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MARY ELLEN MANZE v. CHARLES J. MANZE (04/08/87)

filed: April 8, 1987.

MARY ELLEN MANZE, APPELLEE,
v.
CHARLES J. MANZE, JR., APPELLANT



Appeal from the Judgment Entered February 2, 1987 in the Court of Common Pleas of Montgomery County, Civil No. D-2673-80.

COUNSEL

David S. Kaplan, Pottstown, for appellant.

Michael P. Gottlieb, Norristown, for appellee.

Cavanaugh, Olszewski and Tamilia, JJ.

Author: Olszewski

[ 362 Pa. Super. Page 155]

This is an appeal from a judgment entered on an order denying exceptions to a decree nisi which dismissed appellant's petition to terminate support.*fn1 Appellant, Charles J. Manze, Jr., argues that the trial court erred in finding that he may not now challenge paternity. After a careful review of the record, we conclude that the trial court correctly rejected appellant's arguments. We therefore affirm.

The events giving rise to this appeal are as follows. Appellant and appellee, Mary Ellen Manze, were married on January 30, 1970. Appellee was pregnant at the time and three and a half months later, on May 12, 1970, gave birth to a daughter, Deborah. Ten years later the parties separated and appellee filed a petition against appellant for spousal and child support. In an agreed order dated December 18, 1980, appellant was ordered to pay $10 per week for the support of appellee and $65 per week for the support of Deborah.*fn2 The parties included appellant's support

[ 362 Pa. Super. Page 156]

    obligation in their separation and property settlement agreement, which in turn was incorporated into a decree of divorce dated March 2, 1982.

Appellant remarried on October 23, 1982 and, after trying unsuccessfully to have children, learned that he never could have fathered a child. In November of 1983, appellant filed a petition to modify or vacate the support order based on the fact that he had been laid off from work.*fn3 Thereafter, in January of 1984, appellant requested and was granted an order directing the parties and Deborah to submit to blood grouping tests. The results of the HLA testing excluded appellant as the father of Deborah. As a result, on March 26, 1984, the lower court dismissed the support action against appellant. On April 6, 1984, however, the trial court vacated its dismissal order of March 26, 1984, and directed that the matter be listed before a judge without prior submission to the support master. Appellant then filed, on June 7, 1984, the instant petition to terminate support based on the HLA blood test results. On October 12, 1984, after a hearing on appellant's June 7, 1984 petition, the trial court issued an adjudication and decree nisi ruling that res judicata and equitable estoppel precluded appellant from denying paternity. The decree nisi dismissed appellant's petition and directed that the decree become the final order of the court unless exceptions were filed within ten days. Appellant filed exceptions on October 22, 1984, which the court denied by order entered August 8, 1985. Appellant appealed the August 8, 1985 order on September 5, 1985.

We observe first that this appeal presents a question of timeliness. Although appellee does not raise this issue, it concerns our jurisdiction and we may therefore raise it sua sponte. Penjerdel Refrigeration Corp., Inc. v. R.A.C.S., Inc., 296 Pa. Super. 62, 64, 442 A.2d 296, 297 (1982). Specifically, we question whether this appeal should have been

[ 362 Pa. Super. Page 157]

    taken directly from the trial court's October 12, 1984 determination denying appellant's petition to terminate support rather than from the court's August 8, 1985 order dismissing appellant's exceptions to the October 12, 1984 adjudication. Problematic is the trial court's entry of a decree nisi indicating that exceptions could be filed to its determination ...


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