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa.
2012).



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for a house with T.M. B.S. also filed for divorce from R.S. T.M., but not R.S.

was present for the birth of the child. T.M. was named as the child’s father

on the acknowledgment-of-paternity form, and B.S. held the child out as

T.M.’s child. T.M. and his family participated in the child’s baptism. However,

approximately one month after the child’s birth, B.S. ended her romantic

relationship with T.M. Approximately one year after separation, and after B.S.

and R.S. reconciled, B.S. withdrew her complaint for divorce. B.S. suggested

reconciliation to improve her legal position as to the case with T.M. R.S. was

“willing to live with his wife under their former family arrangement despite

knowledge of all that has transpired.” B.S., 782 A.2d at 1032-34 (citation

omitted).

      In finding the presumption of paternity not applicable, the B.S. Court

reasoned as follows:

      First, the trial court found that there is no dispute from which R.S.
      and B.S. need to be protected. According to the trial court, the
      evidence failed to establish that there is or ever was a dispute
      about the identity of J.’s biological father. The court looked to the
      actions of the parties from mid-September 1998 to September
      1999 to support its conclusion. Those actions included: B.S. left
      the marital home after learning she was pregnant; B.S. and T.M.
      looked for a house together; B.S. filed for divorce from R.S.; T.M.
      was present at J.’s birth and was named as J.’s father on the
      acknowledgement of paternity form provided by the hospital; T.M.
      added J. to his health insurance coverage immediately after her
      birth; and T.M. participated as J.’s father in the baptism
      ceremony. Additionally, the court rejected the testimony of R.S.
      and B.S. that there was doubt in their minds about the identity of
      the biological father. . . .

      Second, the trial court determined that if this case is permitted to
      proceed on T.M.’s petition for partial custody, that there would be

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      no harm to R.S. and B.S.’s relationship, as this hellish marital
      situation has already occurred. The parties in this marriage have
      already acknowledged the affair and subsequent birth of J., the
      public separation, and B.S.’s holding T.M. out as the father of J.
      This marriage will succeed or perhaps fail with or without the
      application of the presumption. The trial court said it best:
      “Admittedly, there may be unpleasantness for [R.S.] and [B.S.]
      arising from [T.M.’s] exercising rights of partial custody (if he is
      the biological father), but the law is not intended to protect them
      against all such unpleasantness.”

      Third, the trial court found the application of the presumption
      could have a deleterious effect on B.S. and R.S.’s family,
      especially on J, in the future. The court opined, “The world knows
      of the appearance of things between September 1998 and
      September 1999. If R.S.’s biological fatherhood is a fiction, it will
      not be maintained. If J. eventually finds out that the truth is
      different from what she has been led to believe for a period of
      years, she may suffer greater trauma than if she knows it from
      the outset.

      Cases such as this fall on their unique set of facts. B.S. and R.S.
      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. The damage to their marriage is
      “water under the bridge.” R.S. and B.S. reconciled with full
      knowledge of all the facts. T.M. assumed the responsibilities he
      believed were his as J.’s father until he was no longer permitted
      to do so. At that point, he took immediate steps to assert his
      rights in court.

Id. at 1036-37 (citations omitted).

      In E.W., the Court affirmed the trial court’s determination that the

presumption of paternity applied. E.W., 916 A.2d at 1205-06. In E.W., T.S.

had an affair with E.W. while married to C.S. Id. at 1199. Notably, T.S.

maintained her joint relationship, marital and financial, with C.S. While T.S.

represented to E.W. and his family that E.W. was the child’s father, T.S. did

not separate from or divorce C.S. and represented to C.S. that C.S. was the

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J-A02035-19


child’s father. In fact, C.S. did not even know of the relationship between

E.W. and T.S. until more than one year after the child’s birth. Further, C.S.

was present at the child’s birth and named on the birth certificate.             He

participated in the child’s baptism and has supported the child. Id. at 1999-

1200.

        The E.W. Court stated:

        Contrasting the facts found by the trial court in B.S. with those
        found by the trial court in the instant case reveals a distinction
        that can not [sic] be reconciled. Here, T.S. did not move out of
        the marital home seeking to establish living quarters with E.W.,
        nor was a divorce complaint filed. Moreover, C.S. fulfilled all the
        duties of a father in connection with the birth and religious rites.
        And most telling as the court found based upon the evidence, C.S.
        and T.S. did not separate. Accordingly, we are compelled to
        conclude that the situation here is sufficiently distinct from that in
        B.S. and we, therefore, conclude that the trial court’s application
        of the presumption of paternity was proper.

Id. at 1204.

        Instantly, in finding the presumption of paternity inapplicable, the trial

court determined that the evidence failed to support that Appellants remained

in an intact marriage, highlighting Mother’s false representations and

deceptive actions. The court explained:

        Testimony and evidence provided to this court over three (3) days
        of hearings provided this court with very specific testimony and
        evidence to support a finding that Mother and Husband’s marriage
        was not intact, until, perhaps, at the time of the hearings. Mother
        repeatedly admitted on the record to purportedly lying to Father
        and many others for almost one year, about her separation from
        Husband and her desire to make a future with Father and their
        [c]hild. Evidence presented at the hearings made it quite clear
        that Mother regularly discussed her failed relationship with
        Husband and her desire to live “full time” with Father and in one

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      exhibit presented at the hearing, it is noted that on November 29,
      2017, Mother told Father that she was “finally separating” from
      Husband and seeking her independence in her own place.
      Testimony at hearing adduced that Mother made her intentions
      know to Father’s friends and colleagues.

      The record revealed that Mother referred to the marital home as
      Husband’s place and the apartment as her own place on multiple
      occasions and that she had Father help her to move items from
      the once marital home to her apartment. In fact, testimony
      indicates that Husband was at his home when Father, Mother and
      Father’s friend went there to move Mother’s things out, and that
      he and Father shook hands. The parties removed, among other
      items, a bed for Mother, a bed for the five[-]year[-]old, Mother’s
      and the five[-]year[-]old’s clothing and Mother’s special chair for
      nursing. Additionally, Mother and Father decorated her apartment
      and Father built Ikea furniture he had purchased for Mother’s
      apartment.     Additionally, Father and Mother continued their
      romantic relationship in Mother’s apartment after the birth of the
      [c]hild [in January 2018], and Father regularly visited with
      Mother, the [c]hild and Mother’s five[-]year[-]old daughter at
      Mother’s apartment up until the end of February 2018. Even after
      their sexual relationship ended and Mother ceased permitting
      Father to see their [c]hild, Mother admitted on the record to
      sending Father messages with sexual content after this action
      commenced. She further admitted to Father that she was not
      reconciling with Husband to secure their marriage, but only to
      insure the [c]hild and her five[-]year[-]old half-sister could stay
      together. She added that she would be feigning happiness with
      Husband to keep up appearances, while continuing to think about
      Father.

                                 *     *      *

      It is clear from the record that the marriage of Mother and
      Husband is a facade so as to keep Father out of the [c]hild’s life.
      While Mother and Husband may appear in public together and
      want the court to believe they are living happily ever after, the
      facts on the records and the severe lack of credibility of Mother’s
      extensive testimony, lead this court to believe there is no intact
      marriage, but rather a convenient arrangement for some
      suspicious reason.

Id. at 7-9.

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      Looking to the impact on Appellants’ marriage, the trial court further

stated, in part,

      [t]he Supreme Court of Pennsylvania has held that “ . . . the
      presumption [of paternity only applies where the underlying policy
      to preserve marriages] would be advanced by application [of the
      presumption] . . . ” [Fish v. Behers], 741 A.2d 721, 723 ([Pa.]
      1999).     In the instant case, both Mother’s and Husband’s
      testimony that, despite acknowledging Father is the parent of the
      [c]hild and knowing of the lengthy affair and lies, their marriage
      has not suffered, and there is no need to preserve their marriage
      by application of the presumption of paternity. The marriage of
      Mother and Husband will succeed or fail with or without the
      application of the presumption and while there may be some
      unpleasantness for Mother and Husband if Father should remain
      in the [c]hild’s life, the presumption of paternity was not intended
      to protect such an issue.

Id. at 10-11.

      The record supports the trial court’s findings. While Appellants did not

file for divorce, Mother represented to Father and his friends and family that

she and Husband were separated.       N.T. Trial, 5/4/18, at 14, 95.    In fact,

Appellants considered separation and even leased a separate apartment in

September 2017, at the suggestion of their marriage counselor. N.T. Trial,

5/7/18, at 139-40, 242-43, 250, 252; N.T. Trial, 5/4/18, at 27; see also

Father’s Ex. 17. Moreover, Mother stated to Father on numerous occasions

that she was considering divorce. N.T. Trial, 5/4/18, at 17, 22, 24-25; see

also Father’s Ex. 1.

      Mother also obtained a second apartment separate from the marital

residence in December 2017, with Mother representing to Father that she was

securing her own residence. N.T. Trial, 5/7/18, at 175-76, 178; N.T. Trial,

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J-A02035-19


5/4/18, at 48-51; see also Father’s Exs. 14, 15, 16, and 17. Further, Mother

expressed a desire for a future with Father, and made representations to

Father that this apartment could potentially be used to begin a life together.

N.T. Trial, 5/4/18, at 22, 48; see also Father’s Exs. 1, 5, and 20.          As

recounted by Father, Mother indicated to Father that the only reason she

decided to reconcile with Husband is because she “had consulted attorneys

that basically told her she would lose custody of [J.L.], and she had a better -

- she believes she had a better shot basically trying to manipulate the

presumption loss [sic] to deny me my paternity rights.” N.T. Trial, 5/17/18,

at 304. In addition, [Child] was held out as Father’s child to Father’s friends,

colleagues, and family, to various doctors and/or medical staff, and on social

media. N.T. Trial, 5/17/18, at 305-07; N.T. Trial, 5/7/18, at 181-82, 184-85,

194, 205-06; N.T. Trial, 5/4/18, at 28, 55-59; see also Father’s Ex. 11.

      Therefore, we find the record supports the trial court’s conclusion that

the presumption of paternity does not apply. See B.S., 782 A.2d at 1037.

The record substantiates the determination that Appellants’ marriage was not

intact. Further, based on Husband’s own testimony, the marriage in question

does not require protection, thereby triggering the presumption. See id. As

in B.S., any damage to Appellants’ marriage is “water under the bridge.” See

id.

      While Appellants understandably reference the unpleasantness and

burden presented by the situation, and Mother may wish to shield and protect


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Husband and her family, as we stated in B.S., the presumption of paternity

was not designed to protect against all unpleasantness. See id. The fact that

Child has been held out to a certain extent as Father’s child also weighs against

applying the presumption. Therefore, as in B.S., there is the potential for a

negative impact on the family, particularly Child, if Child were to discover her

true paternity. See id.

       Lastly, as to credibility, the trial court stated,

       [t]he record from three (3) days of hearings is replete with Mother
       admitting to numerous lies to Father and Husband over the course
       of her relationship with Father, causing this [c]ourt to place little
       credibility on any of Mother’s testimony, especially concerning the
       status of her marriage to Husband. Additionally, contradicting
       testimony by other witnesses led this [c]ourt to believe that the
       marriage of [Appellants] was not intact and[,] therefore, the
       [g]enetic [t]esting was ordered.

Trial Ct. Op., 7/31/18, at 5-6.

       We agree. We have held that it is within the purview of the trial court

to make findings based upon credibility. See E.W., 916 A.2d at 1202. We

have reviewed the extensive record, and although we acknowledge the

existence of conflicting testimony, this Court simply cannot disturb the trial

court’s credibility determinations. See id. Accordingly, the trial court did not

err in declining to apply the presumption of paternity. See Barr, 927 A.2d at

639.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/26/2019




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