No. 1586 October Term 1977, Appeal from the Order entered March 8, 1977, of the Court of Common Pleas, Civil Division, of Luzerne County at No. 7317 of 1976.
Charles P. Gelso, Wilkes-Barre, with him John P. Moses, Wilkes-Barre, for appellant.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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This is an appeal from an order denying appellant visitation of a child then 4, now 5, years old, on the basis that appellant is not the child's father. Because we find that appellee failed to rebut the presumption of legitimacy, we reverse.
Appellant, John C. Ermel, and appellee, Romayne Ermel, were married on August 29, 1959. Rita Ann, the child in question, was born on October 17, 1972. At that time the parties were living together. Three years later, in October 1975, the parties separated; they are still married. From the date of separation appellant has encountered difficulties in attempting to visit Rita Ann. As the result of a habeas corpus petition filed by appellant on July 26, 1976, a stipulation providing for visitation was entered into. However, when appellee did not conform to the stipulation, appellant
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filed a second habeas petition on November 12, 1976. At the hearing on the petition appellee testified that appellant had sexually molested Rita Ann. N.T. 25. She also testified that appellant is in fact not Rita Ann's father. N.T. 33-34. The lower court found that appellant had not molested the child, but also found that appellant is not Rita Ann's father, and this basis denied visitation.
In Cairgle v. American Radiator & Standard Sanitary Corp., 366 Pa. 249, 255, 77 A.2d 439, 442 (1951), the Supreme Court stated:
The presumption of legitimacy is, however, still one of the strongest known to the law and can be overcome only by proof of facts establishing non-access or that the husband was impotent or had no sexual intercourse with his wife at any time when it was possible in the course of nature for the child to have been begotten: Dennison v. Page, 29 Pa. 420, 422; Dulsky v. Susquehanna Collieries Co., 116 Pa. Super. 520, 525, 177 A. 60; Janes's Estate, 147 Pa. 527, 530, 23 A. 892. This is the modern rule.
In order to successfully rebut the presumption of legitimacy, the evidence of non-access or lack of sexual intercourse or impotency must be clear, direct convincing and unanswerable Thorn Estate, 353 Pa. 603, 606, 46 A.2d 258; Mays' Estate, 141 Pa. Super. 479, 489, 15 A.2d 569; McAnany's Estate, 91 Pa. Super. 317, 327, although it is not necessary that the possibility of access be completely excluded: Mays' Estate, 141 Pa. Super. 479, 15 A.2d 569; Commonwealth v. Barone, 164 Pa. Super. 73, 63 A.2d 132; Commonwealth v. Gantz, 128 Pa. Super. 97, 193 A. 72; Dulsky v. Susquehanna Collieries Co., 116 Pa. Super. 520, 531, 177 A. 60; Commonwealth v. DiMatteo, 124 Pa. Super. 277, 188 A. 425; In re Findlay, 253 N.Y. 1, 170 N.E. 471 (opinion by Judge CARDOZO).
This court has recently had the occasion to consider and apply this statement, in Burston v. Dodson, 257 Pa. Super. 1,
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A.2d 216 (1978). In both Cairgle and Burston the lower court found the evidence sufficient to rebut the presumption of legitimacy, and in both on appeal the court's order was affirmed. As appears from both cases, the evidence will be held sufficient only if it is of "overwhelming weight." Cairgle at 366 Pa. 258, 77 A.2d at 443; Burston, 257 Pa. Super. at 13, 390 A.2d at 222. And see Commonwealth v. Ludlow, 206 Pa. Super. 464, 214 A.2d 282 (1965); Commonwealth v. Fletcher, 202 Pa. Super. 65, 68-69, 195 A.2d 177, 178-179 (1963); Commonwealth v. Carrasquilla, 191 Pa. Super. 14, 155 A.2d 473 (1959); Commonwealth v. Levandowski, 134 Pa. Super. 477, 4 A.2d 201 (1939).
The evidence in regard to Rita Ann's paternity was as follows. Appellee, in the midst of testifying about the alleged molestation incident, stated that "[n]ow, John is not Rita Ann's natural father, he is aware of this." N.T. 33. She admitted, however, that she had listed appellant as Rita Ann's father on her birth certificate, N.T. 46, 57, and further, that she had filed a private criminal complaint for support in which she averred that appellant was Rita Ann's father, N.T. 57-59. Also, while claiming that she had committed adultery, she refused to name Rita Ann's father. N.T. 46-47. Appellee's sister testified that during appellee's pregnancy appellee had told her that appellant was not Rita Ann's father. N.T. 100. She further testified that on October 17, 1975, appellant had also told her that he was not Rita Ann's father. N.T. 99. Appellant testified that no one, including appellee, had ever told him that he was not Rita Ann's father; that he had never told anyone that he was not her father; and that he had no reason to believe that he was not her father. N.T. 91-92. As already indicated, the evidence established that Rita Ann was born while the parties were married and were living together. There was no evidence of appellant's non-access to appellee, or that he was impotent, or had not had sexual relations with appellee at a time when Rita Ann could have been conceived.*fn*
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In considering the sufficiency of this evidence we need not determine the weight to be given the alleged admission by appellant to appellee's sister that he was not Rita Ann's father, for the lower court did not find that this admission occurred. The court stated: "Either he [appellant] forgot the conversation Mrs. Lonie [appellee's sister] testified he had with her in October, 1975, in which she testified he told her that he was not Rita Ann's father, or as he testified, he never told her or anyone that he was not Rita Ann's father." Lower court opinion at 7. Therefore, while we must defer to a lower court's appraisal of the witnesses' credibility, Burston v. Dodson, supra; Commonwealth ex rel. Tobias v. Tobias, 248 Pa. Super. 168, 374 A.2d 1372 (1977); In the Interest of Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976); Clair Appeal, 219 Pa. Super. 436, 281 A.2d 726 (1971), here the only evidence that the court found credible was appellee's assertion that appellant is not Rita Ann's father. This assertion, when balanced by the evidence of the birth certificate, the support petition, and appellant's marriage and access to appellee, is not the "overwhelming evidence," Cairgle v. American Radiator & Standard Corp., supra; Burston v. Dodson, supra, required to overcome the presumption of legitimacy; it falls far short of "mak[ing] it clearly appear that the husband was not the father of the child," Commonwealth v. Fletcher, supra, 202 Pa. Super. at 68, 195 A. at 178. Therefore, the presumption of legitimacy stands unrebutted, and the lower court erred in finding that appellant was not Rita Ann's father.
The lower court concluded: "[O]n the basis of the finding of fact that John C. Ermel is not the natural father of Rita Ann Ermel, and for no other reason, that the petition of
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John C. Ermel for reasonable visitation with Rita Ann Ermel must be denied." Lower court opinion at 11. Since, as just discussed, the lower court's finding of fact was error, it is necessary to determine whether the record discloses any reason to deny appellant his right of reasonable visitation.
In Commonwealth ex rel. Peterson v. Hayes, 252 Pa. Super. 487, 381 A.2d 1311, 1312-13 (1977), we said:
A parent is rarely denied the right to visit a legitimate child. Visitation has been limited or denied only where the parent has been shown to suffer from severe mental or moral deficiencies that constituted a grave threat to the child. Commonwealth ex rel. Lotz v. Lotz, 188 Pa. Super. 241, 245, 146 A.2d 362, 364 (1958); see Commonwealth ex rel. Heston v. Heston, 173 Pa. Super. 260, 98 A.2d 477 (1953); Leonard v. Leonard, 173 Pa. Super. 424, 98 A.2d 638 (1953). Visitation has been granted parents who have ignored their children for a long period of time, Commonwealth ex rel. Turner v. Strange, 179 Pa. Super. 83, 115 A.2d 885 (1955); Commonwealth ex rel. Boschert v. Cook, 122 Pa. Super. 397, 186 A. 229 (1936), who have failed to support their children, Scott v. Scott, 240 Pa. Super. 65, 368 A.2d 288 (1976); Commonwealth ex rel. Lotz v. Lotz, supra, who have engaged in marital misconduct or who have lived with lovers, Commonwealth ex rel. Sorace v. Sorace, 236 Pa. Super. 42, 344 A.2d 553 (1975); Commonwealth ex rel. McNamee v. Jackson, 183 Pa. Super. 522, 132 A.2d 396 (1957), and even to parents whose children did not want to see them, Fernald v. Fernald, 224 Pa. Super. 93, 302 A.2d 470 (1973); Commonwealth ex rel. Turner v. Strange, supra.
Appellee testified that appellant had sexually molested Rita Ann:
A. [appellee]: She [Rita Ann] told me that her daddy had put his hand into her pants and he had touched her on the outside of her vagina. She showed me exactly where. She was laying on the bed.
Q. Did she use the word vagina?
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