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SANDRA L. GARDNER v. LARRY P. GARDNER (01/06/88)

filed: January 6, 1988.

SANDRA L. GARDNER, APPELLEE,
v.
LARRY P. GARDNER, APPELLANT



Appeal From Orders Entered October 6, 1986 and March 26, 1987, Court of Common Pleas, Family Division, York County, No. 709-SA-1979.

COUNSEL

O. Howard Mummau, York, for appellant.

Marc A. Roberts, York, for appellee.

Cavanaugh, Brosky and Watkins, JJ.

Author: Cavanaugh

[ 371 Pa. Super. Page 258]

In this appeal at No. 680 Harrisburg, 1986, the issue is whether in a petition to terminate support, the alleged father against whom the support order was entered, from which an appeal to this court was nol prossed, may be granted on the grounds that the petitioner was not in fact the child's father.

The facts and procedure in this case are quite complex and must be stated for an understanding of the issue involved. On February 14, 1971, Sandra Gardner (at that time Sandra Crone), who was the appellee herein, gave birth to a daughter, Angela. At that time Ms. Gardner was married to Robert Crone. The child was originally given the surname, Gilbert, the appellee's maiden name, as she did not believe that Mr. Crone was the father of her child. The birth certificate for Angela Gilbert named the father as Jeff Eugene Johnson, whom the mother believed was Angela's father.

The appellee testified that before Angela was born, that she had sexual relations with Larry Gardner. Her testimony in this respect was as follows:

Q. When you became pregnant, did you tell Larry? Did Larry know you were pregnant pretty soon after you found out?

A. I think I was three month after I found out, and yes, I did tell Larry.

Q. What was his reaction?

A. I guess he was happy.

Q. Did you tell Larry that he was the father of this child?

A. No.

Q. What did you tell him?

A. I told him I was pregnant.

Q. Well, did you tell him anything about who the father was?

[ 371 Pa. Super. Page 259]

A. I told him that there was . . . I tried to be very candid with him. I told him that there was a time span in between there that there was a possibility the child could have been Jeff's. I did not know.

Q. When you say Jeff, you mean Jeff Johnson?

A. Yes.

Ms. Gardner was divorced from Mr. Clone and on August 5, 1972 she and Larry Gardner, the appellant herein, were married. In December, 1973, the appellant signed a "Change in Civil Status Form" which noted his name as the father of Angela Gilbert and Sandra Gilbert as the mother. The original birth certificate listed Jeff Eugene Johnson as the father. In 1974 the parties had a son Lanny Gardner who is not involved in these proceedings.

The parties separated in 1979 and the appellee filed a petition for support for herself and Angela Gardner. On August 3, 1979 an order for support of Angela was entered by the court below by Buckingham, J.*fn1 The appellant took an appeal to this court from the order of support which was nol prossed in February, 1980, as the appellant failed to proceed with the appeal.*fn2 In the support proceedings, the appellant did ...


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