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

SUPERIOR COURT OF PENNSYLVANIA


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 not raise the issue of paternity. The appellant was represented by counsel in the initial support proceedings.

[ 371 Pa. Super. Page 260]

The appellant complied with the support order for Angela. However, in January, 1985, the appellee sought an increase in child support. In May, 1985, the appellant through counsel filed a "Petition for Termination of Support" in which he alleged for the first time that he was not Angela's father.*fn3 The appellant also sought to have blood tests taken to determine paternity. The petition was dismissed and no appeal was taken from the order of dismissal.*fn4

In January, 1986, the appellant, through counsel, filed a second "Petition for Termination of Support". In these proceedings he was represented by new counsel who is also counsel on appeal. The petition alleged that the first time that the support order was "grounded on both fraud and mutual mistake" in several respects including the allegation in (a):

     a) Petitioner and Respondent were not personally acquainted at the time Angela Gardner was born to Respondent in 1971. There has never been any question

[ 371 Pa. Super. Page 261]

    for either Petitioner or Respondent that Petitioner is not the natural father of Angela Gardner.

The petition also requested that blood tests be ordered pursuant to the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. § 6131 et seq. The court below, through Horn, J., denied the petition for termination of support by order of October 6, 1986. The appellant has taken an appeal from that order.*fn5 The basis for the decision of the court below was that the order of support of August 3, 1979 was res judicata as to the issue of paternity of Sandra Gardner. The doctrine of res judicata provides that a final judgment or order entered by a court of competent jurisdiction in the absence of fraud or collusion is conclusive of facts litigated, or that could have been litigated, as to the parties in all other actions in the same jurisdiction. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super. 225, 464 A.2d 1313 (1983). In order for the doctrine of res judicata to apply, there must be a coalescence of (1) identity of cause of action; (2) identity of persons to the action; (3) identity of the quality or capacity of the parties and (4) identity of the thing sued upon. Brandschain v. Lieberman, 320 Pa. Super. 10, 466 A.2d 1035 (1983). The appellant does not challenge the existence of any of the identities and a challenge would not have been sustained. The entry of the support order established by implication that the appellant was Angela's father.*fn6 We

[ 371 Pa. Super. Page 262]

    stated in Commonwealth ex rel Nedzwecky v. Nedzwecky, 203 Pa. Super. 179, 182, 199 A.2d 490, 491 (1964):

[It was] implicit in the entry of the original support order that appellant was the father . . . In the absence of an appeal from that order, the fact of appellant's paternity . . . became established as a matter of law. A relevant fact necessarily determined as a prerequisite to the entry of an original support order may not, under the doctrine of res judicata, be challenged or put at issue in any subsequent proceeding. Cf. Commonwealth ex rel. Howard v. Howard, 138 Pa. Super. 505, 508, 10 A.2d 779.

We upheld the refusal of the court below to permit blood tests for a petitioner who denied paternity of a child whom he had previously been ordered to support. The appellant in Nedzwecky, supra, argued, to no avail, that at the time of the original order requiring him to support his alleged son, that he could not apply for blood tests under the statute then in effect. We note in the instant case that the Uniform Act on Blood Tests was in effect at the time of the original support proceedings and the appellant could have petitioned for a blood test if he wanted to dispute his paternity.

Commonwealth ex rel Palchinski v. Palchinski, 253 Pa. Super. 171, 384 A.2d 1285 (1978) applied Nedzwecky, supra. We stated at 253 Pa. Super. 174-5, 384 A.2d 1287: "If a party wishes to challenge a finding of paternity, he must do so by appealing directly from the support order. In the absence of an appeal, a finding of paternity is established as a matter of law." While the appellant took an appeal to the court from the order of August 3, 1975, it was nol prossed by this court and in effect an appeal was not taken.

This court recently held in Manze v. Manze, 362 Pa. Super. 153, 523 A.2d 821 (1987) that once an order for support is entered and no appeal is taken, the putative father cannot assert his lack of paternity as a basis for

[ 371 Pa. Super. Page 263]

    terminating support payments notwithstanding that blood tests showed that he was not the natural father. We stated at 362 Pa. Super. 159-60, 523 A.2d 824:

In the instant case, the issue of paternity was determined in December of 1980 when appellant chose to enter into a court order to support Deborah. Appellant could have demanded blood tests at that time but neglected to do so. As pointed out by the trial court, while appellant may not have known of his inability to procreate at the time he signed the support order, he was aware of other circumstances surrounding appellee's pregnancy which gave him reason to question Deborah's paternity. Having entered into the support order under these circumstances and having failed to appeal, appellant may not now challenge paternity.

See also Chrzanowski v. Chrzanowski, 325 Pa. Super. 298, 472 A.2d 1128 (1984); Barclay v. Barclay, 367 Pa. Super. 529, 533 A.2d 143 (1987).

The appellant acknowledges the general law that in support proceedings the issue of paternity is res judicata in the absence of an appeal from the order of support. However, he argues that he may now question paternity after the passage of several years on the grounds of fraud, mistake and ineffective assistance of counsel. He argues that he was entitled to effective assistance of counsel when the support order of August 3, 1979 was entered. He bases his argument on our decision in Banks v. Randle, 337 Pa. Super. 197, 486 A.2d 974 (1984). In that case, Stella Banks brought an action to determine support and/or paternity concerning her daughter. The putative father denied paternity and requested a blood test. A jury trial was held attended by defense counsel, but not by the defendant. The jury's verdict determined that the appellant, William Randle, was the father. On appeal, we decided that the appellant may raise the issue of ineffective assistance of counsel in an appeal from a civil proceeding in paternity. The basis for the decision in Banks v. Randle was our opinion in Corra v. Coll, 305 Pa. Super. 179, 451 A.2d 480 (1982) which

[ 371 Pa. Super. Page 264]

    held that in a civil paternity case indigent defendants have a constitutional due process right to appointed counsel. In Corra v. Coll, supra, the defendant denied paternity and requested counsel which was denied. Both of these cases involved a disputed issue of paternity. 42 Pa.C.S. § 6704(g) which was repealed by the Act of October 30, 1985 P.L. 264, No. 66 § 3, was in effect at the time of the original support proceedings in our case and provided:

(g) Trial of paternity. -- Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.

1978, April 28, P.L. 202, No. 53, § 10 (88), effective June 27, 1978. As amended 1980, Oct. 5, P.L. 693, No. 142 § 207(a), effective in 60 days.*fn7

The appellant contends in his second petition to terminate support that "Petitioner and Respondent were not personally acquainted at the time Angela Gardner was born to Respondent in 1971." Since the appellant claims he did not know Sandra Gardner prior to the time that her daughter, Angela was born, he was certainly aware at the time of the support proceedings that he was not Angela's father.*fn8 Sandra Gardner testified on deposition that she told the appellant when she was pregnant, but that Jeff Johnson might be the father of the child.

Mr. Johnson testified that Sandra indicated to him that she thought he was the father of her child.*fn9 It is important

[ 371 Pa. Super. Page 265]

    to note that all of the above testimony referred to took place on depositions taken many years after the original support proceedings.

Although today the proceedings pertaining to support and paternity are found in the Pennsylvania Rules of Civil Procedure, the civil-criminal distinction is unavailing in determining whether competent counsel is constitutionally required. Where paternity is denied and a trial is held on that issue, such counsel is necessary. See Banks v. Randle, supra. We decline to extend the requirement of effective assistance of counsel to the situation where a defendant does not deny that he is the father of the child when an action for support for the child is brought. In the case before us the issue of paternity was never raised in the original support proceeding and the appellant defended only on the grounds that the support was too high. He had the opportunity to deny paternity had he so desired, but chose not to do so. We hold that only where there is a trial on a disputed issue of paternity, is the putative father entitled to counsel. To hold otherwise would be tantamount to providing the right to appointed counsel in support cases. This has never been the law.

The appellant also contends that the support order was based on fraud and mutual mistake as to circumstances "documenting" his paternity. The appellant relies on R.J.K. v. B.L., 279 Pa. Super. 71, 420 A.2d 749 (1980) to support his argument that questions of fraud and mistake can be raised at this late date to challenge the support order entered in 1979. In that case, the court stated, "It is well settled that entry of a court order for support of a child

[ 371 Pa. Super. Page 266]

    necessarily determines the issue of paternity." The court further stated at 279 Pa. Super. 74-75, 420 A.2d 751:

Assuming the support order did constitute an admission of paternity, appellant next contends that the trial judge erred in refusing to permit introduction of evidence contesting that conclusion of fact. However, as a final decree, a support order can only be attacked on direct appeal. Armstead v. Dandridge, 257 Pa. Super. 415, 390 A.2d 1305 (1978); Commonwealth ex rel. Palchinski v. Palchinski, supra. No appeal from either support order was ever pursued in this case. The doctrine of res judicata now operates to foreclose any subsequent challenge on the issue of paternity. Commonwealth ex rel. Nedzwecky v. Nedzwecky, supra.

The fact that both support orders were consensual and not the result of a full evidentiary hearing makes them no less final and no more subject to challenge.

The court added by way of dicta that: "Allegations of fraud or mutual mistake would provide the only bases upon which a court would review such a final decree. Baran et al. v. Baran, supra "*fn10 279 Pa. Super. 75, 420 A.2d 751. The appellant does not indicate any fraudulent conduct on the part of appellee that would have prevented him from denying paternity at the original support proceedings. The fraud alleged is that appellant's first counsel gave him incorrect legal advice. Referring to the support proceedings

[ 371 Pa. Super. Page 267]

    in 1979, appellant states in his appellate brief at page 5: "At the time, Larry and Sandra were embroiled in a custody battle for their son, Lanny, and Larry's attorney advised him not to raise the issue of Angela's paternity during the custody battle. He told Larry that this could be taken care of later." We fail to see how counsel's advice or misadvice, if it be so, can be held to amount to fraud.

With respect to mistake, there is no indication that appellant was mistaken as to his status concerning Angela's paternity. The appellant did not raise the question of fraud or mutual mistake in an appeal to this court as the appeal was abandoned, nor was it raised in the first petition for termination of support. We conclude that the court below properly dismissed the petition to terminate on the grounds of res judicata.

The appeal at 0179 Harrisburg, 1987, is from an order of the court of March 26, 1987, holding the appellant in contempt of court for failing to comply with an earlier support order in the amount of $96.00 per week. It was also agreed at the contempt hearing on March 26, 1987 that there were arrearages owed by the appellant for support for Angela in the amount of $10,691.60. The following took place at the contempt hearing:

BY MR. ROBERTS: (Attorney for appellee)

Q. Let me ask you this, Mr. Gardner. I am trying to get into what your true feelings are about this, if you misunderstand my question I will try to do a better job rephrasing it. If there were a way you could satisfy the court you were acting in good faith and yet also satisfy your goal that Sandra Gardner shouldn't get any of your money, you would be willing to go along with that, wouldn't you?

A. No, if I understand the question, let me tell you in language terms, okay. In all due respect, I'm not paying anything until I have expended every possible legal avenue there is to go.

Q. You mean to say that if we could establish an escrow account for you to pay fifty dollars ($50.00) a week into

[ 371 Pa. Super. Page 268]

    and you would have been given absolute assurance that money wouldn't be touched by Sandra Gardner until all your appeals were exhausted and Sandra Gardner won, and you wouldn't be willing to go that way?

A. Let me make this simple, in all due respect [sic] nothing am I paying under any circumstances or any given -- I'm not going to do it. (Emphasis added)

There is no doubt that the appellant willfully failed to comply with the support order. Contempt proceedings are civil in nature and the court following a hearing in which it determined that the respondent had wilfully failed to comply with a previously entered support order, properly imposed a coercive, conditional sentence for contempt. Commonwealth ex rel. Heimbrook v. Heimbrook, 295 Pa. Super. 300, 441 A.2d 1242 (1982). The order set forth a manner in which the appellant could be purged of contempt and in fact the appellant did purge himself of contempt and was released from incarceration.

The appellant argues that the order of January 26, 1986 to pay $96.00 per week entered by Judge Roe, who subsequently died, was only a temporary order and could not be the subject of a contempt proceeding. This argument is without merit. The Civil Procedural Support Law, 23 Pa.C.S. § 4345 provides:

§ 4345. Contempt for noncompliance with support order

(a) General rule. -- A person who willfully fails to comply with any order under this chapter . . . may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any one or more of the following:

(1) Imprisonment for a period not to exceed six months.

(2) A fine not to exceed $500.

(3) Probation for a period not to exceed six months.

(b) Condition for release. -- An order committing a defendant to jail under this section shall specify the condition the fulfillment of which will result in the release of the obligor.

1985, Oct. 30, P.L. 264, No. 66 § 1.

[ 371 Pa. Super. Page 269]

The order of the court complied with the law and will be affirmed. Even though the order of Judge Roe may have been temporary, as appellant alleges, it was nevertheless the proper basis for the entry of a contempt order based on noncompliance. The fundamental basis for imprisonment for failure to support, is the contemptuous disregard of the court's authority. Commonwealth ex rel. Taylor v. Keenan, 173 Pa. Super. 418, 98 A.2d 460 (1953).

Finally, the appellee contends that she is entitled to further costs under Pa.R.A.P. 2744 on the grounds that the appeal is frivolous and that the conduct of the appellant in taking the appeal is vexatious. Considering the complex nature of these proceedings, we find that the appeal is neither frivolous nor vexatious, and accordingly we shall impose no additional costs on the appellant under the Pennsylvania Rules of Appellate Procedure.

Order at appeal 680, Harrisburg 1986 affirmed and order at appeal 179, Harrisburg 1987 affirmed.

Disposition

Order at appeal 680, Harrisburg 1986 affirmed and order at appeal 179, Harrisburg 1987 affirmed.


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