J-A09030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.E.B.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

J.D.J.

                            Appellant                  No. 1487 MDA 2015


                  Appeal from the Order Entered August 6, 2015
              In the Court of Common Pleas of Cumberland County
                    Domestic Relations at No(s): 967 S 2013
                             PACSES NO. 125114325


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 10, 2016

         Appellant J.D.J. (“Father”) appeals from the order entered in the

Cumberland County Court of Common Pleas, which denied Appellant’s

support exceptions and affirmed the support master’s denial of genetic

testing. We affirm.

         The relevant facts and procedural history of this appeal are as follows.

J.J. (“Child”) was born on February, 2004, while Child’s mother (“Mother”)

and Father were in a relationship. The next day, Father, who was seventeen

(17) years old, signed an acknowledgement of paternity (“AOP”). On May

23, 2006, the court issued a support order for Child. Father did not make
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*
    Retired Senior Judge assigned to the Superior Court.
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payments on the order, although he informally made payments to Mother.

In December, 2006, Mother gave birth to C.J. Father does not contest that

C.J. is his child.

      On October 22, 2013, Father signed a custody agreement that

assigned primary custody of Child and C.J. to G.B. and M.E.B. (“Appellee”),

because Mother had been in jail and was going into rehabilitation.

      On November 8, 2013, Appellee filed a complaint for support against

Father.    On September 18, 2014, the court filed an interim order that

required Father to pay $481.00 per month ($437.00 in support and $44.00

in arrears). On October 3, 2014, Father requested a hearing. On December

10, 2014, the court conducted a hearing.     On January 6, 2015, the court

entered an “Interim Order of Court,” which denied Father’s request for

genetic testing and affirmed the interim order entered on September 18,

2014. On January 22, 2015, Father filed exceptions. On August 6, 2015,

the court denied Father’s exceptions and affirmed its order denying his

request for genetic testing.

      On September 3, 2015, Father filed a notice of appeal but did not file a

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

1925(a)(2)(i) and (b). On October 9, 2015, this Court designated the case

as a Children’s Fast Track appeal and ordered Appellant to file a Pa.R.A.P.




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1925(b) statement in the trial court.1           Appellant complied on October 19,

2015.

        Appellant raises the following issues for our review:

           A. DID THE TRIAL COURT ERR WHEN IT FOUND THAT THE
           DOCTRINE OF PATERNITY BY ESTOPPEL APPLIED TO
           [FATHER’S] RELATIONSHIP WITH THE CHILD DESPITE THE
           LACK OF EVIDENCE DEMONSTRATING THE ARRANGEMENT
           WAS IN THE CHILD’S BEST INTERESTS?

           B. DID THE TRIAL COURT ERR WHEN IT FOUND
           [FATHER’S] PARTICIPATION IN A CUSTODY ACTION
           INVOLVING MULTIPLE CHILDREN WAS SUFFICIENT TO
           CONCLUDE THAT [FATHER] HAD HELD HIMSELF OUT TO
           BE THE FATHER OF THE CHILD?

           C. DID THE TRIAL COURT ERR AND/OR ABUSE ITS
           DISCRETION IN DENYING [FATHER’S] REQUEST FOR
           GENETIC TESTING UNDER THE DOCTRINE OF PATERNITY
           BY ESTOPPEL?

Father’s Brief at 2.

        In his combined issues, Father argues the doctrine of paternity by

estoppel should not apply to him. He claims he is not Child’s father, he did

not hold himself out to be Child’s father, he signed the AOP before he had

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1
  On October 19, 2015, this Court issued an order to show cause as to why
this appeal should not be quashed as untimely filed from the January 6,
2015 order denying Appellant’s request for genetic testing. On October 21,
2015, Appellant filed a response, explaining that the order was not final and
appealable until the court had ruled on his exceptions. On October 22,
2015, this Court discharged the rule to show cause but referred the issue to
the merits panel. Because the trial court did not rule on Father’s timely
exceptions until August 6, 2015, his appeal, filed September 3, 2015, was
timely and is properly before us. See Barr v. Bartolo, 927 A.2d 635, 638
(Pa.Super.2007) (“This Court accepts immediate appeals from orders
directing or denying genetic testing to determine paternity”).



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reached the age of majority after being fraudulently induced into believing

he was Child’s father, he has no relationship with Child, and applying the

doctrine of paternity by estoppel would not be in the best interest of Child.

We disagree.

      We employ the following standard of review concerning paternity

questions:

         In reviewing matters involving child support, we as an
         appellate court will not disturb a trial court order absent an
         abuse of discretion. Doran v. Doran, 820 A.2d 1279,
         1282 (Pa.Super.2003) (applying this standard of review to
         a case involving a question of paternity).

         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 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) (some internal

citations omitted).

      Generally, a purported father does not have a statutory right to come

into court to have his paternity determined, and he has no right to a trial on

the issue of paternity.   See In re Estate of Greenwood, 587 A.2d 749,

754 (Pa.Super.1991) (“The statute…provides a device affording both the

father and mother the right to acknowledge paternity. The statute does not

afford the father the right to come into court to have his paternity




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determined.”); Minnich v. Rivera, 506 A.2d 879, 880 (Pa.1986), aff'd, 483

U.S. 574, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987).

      “Under the doctrine of paternity by estoppel, a putative father who is

not a child’s biological father is estopped from challenging paternity after he

has held himself out as the child’s father or provided support.” Ellison v.

Lopez, 959 A.2d 395, 397-98 (Pa.Super.2008); see also 23 Pa.C.S. §

5102(b)(2).   In paternity actions, estoppel 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 the
         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.

Doran, 820 A.2d at 1282-83.

      The relevant statute regarding acknowledging paternity provides, in

pertinent part:

         § 5103. Acknowledgment and claim of paternity

         (a) Acknowledgment of paternity.--The father of a
         child born to an unmarried woman may file with the
         Department of Public Welfare, on forms prescribed by the
         department, an acknowledgment of paternity of the child
         which shall include the consent of the mother of the child,
         supported by her witnessed statement subject to 18
         Pa.C.S. § 4904 (relating to unsworn falsification to
         authorities). In such case, the father shall have all the
         rights and duties as to the child which he would have had
         if he had been married to the mother at the time of the
         birth of the child, and the child shall have all the rights and

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       duties as to the father which the child would have had if
       the father had been married to the mother at the time of
       birth. The hospital or other person accepting an
       acknowledgment of paternity shall provide written and oral
       notice, which may be through the use of video or audio
       equipment, to the birth mother and birth father of the
       alternatives to, the legal consequences of and the rights
       and responsibilities that arise from, signing the
       acknowledgment.

                                   *    *    *

       (d) Conclusive evidence.--Notwithstanding any other
       provision of law, an acknowledgment of paternity shall
       constitute conclusive evidence of paternity without further
       judicial ratification in any action to establish support. The
       court shall give full faith and credit to an acknowledgment
       of paternity signed in another state according to its
       procedures.

                                   *    *    *

       (g) Rescission.--

          (1) Notwithstanding any other provision of law, a
          signed, voluntary, witnessed acknowledgment of
          paternity subject to 18 Pa.C.S. § 4904 shall be
          considered a legal finding of paternity, subject to the
          right of any signatory to rescind the acknowledgment
          within the earlier of the following:

              (i) sixty days; or

              (ii) the date of an administrative or judicial
              proceeding relating to the child, including, but not
              limited to, a domestic relations section conference or
              a proceeding to establish a support order in which
              the signatory is a party.

          (2) After the expiration of the 60 days, an
          acknowledgment of paternity may be challenged
          in court only on the basis of fraud, duress or
          material mistake of fact, which must be
          established by the challenger through clear and
          convincing evidence. An order for support shall not



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           be suspended during the period of challenge except for
           good cause shown….

23 Pa.C.S. § 5103 (emphasis added).

     “When allegations of fraud arise in a paternity action, an estoppel

analysis must proceed in a different manner than it would without such

averments.” Doran, 820 A.2d at 1279 (quoting McConnell v. Berkheimer,

781 A.2d 206, 211 (Pa.Super.2001)).       “[This Court will] not allow the

application of estoppel to punish the party who sought to do what was

righteous and reward the party who had perpetrated a fraud.” Glover v.

Severino, 946 A.2d 710, 714 (Pa.Super.2008). “Evidence of fraud ‘must be

considered by the trial court in whether to apply paternity by estoppel.’”

Doran, 820 A.2d at 1279 (quoting Sekol v. Delsantro, 763 A.2d 405, 410

(Pa.Super.2000)).

      This Court has adopted the traditional elements of fraud established in

Pennsylvania:

        (1) a misrepresentation, (2) a fraudulent utterance
        thereof, (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 the proximate result.

                                *     *   *

        Fraud is practiced when deception of another to his
        damage is brought about by a misrepresentation of fact or
        by silence when good faith required expression. Fraud
        comprises anything calculated to deceive, whether by
        single act or combination, or by suppression of truth, or
        suggestion of what is false, whether by direct falsehood or
        innuendo, by speech or silence, word of mouth, or look or
        gesture.

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R.W.E. v. A.B.K., 961 A.2d 161, 167-68 (Pa.Super.2008) (emphasis

deleted).

         Proof of fraud or misrepresentation precludes application of
         paternity by estoppel. Where…there is no intact family unit
         to protect, the presumption of paternity does not apply.
         Whether the estoppel doctrine applies depends upon the
         particular facts of the case. Estoppel in paternity actions is
         based on the public policy that children should be secure in
         knowing who their parents are; if a 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.

Gebler v. Gatti, 895 A.2d 1, 3-4 (Pa.Super.2006) (internal citations

omitted).

      In Gebler, this Court found the doctrine of paternity by estoppel did

not apply when a father held himself out to be the father of the child for the

first eighteen months of the child’s life, after having acknowledged paternity

at birth, but stopped acting as a father when he realized he was not the

child’s father. In Gebler, the Father brought an action for paternity testing

as soon as he realized he was not the child’s father.

      Here, Father signed the AOP when he was 17 years old. He alleges he

only signed the AOP because Mother fraudulently induced him into believing

he was the child’s father, when another individual, R.B., was actually Child’s

father. Although Father testified that he believed he was the father when he

signed the AOP, Appellee testified otherwise. She testified:

         [Mother] never told me [R.B.] was the father. I know
         when she was pregnant with [Child] that [Father] and


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         everybody else knew there was a possibility he was not the
         father but that him and [Mother] were together and that
         he said that he didn’t care one way or another, that he was
         going to raise the child as his and be with [Mother]…And
         [Father] told [R.B.] to leave, that he was going to be the
         father of this child no matter what the DNA test said and
         that that was his family. And he stayed with the mother
         for four years after that to have another child with her.

N.T., 12/10/2014, at 40-41. Unlike the father in Gebler, Father has always

known that he might not be Child’s father and is just now contesting

paternity.

      Although the trial court considered the evidence of fraud proffered by

Father, it ultimately decided to apply paternity by estoppel. The court made

the following findings of fact:

         8. [Father] signed an [AOP] on February 2, 2004.

         9. At the time [Father] signed the [AOP] he was 17 years
         old.

                                  *    *    *

         11. At the time [Child] was born [Father] was aware there
         was another man, [R.B.], who could be [Child’s] father.

Support Master’s Report and Recommendation, filed January 6, 2015.

      In its opinion in support of the order, the court stated: “while [Father]

did present some evidence which implies it is possible [Mother] and her

family are actively allowing a fraud to continue at the expense of [Father],

whether other parties are acting in good faith or not is ultimately a red

herring, as [Father] by his own choices has on multiple occasions acquiesced

in legal proceedings which were based on the assumption he was [Child’s]

biological father.” Id. at 7.

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     In affirming the order, the trial court reasoned:

        In the present case, there is no reason shown to disregard
        the prior litigation that [Father] has been involved in
        regarding this child. It is clear from the review of the
        record that he very much is the “psychological”1 father and
        has held himself consistently out to be so. [Father] signed
        an [AOP] a day after the child was born and did not
        rescind it, engaged in multiple custody and support cases
        relating to the child against both the child’s mother and
        [Father],    has    signed     many      other    documents
        acknowledging paternity, and has stated previously that he
        was going to be the father of the child regardless of what a
        DNA test would elucidate regarding his biological relation
        to the child. [Father’s] assertion in his brief that he “has
        no bond or relationship with the child” is entirely
        disingenuous and not supported by [Father’s] actions and
        statements.
           1
             “Psychological” parents are individuals who have
           stepped into the shoes of a parent and fulfilled the
           roles normally associated with being a parent of a
           child without regard to a true biological relation to
           the child. For instance, a single mother’s significant
           other of a number of years could be considered a
           psychological parent if that person were to bond
           closely with the child and hold themselves out as the
           child’s parent or otherwise not correct for the child
           and society that they are not the child’s parent.

        It matters not whether [Father] is the biological father of
        the child when it is apparent that [Father] has gone
        through much conflict to continually assert his place as the
        child’s father. It [is] undeniably in the best interests of the
        child to have the support of a man who has continuously
        fought to be recognized as a father continue to provide
        support. To make a determination allowing [Father] to
        forsake holding the child out as his own to avoid a support
        obligation would be entirely against the stated purpose of
        the doctrine of paternity of estoppel to protect the child
        from being told that his “dad” is not in fact his “father.”
        Even if “the child would not know [Father] if he walked into
        the room,” [Father’s] actions in the early years of the
        child’s life foreclose him from now disingenuously denying
        his parental status.

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                                       *       *    *

          [Father], as the record demonstrates, has historically been
          an active father who cares for the child as family and
          consistently went to court as a father. No amount of
          opining as to the motives of [Appellee’s] resistance to
          genetic testing changes the simple fact that [Father] is
          unquestionably estopped from denying paternity.

Trial Court “Opinion and Order of Court,” filed August 6, 2015, at 2-3.

       The court considered evidence of fraud before deciding to apply

paternity by estoppel. It chose to believe Appellee’s testimony that Father

was aware he might not be the father of Child when he signed the AOP.

Thus, Father failed to rescind the AOP within 60 days and he failed to show

fraud as a reason to rescind it past the 60 day period.      Further, he held

himself out to be Child’s father after he had reached the age of majority, and

he did not attempt to rescind the AOP within a reasonable amount of time of

reaching majority.2       He did not attempt to rescind the AOP until he was

required to pay support for his child. Further, he did not allege that he was

fraudulently induced into signing the AOP until he was required to pay

support. The trial court’s findings of fact are supported by the record, and

there is no abuse of discretion.


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2
  When a minor enters into a contract, he may disaffirm the contract within a
reasonable time of reaching the age of majority. Campbell v. Sears,
Roebuck & Co., 161 A. 310, 312 (Pa.1932). “Ratification of the contract
will be inferred from any action on his part manifesting an intention to
regard the contract as binding.” Id.




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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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