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PAUL BURSTON v. LOUISE DODSON (07/12/78)

decided: July 12, 1978.

PAUL BURSTON
v.
LOUISE DODSON, APPELLANT



No. 2043 October Term 1976, Appeal from the Order of the Court of Common Pleas, Family Division, Philadelphia County, W.D. #69460.

COUNSEL

A. Benjamin Johnson, Jr., Philadelphia, for appellant.

Ronald J. Brockington, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Jacobs, President Judge, joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 257 Pa. Super. Page 3]

This appeal concerns the custody of a child, Patasha Mosley. The lower court found that appellee is Patasha's natural father and awarded him custody. Since the evidence

[ 257 Pa. Super. Page 4]

    makes it overwhelmingly clear that appellee is Patasha's father, the order of the lower court is affirmed.

-1-

Appellee first met Carrie Mosley during the winter of 1969, when Ms. Mosley opened a delicatessen a few doors from appellee's seafood and fruit store. (N.T. 2/26/75, 19, 39) Ms. Mosley had separated from her husband in 1963, and was living with her two children and a boyfriend. (N.T. 2/26/75, 19-20) When her relationship with this boyfriend came to an end, during the spring of 1971 (N.T. 2/26/75, 20-21), her relationship with appellee became more serious.*fn1 In October 1971 appellee helped Ms. Mosley buy a house on Hemburger Street. (N.T. 2/26/75, 21) Appellee had keys to the house and visited her both day and night. (N.T. 2/26/75, 22, 42)*fn2 Further, appellee helped support Ms. Mosley and her two children. (N.T. 2/26/75, 21)*fn3 However, appellee did not live with Ms. Mosley because he was married and lived with his wife. (N.T. 2/26/75, 28-29)

On February 27, 1973, Ms. Mosley gave birth to Patasha. Appellee visited them at the hospital (N.T. 2/26/75, 46), and brought them home from the hospital. (N.T. 2/26/75, 47) He also took them back to the hospital for physical checkups, and he provided money for Patasha's care. (N.T. 2/26/75, 32)*fn4

[ 257 Pa. Super. Page 5]

On December 1, 1973, Ms. Mosley became ill and appellee took her to Temple Hospital. (N.T. 2/26/75, 23) Patasha and the two older children were taken to the home of appellant as their maternal grandmother. (N.T. 2/26/75, 48-49) On December 23, 1973, while appellee was present, Ms. Mosley died. (N.T. 2/26/75, 22) Appellee paid a large part of her funeral expenses.*fn5

In January 1974, when going through Ms. Mosley's papers, appellee discovered Patasha's birth certificate. (N.T. 2/26/75, 36, 52) The birth certificate listed Ms. Mosley's husband as the father. (N.T. 2/26/75, 18) This was a shock to appellee since he had expected Ms. Mosley to place a fictitious name on the certificate. (N.T. 2/26/75, 50-51) He immediately went to see appellant to point out the error. (N.T. 2/26/75, 52-53) In February, just before instituting this action, appellee told appellant that he wanted to have the father's name on the birth certificate changed to his name. (N.T. 2/26/75, 49-50) She refused, asserting that "[her daughter] left it like that and that's the way I am going to leave it." (N.T. 2/26/75, 50)

Appellant did not, however, contradict appellee's claim that he is Patasha's father. Indeed, in many respects appellant corroborated appellee's testimony. It had been her belief that appellee was helping her daughter financially. (N.T. 2/26/75, 67) She admitted that when she visited her daughter's home, sometimes appellee was there (N.T. 2/26/75, 69-71), and that on occasion her daughter and appellee would visit her together (N.T. 2/26/75, 71). Further appellant testified that appellee took her daughter to the hospital, and also that he took her there to visit her daughter. (N.T. 2/26/75, 55, 74) Appellant also stated that appellee attended the funeral. (N.T. 2/26/75, 77) Appellant did dispute the fact that appellee had helped her

[ 257 Pa. Super. Page 6]

    daughter make a downpayment on her house. Instead she asserted that her daughter had come to her for assistance, and she had given her $300. (N.T. 2/26/75, 64-66) This testimony, however, was discredited by the fact that the branch bank from which she allegedly withdrew the money did not exist. (N.T. 2/26/75, 75-76) When specifically questioned regarding Patasha's paternity, appellant was evasive (N.T. 2/26/75, 68-69),*fn6 as she was also regarding the length of her daughter's separation from her husband (N.T. 2/26/75, 67-69). However, appellant confirmed appellee's testimony regarding her response to his request that the father's name on the birth certificate be changed (N.T. 2/26/75, 74).*fn7

The birth certificate indicated that Patasha was a full term baby. (N.T. 2/26/75, 18) Therefore, conception was during May or early June of 1972. Appellee attempted to prove that Thomas Mosley, Carrie Mosley's husband, could not have had access to his wife during the period of conception because he was in prison. However, a prison agent testified that the first record of Mosley's contact with the prison system for the particular offense in question was on

[ 257 Pa. Super. Page 7]

June 19, 1972, when Mosley was received at the Philadelphia Detention Center. (N.T. 2/26/75, 60, 63) Accordingly, access was not precluded. Mosley himself testified on behalf of appellant that in June, before he was incarcerated on the 19th, he had twice had intimate relations with his wife at his mother's house. (N.T. 11/17/75, 5-6) He also testified that Patasha was his child. (N.T. 11/17/75, 4) Appellant attempted to corroborate this testimony by introducing the testimony of Lillian Lane, appellant's daughter and Ms. Mosley's sister:

Q. When is the last time that you ever saw your deceased sister and her husband together?

A. The last time that I knew --

THE COURT: No. We didn't ask you the last time you knew. When was the last time you saw them together?

THE WITNESS: When we took her up there.

THE COURT: Took her up where, to prison?

THE WITNESS: No, at his house.

THE COURT: What was the occasion for taking her to his house?

THE WITNESS: She asked me to drop her off.

BY MR. JOHNSON:

Q. When was that? What year was that?

A. What year?

Q. Yes.

A. I guess that must have been about three years ago now.

THE COURT: Is that the best recollection you have, about ...


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