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COMMONWEALTH PENNSYLVANIA EX REL. INEZ JOHNSON v. WILLIAM PEAKE (12/07/79)

filed: December 7, 1979.

COMMONWEALTH OF PENNSYLVANIA EX REL. INEZ JOHNSON
v.
WILLIAM PEAKE, APPELLANT



No. 1899 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Family Court Division, Women's Branch, Entered June 1, 1978, at No. 73282

COUNSEL

Barry H. Denker, Philadelphia, for appellant.

Elizabeth Petry, Community Legal Services, Inc., Philadelphia, for Commonwealth, appellee.

Hester, Hoffman, and Catania, JJ.*fn*

Author: Hoffman

[ 272 Pa. Super. Page 341]

Appellant contends that the lower court erred in ordering him to pay support for Anthony Johnson because appellee failed to prove that appellant was the boy's natural father. We disagree and, accordingly, affirm the order of the lower court.

On March 9, 1977, appellee filed a petition for support of her minor son, Anthony Johnson, in which she named appellant as the putative father. The lower court conducted a hearing on October 24, 1977, at which time appellee testified to the following: Appellant and appellee met sometime in 1958 or 1959 and started having sexual relations shortly thereafter. Although appellee was married to Andrew Johnson at that time, the two had been separated since 1956.*fn1 Appellant and appellee maintained their intimate

[ 272 Pa. Super. Page 342]

    relationship from 1959 through 1977.*fn2 Although both parties lived in Philadelphia during this period, they did not cohabit, because appellant was married and living with his wife. On April 2, 1965, appellee gave birth to Anthony Johnson, the subject of this action for support.*fn3 In the year before Anthony's birth, appellee did not have sexual intercourse with anyone other than appellant. Appellee did not see her estranged husband during that time period and did not know exactly where he lived.*fn4 Before Anthony's birth, appellant had sporadically given appellee small sums of money ($2.00-$3.00 at a time); after the birth, appellant gave appellee larger sums ($10.00-$30.00) on a more regular basis. Although appellant apparently did not specify how this money was to be used, appellee characterized it as, and the lower court expressly found it to be, support for Anthony. Appellant stopped giving appellee money sometime in 1976 or 1977.

Appellant admitted his sexual involvement with appellee between 1959 and 1977, but he denied having had intercourse with her in 1964, the year of Anthony's conception. Appellant suggested that appellee and her husband had continued intimate relations after their separation by establishing that she had borne two children by her husband between 1956 (the year in which they were separated) and 1959.*fn5 Appellant did not, however, attempt to refute appellee's assertion that she had not had intercourse with her husband (or anyone other than appellant) since 1959, and he admitted that he had never seen appellee's husband at her

[ 272 Pa. Super. Page 343]

    home during his eighteen-year relationship with her. The lower court rejected appellant's version of the events surrounding Anthony's birth and found appellant to be the boy's father. Accordingly, on June 1, 1978, the court ordered appellant to pay $7.00 per week for support of Anthony. This appeal followed.

In a civil action for support, "paternity may be shown by a preponderance of the evidence." Commonwealth ex rel. Lonesome v. Johnson, 231 Pa. Super. 335, 338, 331 A.2d 702, 704 (1974). Where, however, a married woman seeks to establish that someone other than her husband fathered the child for whom support is sought, she must overcome a presumption that the child is legitimate. Cairgle v. American Radiator and Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951); Burston v. Dodson, ...


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