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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

D.J.C.,                                    :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                         Appellant         :
                                           :
                    v.                     :         No. 1370 WDA 2014
                                           :
K.E.                                       :


                     Appeal from the Order, July 18, 2014,
                in the Court of Common Pleas of Potter County
                         Civil Division at No. 2014-140


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MARCH 6, 2015

       Appellant, D.J.C., appeals the order of the Court of Common Pleas of

Potter County that denied his petition for genetic testing to establish

paternity of D.L.V. (“Child”) born in December of 2013. We affirm.

       The trial court set forth the pertinent facts as follows:

                  [D.J.C.] is 53 years of age and is a resident of
             419 State Route 19 South, Wellsville, New York. The
             Defendant [K.E-V., hereafter “Mother”] is 21 years of
             age and presently resides at 1501 State Route 54
             South, Shinglehouse, Pennsylvania.

                   On or before January 25, of 2013, [Mother]
             was residing with her then fiancé [E.V.] in
             Shinglehouse,     Potter    County,     Pennsylvania.
             Apparently a disagreement arose between [E.V.] and
             [Mother] to the point that she desired to leave
             [E.V.].  [D.J.C.] had performed some excavating
             work for [E.V.] and had met [Mother] at that time.
             [Mother] was also a friend of [D.J.C.]’s daughter.
             Accordingly after discussion with [E.V.], [D.J.C.] and
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          [Mother], it was agreed that on January 25, 2013,
          [Mother] would come to reside with [D.J.C.] and his
          children. Approximately four days after [Mother]
          moved to [D.J.C.’s] residence, [D.J.C.] and [Mother]
          engaged in sexual relations including intercourse.
          They continued to have regular sexual relations up to
          two times a day (excluding 5 days) through April 15,
          2013.    [D.J.C.] testified that they never used
          condoms or any other birth control device during the
          period of time he was having sexual relations with
          [Mother]. From the evidence presented, from the
          date that [Mother] moved into [D.J.C.’s] residence
          on January 25, 2013, through April 1, 2013,
          [Mother] had sexual relations only with [D.J.C.].
          However, [Mother] had vacated their residence for
          approximately five days near the end of the month of
          March of 2013. After five days[,] she returned to the
          residence and back into the bed of [D.J.C.].

                 On or about April 1 through April 15, 2013,
          [E.V.] began to regularly visit [Mother] at [D.J.C.’s]
          residence. During this period of time[,] [E.V.] would
          often take [Mother] for drives in his vehicle where
          they would ingest substances and engage in sexual
          relations. This apparently continued through about
          April 15, 2013 when [Mother] finally removed herself
          from [D.J.C.]’s residence with the aid of [E.V.] and
          his friends.

                [D.J.C.] noticed in April, 2013 that [Mother]
          was pregnant. She had previously indicated her
          desire to become pregnant but advised [D.J.C.] that
          she had been taking her birth control pills. [D.J.C.]
          had discovered that in fact she had not been taking
          the pills.

                [Mother] denies that she was residing
          exclusively with [D.J.C.] and suggests that she
          regular[ly] had sexual relations with [E.V.], including
          at the time the child was conceived. As proof that
          [Mother] was residing with [D.J.C.][,] he testified
          that on March 30 of 2013, while [Mother] was at
          [D.J.C.’s] residence the local dog warden appeared
          and served her with a summons due to the fact that


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          her dog was running loose. As to [Mother’s] claims
          she was not residing at the residence on March 30,
          2013, the Court finds her to not be credible in this
          regard.

                 [Mother] conceived the minor child on or about
          March 17, 2013. The Court finds that on or about
          March 17, 2013 that [Mother]’s sexual relations were
          with [D.J.C.] alone and that she did not resume
          sexual relations with [E.V.] until the end of March
          when she moved out for 4-5 days and then after
          April 1, 2013.

                 According to [D.J.C.]’s daughter, [K.C.] who is
          18 years of age[,] she recalls [Mother] moving into
          the residence on or about January 25, 2013, and
          remembers       that   [Mother]     did    leave   for
          approximately five days near the end of March,
          2013, to reside with [E.V.]. After the aforesaid five
          days[,] [Mother] returned to [D.J.C.’s] residence and
          continued [to] reside there until approximately
          April 15, 2013, when she vacated the premises
          returning to [E.V.].

                 [E.V.] and [Mother] are now married, having
          been married on December 4, 2013 and presently
          have an intact family. [Mother] gave birth to the
          [Child] on or about December [of] 2013. [Mother]
          listed her present husband [E.V.] as the father of the
          minor child on the birth certificate. [E.V.] has also
          executed an acknowledgment of paternity. [E.V.]
          has been together (excluding the time [Mother]
          resided     with   [D.J.C.])    with   [Mother]     for
          approximately three and one half years.         [E.V.]
          testified that he loves his daughter, holds the child
          out as his own, and financially supports her.

                 According to [Mother] she moved to [D.J.C.]’s
          residence on February 15, 2013, and not on
          January 25, 2013. She claims that during the period
          of time that the child was conceived that [E.V.]
          would come to the residence and they took at least
          three rides together where they would have sexual
          relations. She does acknowledge that on or about


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            March 7, 2013, she had left her residence for
            approximately four days and was residing with
            [E.V.’s] sister.   The Court finds [Mother] is not
            credible in her account as to when she had sexual
            relations with [E.V.].

                  [Mother] claims that she was at [D.J.C.’s]
            residence for only four weeks and that she had left
            on March 7, 2013 and never returned to the
            residence. This testimony is inconsistent with that of
            [D.J.C.] and his daughter [K.C.]. [Mother] is visually
            impaired and has no driver[’s] license.         When
            residing with [D.J.C.] all transportation for [Mother]
            was provided by [D.J.C.]’s children and other th[a]n
            the limited times when [Mother] had access to [E.V.]
            she was always with [D.J.C.] and h[is] children.
            [D.J.C.] recalls that when [Mother] finally left the
            residence he had discovered that she had been
            smoking marijuana with [E.V.] during the times
            when she would take vehicle rides with him and
            therefore [D.J.C.] had given her [an] ultimatum. On
            the day she finally left the residence, [Mother] was
            found with cuts on her legs and [E.V.] told [D.J.C.]
            that [Mother] had attempted to harm herself.

Trial court opinion, 7/21/14 at 1-4.

      D.J.C. filed a complaint to establish paternity and for genetic testing of

Child. A trial was held on July 3, 2014, and on July 18, 2014, the trial court

issued an order along with findings of fact denying D.J.C.’s petition.      The

aforesaid order was docketed on July 21, 2014, and this timely appeal

followed.

      D.J.C. argues the trial court erred when it applied the presumption of

paternity. We disagree.

      Our standard of review of a trial court’s order related to paternity is

whether the trial court abused its discretion.    D.M. v. V.B., 87 A.3d 323,


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327 (Pa.Super. 2014), citing T.E.B. v. C.A.B., 74 A.3d 170, 173 n.1

(Pa.Super. 2013).

      In cases where a child is conceived or born during the marriage, that

child is presumed to be the offspring of his or her mother’s husband. Vargo

v. Schwartz, 940 A.2d 459, 463 (Pa.Super. 2007). This is referred to as

the “presumption of paternity.”    Id.   In Brinkley v. King, 701 A.2d 176,

179 (Pa. 1997) (plurality opinion), our supreme court explained the

presumption of paternity as follows:

             [G]enerally, 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 that the presumptive father had
             no access to the mother or the presumptive father
             was physically incapable of procreation at the time of
             conception.      However, the presumption is
             irrebutable when a third party seeks to assert
             his own paternity as against the husband in an
             intact marriage. [Emphasis added.]

The preservation of marriages is the purpose of the presumption of

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

presumption renders blood test results irrelevant unless and until the

presumption is overcome.     See Strauser v. Stahr, 726 A.2d 1052, 1054

(Pa. 1999). “[T]he presumption is irrebuttable when a third party seeks to

assert his own paternity as against the husband in an intact marriage.”

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




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

time of the challenge to a husband’s paternity.     Vargo, 940 A.2d at 463

(Pa.Super. 2007).     This is a question for the fact-finder.     Id. at 467

(“Whether the family is intact and there is a marriage to preserve are

questions of fact, which, like all questions of fact, fall squarely within the

realm of the fact-finder.”).

      The disposition of this matter turns on whether Mother and E.V. had

an intact marriage at the time of the challenge to E.V.’s paternity. The trial

court found that Mother and E.V. were married before the birth of Child and

have remained married. Following the birth of Child, E.V. held himself out

as Child’s father and continues in his role as Child’s father.    (Trial court

opinion, 7/21/14 at 10-11.) D.J.C. does not claim, nor has he ever claimed,

that Mother, E.V., and Child do not live together as an intact family, or that

E.V. has not assumed parental responsibility for Child.      As a result, the

presumption of paternity is irrebuttable. Vargo, 940 A.2d at 463.

      Even if the presumption were rebuttable, D.J.C. failed to rebut the

presumption.    The presumption may be overcome by clear and convincing

evidence that either of the following circumstances was true at the time of

conception: the presumptive father was physically incapable of procreation

because of impotency or sterility or the presumptive father had no access to

wife. The trial court pointed out that when Child was conceived, Mother was

living with D.J.C. and having sexual relations with him, however, Mother also



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had “limited contact” with E.V.     (Trial court opinion, 7/21/14 at 5.)   The

record supports the fact that E.V. was capable of having children at all times

and was in no way sterile. (Notes of testimony, 7/3/14 at 93-95.) The law

is clear that, absent such circumstances, the presumption of paternity

continues to apply. Vargo, supra.

      D.J.C. also argues that the trial court erred by failing to apply the

doctrine of paternity by estoppel. In R.W.E. v. A.B.K., 961 A.2d 161, 169

(Pa.Super. 2008) (en banc), this court stated, “[t]he doctrine of paternity

by estoppel has been applied by courts to prevent putative fathers who hold

themselves out as the fathers of their children from subsequently denying

their parentage.” Given the circumstances of the instant case, this court has

no occasion to analyze paternity by estoppel.

      Accordingly, for the foregoing reasons, we conclude the trial court

properly applied the presumption of paternity to this matter when it denied

D.J.C.’s petition for genetic testing. See E.W. v. T.S., 916 A.2d 1197, 1204

(Pa.Super. 2007) (affirming the trial court’s application of the presumption

of paternity in a case where the mother and her husband had not lived apart

at any time after their marriage and had never filed a divorce complaint, and

the husband had fulfilled the duties of a father in the family).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2015




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