No. 814 OCTOBER TERM, 1979 Appeal from the Order of the Court of Common Pleas of Lancaster County at No. 274 of 1978, Criminal.
Richard A. Umbenhauer, Lancaster, for appellant.
James D. Wolman, Lancaster, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Brosky, J., files a concurring opinion.
[ 283 Pa. Super. Page 191]
This case arises from a petition filed by Beverly M. Spangler for support for Richard Lee Spangler, her son, under the Pennsylvania Civil Procedural Support Law. The appeal is from an order requiring appellant to pay for the support of the child born on March 17, 1974. Appellant and appellee were married on December 31, 1966, separated on February 14, 1971, saw each other from time to time thereafter, and were divorced by decree dated March 22, 1974. The issue on appeal is whether appellant is the father of the child.
Appellee testified that she had had relations with appellant in July 1973, the approximate time of conception. She also admitted to having had relations at about the same time with two other men. Appellant denied having had relations with appellee at any time after their separation. There was evidence that the wife had made a statement to a Department of Welfare worker on March 26, 1974, 9 days after the child's birth, that she had been having relations with appellant and a boy friend at the time of conception. The lower court heard the testimony, rejected as not credible the husband's denial of having had relations with appellee, and found as a fact that the appellant was the father. We affirm the order of the lower court.
[ 283 Pa. Super. Page 192]
The child was born during the marriage and there is a strong presumption of legitimacy. The fact-finder in this case determined that there was access and sexual relations between husband and wife during the period of time when the child was conceived and in those circumstances ruled that "the presumption of legitimacy becomes irrefutable", Burston v. Dodson, 257 Pa. Super. 1, 13, 390 A.2d 216, 222 (1978).*fn1
Appellant argues that the presumption of legitimacy should be given less weight in modern times, because illegitimacy no longer, according to appellant, constitutes a "legal detriment and social stigma." We do not accept this argument, although we recognize that the presumption of legitimacy in any given case might be more or less decisive when all of the circumstances are examined. Certainly in the present case we are satisfied that the preponderance of the credible testimony, plus the presumption, support the finding of legitimacy. We therefore affirm the lower court.
BROSKY, Judge, concurring:
I concur in the result reached by the majority. The majority's decision affirming the lower court's finding that Ronald Lee S. is the father of Richard Lee S. and that, therefore, he must pay child support for the child is based on the fact that the child was born during the marriage of appellant and appellee. Pursuant to the time-honored legal presumption that children born in wedlock are legitimate, the ...