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ANNIE P. NIXON v. EARL S. NIXON (06/13/86)

filed: June 13, 1986.

ANNIE P. NIXON
v.
EARL S. NIXON, SR., APPELLANT



Appeal from the Order and Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County at No. DR 214699.

COUNSEL

Claire D. Newman, Philadelphia, for appellant.

William F. Coyle, Philadelphia, for appellee.

Montemuro, Popovich and Watkins, JJ. Montemuro, J., files a dissenting opinion.

Author: Popovich

[ 354 Pa. Super. Page 234]

This is an appeal from an order of the trial court in this paternity and support action after we remanded the matter for filing of exceptions nunc pro tunc. Commonwealth ex rel. Nixon v. Nixon, 312 Pa. Super. 313, 458 A.2d 976 (1983). We must reverse and remand for the reasons herein stated.

The facts in this case were set forth by the trial court in the following manner:

Appellee, Annie Nixon, and appellant, Earl Nixon, Sr., were married in Philadelphia, Pennsylvania, on December 2, 1953. On October 20, 1953, Earl Nixon, Jr. was born of this marriage. The parties separated in 1957, and Earl Jr. was in the custody of his mother. In 1959, appellee was informed by her son's doctors that the child had tuberculosis. The doctors also recommended that the child move to a warmer climate for health reasons. Mrs. Nixon moved with the child to Texas while Mr. Nixon remained in Philadelphia. Before she left Philadelphia, Mr. Nixon was ordered to pay thirty dollars ($30.00) per week to his wife for her support and that of their son by the Court of Common Pleas of Philadelphia County.

In March of 1967, appellee gave birth to another son, Paul Vance, in Houston, Texas. In September, 1977, appellee filed a petition seeking increased support for herself and for Paul Vance. She also petitioned the court to attach appellant's wages and to reduce substantial arrearages to judgment. Hearings were held and the parties agreed to submit to blood tests in order to determine Paul's paternity. Additional hearings were conducted and the trial court ordered appellant to make payments in the total amount of sixty-five dollars ($65.00) per week, with forty-five dollars ($45.00) allocated for the support of the son and twenty dollars ($20.00) allocated for the support of the wife. The court also granted appellant a credit on arrearages in the amount of $3,235.00. An appeal was launched to this Court (Nixon I) and the matter was remanded. Because appellant has filed exceptions nunc pro tunc, the appeal is now

[ 354 Pa. Super. Page 235]

    properly before this Court.*fn1 We must reverse and remand because the record is defective and also shows that the trial court failed to consider the statutory guidelines.

When a child is born during wedlock, there arises a strong presumption of legitimacy. Connell v. Connell, 329 Pa. Super. 1, 6, 477 A.2d 872, 875 (1984).

The "Uniform Act on Blood Test to Determine Paternity"*fn2 states that the presumption of legitimacy is overcome under the following circumstances:

The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child. 42 Pa.C.S.A. § 6137.

Additionally, we recognize the following effects of the blood test results:

If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence. 42 Pa.C.S.A. § 6136.

In this case, the trial court took testimony on the issues of paternity, support and arrearages and concluded that the blood test which excluded appellant as the father "was subject to several types of error [sic] which can result in false exclusionary findings." Trial Court Opinion at 10. The trial court also found that the presumption of legitimacy during wedlock was not rebutted because the "putative father is estopped from denying paternity because he has indicated by his conduct that the child is his own." Simply stated, the trial court applied the doctrine of equitable estoppel which has been described in the following manner:

     equitable estoppel, reduced to its essence, is a doctrine of fundamental fairness ...


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