Appeal from Order of the Court of Common Pleas, Civil Division, of Armstrong County, No. 1983-1281.
J. Philip Bromberg, Pittsburgh, for appellants.
David F. Megnin, Kittanning, for appellee.
Spaeth, President Judge, and Rowley and Wieand, JJ. Wieand, J., files a concurring opinion. Spaeth, Former President Judge, did not participate in the final decision of this case.
[ 351 Pa. Super. Page 569]
This is an appeal from the trial court's Order determining that Jerry Wayne Williams, appellee, is the natural father of two minor children, Jeremiah James Fornell and Miranda Nicole Milliken a/k/a Miranda Nicole Fornell, and granting legal custody of the children to appellee. We find that appellee failed to meet his burden of proving that he was the father of Jeremiah and that the trial court did not apply the proper burden of proof to appellee's claim of paternity of Miranda. Accordingly, we reverse the trial court's order as to the paternity of Jeremiah and vacate the order as to Miranda and remand for further proceedings and application of the proper burden of proof as to the paternity of Miranda.
Sherry Noreen Fornell, the natural mother of Jeremiah and Miranda, died on April 23, 1983 from complications following the birth of Miranda on April 13, 1983. Following Sherry's death, Miranda was in the physical custody of Franklin J. and Cindy Milliken, Sherry's brother and sister-in-law. In April of 1984, Franklin J. and Cindy Milliken separated and since that time, Miranda has been in the physical custody of Franklin A. and Rhoda Milliken, her maternal grandparents. Jeremiah Fornell, born October 2, 1978, has resided with Franklin A. and Rhoda Milliken for the majority of his life, and they have been his primary caretakers.
[ 351 Pa. Super. Page 570]
On August 31, 1983, appellee filed a "Petition for Custody", naming Franklin A. and Rhoda Milliken and Franklin J. and Cindy Milliken as defendants, wherein he alleged that he was the father of both Jeremiah and Miranda, that he and Sherry Fornell had entered into a common law marriage, and that he was entitled to custody of both children. On October 29, 1983, appellants filed an Answer to appellee's petition for custody, denying that appellee was married to Sherry Fornell and denying that appellee was the father of Jeremiah and Miranda.
On November 30, 1983, appellee filed a motion requesting that Franklin A. and Rhoda Milliken and Franklin J. Milliken submit to Human Leukocyte Antigen (HLA) blood testing. The motion was granted. On December 5, 1983, the Order of November 30, 1983 granting the request for the HLA blood tests were stayed pending resolution of a rule to show cause why that Order should not be vacated. Prior to resolution of the issue regarding blood tests, hearings were held on January 31, March 26 and August 2, 1984, regarding the alleged paternity of appellee and custody of Miranda and Jeremiah. Appellee presented the following evidence relevant to the issue of his paternity.
Appellee testified that he first met Sherry Fornell in April of 1976 or 1977 in Illinois and that they began living together shortly thereafter. (N.T., January 31, 1984 at 64.) Appellee admitted that Sherry was married to Stewart Fornell when he first met her and that she did not obtain a divorce from him until sometime in 1980. (N.T., January 31, 1984 at 69.) Similarly, appellee admitted that he was married to Lauraleen Garland when he met Sherry Fornell and that they were not divorced until May 5, 1978. (N.T., March 26, 1984 at 28.)
Appellee further admitted that he had a substantial criminal record and that he was incarcerated in June of 1978 following his conviction for burglary of a drug store in Wisconsin. (N.T., January 31, 1984 at 88-89, N.T., March 26, 1984 at 18-20.) At the time he was imprisoned, Sherry was six months pregnant with Jeremiah. (N.T., January 31,
[ 351 Pa. Super. Page 5711984]
at 65-66.) Appellee served four and one-half months of a six month sentence for the Wisconsin burglary before being extradicted to Illinois in November of 1978 regarding violation of his parole in that state. Upon his extradition to Illinois, he was sentenced to three years imprisonment for two counts of burglary and forgery stemming from his unauthorized entry into an animal hospital. (N.T., January 31, 1984 at 88-89, N.T., March 26, 1984 at 18-19.) Appellee was incarcerated for eighteen months from November of 1978 to June of 1980, at which time he was released on parole. During this period, he stated that Sherry visited him when he obtained work release and they had sexual intercourse. (N.T., March 26, 1984 at 45, 68.) Appellee was apparently arrested again in June of 1980, and in August of 1980 he was again convicted of burglary in the state of Illinois and sentenced to four years imprisonment. (N.T., March 26, 1984 at 23-26.) Appellee was then imprisoned from August 1980 until December of 1981, at which time he was again released on parole. (N.T., March 26, 1984 at 25-26.)
When appellee was released from prison in December of 1981, he traveled to Armstrong County, Pennsylvania to visit with Sherry Fornell at the home of Rhoda and Franklin A. Milliken. (N.T., January 31, 1984 at 67.) Sherry had moved back to Pennsylvania in October of 1978 shortly after the birth of Jeremiah. Appellee testified that he then returned to Illinois to collect his belongings and to have his parole transferred. He stated that he returned to Pennsylvania in February or March of 1982 and that he and Sherry resided in a garage apartment for a short period of time. He testified that they subsequently moved to a trailer in Adrian, Pennsylvania, and then to a trailer in Cowansville, Pennsylvania, where he resided with Sherry until her death in April of 1983. (N.T., January 31, 1984 at 67.)
Appellee also stated that Sherry had a tubal pregnancy in 1981 and an abortion sometime in 1979 and that he believed that she had become pregnant by him in both instances. (N.T., January 31, 1984 at 68, N.T., March 26, 1984 at 68.)
[ 351 Pa. Super. Page 572]
Appellee also testified that he and Sherry had sought fertility counseling in 1982, that Sherry became pregnant again several months later, and that her due date was July 4, 1983. (N.T., January 31, 1984 at 69.) Thus, Miranda was conceived during October or November of 1982. Although appellee considered himself as being married to Sherry, he stated that he did not formally marry her because it would have reduced monthly public assistance payments that she received. (N.T., January 31, 1984 at 71-72.)
Appellee testified that he visited Sherry every day while she was in the hospital regarding the birth of Miranda, April 12 through April 23, 1983. (N.T., March 26, 1984 at 45-46.) In June of 1983, appellee began living with Agnes Mowry and her eleven year old son, Carl, in Kittaning, Pennsylvania. He stated that he intends to marry Ms. Mowry. (N.T., January 31, 1984 at 73.)
Appellee admitted that he received a subpoena directing him to bring copies of his tax returns prior to January of 1984 and copies of his divorce decrees to court. However, he stated that he did not produce these records because he was unable to find them; he admitted that he had made no attempts to secure the records requested. (N.T., January 31, 1984 at 82-83, N.T., March 26, 1984 at 39, 54-55.)
Harry T. Blaney, secretary-treasurer of Paul's Auto Parts in Armstrong County, testified that appellee has been employed at Paul's since May 12, 1982 as a counter-clerk. (N.T., January 31, 1984 at 12-13.) He stated that appellee listed Sherry as his wife and Jeremiah as his child for health insurance purposes and that appellee initially claimed three exemptions for tax withholding purposes; however he changed his exemption status to zero in January of 1983. (N.T., January 31, 1984 at 13-16.)
Peggy Ann Spence, a family service worker for the Headstart program in Armstrong County testified that Jeremiah was enrolled in Headstart sometime in October of 1982. (N.T., January 31, 1984 at 28.) She stated that she was required to visit the home of Sherry Fornell every second week. (N.T., January 31, 1984 at 28.) She further
[ 351 Pa. Super. Page 573]
stated that Sherry looked pregnant in October or November of 1982 and that during one visit with Sherry, she noticed bruises on her arm. (N.T., January 31, 1984 at 32-35.) Ms. Spence testified that Sherry told her that appellee had shaken her because he didn't believe that the baby she was carrying was his child. (N.T., January 31, 1984 at 35-39.) Ms. Spence also stated that Sherry told her that appellee was the father of Jeremiah. (N.T., January 31, 1984 at 30.)
Tracy Elaine Johns, a distant relation of Sherry's, testified that Sherry told her on numerous occasions, that appellee was Jeremiah's father. (N.T., January 31, 1984 at 43.) Anna Jane Cook, a casual acquaintance of Sherry's also testified that when she met Sherry and appellee at the Vernon Hotel in March of 1983, Sherry told her she was married to appellee. (N.T., January 31, 1984 at 49-50.) Ms. Cook also stated that Sherry indicated that she was pregnant with appellee's baby and that they had a four-year old child at home. (N.T., January 31, 1984 at 51-54.)
Rosalie Lee Waugaman testified that she attended Bingo with Sherry and that Sherry had also told her that Jeremiah was appellee's son and that appellee was the father of the baby she ...